Judgment on the State Due Diligence Obligations for Violence Against Women (VAW) by the High Court of Kenya
For Immediate Release
27 August 2024
Litigation on the State Due Diligence Obligation to Investigate and Prosecute Acquaintance Rape
Case Name: HCCHRPET/E514/2021 – MC & another v the Attorney General & others
Court: High Court of Kenya at Milimani
Acquaintance rape occurs when one person engages in sexual activity with another person known to them without obtaining their clear, unequivocal and voluntary consent.[1] In the Kenyan case of Daniel Kaberu v Republic[2] the court held that: “Consent cannot be coerced; never implied and cannot be assumed, even in the context of a relationship.”
On 26 August 2024, the High Court of Kenya at Milimani delivered its judgment in MC & another v the Attorney General of Kenya, where it dismissed the petition seeking to hold the state accountable in its due diligence obligation to investigate cases of acquaintance rape. In this case, the 1st Petitioner was raped by a friend and when she reported the matter to the police, they claimed that she had consented to the rape impliedly through her actions of inviting him to her house, hosting him and allowing him to spend the night there. Throughout the investigations, the police subjected the 1st Petitioner to secondary victimization by blaming her for the rape. They eventually informed the 1st Petitioner that the case had been withdrawn by her brother, thereby violating her right to agency over her case. The case at the trial court only commenced after the petitioners filed the constitutional petition.
In the judgment, the High court held that the state had conducted investigations and that any delay in the criminal justice system was unavoidable since it was part of the due process. The court further held that owing to the nature of the allegations, the police were correct to probe the conduct of the 1st Petitioner. The court relied on the ruling of the trial court which was heavily marred with rape myths and stereotypes in finding that the 1st Petitioner’s testimony was not credible or truthful and that she could not blame her incredibility on the police’s investigations. The court also held that secondary victimization could only exist where there was a violation in the first place and that since there was no finding of rape by the trial court, the petitioner could not allege that she underwent secondary victimization.
It is unfortunate that the High Court propagated the ideal victim syndrome which presumes all the ‘right’ ways that the society, the law, the courts, and the support systems expect victims of sexual violence to act before, during or after the offence has occurred. All such actions that the victim takes are deemed critical because they will determine her believability and ultimately her chances at accessing any form of recourse.[3] In the case of Vertido v Philippines,[4] the CEDAW Committee held that the assessment of the credibility of the victim’s version of events by the domestic court was influenced by a number of stereotypes, including the victim not having followed what was expected from a rational and “ideal victim” or what the judge considered to be the rational and ideal response of a woman in a rape situation.
According to a study done by Fiona Leverick on rape myths and how they can impact the way in which jurors approach evidence in rape cases,[5] many jurors expressed views about the prevalence of false allegations of rape, stating that they are routinely made. Whilst there were jurors who questioned how realistic it was that a woman would put herself through the challenges of a criminal investigation and trial merely ‘to get back on someone’, these comments were often countered by jurors who insisted that ‘it does happen’, ‘love makes people do crazy things’, ‘some women do just use [the criminal courts] as a tool’ and ‘women can be vindictive’.[6]
Following the judgement of the High Court, ISLA is exploring its options, including filing an appeal at the Court of Appeal in Nairobi. ISLA was acting as advisor to counsel for the 2nd Petitioner organization, Centre for Rights Education and Awareness (CREAW). ISLA’s Associate Lawyer, Winfred Odali, was the counsel on record for the 1st and 2nd Petitioners.
Ends.
Join the conversation on social media by following:
#EndAcquaintanceRape
#EndVAW
For further enquiries kindly contact:
Winfred Odali
ISLA Associate Lawyer
[1] Chancellor, Arthur S. Investigating Sexual Assault Cases (Jones & Bartlett Learning Guides to Law Enforcement Investigation) Jones & Bartlett Learning (2012) p. 167.
[2] Criminal Appeal No. 6 of 2019, Daniel Kaberu v Republic.
[3] Sofia Rajab-Leteipan & Ruth Nekura, Feminist Analysis of Civil Suit No. 399 of 2015, 29th August 2019.
[4] CEDAW. Case of Vertido v. Philippines. Committee on the Elimination of Discrimination against Women (CEDAW); 2010.
[5] Fiona Leverick, What do we Know about Rape Myths and Juror Decision-Making? International Journal of Evidence and Proof, (2020) Vol 24(3) at p 269.
[6] Fiona Leverick, What do we Know about Rape Myths and Juror Decision-Making? International Journal of Evidence and Proof, (2020) Vol 24(3) at p 269 & 270.