It is such a terrible thing to be raped. Reading stories of rape is one of the most heart-wrenching exercises ever. Hence the need to seek justice and the desire to get rapists punished is very much understandable. This becomes more burning where it seems that rapists go scot-free, enjoy normal family lives and even become prominent members of the society whereas their victims are left to grapple with the emotional, psychological and sometimes medical complications of rape.
In the wake of a revolution aimed at breaking the culture of silence especially in third world countries, more and more women are coming out to speak up on their experiences with domestic violence, sexual molestation and rape. This is given further impetus with the arrival of cyberspace, the influence of social media and the mutual support derived from many women groups and pages on Facebook and other social media platforms.
As with all things left unchecked, the lack of inhibitions expressed on cyberspace is very much prone to abuse. One of such is the threat of and actual naming and shaming of alleged rapists. This is often accompanied by their pictures, pictures of their families, house or office address, telephone numbers and other relevant information. What follows is the booing, condemnation, curses and spreading of such stories, a public opinion conviction without hearing from the alleged rapists, yes, everything except a formal arrest and charge. But the question is, what is the legality of naming and shaming alleged rapists particularly on cyberspace?
In addition to the laws prohibiting and proscribing punishment for the crime of rape (see here) there are laws and principles guiding how offences should be prosecuted and what manner and form it can take place. There are also checks on thoughtless speeches and unsubstantiated accusations. This article seeks to examine these laws and principles and also proffer suggestions on the proper course to take in going after rapists.
One of the two principles of natural justice is the latin maxim audi alterem partem which means ‘hear the other side'(the other principle being nemo judex in causa sua i.e. no man can be a judge in his own case). Basically, it means that one must always seek to hear the other side of the story or, at least give the accused person an opportunity to defend himself.
It is based on these principles that the Constitution provides some basic fundamental human rights to all citizens. These rights includes the way and manner a person is to be treated when he/she has been suspected to have committed a crime. In relation to the topic under consideration, we shall examine some of these constitutional provisions.
Section 36(4) of the 1999 Constitution of the Federal Republic of Nigeria states that ‘whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal.‘ These proceedings are in the interest of public safety, public order or morality, the welfare of minors and the protection of private lives of the parties maybe excluded from the public Section 36(4)(a).
S36(6) further states that he shall be entitled to
(a) be informed promptly in the language that he understands and in detail of the nature of the offence;
(b) be given adequate time and facilities for the preparation of his defence;
(c) defend himself in person or by legal practitioners of his own choice, etc.
On the part of the public, it is wise to desist from shaming a person who has simply been accused of a crime without further proof. Until proven guilty, a person is presumed innocent. Section 36(5).
These constitutional provisions shows that it is not enough to name and shame and convict a person in the ‘court’ of social media. What is most important is to file formal charges against such persons and give them an opportunity to defend themselves.
Bad as an incident of rape maybe, if not well handled, naming and shaming perpetrators can complicate matters for the victim. It could become the words of the victim against that of the alleged perpetrator. It gives the perpetrator a sneak peek into the case of his victim and can even afford him some time to destroy pieces of evidence. It attracts undue and unnecessary attention to victims and may cause further stigma on them. Worse still, It may degenerate to a counter-charge of slander or libel against the victim.
What is slander? It is oral speech that harms the reputation of a person or his livelihood. Libel is the written form of such speech. The danger of defamation lies where the victims of rape name and shame alleged perpetrators without proof and formal charges.
Breaking the culture of silence in issues of domestic violence, sexual molestation and rape is a laudable feat. However, it is a course that should be approached with caution. In the place of simply speaking up publicly, naming and shaming perpetrators and garnering public sympathy in the moment, speaking up means approaching the right authorities as soon as possible, gathering and conserving evidence(which is best as soon as the crime is committed) and formally getting the perpetrator arrested and charged to court. This step protects the society, gets perpetrators punished, serves as a deterrent to other potential rapists, seeks justice for and preserves the dignity of victims.