South Africa’s rape shield: Does section 227 of the Criminal Procedure Act affect an accused’s fair trial rights?
Authors Jameelah Omar
Affiliations: Lecturer, Criminal Justice, Department of Public Law, University of Cape Town
Source: South African Journal of Criminal Justice, Volume 29 Issue 1, p. 1 – 23
Rape shield laws are a critical aspect of the protection of rape complainants during the criminal justice process. The rationale of rape shield laws is to protect complainants from having their sexual reputation or behaviour used to reduce their credibility, particularly as the inferences drawn are based on historical prejudices against women, and do not actually assist with the fact-finding role of the court. This article will argue that Section 227 of the Criminal Procedure Act 51 of 1977 aims to finding the correct balance between the protection of the complainant’s rights to privacy and dignity, while upholding an accused’s right to a fair trial, including the right to adduce and challenge evidence. However, the sparse case law related to section 227 raises questions about its successful implementation by courts.