29/05/2018 11:06 BST | Updated 29/05/2018 12:31 BST

Stagnant Laws Fail Harassed, Assaulted And Murdered Women

'Women are inherently vulnerable in a patriarchal, hypermasculine society. Should the balance in our legal system not favour them?'

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The recent allegations of abuse by Gqom artist Babes Wodumo have brought into sharp focus the praxis that activist or sympathisers use to exercise their activism or solidarity.

Popular drive-show host Mascheba Ndlovu seemed determined to out Mampintsha, a well-known personality in South African music. The manner in which the revelations were brought to the fore has left several South Africans divided about how we confront alleged rapists and abusers.

Some argue that this should be done with due consideration of certain intangible costs that might engulf the said victim, and others argue that silence on such matters almost always results in a preventable death.

With humiliating familiarity, females being brutally culled by males they know intimately is often accompanied by a cacophony of friends and relatives of the now deceased or humiliated victims (survivors) who had a sneaky suspicion or saw the signs, but ignored them until the fatality or brutality manifested itself.

The common denominator in all these cases of abuse is the law's inability to create a safe haven for survivors (victims) to lay a complaint without being shamed or having to relive the experience.

This is no surprise, since patriarchy is deeply embedded in our society. To this end, women are often told, "But you asked it for it, how could you dress like that?" Those in political circles are simply dismissed with contempt: "The allegations are an attempt to render so-and-so ineligible to stand for xyz position." This is the exact contempt used to dismiss children who report sexual violations: "No, uncle so-and-so would never do that," or: "If we report this, what will people out there say? I will destroy our family."

If women are the most vulnerable, should the balance of power in our legal system not favour them?

The patriarchal hegemony thrusts upon women the same characteristics as children, turning women into people who cannot care for themselves without the omnipresent male (parent). Thus the relationship between men and women is almost always a vertical relationship.

Women and children are inherently vulnerable in a patriarchal, hypermasculine society. It is undisputed.

So if women are the most vulnerable, should the balance of power in our legal system not favour them? After all, the core thrust of justice is to protect the most vulnerable. South Africa's current legal system makes it difficult for women to reclaim their dignity when it is violated in sexual crimes and domestic violence.

Often laying a charge against the perpetrator involves giving a detailed account of a deeply traumatic experience, in a hostile environment, more than once. Sometimes this involves having to give evidence (again reliving a traumatic moment) against a powerful individual. It is the woman who is put on trial. All of this creates a significant barrier that makes silence seem like a rational option. In essence, the legal system is psychologically unbalanced and incapable of producing just results.

This all rests on the archaic legal rule that "Ei incumbit probatio qui dicit, non qui negat" — which means that the burden of proving a fact rests on the party who asserts it, and not upon the party who denies it, because you can't prove a negative. This is accompanied by the standard that demands proof beyond reasonable doubt, which applies to general crimes and sexual crimes alike.

This standard is best explained in the words of the 18th-century British jurist Sir William Blackstone, who argued: "It is better that ten guilty escape than one innocent suffer." One must concede that falsely imprisoning an innocent individual is heinous. But is this response a just one, to someone who has to walk past her rapist every day? Especially in the 21st Century, when it is known that most sexual offenders are repeat offenders.

What legal praxis could we develop to protect women?

Our society is already geared to the advantage of men. When a man is found not guilty on the basis of reasonable doubt, it creates the perception that he was in fact innocent — and the accuser was a liar. A large number of acquittals in rape cases serve to reinforce another unfounded rape myth — that women are vindictive and frequently lie about having given consent. These myths further discourage victims from coming forward.

So the question ought to be, what legal praxis could we develop to protect women?

How do we change the standard we rely on to ensure that justice for women will be pursued? In civil and labour law matters, the "preponderance of probabilities" standard has been used on a consistent basis to decide matters.

In a civil case, the onus is obviously not as heavy as it is in a criminal case, but nevertheless that onus rests on the plaintiff — to satisfy the court "on the preponderance of probabilities" that the plaintiff's version of events is true, making the defendant's version false or mistaken.

With the assistance of the state, women must be able to litigate directly against men, without having to endure the persistent trauma currently evidenced in criminal justice procedures. The moral framework of our society has been reframed by the #MeToo movement; our legal system needs to respond to this urgently.

Moreover, our legal system needs to ingrain a principle of reverse onus when it comes to sexual crimes (including harassment) and domestic violence. It was also Blackstone who said: "Law is the embodiment of the moral sentiment of the people."

Why assume the woman is lying? Where is the logic in this?