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Appeal against protection order silencing survivor of gender-based violence

- Lee-Anne Bruce

CALS hopes to join an appeal against a judgment ordering that a rape survivor should not disclose that her former partner raped her "to anyone in any manner"

The Centre for Applied Legal Studies is applying to intervene as a friend of the court in an appeal before the Western Cape High Court on Friday. The appeal seeks to overturn an order prohibiting a rape survivor from disclosing details about the violence she experienced. We firmly believe that this order has the chilling effect of silencing not only the appellant but all victims and survivors.

On Friday, 22 October 2021, the Western Cape High Court is set to hear an appeal against a judgment from the Cape Town District Magistrates Court. This judgment takes the extraordinary step of granting a final protection order under the Protection from Harassment Act against a rape survivor in favour of her abusive former partner.

The judgment finds that there is a causal link between a survivor sharing in private conversations and on “safe space” groups that her former partner raped her, and him facing harassment over social media. Though she did not use his name publicly, screenshots of her private disclosures have been shared online without her consent. The Court takes this to mean that “no-one can be trusted with your ‘secrets’” and further finds it “strange” that the survivor did not lay a charge of rape with the police. Ultimately, the Court orders that she is prohibited from disclosing “to anyone in any manner” that her former partner raped her.

The survivor, who wishes not to be named at this time, is appealing the judgment with the assistance of the Women’s Legal Centre. She argues that these findings are wrong both in fact and in law. In particular, she contends that such an order is an unreasonable infringement on her rights and effectively prevents her from laying a charge with the police or seeking proper psychosocial support for the trauma she has faced. She also raises serious questions around using a law that is intended to protect survivors of gender-based violence against them. Read the Women's Legal Centre's statement on the matter here

The Centre for Applied Legal Studies (CALS) is concerned about this abuse of court process and is applying to intervene in the matter as a friend of the court. We hope to assist the High Court by providing some context of the purpose of the Protection from Harassment Act; arguing that it is the government’s duty to encourage victims and survivors to come forward about gender-based violence; and emphasising the importance of “whisper networks” to allow victims and survivors to find a sense of community and support.

“The right to freedom of expression includes the right of women to speak openly about their experiences of gender-based violence,” says Sheena Swemmer from CALS. “The state and the courts have a duty to promote that right, instead of allowing a law designed to protect victims and survivors to be used to silence them.”

The matter is set to be heard in person at 10:00 on 22 October 2021 in the Western Cape High Court.

Read our heads of argument in the matter here

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