Respondent was tried for one count of rape and one count of abduction for sexually assaulting an 11-year-old girl and forcing her to sleep with him for the next three nights. At the trial level, the judge applied the cautionary rule and found Respondent not guilty of rape or abduction. The cautionary rule requires the Court to consider the intrinsic danger of deciding sexual assault cases only based on the alleged victim’s testimony, and to pay heed to the existence of factors that minimize the risk of a wrongful conviction. In applying this rule, the trial judge was acting contrary to dicta from the High Court in S v D & Anor, where the rule had been criticized for being irrational and for failing to comply with constitutional protections against sex discrimination. The state appealed to the Supreme Court, claiming that the trial judge inappropriately applied the cautionary rule in a case of alleged sexual assault.
The issue in this case was whether the application of the cautionary rule of evidence in sexual assault cases is legally appropriate.
The Court stated that the application of the cautionary rule violates victims’ basic rights. While protecting the constitutional rights of alleged sexual offenders, courts should consider the norms and views of Namibian society, which oppose the placement of evidentiary burdens on victims. Namibian Courts should not apply the cautionary rule in sexual assault cases, except where the evidence forwarded is clearly unreliable. Adequate protection for accused persons is provided through the presumption of innocence and cautionary rules concerning young witnesses’ evidence.
The Court held that applying the cautionary rule of evidence in single-witness sexual assault cases violates the rights of the victim and is therefore legally inappropriate. The Court concluded that the trial judge erred by strictly applying the cautionary rule in a case of alleged sexual assault.