Section 7 -Evidences of mere opportunity in Rape cases- Why women choose not to report nor go to court when they are being raped?

Literally millions of women are raped each year, but few rapes are reported- perhaps 4-5% or even less.-Laura "RAPE" December 2012 , The Centre For Development

Under Section 7 of the Evidence Act 1950, 3 categories of fact are said to be relevant:

(a) Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue;

(b) Facts which constituted the state of things under which they happened; or

(c)Facts which afforded an opportunity for their occurrence or transaction.

Today, I will discuss on (c) facts which afforded an opportunity for the occurrence or transaction.

Basically, evidence of mere opportunity cannot amount to corroboration unless it is supplemented by proof of circumstances of such a nature as to lead to the inference that it was probable that advantage would be taken of the opportunity. In other words, although opportunity itself is a relevant fact, it cannot be a piece of admitted evidence in court by itself. The facts which afforded an opportunity for the occurrence /transaction is closely related to Rape cases because in most rape cases, it is actually utmost difficult for the victim to provide evidences, likewise other criminal cases such as robbery (the weapon/ stolen goods) and murder(the dead body weapon).Even if the fact shows that there is an opportunity for the rape case to be taken place, this fact cannot amount to corroboration if there is no any other supported evidence. Therefore, in rape cases, the accused can always easily raise doubt and get acquitted.

In Aziz Bin Muhamad Din v PP,the accused and the victim spent the night in a house owed by A. A went out on the night where the rape was alleged been taken place, and when A came back on the following morning, the victim and the accused already wake up and was having breakfast. The situation clearly afforded an opportunity for a rape case to occurred  However, the court held that although it constitutes evidence of opportunity, it is setted law that evidence of mere opportunity, without more, cannot amount to corroboration. There is uncertainty and doubts in the medical evidence. 2 different medical evidences show that (i) the victim had old multiple tears in her hymen and it was one week old, (ii) the old tear in the hymen was between 48 hours-3 months old. Augustine Paul JC stated the medical evidence which corroborates the evidence of the complainant would have constituted supplementary evidence. But, in this case, the only available evidence is that of mere opportunity which cannot amount to corroboration of the evidence of the victim. Therefore the accused was accquited.

We have to distinguish rape cases with other crimes where the evidences are hard to adduced to the court plus the consent of the victim is difficult to be determine. Normally, in rape cases, the victim would not go directly or immediately to the police station to lodge a report because they were under trauma, agony and shock. Some of them do not go to the police because they are too ashamed or to avoid unpleasant encounters with the police officers. In fact, some of the victims are threaten by the rapist to not report to police. In all circumstances above, it may cause delay to provide evidence especially if the victim had bath and clean their bodies. It is also wrong for the court to rely solely on medical evidences because there might have several different tears in victim's hymen due to previous sexual intercourse with their husband.

To avoid failure to prove a rape case, most of the victims choose not to make police report. In situation where the accused is acquitted, women who are raped are consider the criminals, as though they brought it on themselves and are thus gulity of 'seducing the man', even if this was not true at all. One example is where Lord Campbell-Savours, the Labour peer, used parliamentary privilege to identify a woman during a debate on rape legislation in the House of Lords, describing her as 'a serial and repeated liar' after a man initially found guilty of a sex attack on her had his conviction overturned. Her identity was later published in the Daily Mail. And there is example where the victim was arrested for perverting the justice after report that she was been raped.(***please refer article :"If I get raped today, I would not report it" by Julie Bindel, 25/10/2006) These are why woman choose not to go to the police and court even if they were raped because they are afraid of a greater hurt.

It is true that the evidence of mere opportunity should be taken with extra care in order to avoid fabrication of evidence and it is no doubt that it is the duty of the prosecutor to prove beyond reasonable doubts in all criminal cases. Anyhow, something has to be done as we can see the law may no longer guarantee justice and the safety of the woman. It is undeniable that the evidence of mere opportunity should corroborate with supplementary evidence, however judges has to be caution towards the fact of each cases in order to give faith in society toward our legal system.

***http://www.guardian.co.uk/society/2006/oct/25/penal.crime