Men terrorise women and girls, why doesn’t the judiciary treat them as it does terrorists?

On 14 June 2020 a man was arrested in Kirehe District for sexually abusing his 10-year-old daughter. The following day, on June 15, a court in Musanze District granted a conditional release to a Catholic priest charged with raping a 17-year-old girl. Amongst other evidence based on which the Musanze judge granted bail to the priest is the victim’s assertion that her abuser is circumcised, while according to medical report he is not.

It is most likely the man who abused his daughter in Kirehe will also be released from pre-trial detention, and there are chances eventually both suspects will be acquitted due to their victims’ lack of “adequate” evidence.

This is an all too familiar – déjà vu. Very often, judges acquit suspects charged with rape due to a “lack of credible witnesses or adequate evidence”. There are usually two types of evidence involved: witness testimony and forensic evidence. Neither is working for victims of rape. For one thing, forensic evidence is only activated as an auxiliary in the majority of rape cases. It is not the main source of evidence. Instead, injuries to the victims and their testimonies are considered the most adequate evidence to create a prima facie case to stand a chance to convict the abuser.

Here is the tricky part: testimonies are difficult to come by, which has been blamed on “culture.” The vast majority of sexual assault cases have “known persons” as perpetrators (like the priest in Musanze who was a sponsor/benefactor of the victim’s family or the father of the victim in Kirehe). Consequently, many rape cases end up in acquittals because victims or witnesses refuse to testify due to family pressure, trauma or fear of stigma. A “culture of silence” hovers around rape denying victims justice, protecting perpetrators.

The cases in Musanze and  Kirehe are the latest illustration of Dr Rugira Lonzen’s assertion that not only “as a society, we are distant in empathy around rape and teenage pregnancy”, but we are also allowing the conspiracy around it to flourish.

When you contrast cases of rape with felonies such as charges of offences against internal security or provoking unrest among the population, the reality is different. It might illustrate how rape cases should be handled if society is to uproot rape the way it is prepared to uproot terrorism.

A conditional release for suspects charged with terror-related accusations is inconceivable; even when the accused is acquitted, usually the prosecution petitions the court to order that the accused be held again in provisional detention until a final judgement on appeal is obtained. Such petitions are usually granted. And rightly so given the harm that terror can do to society: trauma.

It is therefore strange that rape suspects are easily granted bail when it has been demonstrated beyond a reasonable doubt that rape leads to lifelong trauma, among many similar effects. Why does a rapist benefit from the empathy that is denied a terrorist when in fact the outcomes from both is similar – trauma. If the seriousness behind the handling of the terrorist is intended to elicit deterrence, isn’t this the kind of deterrence needed to end rape in society?

What explains the difference is that the heinous crime of rape is, unfortunately, viewed as less criminal than terror crimes  The only explanation, it appears, is that the legislature and the justice system have no idea of how sexual assault and rape impact or damage the lives of victims, as well as the commitment of the perpetrators to ruin one lives in a manner a terrorist would. Similarly, this leniency for rapists explains why the penal code places the crime of rape in a chapter on “sexual offences and offences against morality” separate from other offences against persons. In fact, rape being terror against persons and society is exactly why it ought to be in the section of the penal code that has terrorism. If the methods are different but lead to the same outcome – trauma – then it is a category error to place them in different categories and therefore to receive different treatment before the law.

Judiciary hiding behind “independence”

The justice system – particularly the responsibility of the judges – should be to demonstrate independence by how effectively it addresses (through the bully pulpit they have at their disposal: courts and correctional facilities) the pervasive problem of sexual violence that is entrenched in our society.

Certainly, the Musanze judge is independent, and the decision to grant bail is legally founded. Moreover, the independence of the judiciary is protected by the Constitution, but that independence ought to be conceived in meaningful ways. Independence must be protected only as long as it serves society not for dereliction of duty.

To apply Dr Lonzen Rugira’s take on the media independence to the judiciary, the aim of the justice system is to protect public interest. Therefore, no judge should claim independence that contravenes any effort to contain any form of terror.

Consequently, a culture that has leaders contravene the desire of Rwandans for zero-tolerance on against gender-based violence and sexual abuse it is simply perverse. Similarly, the judges can’t keep referencing the law as a solution to the problem it has failed to address and to continue doing so by their self-mythologizing reference to “independence.”  Indeed, for years, this legalism has translated into a lack of empathy and impunity for rape and the domino effect from it is that the legal framework has become part of the problem it sought to fix.

Self-preservation instincts on the part of legislators and judges, demonstrated by hiding behind independence, has made it difficult to address the problems of the society.  This has nurtured a conservative culture that seeks enlightenment from foreign systems and jurisprudence to guide them on the “best practice” ways to apply on a problem with indigenous realities. Consequently, the laws and principles taught in mainly foreign law schools and lacking domestic context have been codified in legal gazettes to a rather predictable outcome.

If the legislators and judges persist in tolerating laws that Rwandans frown upon because they don’t respond to their practical realities, then it is simply an attack against the sovereignty of the people to persist in that direction. Further, if laws are not enacted for the sole purpose of rendering justice in consonance with the yearnings of the people, then the people are held hostage by the legal system and are stripped of their citizenship rights as the main stakeholders in the way their society ought to be organized.

Independence to what end?

Independence cannot be an end in and of its self. Is there independence outside the kind that promotes what society desires and destroys what they stand against? Undoubtedly, the number of teenage pregnancies reported every year is not matched by an equal number of suspects arrested, charged and convicted. As a result of this impunity, the number of unreported rapes and sexual abuses is skyrocketing; and the number of rapists and sexual offenders released on bail or acquitted due to their victims lacking evidence that the judiciary deem adequate are on the increase.

Naturally, if the figures are rising– and if it is a consensus beyond debate that they are alarming – it should lead to a decision to review the legal and justice system so that “the responsibility of repairing the victims falls on society rather than the present isolation that befalls victims”. Otherwise, we risk seeing the problem get worse exponentially.

The legal status quo for crimes of rape and sexual abuse should clearly be reformed in terms of the standard and burden of evidence, in order to treat and prosecute rape and sexual assault cases as crimes against womankind. This reform would end the cynical state of affairs where victims of rape envy survivors of terrorism because society is mobilized around the latter who are never made to face both the actual violence and the cold indifference of the legal system. Indeed, survivors of terror attacks are never re-traumatized by performative questions of judges and defense lawyers seeking to know if the suspect used the right or left hand to throw a grenade and if they tried to dodge the bullet; appallingly such cynical questions are reserved to survivors of rape who accept to testify in court.

If the legislature and the judiciary combined are unable to deliver the intended justice to victims of sexual assault and rape; if their imagination is constrained to the application of some norms and principles, and can’t transcend the provisions in the gazette and principles inherited from Roman law and Napoleonic code; if the fate of a rapist is decided based on whether the victim knows if he is circumcised or not; then it is time for society to get back to the drawing board. If law and order are this blatantly against justice, then such legal and justice system must be dismantled to create a new order.

It is time for ad hoc National Consultations or a special Umushyikirano to agree that rape and sexual violence are attacks against society/humanity, and therefore reinvent laws and a justice system that identify with the fears, pains and concerns of womankind, in this case putting an end to gender-based violence and teenage pregnancies.

There is the law and there is society. What’s in between the two is leadership and values

Empathy and leadership in parliament and in the justice system should ensure that there is no reason to justify impunity around rape and sexual violence. To normalize releasing perpetrators from pre-trial detention back into the society is a message to survivors that what was inflicted on them is not the society’s main concern.

Leadership is the only factor which can ensure that laws and judges protect a 17-year-old pregnant girl against a sexual predator in priest’s clothing. Leadership in the justice system can reassure survivors of sexual abuse that beyond legal texts in the official gazette, their voice will be heard and their stories believed regardless of whether they can tell if the abuser was circumcised or not, or how his bedroom looked like.

With regard to cultural values, an empathetic response to rape and sexual assault should be entirely in our control, even if criminal behaviours of individual predators are not.

Consequently, the self-mythologizing culture in the justice system where judges hide behind “ independence” in order to contravene the wishes of Rwandans for zero-tolerance against offenders of gender-based violence and sexual abuse is unacceptable.

If the spontaneous response to sexual assault or rape is to protect the family or sponsor’s “honour” at the expense of the victim’s humanity, and if the honour we defend is based on a lack of moral presence with survivors of those crimes, what values do we stand for in our families in particular and in our society in general?

The only cultural values that are worth preserving are those that don’t silence or re-traumatize victims of rape or sexual assault, but rather acknowledge their suffering, reassure them, offer them a safe space to learn to cope and embark on a journey of healing.

Overall, it may be said that if the legal framework isn’t doing a good job of clearly defining and providing the framework and means to fight, prosecute and convict rapists and sexual offenders, that is obviously a big problem for the 61% and their colleagues’ leadership.

But the problem of the justice system retreating from its responsibility of protecting the society by invoking the independence of the judiciary and in the “we are only following the law” argument is a pernicious abdication of leadership in society. Justice is not only about applying the laws, and can’t and shouldn’t hide behind self-mythology.

If the prosecution can successfully petition a judge to deny bail for terror-related charges, even when such a bail can be legally justified, it simply means the judge has the power to deny bail based on his/her discretionary powers to interpret the law and decide based on his/her “intime conviction”. Then, why does judicial independence count more in one form of terrorism and not another?

The essence of the independence of the judges should be their genuine liberty to decide in the sincerity of their conscience, and even to transcend the text of the law and create a jurisprudence, if they feel the law is silent or doesn’t adequately address a crucial matter.

President Paul Kagame articulated the vision behind this concept at the launch of the Judicial Year 2017/2018 saying that; “the entire judicial process should not be looked at as an event or even be perceived as a procedure but rather a serious undertaking that ensures the country is governed by the rule of law”.

Based on this comprehension, rape should be treated like terrorism because, although the methods are different, the effects are similar: traumatized victims. Rape isn’t about the perpetrators’ failure to control their sexual urge; it has to be looked at, not through the sexual intention of the perpetrator, but through the terroristic life-long effects on the victim. Therefore, the law and the justice system should treat predators preying on women and girls like terrorists. Why? Because deep down we know – consciously or subconsciously–  that men are terrorists to women and girls!

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