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Mogoeng: Give truth a sporting chance

You know the ol’ Mark Twain witticism: “A lie can travel halfway around the world while the truth is still putting on its shoes?” Well … I got a lesson in that this week. When I got to thinking about it (and I’ll get to it in a sec), this saying sprung to mind, and – like you do – I googled it. In a delightfully ironic twist, Twain has nothing to do with this one. That’s just another lie with its boots on. Via Fred Shapiro on the Freakonomics website: “A lie will go round the world while truth is pulling its boots on.” CH SpurgeonGems from Spurgeon (1859).”

This was a very small lesson in checking the source material that sprung out of a bigger one. On Saturday, at a social lunch, I found myself in verbal combat with a friend. This friend and her husband are both lawyers. I had said something disparaging about our venerable Chief Justice Mogoeng Mogoeng that had not sat well with our lawyer friends. Not only was I afraid of Mogoeng’s aggressively religious stance, but I was horrified by his leniency towards child rapists, I declared.

The challenge came back, “Where do you get this from?” I confidently explained: I had the Daily Maverick and respected journo Richard Poplak on my side. I had read Poplak’s excellent piece on Mogoeng and religion in our law. The bit that had burned onto my brain was:

“In one of his more famous and thoroughly representative rulings, he reduced the sentence of a child rapist because: ‘One can safely assume that [the accused] must have been mindful of [the victim’s] tender age and was thus so careful as not to injure her private parts, except accidentally, when he penetrated her. That would explain why the child was neither sad nor crying when she returned from the shop, notwithstanding the rape. In addition to the tender approach that would explain the absence of serious injuries and the absence of serious bleeding, he bought her silence and cooperation with Simba chips and R30.'”

The lawyer fires back, “But have you seen the judgment? Journalists love to take his judgments out of context”. Now I’ve really got my back up. I’m a journalist! Ja, I’m mostly a magazine features writer, but my profession is being maligned. “How do you misconstrue that?” I demand. “It’s not a clause or a few words. It’s a whack of sentences in which he uses the phrase ‘tender approach’ to describe the rape of a child?!” My husband takes out his phone to quote from the article. It’s persuasive, emotive and well written and gets many of the heads around the table nodding in agreement. We go back and forth for a while, but ultimately agree to disagree.

Then Monday rolls around, and with it an email from my husband. “Looks like we were wrong … ” he writes. He’s pulled up the judgment. Mogoeng’s judgment uses that exact paragraph, it’s true. But, contrary to the article, the reduction of sentence just didn’t happen! And read in context, what emerges is a condemnation, from Mogoeng, of the examining doctor’s failures in performing the post-assault examination and the state’s muddled case. This isn’t just taken out of context. A new outcome, a new meaning, has been applied.

Where Mogoeng writes tender, it comes off more as “careful”. It reads as sneaky not sweet – as if to get away with it, and he might have. Another judge might have upheld the appeal because the state’s case had a lack of physical evidence or evidence that the judge found compelling* but Mogoeng doesn’t. It is as an indictment of the state’s case, not an argument for the accused.

I start googling the quote from the judgment and it appears in loads of articles and on Wikipedia. Many of them, although not all**, claim explicitly that Mogoeng reduced the sentence of a child rapist for being “tender”. From Wikipedia: “Mogoeng has ruled for reduced sentences in child rape trials … ” followed by the quote as evidence. Poplak writes: “Processed snack food buys leniency in a rape trial, a judgment that provides an interesting insight into Mogoeng’s outlook, and by “interesting” I mean “terrifying”. But, fact is, Mogoeng didn’t reduce the sentence. He dismissed the appeal. Simba chips did not buy leniency.

Some caveats: I am not saying this language about a crime as hideous as child rape is OK. I am not saying that Mogoeng has not shown odd leniency in many cases. I am not making the claim that Poplak’s entire piece is invalidated. It isn’t. I remain worried about Mogoeng’s desire to inculcate a particular religion in our secular state.

So what am I saying? The more contentious the issue, the more careful commentators need to be. When we are talking about the process of justice – so integral to the functioning of the state – we have to be extra careful because to undermine the public trust in our judicial system would be as bad as to let the courts abuse the power we bestow on them. This is an excellent article but this rather large error calls into question all of the rest of the claims. It is not a misplaced comma, it is a rewriting of the actual outcome of that particular case. I see now why those lawyer friends have reason to mistrust journos …

In a largely secular and liberal profession like journalism, we sometimes see ourselves as guardians – standing between a bully state, overreaching religious leaders, corrupt business people etc and an “innocent, unsuspecting” people who need to be informed by us, the all-knowing journos. There is much to criticise the state on, but when we screw up our facts, we devalue the claims we make, and ultimately we could lose the fragile trust we need from “the public” to do our jobs.

* Which is a whole other sad state of affairs. We need strong recognition from our courts and our chief justice that rape victims will react in a myriad of ways, and outward expression of pain and signs of physical violence are not the holy grails of evidence.

** M&G and Pierre de Vos among others point out the disturbing implications of his phrasing, but get the facts right that the appeal was dismissed, the sentence was not reduced.

Update: As of June 10 the Daily Maverick and Richard Poplak amended the article and added a postscript explaining the changes.