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In the wake of this week’s evidence at the trial of Nigerian televangelist Timothy Omotoso, and difficult questions directed at witness Cheryl Zondi, experts have raised concerns that Zondi’s treatment could discourage rape victims from coming forward.
But they have also cautioned that, while defence attorney Peter Daubermann may have crossed the line with some of his questions, Zondi’s composure under cross-examination also shows rape survivors that the experience of going through a trial can be empowering.
Zondi has accused Omotoso of sexually abusing her since the age of 14. She alleges the rapes took place in Durban, Israel, Nigeria, Port Elizabeth, Cape Town, Bloemfontein, and a number of other cities.
Zondi is the first witness in the trial, in which Omotoso and his two co-accused face over 60 charges relating to the alleged kidnapping and trafficking of mmore than 30 girls and women.
During his cross-examination this week, Daubermann asked Zondi a number of questions which caused Judge Mandela Makaula to intervene, and which many have said were inappropriate. At one point, Daubermann asked Zondi by how many centimetres Omotoso had penetrated her.
He asked Zondi why she did not scream and asked her if, by travelling to Durban to see Omotoso, she did not "accept the risk of being raped". He also asked her why she had not phoned someone for help. Zondi explained that she was afraid for her life and was very young.
Despite the fact that she was just 14 years old when the abuse started, Daubermann wanted to know if she had "basically consented" to the sex when she submitted to his requests for intercourse.
'The questions can be very, very nasty'
Advocate James Grant, legal expert and associate professor at Wits University, says that the "rule" is that defence attorneys do not need to ask "offensive or gratuitous questions". Questions should relate to the actual offence, he said.
"It’s probably for that reason that the judge intervened, together with the fact that he appears to have crossed some line in respect of asking questions which relate to previous sexual conduct," Grant said. Much of Daubermann’s cross-examination this week centred on the relationship between Omotoso and Zondi.
Grant said there was a common law precedent that says witnesses should be treated with respect, as well the Criminal Procedure Act, which forbids questions in a rape case related to previous sexual conduct, unless the judge grants specific permission.
Lawyers also may not ask irrelevant questions. Grant said that a question about how deeply Zondi was penetrated was "utterly irrelevant".
There was a "definite danger" that the public nature of the trial could discourage victims of sexual abuse or rape from coming forward, he said.
"Inevitably, these very nasty questions get asked. In a sense, it is the defence counsel’s job to show that the accuser is a liar. And when it's got to do with a sexual offence, the questions can be very, very nasty. Judges often intervene where the evidence relates to a sexual offence."
Grant added that a hostile approach by a defence attorney could backfire if the witness remained unshaken.
He said it was also important for lawyers to remember that "submission is not consent", and that whether Zondi "screamed" or not didn't determine whether or not the act was rape.
Timothy Omotoso arrives in the High Court in Port Elizabeth for his trial. (Nosipiwo Manona, News24 Correspondent)
'She is an example of how to stand up to cross-examination'
Researcher and activist Lisa Vetten said that, while there was a risk that the trial could prevent women from coming forward, Zondi’s strength while handling Daubermann’s tough questions could also empower women.
She said the case showed how critical it was for witnesses to be properly prepared, and it was "clear" that Zondi had been.
Vetten said we should focus on how Zondi had handled the cross-examination. Zondi has been widely praised for her composure while facing tough questions.
She said victims should "see what is possible – that it is possible to stand firm. That is something positive. We often get the impression that cross-examination breaks women. We’ve now seen that that is not always the case. She is an example of how to stand up to cross-examination".
In her research, Vetten said she spoke to lawyers who said their cases went better when prosecutors spent more time preparing witnesses. Unfortunately, especially in the regional courts, Vetten said prosecutors often did not have the time to prepare witnesses thoroughly, although the situation seemed to be better in the higher courts.
Outside court, members of the #TotalShutdown movement demonstrated this week in solidarity with Zondi.
'Demeaning'
Zoe Charles from #TotalShutdown in Port Elizabeth said that, in rape cases, victims were being revictimised and retraumatised on the stand. She said questions about how deeply Omotoso had penetrated Zondi were "demeaning".
Charles said the movement was also calling for the judge to make sure that the minimum sentence of 25 years was handed down, should Omotoso be convicted, and that "loopholes" in the law weren’t used to let him serve a lesser sentence.
Criminal defence attorney William Booth said it was not a good idea for defence attorneys to lose their cool during a trial. He said trials were inherently confrontational, so some confrontation was inevitable, but he said attorneys should be mindful of their conduct in all criminal matters.
While awkward, Booth said it was important to probe "the nature of the relationship" between the accuser and the accused, especially if there was a previous consensual sexual relationship.
"One must have an understanding and be sensitive, but fight your client’s case to the bitter end, in the right way. If you get flustered, you should rather ask for an adjournment and take a breath. Your reputation as an effective great cross-examiner doesn’t have to be tarnished by shouting and screaming at the witness," Booth said.
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