‘This is how our victims are treated’ – More reaction to 'very harsh' questioning during Omotoso trial

There should be clear guidelines on the kind of questions defence lawyers are allowed to ask when cross examining rape victims.

This is the view of Vincentia Dlamini-Ngobese‚ operations director for Women and Men Against Child Abuse (WMACA)‚ speaking after the outcry over how defence lawyer Peter Dauberman had questioned Cheryl Zondi‚ one of several alleged victims of Nigerian pastor Timothy Omotoso.

Dauberman has since the start of cross-examination been accused of asking Zondi insensitive questions.

Omotoso‚ 60‚ and his co-accused Lusanda Sulani‚ 36‚ and Zukiswa Sitho‚ 28‚ face a litany of charges ranging from sexual assault to rape and human trafficking.

“The public needs to know that this is not an isolated case. This is how our [rape] victims are treated. This case highlights how they are treated when they testify‚” Dlamini-Ngobese said.

“There should be clear guidelines on what kind of questions lawyers can ask a rape victim. Questions about the size of the penis show the level of ignorance from the lawyer’s side.”

Dlamini-Ngobese said the WMACA commended Zondi for her courage and how she retold her story in court.

“We hope this will give others courage to retell their stories‚” she said.

Miranda Jordan‚ the director of WMACA‚ added that the questioning of rape victims was often demeaning‚ abusive and judgemental.

“This could lead to secondary trauma for the victim. As much as it is understood that the defence strategy is to discredit the evidence of the victim it is important that the lawyers are sensitive to questioning that might be in our view demeaning and insensitive and add to the shame and trauma the victim has already been subjected to.

“To be specific to the Omotoso case‚ the questions about the length and size of the private parts of the accused are deemed by us to be abusive and pointless. There is no way a rape victim could have that kind of specific information about an event as traumatic and demeaning as rape‚” Jordan said.

Professor of Law at Wits University‚ James Grant‚ said there are rules by which defence lawyers should abide when questioning witnesses.

“There are clear rules that one may not ask gratuitous questions to upset the witness. Unfortunately‚ any lawyer who is trying to impress his client will ask those kinds of questions‚” Grant said.

“An overarching rule is that one may not ask questions about depth of penetration. That is irrelevant and probably gratuitous.”

Grant said when a lawyer engaged in those kinds of questions‚ he or she took a risk because “if a witness stands his or her ground‚ it backfires”.

As much as giving evidence is a gruelling experience‚ witnesses should testify truthfully‚ Grant said.

“If you subject yourself [to the process of testifying] the law is in place to protect you.”

Lawyer Daniel Witz described Dauberman’s cross examination as “very harsh”.

“A prosecutor should object to cross examination that attacks the character of a witness as you cannot attack a witnesses’s character‚” he said‚ adding that this amounted to character assassination.

“However‚ if the defence alleges that they are challenging the credibility of the witness‚ it still appears to be overly harsh and the court should not allow it.”

Another lawyer‚ Piet Du Plessis‚ however‚ said that sometimes it was necessary to do “robust” questioning because of the nature of the case.

“It’s unfortunate but the lawyer must do his job and he must carry out his client’s instructions‚” he said.

He said if witnesses were telling the truth they should not be scared to testify.