Advancing Visually Impaired Employees’ Access to Justice in Workplace-Related Sexual Offence Cases by Admitting Evidence Based On Their Identification of Perpetrators Through Smell in South Africa

Notwithstanding the international protections afforded by Articles 13 and 16 of the Convention on the Rights of Persons with Disabilities (CRPD), visually impaired persons often remain excluded from meaningful access to justice within the criminal justice system. In South Africa, they are vulnerable to sexual offences, frequently committed by persons known to them, including workplace colleagues, but disability-related barriers continue to impede the effective investigation, prosecution, and adjudication of such cases. Unlike individuals who can identify their perpetrators by eyesight, visually impaired employees seldom get justice due to gaps in the law, including the law of evidence dealing with the identity of perpetrators of sexual assaults. The current law of evidence establishes specific standards for proving the identity of criminal perpetrators, primarily relying on sight. In this context, evidence of identity refers to individuals' ability to identify and visually describe offenders. Consequently, other senses, such as touch and smell, do not play a role in facilitating justice for victims seeking redress through those senses. The current limitations under the South African Criminal Procedure Act 51 of 1977 (CPA) particularly affect visually impaired employees, such as victims of sexual offences. This paper employs doctrinal research methods, which involve sourcing relevant literature from books and articles, as well as examining unreported cases involving sexually offended blind individuals. It aims to analyse these cases to highlight the injustices that have arisen. Additionally, it posits that identifying perpetrators by smell is feasible, given advancements in olfactory detection, such as the utilisation of sniffer dogs, which could be accepted in court when accompanied by expert evidence.