Sexual violence is a scourge in our society. Our University should and will be leading the discussion on how this scourge can be eliminated. We are grateful to students who have highlighted the issue. However, any discussion regarding rape and rape culture must take place in light of the rights and values enshrined in our Constitution, and with due respect for the rule of law which includes the principles of natural justice.
The Law Faculty stands for the protection of the constitutional rights of all persons. What has been made clear through the discussions of last week is that more can be done to protect the rights of those who seek justice in cases of sexual violence. As a faculty, we commit ourselves to working towards the improvement of systems in place to deal with sexual violence. However, as the Constitution makes clear, the protection of the rights of those subjected to sexual violence does not nullify the rights of others. Anyone who stands accused of a criminal offence has the right to a fair trial and to be presumed innocent until proven otherwise.
We condemn in the strongest terms acts of sexual assault and rape, and we urge students to lay criminal charges against alleged perpetrators so that the full force of the law can be brought to bear in the matter. We are concerned that the rights of alleged perpetrators, many of whom are registered students at Rhodes University, have been infringed during the events of last week, resulting in possible irreparable harm to their reputations, their studies and their future careers. They have been publicly accused, without formal charges being levelled against them, and they have not been granted the opportunity to respond to the accusations.
In this context, the Law Faculty feels compelled (and indeed has the responsibility), to clarify the following:
- We fully recognise, defend and protect the right of our students to protest peacefully.
- We urge students not to take the law into their own hands, but rather to use whatever legal recourse is available to them to protect their legal rights, and to allow due process to take its course.
- We remind our students of the constitutional principle of equality before the law: the rights of those subjected to sexual violence must be strenuously protected, but so too must the rights of those they accuse of committing these acts. We say this in the context of those persons whose names appear on the so-called reference list: these persons should be afforded a fair hearing. We call upon students and others to remove unproven and potentially defamatory (and hence actionable) allegations against any individuals from social media platforms.
- We remind students that any alleged perpetrator remains innocent until proven guilty. In order to be found guilty, a complaint must be made by a named complainant against an alleged perpetrator. The complaint must be investigated, the evidence must be sufficient to make out a case to be answered, the alleged perpetrator must be charged before a competent court (or disciplinary body), and must be called to answer to the charge. The prosecution must present evidence before the court demonstrating the guilt of the accused. The accused may raise a defence and present evidence to the contrary. The court must make a finding, on the basis of all the evidence, as to the accused person’s guilt or innocence. The prosecution – and not the complainant – bears the burden to present evidence and prove the charge before the court beyond a reasonable doubt.
- We remind students that the Student Disciplinary Code provides for the possible suspension of a student charged with an offence pending the outcome of a disciplinary process. A suspension hearing can only be called after a formal complaint has been made.
- We wholly support the progressive initiatives that the University has undertaken, such as the establishment of a multi-disciplinary task team consisting of staff and students to investigate how sexual violence can be eradicated from our institution and our society. We encourage the University to deal with these issues as a community, with due regard to the constitutional rights of all individuals. Such rights include respect for each person, their agency, and their right to freedom of expression. It is possible to disagree and to remain respectful of one another.
- We remind students that the interdict obtained by the University serves to clarify acceptable and lawful behaviour during a peaceful protest. The interdict does not ‘criminalise’ protest, but reflects already existing legal boundaries for the protest. The interdict demands respect for the rights of others who choose to participate in the academic programme, for whatever personal reasons. It allows for choice. We urge all students to respect the rights of others to choose. It is possible to support the important cause highlighted by the protest, while continuing the academic programme.
Law reform is an ongoing process and as law academics we endeavour to engage with the different challenges that our society faces within the bounds of that which is constitutionally acceptable. We urge everyone in the University community to do the same.
We invite any member of the University community to engage with us on the legal issues highlighted by the events of the past week in the appropriate forum. We further invite you to put forward suggestions that we may explore in order to propose constitutionally compatible law reform to assist complainants in matters of sexual violence while respecting the rule of law and due process. In addition, the Rhodes Law Clinic is available to assist with legal advice in regard to any of the above issues.
25 April 2016