What happens if the ANC councillor is found ‘not guilty’ of rape?

Paying lip service, as most policymakers do, has not, thus far, really moved the needle in combating gender-based violence (GBV).

What’s worse is that there are many accusations and proportionally few cases even make it to court, let alone go all the way. I have no doubt that a majority of the accusations are legitimate amidst the evidence that a couple are not.

I want to focus on those minority situations here, and it is difficult to step around all the social considerations and no-go unpopular opinion areas.

I’ve just noticed a solidarity movement of believing accusers, which is to be understood and expected when trust is broken in the system designed to supposedly protect victims, or at the very least attempt some sort of justice. In recent times, however, I have found myself wondering how different our 2020 zeitgeist might have been if instead of allegations of counterfeit money and a guilty plea to an aggravated robbery charge, George Floyd was merely accused of rape?

Granted, it is an unfair hypothetical so we’ll never know, but the question of whether the Black Lives Matter movement would have been catalysed as much by his death in that hypothetical strikes me.

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It can be applied to any man who has had tremendous influence in the world, because the solidarity movements that stem from accusations are pretty strong. They nearly brought down a South African deputy president, a US Supreme Court Justice nominee, and many others. In some instances, the cases went on to establish a verdict, but in many simply the accusation was enough to demolish a reputation, regardless of the outcome.

Consider the ANC councillor facing charges of rape in Wynberg and ANC Johannesburg releasing a statement on the matter. The statement nearly went as far as accusing him itself, while paying lip service to the procedure by simply throwing in an “alleged” where necessary.

The party itself also didn’t want supporters to be in its regalia supporting the accused. I believe it is safe to say they are distancing themselves from him on the basis of the allegation.

But he is adamant that he’s not guilty, as many men have proclaimed when facing such charges. Some were lying or at least trying to save face and some were found not guilty.

But as I have said before, a not guilty verdict does not an innocent man make, and with so much solidarity around victims, it is unlikely that even a not guilty verdict will completely clear a person’s name.

Some names do not deserve clearing though. With the intensity of a courtroom battle and cross examination while factoring in the “beyond reasonable doubt” requirement for a crime, it is easy to understand why even the victims who go as far as taking it all the way, don’t often hold out for a favourable verdict. This is probably a reason why the solidarity movement has grown so strong.

Back to dealing with the councillor though.

I don’t envy the party leadership, because it is tough water to tread. One wants to be seen as doing more than paying lip service to the cause against GBV, but suspension based on an accusation is often flimsy and, sadly, potential for political weaponisation.

Fortunately for them, it has been reported that he has voluntarily stepped down, but now what? Does he still get paid? Does he come back if acquitted? Is there an internal investigation? What happens to his temporary replacement if he is not guilty? What happens to his party membership or suspended pay if he is?

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It’s such muddy water, no matter how you look at it. Would he be able to sue for defamation if he is acquitted?

Defamation is a civil charge, so the burden is only to prove it on a balance of probabilities against the burden the state has to prove a rape, which is way higher. Would or should his party allow him that, or stand in his way?

I have said before that the law is not enough to tackle the scourge of GBV exclusively. If anything, the questions above probably show how awfully complex the law makes it.

Perhaps the guy is innocent. The court can’t declare that. At best for him, the court can declare that he is not guilty.

That would still loom over his reputation. What could he do to address that? Is he convinced of his innocence or simply convinced of the flaws in the legal procedure? These are also looming questions. Is there some form of recourse he will have against the accuser? Is it worth pursuing and will he be allowed to pursue it? And, by the way, this is not just about one man. It is about the entire situation we find ourselves in.

There are so many questions being asked of the law, none of which the law can adequately answer to satisfy our social convictions.

The most important question, however, that we seem to refuse to ask is; how do we prevent GBV so that we don’t have to get to a point where the legal system is asked to perform these gymnastics?

I guess some questions are just too difficult to deal with when it is easier to keep relying on a system that, at its core does not even profess to prevent the damage. It can mostly only deal with the damage once it has happened. Too many questions loom after the fact. Split support is divisive and even verdicts are socially inconclusive.

In that case, odds are, we won’t solve the problem of GBV with what we are currently doing and without thinking about these questions, we are probably stirring up more resentment and distrust than we are building by sticking with what we have.

If only there were satisfactory answers…

Richard Anthony Chemaly. Entertainment attorney, radio broadcaster and lecturer of communication ethics.

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