DJ Fresh and Euphonik.
The fact that the allegations against them will never be ventilated in a court of law means their fans will never know whether DJs Euphonik and Fresh are truly innocent of the rape allegations against them, and all that will persist is their word against that of their accuser.
The two DJs faced charges of rape after a woman took to Twitter to allege that they had drugged and raped her back in 2011. Charges against Euphonik (Themba Nkosi) and DJ Fresh (Thato Sikwane) have, however, since been withdrawn after the prosecutor came to the conclusion that there was little chance of a successful prosecution.
ALSO READ: DJ Fresh and Euphonik say rape case has been dismissed
While the allegations caused a massive debate on social media, the National Prosecuting Authority (NPA) said earlier this week that the case was nolle prosequi, meaning it would not be prosecuted.
While the docket was presented to the prosecutor, a decision not to prosecute was taken as there was insufficient evidence for successful prosecution, NPA spokesperson Phindi Mjonondwane had said.
This follows a similar case, involving award-winning singer Sjava, who was accused of rape by his former lover and singer Lady Zamar. Like the two DJs, Sjava’s case was thrown out by the NPA in November last year due to evidence not supporting a successful prosecution.
ALSO READ: Why Sjava’s rape case was thrown out
For a successful prosecution, it has to be proven without reasonable doubt that there were elements of rape, said gender-based violence (GBV) researcher at the University of Johannesburg, Lisa Vetten.
The state has to show there was intentional, unlawful sexual penetration without consent, she said.
“The onus of proof is on the state. It has to go and gather all the supporting information. The state has to prove the case… and be 95% sure. If [prosecutor] does not think they have enough to meet the basic elements, the case can’t stand.”
According to organisation Rape Crisis, physical evidence, forensic examination, first-contact witness and a police statement are evidence required to build a rape case.
Forensic examination is one of the strongest evidence requirements in a rape case.
“In order to collect physical evidence such as the rapist’s saliva, blood, semen or hair, you will need to have a forensic examination done within three days (or 72 hours) after the rape, provided you have not washed this evidence away.”
“However, if more than three days have passed, your case does still stand a chance of being heard so this should not stop you from reporting rape to the police,” said the organisation.
Lack of such evidence would only result in difficultly in proving the matter, Vetten explained.
“If you have a case with no physical evidence, nothing was discussed at the time, no psychological evidence or ambiguous evidence or the people [allegedly involved] continue to have relationships with each other and continue to be in touch, it makes it difficult. You have to look at how you are going to show that it was not consensual,” she said.
While DJ Fresh has publicly accused his accuser of being a “pathological liar”, stating that the accused’s key witness confirmed in her police statement that she was not aware of the incident, no one would really know what happened.
ALSO READ: ‘Using narcissistic tactics to fight your case’, says accuser’s family on DJ Fresh call claim
The matter was a situation of the DJs word against that of the alleged victim, Vetten said.
“We can’t know because there is going to be no trial. All we are left with is one person’s word against the other. As individuals, we can draw our own conclusions of what happened. But there is insufficient evidence to prosecute.”
Another option, however, would be to sue for damages through a civil case which, unlike a criminal case, is based on a balance of probabilities, even if the incident happened long ago.
“It’s important for people to know that these cases can be pursued and people shouldn’t give up. The only way to change the legal system is for more cases to start going through the system,” she said.
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