As a South African researching American court cases [Steven Avery, Jodi Arias, O.J. Simpson], I’ve been alarmed, surprised, impressed and entertained by the criminal law system in America. Having covered the Oscar Pistorius case firsthand, and seeing what it feels like to have judges [five in the case of the Supreme Court of Appeal] face off with a gallery packed with media, family and interested observers [including Lisa and myself], one gets a more subtle sense of emotions at play beyond the court case. But the Oscar trial is a case in point: the judge inexplicably got the verdict and the sentencing completely wrong.
Recently in South Africa, a white judge [Mabel Jansen] has come under fire for making allegedly racist comments on Facebook, saying that in her experience as a judge, there’s a rape culture amongst black South Africans. This has unleashed a furor in South Africa where mostly black men have demanded her head on a plate [not literally of course]. While Jansen is on special leave, there’s been some sober reflection on her “racist” comments. South Africa happens to be the rape capital of the world, and children, even infants, are regularly raped [and killed in the process] by their fathers, relatives or family friends]. Typically these are black individuals.
In South Africa there’s also a tribal belief that AIDS [a sexual scourge in South Africa, which has amongst the world’s highest infection rates, in the millions] can be healed by having sex with a baby. I’m not sure how one can’t impute that this amounts to a “rape culture”, however niche. In any event, Jansen, it turns out has adopted black children, which suggests to me, whether her comments were too general or completely unacceptable, her heart appears to be [to me] in the right place. But is that enough?
Coming back to the original question, can we be so bold as to trust the fates of black criminals to white judges and vice versa? In Masipa’s case, was her attempt to be fair to Oscar not influenced by a racial dynamic. Besides being slightly disabled herself, Masipa may have felt careful not to be too excessive in meting out justice. Giving Oscar a severe sentence [Masipa may have reasoned] might have been greeted with accusations of racism. Lisa and I have demonstrated in our JUICE narratives the alarming power of racism to sway entire juries, as we saw in the O.J. Simpson trial.
So how does one get around the problem of “compromised” judges, and “compromised” juries. How do we get a judge or a jury we can trust, and what exactly is a judge or a jury of our peers, whether in the States, Britain, Australia and New Zealand [all based on the jury system], or South Africa?