Hailed as a decision vindicating women’s rights to speak about their rape experiences as a critical way to combat the scourge of violence against them, the Western Cape High Court has overturned a gag order preventing a woman from talking about her ordeal.
CAPE TOWN – Hailed as a decision vindicating women’s rights to speak about their rape experiences as a critical way to combat the scourge of violence against them, the Western Cape High Court has overturned a gag order preventing a woman from talking about her ordeal.
The Women’s Legal Centre (WLC) said they were “inspired” by the judgment handed down yesterday in which Judge Robert Henney, with Judge Daniel Thulare in agreement, overturned an order made by the Cape Town Magistrate’s Court that the WLC said was “gagging our client from speaking about the fact that she was raped by her ex-boyfriend”.
According to court documents, the woman and man were in a romantic relationship between 2012 and 2015, both working in the fashion industry. According to the woman, she had been emotionally and mentally abused during the relationship and after being booked into a medical facility due to concerns about his temper and after being discharged, the relationship was terminated.
The rape allegedly occurred after they broke up.
“Our client was raped on July 6, 2015 by her ex-boyfriend. She later spoke to her immediate friends and family about this experience, sought help from a counsellor and posted about her experience in a closed, private and anonymous social media platform group in which she named him as her rapist as a way to warn others, and to seek healing, community and support from other women who had similar experiences of sexual violence.
“The posts were intended to remain private and not for public distribution. Without our client’s consent or permission, someone in the private group made her posts public on various social media platforms. In response to this, her ex-boyfriend applied for a protection order against her, arguing that she was harassing him by speaking about him to others through her identifying him as a rapist, and that this had caused him harm,” the WLC said in a statement.
The lower court had granted a protection order against the woman, stating that she was “not allowed to tell anyone, in any manner, that he had raped her”.
“Given the devastating and chilling effect this order had on our client and women in similar positions, an appeal was filed to the High Court seeking to have the order overturned. In a groundbreaking judgement handed down by Judge Henney and Thulare, the court affirmed the right of our client and women to freely speak about violence without being gagged and silenced,” the WLC said.
Judge Robert Henney, in his judgement, said: “The magistrate clearly misdirected himself by not taking into account the totality of the evidence and by improperly evaluating the evidence which included the drawing of a negative inference from the appellant’s failure to lay a charge against the respondent, which ultimately materially influenced his decision to grant a protection order in favour of the respondent.”