01 Sep DRUNK DRIVING ARREST: DAMAGES FOR SEXUAL ASSAULT IN CELL
Here’s one more reason to never ever allow yourself or anyone else to drive when over the legal limit (for non-professional drivers, a breath alcohol content of 0.24mg per 1,000ml or a blood alcohol limit of 0.05g per 100ml).
If you are caught by the police (statistically, a regular offender will be caught sooner or later – there are 75,000 such arrests in SA every year) your life could be destroyed even before you see the inside of a courtroom.
Of course, the police are duty bound to protect your fundamental rights whilst in their custody, but we’ve all heard the many nightmare stories of abuse and assault in police cells. A recent Supreme Court of Appeal decision dealt with one such case.
Gang raped in the cells
A family man was arrested and charged with a number of very serious offences – driving under the influence of alcohol, reckless and negligent driving and failure to stop after an accident. This after, at 2.30 a.m. on a Saturday morning, he allegedly drove into a house’s fence/wall and then attempted to drive away from the scene, leaving his injured passengers behind.
- After charging him, senior police officers authorised the driver’s release from custody on R500 bail because he had a fixed home address and employment; was married with a 5 year-old child; had no previous convictions and no outstanding warrants of arrest; was not on bail on another case; and had not committed an offence while on bail.
- Before his release however he was transferred to another police station, and when his wife arrived to pay the bail she was laughed at and told no bail had been allowed.
- The driver accordingly spent the rest of the weekend in a police cell, where he was attacked and raped by an unknown number of cellmates, losing consciousness during the assault and scared to report the attack for fear of reprisals. He was unable to prove his allegations of a lack of cell inspections and of police failure to transfer him to another cell after he reported being warned of an impending attack on him, but there was no denial by the police of the sexual assault itself.
- In court, the driver was released on bail and the charges against him were ultimately withdrawn.
- He then sued for damages, and as in every civil liability claim, needed to prove wrongful conduct by the police that had caused him harm, plus some form of fault or blameworthiness (like intention or negligence).
- In the end result, the Court ordered the police to pay damages to the driver on the basis that –
- The conduct of the police and its wrongfulness were not in dispute,
- The police had been negligent both in failing to release him on bail and in failing to separate him from violent offenders also in custody, and
- There was a “direct and probable chain of causation” between those failures and the attack.
Police liable; but what consolation damages?
So the driver has been vindicated but the Court’s award to him of R200,000 in “general damages” is unlikely to go far in consoling him for the ordeal’s impact on his life. Our courts are deliberately conservative in assessing general damages, but the clinical psychologist’s evidence as to the serious psychological impact on the driver of his experience (as reported in the judgement) makes for harrowing reading.
Intense trauma, Post-Traumatic Stress Disorder, ongoing treatment with anti-depressants (six years down the line), deep humiliation, intense fear of amongst other things contracting HIV, sexual problems, a broken marriage, problems relating to his child, poor self-image, personality changes, flashbacks – the list goes on. Ultimately problems at work (including being unable to work in teams and being mocked by his colleagues) led to his employment being terminated, after which he attempted suicide and spent five days in a hospital ICU.
Of course, none of this means that we should supinely accept vindictiveness or negligence from those appointed to serve and protect us. Media reports suggest that large claims against the police (and other government services) are regularly settled out of court for millions. Just remember that legal advice as soon as possible after the incident is essential!