Withdrawing A Rape Case: Are You Making The Right Decision?

THE Namibian newspaper recently published an SMS asking how can a rape case be withdrawn and the suspect released, without the case appearing in court. The aim of this article is to provide more information on the issue of rape case withdrawals.

Complainants request withdrawals in more than one-third of all rape cases in Namibia. The Gender Research and Advocacy Project at the Legal Assistance Centre uncovered this fact in its extensive 2006 study on rape cases in Namibia.Although the decision to withdraw a rape case is usually initiated by the person who has been raped, the final decision as to whether the case will go ahead or not rests with the Office of the Prosecutor-General. This is because the person who has been raped is not a party to the case – a rape case in court is between the Government and the accused and the person who has been raped is a witness to the case. This is because the Government has a duty to protect people against crime, and when a crime does occur the Government must take responsibility to address the issue. In cases of rape, one of the responsibilities is to prosecute the case, where possible. A rape is not only a crime against the victim, but also a crime against the state. This means that the Office of the Prosecutor-General could decide to continue with a rape case even if the person who was raped is not willing to give evidence. A case might go ahead if there are a number of other witnesses to the rape. However, in the majority of cases, if the person who has been raped refuses to testify, the case will not go ahead as the person who has been raped is usually the only witness to the crime.The high number of rape case withdrawals is a matter of concern in Namibia. To understand the reasons why so many cases are withdrawn, the Gender Research and Advocacy Project conducted a study on the topic. The people interviewed volunteered a total of 78 different reasons for rape case withdrawals. As one of the participants said ‘it’s not any one reason that causes a woman to withdraw her rape case, it’s the whole process’.The most frequently-cited reason for case withdrawal was alternate resolution by means of compensation. Compensation for rape can take different forms. In the study, it was reported that in Ongwediva compensation is most often paid in the form of livestock, with the intervention of a traditional leader; in Keetmanshoop, compensation was more likely to be paid in cash as a result of negotiations between families. While some people see compensation as a respected and legitimate method for resolving a criminal matter, others perceive the acceptance of compensation for a rape as devaluing the seriousness of the crime and even the woman herself. Some view it as ‘buying’ the victim’s right to prosecute her case, or even buying the right to rape her. Sometimes family or community members pressurise a complainant to withdraw a rape case and accept compensation or other mediation, against his or her will. One of the biggest concerns is that compensation does little to prevent repeat rapes since it allows the rapist to walk free. Around the world, studies have shown that rapists have a particular tendency to repeat their crimes.There are a number of other reasons why people withdraw rape cases. Some women reported fears that the rape case will drag on too long, or that they will go through the trauma of a court case and then find that there was not enough evidence for a conviction. Some people also expressed a lack of trust in the system.It is clear that there are a number of challenges, and reasons, why rape cases are withdrawn in Namibia. More can and must be done to address this issue. Over 1500 cases of rape or attempted rape are reported each year in Namibia, meaning that literally thousands of women are affected by rape. This also means that thousands of rape survivors stand to benefit from a system that will more effectively support them. As one of the research participants said ‘it’s not any one reason that causes a woman to withdraw her rape case, it’s the whole process’ – and the solution will not be one just one change, but changes to the whole process.The ten most common reasons for rape complaint withdrawal1. The woman received compensation;2. The woman was pressured by her family to withdraw the case;3. The woman feels ashamed that she was raped;4. The rapist physically threatened the woman to withdraw her case;5. The timetable for the prosecution of a rape case is too long;6. The woman feels that she has insufficient evidence to win her case;7. The woman lacks the necessary information;8. The rapist occupies a position of status in the community;9. The woman was bribed to withdraw her case;10. The woman is in a position of financial distress.Four reasons NOT to withdraw a rape case1. The person who raped you should be punished. Rape is a serious crime with a serious sentence. The Combating of Rape Act says that the minimum punishment for a rape is five, 10 or 15 years in prison – depending on the circumstances of the rape. If the person who raped you goes free, he or she may do it again.2. T he person who raped you needs to be told that rape is not acceptable in Namibia. By taking the case to court, you are sending a message to the perpetrator and society that rape is not acceptable. The punishment is also an example to other people who might commit a similar crime.3. You are taking control of the situation. Many rape survivors feel that the rape has taken away all of their power. By taking the case to court, you are taking back control of your life.4. You are able to tell your story. In the hearing, the court listens to the facts about what happened. You will have a chance to give your account of what the rapist did to you. You are able to show the rapist that you are not a victim but a survivor.The LAC has produced an pamphlet on withdrawing a rape case in English, Oshiwambo, Afrikaans and Otjiherero. The pamphlets are available from our office or our LAC website: www.lac.org.na. A copy of the report Withdrawn: Why complainants withdraw rape cases in Namibia may also be obtained from LAC office or website.* The author of this opinion piece works with the Gender Research and Advocacy Project, Legal Assistance Centre