To become a victim of any crime is frequently to enter a bewildering never-never land where everything is not what it seems. This is even more likely when the crime involves some form of sexual violence; in these cases, a traditional understanding of justice is stood on its head.

It is not enough to be a victim of rape; it is also necessary to be an 'innocent' victim. Consider the 1994 trial of businessman, Abdulatief Camroodien, convicted of raping a prostitute at gunpoint. In sentencing Camroodien, Magistrate Marais (who found it 'bizarre' that a man of Camroodien's calibre could act in such a manner) commented: "If the complainant was an innocent young woman, I would not have hesitated to send you to jail for a very long time." Instead, because the woman was, by implication, that strange oxymoron, a 'guilty' victim, Camroodien was fined R8 000.00 with two years suspended for four years.

Magistrate Marais' views are not unusual. A glance through judgements handed down over the last few years suggests that rape victims in general, provide some of our male judiciary with a unique opportunity to display their penetrating insights into the psyches of female rape victims.

Here is Justice Corbett on rape: "(I)n my opinion the lack of any serious injury to the complainant and the fact that she was evidently a woman of experience from the sexual point of view, (suggests that) justice would be served by a suspension of half the sentence imposed." In other words, rape, by itself does not constitute a serious form of injury, particularly if, in Justice Corbett's delicate phrasing, one is "a woman of experience from the sexual point of view". By the same token, if one is hijacked three times, then on the fourth occasion the accused should not be sentenced heavily, as the victim is now a person of experience from a hijacking point of view, and so not really affected. Rape is the only crime where we judge the offence by the victim instead of the offender.

Justice Corbett also shows a worrying inability to distinguish between rape and sex - unless he is implying that for the most part, women's sexual experiences are violent and coercive.

These sage musings are hardly aberrant, as the law does, to some degree, encourage collusion with rapists. Although a number of examples could be provided on this point, I want to focus on one: the cautionary rule around sexual assault.

This rule states that a trier of fact should `show awareness of the special dangers of convicting upon the evidence of the complainant in a sexual case.' It is unnecessary for there to be any evidence of a motive for a false charge; the mere existence of the cautionary rule allows a judge or magistrate to freely exercise his/her imagination around possible motives.

Justice Botha, applying the cautionary rule acknowledges:"It is true that these possibilities are speculative and that a court is not usually required to speculate on possibilities having no foundation in the evidence placed before it." Undeterred, he continues, "It is precisely because of the difficulty of discerning hidden motives that cases of this nature require special treatment...In my view there can be no doubt, however, that the risk of a false motive is present in the circumstances of this case, even though the motive for it may not be readily apparent." This begs the question why, on the basis of no concrete, 'readily apparent' evidence, a judge or magistrate is free to speculate and make up reasons why the rape victim might lie. A recent edition of the South African Law of Evidence is instructive on this point.

In language more suitable to the 14^th-century witch-hunting guide the Malleus Maleficarum, it warns of the 'distinct' and 'peculiar dangers' that abound in rape cases in the form of 'spite, sexual frustration or other unpredictable emotional causes'; or 'hysteria that can cause a neurotic victim to imagine things that did not happen'. Clearly the judiciary believes that women are prone to laying false rape charges and that the real victim is the innocent man falsely accused.

The injustice of this belief lies in the fact that no research exists supporting this opinion. Those studies that have been done conclude that the percentage of false rape charges is no greater than the percentage of false charges laid for any other crime.