In one of her last decisions before ending a five-year contract as head of the judiciary in Seychelles, Chief Justice Mathilda Twomey came out strongly on the need for the country’s penal code to be modernised in relation to its definition of consent in sexual offences. The CJ said that at present it only defined ‘absence of consent’, and that it was time ‘to look beyond the traditional male perspective as the prism through which sexual offences must necessarily be viewed.’
In one of her final decisions as head of the judiciary in Seychelles, Chief Justice Mathilda Twomey has shown herself a strong supporter of the rights of women in cases that concern sexual assault, urging that changes be made in the penal code and that ‘myths’ about the ‘normal reaction’ of someone who had been raped be consigned ‘to the dustbin of the history of male perspective myths about rape victims.’
‘Submission by a victim is not permission and must not be viewed as such,’ she declared.
This important decision, delivered barely a week before she stood down from the CJ’s position, deals with the case of DL, a man accused of raping a woman after offering her a lift in his vehicle. As so often in such cases, the evidence of the woman differed in essence from the version of the man.
DL did not give evidence during the trial but he had earlier made a statement and it was on the basis of this document that the court was able to understand his version of events, namely that the two knew each other quite well. They phoned each other often, he claimed.
The police officer who took his statement said he told her that even though both he and the woman had partners, they had agreed they would have this other ‘relationship'. They would meet and kiss. On this occasion he had asked her to have sex with him and she agreed. She had not been forced, he stressed.
Faced with this discrepancy, what would the Chief Justice say?
Clearly, the only real question was whether there had been consent or not. The woman’s torn panties indicated force had been used, and she also complained that her wrists were sore from his pressing on them.
DL had not helped his cause with his own evidence. He first called the woman 'K', but at the ID parade called her 'C', and this confusion raised doubts about his claim that they had been in an intimate relationship for a month.
Other damning evidence was that he claimed that the two of them phoned each other often – and yet the phone records of the parties showed ‘no texts or phone calls between the two phones’.
Counsel for the accused said the woman had consented to being transported out of the way and that she had consented to sex. The woman said the man had told her he needed to fetch his wife before dropping her and that was his excuse for taking her 'out of the way'.
Having summarised the evidence and the defence argument, Chief Justice Twomey said the one of the difficulties in such cases was the definition of ‘consent’ in the Penal Code, because as it stands ‘it only defines the absence of consent’.
She then quoted a comment she had made in an earlier case, ‘Crucially missing from the definition are the elements necessary for consent such as voluntariness, freedom and choice to agree, the agreement itself, and … the capacity to agree. The absence of a definition of consent is especially problematic given the fact that the presence or absence of consent has long been the crucial concept in establishing sexual offences and the fact that consent is and will continue to be inherently ambiguous.’
Counsel for the accused argued that agreeing to take a lift in the car showed an 'element of consent' by the woman. But, said the Chief Justice, 'I cannot disagree more.’
Since there is no definition of consent in the law of Seychelles, the court ought to take the approach involving a ‘communicative or affirmative consent standard.’ Such a standard would require ‘that those engaging in sex demonstrate their consent to one another.’
‘Such an approach would go a long way towards putting paid to the myths that consent is proved by the absence of a woman screaming, resisting or fighting off her attacker, and remove the attempts to put the complainant on trial as was the attempt by the defence in the present case.’
In another case she had recently decided she had stated that ‘it was time to look beyond the traditional male perspective as the prism through which sexual offences must necessarily be viewed.’ Here, she said, the crucial question ‘is whether consenting to a lift is indicative of consent to have sex’.
The CJ said she had found the complainant in this matter very credible, adding that although her evidence required no corroboration, many independent strands of evidence bolstered her version of events.
As for the accused, the fact that he could not remember the name of the woman, with whom he claimed to be having an intimate relationship, was damning. So was the complete absence of phone calls between them, contrary to his claim that they were in regular phone contact.
His legal team raised the fact that the woman had not tried to escape, prompting the judge to make this concluding remark: 'As I have stated above, myths about the ‘normal’ reactions of rape victims should be consigned to the dustbin of the history of male perspective myths about rape victims. Submission by a victim is not permission and must not be viewed as such.’
One of the many interesting things about the judgment is that it seems to be part of a growing sense that judges are re-thinking key elements of the law on sexual offences. The rule requiring additional corroboration in rape cases has been clearly set aside in for example South Africa, Malawi and Uganda. In her decision, Judge Twomey made clear that the same held for Seychelles, noting that the women’s evidence in this ‘required no corroboration’.
But she stressed, as she has done on a number of earlier occasions, that the penal code needed updating particularly on the question of consent and the law that continued to view sexual offences through the prism of ‘traditional male perspectives’.
Seychelles is to hold a general election later this month. The series of cases on sexual offences dealt with by the CJ makes it clear that Seychellois women would benefit if more women were elected. And if they then insisted that the penal code be changed appropriately.