BEYOND BELIEF: HOW THE "CORROBORATION RULE" IN MALAWI OBSTRUCTS JUSTICE FOR VICTIMS OF SEX CRIMES AND DISCRIMINATES AGAINST WOMEN AND GIRLS ON THE BASIS OF SEX - A CALL FOR LEGISLATIVE CHANGE.

• Author: Liu, Michelle Xiao

Abstract

Sexual abuse against women and girls in Malawi is pervasive, and survivors face significant barriers in their quest for justice. One particular barrier--the "corroboration rule"--stands out as a discriminatory and onerous roadblock for women and girls who seek justice as victims of sex crimes.

The corroboration rule is a common law rule of evidence and criminal procedure that requires prosecutors trying sex offence cases to have independent evidence in addition to a victim's testimony, even if that testimony is credible and shows beyond a reasonable doubt that the defendant committed the sex crime. This heightened evidentiary standard for victims of sex crimes is based on the stereotype that women and girls are apt to lie about being raped and that their word alone--no matter how clear, convincing, or credible--should not be enough to put a rapist behind bars. Because of the rule, too many women and girls in Malawi are not treated equally in the criminal justice system, and rarely are those who sexually abuse them brought to justice in court. This fosters a climate of impunity for rapists and sexual abusers.

While many countries around the world used to require the corroboration rule in sexual offences, in the modern era, Malawi stands apart from the rest of the world as one of the few countries that still requires its use as a matter of common law. However, with a constitution that guarantees equality for women and girls and equal access to justice under the law, and as a State Party to treaties that guarantee the same, Malawi's Parliament should abolish the corroboration rule.

INTRODUCTION

Sexual violence against women and girls in Malawi is pervasive. According to a United Nations report, 25.3% of all women and girls age fifteen to forty-nine in Malawi have experienced sexual violence at least once in their lifetime. (1) A 2013 national survey on sexual violence against children also found that one in every five young women had experienced at least one incident of sexual violence prior to age eighteen, and one in three of these girls who had a sexual encounter prior to age eighteen "were forced or coerced to engage in sexual intercourse." (2) Of those females who were victims of sexual abuse prior to age eighteen, 68.4% reported multiple incidents. (3) Furthermore, buttressed by beliefs in stereotypes and biases about women, survivors are "all too often assumed to be lying or seeking revenge, and are blamed for the violence they've experienced." (4) It is a commonly held belief in Malawi, and specifically a common belief of those involved in the criminal justice system, that "women pretend to be refusing [sex] when actually they want what they are refusing ... and most of the time when a woman says 'no' she actually means 'yes.'" (5)

Against this backdrop, survivors of sexual abuse face substantial social and systemic barriers in reporting incidents to police, aiding prosecutors in bringing a criminal case against an alleged offender, and seeing that alleged offender be brought to justice through the courts. A 2019 UNICEF report that examined the lived experiences of women and girl survivors of sexual violence in Blantyre, Lilongwe, and Mzuzu found such barriers to be deeply embedded in the Malawi criminal justice system. (6) Indeed, of the 138 incidents of sexual violence that were tracked in the study, only one percent of the perpetrators (that is, fourteen persons) faced conviction. (7)

One barrier in particular--the corroboration rule--stands out in the Malawi criminal justice system as a significant legal impediment to survivors of sexual abuse who seek justice. The corroboration rule is based on a gender stereotype and contributes to the prevalence of rape culture in Malawi. The corroboration rule is a common law rule of evidence and criminal procedure that requires prosecutors trying sex offence cases to have independent evidence in addition to a victim's testimony, even if that testimony is credible and proves, beyond a reasonable doubt, that the defendant committed the sex crime. (8) This heightened evidentiary standard for victims of sex crimes is based on the stereotype that women and girls are prone to lie about being raped and that their word alone--no matter how clear, convincing, or credible--should not be enough to put a rapist behind bars. (9) Women's rights advocates argue that the corroboration rule in sexual offence cases creates roadblocks for prosecutors and discourages law enforcement from performing diligent investigations into reported cases--manifesting a culture of impunity for sexual predators. (10) The continued use of the rule communicates to sexual abusers that they are unlikely to face negative consequences for the heinous sexual acts that they commit against women and girls. (11)

This report examines the significant ways that the corroboration rule imposes a discriminatory evidentiary burden for female survivors and obstructs their access to justice. Part I outlines the research and fact-finding processes that the International Women's Human Rights Clinic ("IWHRC" or the "Clinic") undertook, together with its partner--Women Lawyers Association of Malawi--to prepare this report. Part II gives the definition and historical background of the corroboration rule. Part III explains the legal framework of the rights of women and girls to equality and access to justice for sexual crimes committed against them. It outlines the obligations that Malawi has under international human rights treaties and its constitution to implement these rights through legislation. Part IV argues that the corroboration rule violates women's and girls' right to access to justice under the constitution and international human rights law. Part V argues that the corroboration rule discriminates against women and girls on the basis of sex and violates their right to equality and non-discrimination under the constitution and international human rights law. Part VI urges the Malawi Parliament to abolish the use of the corroboration rule in sexual offences by enacting an amendment to the Criminal Procedure and Evidence Code. (12)

1. Methodology

   The International Women's Human Rights Clinic at Georgetown University Law Center, in partnership with Women Lawyers Association of Malawi, collaborated on this report aimed at understanding how the corroboration rule, which is required only for sexual offence cases, impacts a survivor's ability to obtain justice and equal treatment in the criminal justice system.

   The Clinic faculty and student advocates conducted extensive research on the rights to access justice and equality guaranteed by the Constitution of Malawi, as well as the rights enshrined in various international and regional treaties to which Malawi is a State Party. To supplement their understanding of the global trends in legislation relating to the corroboration rule, the Clinic faculty and student advocates researched numerous comparative jurisdictions around the world.

   From the 9th to the 13th of March 2020, the Clinic team travelled to Malawi to conduct an intensive fact-finding investigation in Lilongwe, Blantyre, and Zomba. (13) The Clinic faculty and student advocates interviewed over seventy stakeholders, including affected persons, community leaders, lawmakers, magistrates and judges, law enforcement personnel, government officials, women's and children's rights advocates, teachers, academics, health professionals, leaders of non-governmental organizations and international organizations, and other experts on the subject. (14) Lawyers and paralegals from the Women Lawyers Association of Malawi and Women and Law in Southern Africa--Malawi ("WLSA Malawi") accompanied the Clinic team members and provided cultural support and translation services where needed.

   This report draws on a combination of the Clinic fact-finding interviews and extensive desk research to highlight the reasons why the corroboration rule violates women's and girls' rights to non-discrimination, access to justice, and equality. (15)

2. Definition and Background of the Corroboration Rule

   The corroboration rule has two components. First, the rule itself requires that prosecutors who are trying a sexual offence case in court provide independent evidence, from a source other than the victim's statement, which substantiates a victim's testimony. (16) In nearly every other type of criminal case, the credible testimony of a single witness can be sufficient to convict an accused. (17) But under the corroboration rule, a victim's credible testimony alone is not enough to put an accused sex offender behind bars in sexual offence cases. And whereas the Criminal Procedure and Evidence Code states that "no particular number of witnesses shall in any case be required for the proof of any fact," (18) this is not so for cases involving sexual offences under the common law of Malawi. Instead, prosecutors in a rape case must always "establish in some material respect that sexual intercourse has taken place, without the woman consenting and that the defendant is the one who committed it" (19)--regardless of whether the victim's testimony itself is credible and proves each of these elements beyond a reasonable doubt.

   In its strictest application, corroborative evidence is required for each element of a sex crime. For example, without corroborative evidence for all three elements of the crime of rape (i.e., penetration, lack of consent, and identity of the accused), (20) a defendant's criminal charge will almost certainly be downgraded to a lesser criminal offence or dismissed entirely. (21) In recent years, magistrates or judges who are offended by the rule's connotations about women's credibility have taken a broader view of what constitutes corroborative evidence. (22) But no matter the degree to which corroborative evidence is required, the rule still binds judicial officers to require additional proof beyond a survivor's...