Yesterday's post looked at cross-examination as a set of tactics. Today's follow-up looks at the language and grammar of cross-examination, with grammar referring to the tightly-controlled way questions to witnesses are structured, ordered and worded. This ensures that testimony is not the give and take of dialogue but a self-serving monologue by the defence – one in which the complainant loses authority over the interpretation of her experiences through being made to mouth the accused’s particular version of reality instead.
Examples from the Omotoso trial best illustrate these different language strategies, with one of the most common of these being the proposition.
A proposition is a suggestion to the complainant that there is an alternative to her truth. It typically begins with “I put to you”, as in “I put it to you that you are fabricating your evidence.” These sorts of speculation were then rapidly transformed into definitive statements of fact (or declaratives) such as “You are lying”, or “You are a good actress.”
A good portion of Daubermann’s cross-examination consisted of declaratives posing as questions: “You were prepared to let him rape you?” as well as: “You basically consented? You didn’t protest against him? Every time you went to his room, you knew what to do?” Worded in this way, they took on the appearance of truths, rather than inventions.
This repeated use of ‘you’ also began functioning as a form of accusation: “You were in a room alone with a man. You say you were scared. What did you think was going to happen? Didn’t you wonder why the door was locked?”
The words used in each of these extracts is highly calculated and strategic. They imply the exercise of choice: to go to a room, to know what to do in that room, and to not protest at being in that room. “Why did you not scream, mam? You knew there were other people in the house, they would hear you?” This last question contains a presupposition, or taken-for-granted ‘fact’, about ‘real’ rape victims – that they cry for help and rescue. When this pairing of ‘questionable’ inaction at some points is then contrasted with the exercise of choice at others, the implication is that Cheryl Zondi is not a real victim.
This grammar can be used to distort rape complainants’ actions to devastating effect. Indeed, it is central to their experience of trials as processes where their behaviour, rather than that of the accused, is made the real crime. When this grammar is coupled to tactics that force complainants, again and again, to relive experiences they never want to remember, courts are made sites of domination. But in the way she has withstood Peter Daubermann’s attempts to undermine and discredit her testimony Cheryl Zondi has shown how they can also be transformed into sites of resistance.
For better or for worse, an adversarial system is what we currently have in South Africa. It must be made to work for complainants because trials are not intended to be ordeals, afflictions and tribulations. Heroism is not a reasonable expectation of all rape complainants either. The prosecutor in this matter needs to sharpen his tongue and go to war. Rape complainants must know that when they go to court they will be defended.