Respecting the rights of the accused

“If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet,” tweeted actress Alyssa Milano on 15 October to encourage assault survivors to show the world just how pervasive the problem of sexual assault and harassment is, even in 2017. Since this tweet, awareness about sexual violence has flooded our social media but as awareness has increased, so too have the number of legally inappropriate opinions about how to deal with alleged rapists. Call them out anonymously. Name and shame them publicly. Personally make them suffer. We’ve heard these opinions before during the #RUReferenceList protests at Rhodes University last year, and they were as troubling then as they are now.

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Image sourced from Giphy.

The RUReferenceList protests began when a list of alleged rapists was anonymously published on Facebook as this resulted in students uniting to protest against the rape and sexual violence policies of Rhodes University. The protestors made a list of demands to management that ultimately resulted in Rhodes updating its sexual violence policies and establishing a sexual violence taskforce. It can unequivocally be agreed that the cause of the protest is serious and that its goals were commendable. The means of the protest however, were questionable.

Although the publication of the “reference list” led to much-needed discussion, debate, and (sort of) transformation, the lives and futures of those eleven people on the list were destroyed, their guilt established in the minds of thousands without a trial. Even a year later, the mud sticks to those who were found innocent as stigma plagues their futures and questions about the reference list continue to haunt them. This issue is one of great importance as the rights of the accused are protected by South Africa’s Constitution, which serves as the supreme law. An accused has the right to be presumed innocent until proven guilty beyond a reasonable doubt in order to prevent false accusations from sending innocent people to prison. This is a fundamental principle of a free, egalitarian society. Although this principle may still apply in a courtroom, it is definitely absent from the minds of many people.

An accused also has the right to face his or her accuser. By suggesting that we accuse people anonymously, the accused is deprived of this right, just as the people on the #RUReferenceList were deprived of this right. This is another fundamental principle of our society – the right to rebut defamatory claims made against us. How are people supposed to defend themselves and disprove such claims when they don’t even know where these claims are coming from?

Another troubling suggestion is that we take the law into our own hands. This is what the protestors did during the RUReferenceList protests by removing some of the people on the list from their residences. These people were marched from their residences after a massive crowd gathered outside and were subsequently paraded about as pariah, called on to “answer for their actions”. One was even held overnight, a clear violation of his right to freedom of movement. This all took place without a single accused stepping foot in a court or being afforded a fair trial. When people band together to take the law into their own hands, it is often called “mob justice”, however due to the non-violent nature of the Reference List protest, “mass vigilantism” seems more accurate.

It must be noted, however, that vigilantism only occurs where the legal agencies designated to deal with such issues are thought to be inadequate, and this is perhaps the crux of the issue. Does rape culture exist? Yes. Is it a difficult standard of proof? Yes. Is there a need for real transformation and awareness in our society? Yes. Should we be able to deprive accused people of their rights? No. This is not to say that those who have been accused are innocent, but simply that it is not for us to take the law into our own hands and punish them. That is the job of the court. The accused should be given a fair chance to defend themselves before judgement is passed because by presuming someone is guilty without fair trial, we violate not only the rule of law but also a fundamental principle of justice.

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