THE BROADCAST OF THE TESTIMONY AND CROSS EXAMINATION OF CHERYL ZONDI

By Sheena Jonker

This week I watched most of the cross-examination of Cheryl Zondi in the trial of Tim Omotoso. I wasn’t shocked. I wasn’t shocked at all. We were merely watching the criminal justice system work as it is designed to work.

CRIMINAL JUSTICE AND EVIDENCE IN RAPE CASES

Before I get to the questions of the actual broadcast of a rape complainan’s or witness testimony, it’s important to understand a few things about criminal justice.

If we want the state to be charged with the punishment of its citizens, then if it accuses a citizen of a crime, it must bare the onus of proving guilt and the standard of proof (how much evidence must be brought) must be high. In criminal matters the standard is beyond a reasonable doubt. This means an accused must be given the benefit of the doubt if reasonable doubt exists and, by extension it means that the accused him-or herself or through his or her representatives must have the right to robustly test the version of the state by robustly cross-examining its witness or witnesses. The burden and standard of proof exists, in part, to protect the innocent. Of course none of us would wish to be on the receiving end of a criminal trial where either the onus were on us to prove our own innocence, or even if it weren’t, that the state, our would-be punisher, had a lighter burden of proof.

Because matters of sexual violence usually involve an abuser and a victim with complex power relations at play, evidence is a very difficult matter. The result is that conviction rates are very, very low. This is not as a result of an incompetent legal system. This is as the result of the western adversarial/accusatorial criminal justice system working as it is designed to work.

My own view is that it is a system that is simply not the right place to figure out the problem of sexual violence. As I speak and write extensively about, unless we are open to sentencing reform and alternative sentencing, we are not going to be able to bring about reform in the actual forum that is criminal justice as it relates to sexual violence matters.

I practice restorative justice in matters of sexual violence precisely because it offers more potential for practical protection and restoration of victims of sexual violence. The starting point of my work is a massive “We believe you” over the life of a victim. In criminal justice a massive “How can we possibly believe you” is spoken over the life of a victim of sexual violence. And where there is an acquittal, which more often than not is the case, then he or she has the added burden of having to journey through life having gone through a formal process where he or she was not believed.

SHOULD IT HAVE BEEN BROADCAST?

I absolutely abhor what happens to witnesses who levy an accusation or rape or sexual violence against someone. I’m not a fan of anyone bleeding in public or the public spectacle aspect of it all.  I abhor the cross-examination, the intrusion, the violence of how they are cross-questioned, but I do applaud the bravery of Cheryl Zondi for allowing her testimony to be broadcast. Here is why:

Victims are often lambasted for not reporting and/or for not laying charges. Cheryl Zondi helped us see for ourselves why this is the case. Victims have to endure much hardship in levying an accusation and then in sustaining an accusation against someone they say has sexually assaulted or raped them. Cheryl Zondi stood proxy for and laid bare the reality of what it takes and how potentially damaging and destructive it is.

CHERYL ZONDI AS A WITNESS

Cheryl Zondi is a witness of astounding inner fortitude with an exceptional ability to communicate and stand her ground. Not every victim or witness is like that. Cheryl Zondi has a distinguishing strength about her. We cannot possibly expect that of every victim or every witness. Whilst I think and hope her courage will encourage (literally put courage into) others, we must be careful not to inadvertently expect this of other victims or witnesses.

The broadcast of her testimony may deter some and it may strengthen some. We don’t know. But whatever the case, I do think that there are benefits to a public glance into a rape trial so that we are able to gain insight into the many burdens and obstacles faced by victims of sexual violence and the damaging and oft-and widely held stereotyped ideas we harbour from “how can we believe you if you went back?” to “how can we believe you if you didn’t scream?” or “how can we believe you if it took you so long to speak up?” to “how can we believe you if you looked happy in this photo?”

There is so much for all of us to learn from and reflect on from watching the testimony of Cheryl Zondi. Of course the indignity should enrage us. Of course the vile questions of Daubermann should enrage us. We should be and should remain inconsolable in our grief and rage.

WHAT DO WE DO WITH THIS?

We should be spurred on in our inconsolability to reflect on how much of this surrounds us. Trafficking women and children for sex exists on the extreme end of the spectrum. But the power relations that often subjugate women and children and that most of us partake in to some degree or another and the extent to which we blame the victim and/or implicate him or her in his or her own abuse, is something that we can do something about.

To Cheryl Zondi, you are loved, you are believed and I thank you for your beautiful contribution to this world of ours even in, and perhaps especially in your pain. None of this should ever have happened to you.

Sheena Jonker

Restorative Justice Lawyer

Access to Justice and ADR Network SA

Sheena@accesstojustice.co.za