Rape and the Law

Media Watch – 23.08.2019

The heinous crimes of rape and violence against women are something we, as South Africans, read about almost on a daily basis; so much so that we are invariably numbed due to the sheer number of incidents reported. While our minds attempt to make sense of these figures and somehow understand the motives and mindsets behind them, the victims are desperately trying to recover from the massive trauma inflicted upon them, and rebuild what is left of their shattered lives.

According to the “CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT ACT 32 OF 2007” rape is defined as:

3. Rape. Any person (‘A’) who unlawfully and intentionally commits an act of sexual penetration with a complainant (‘B’), without the consent of B, is guilty of the offence of rape. 4. Compelled rape. Any person (‘A’) who unlawfully and intentionally compels a third person (‘C’), without the consent of C, to commit an act of sexual penetration with a complainant (‘B’), without the consent of B, is guilty of the offence of compelled rape. 

Here are some statistics:

• South Africa has some of the highest incidences of child and infant rape in the world. In 2001, it was reported by the South African Police Service that children are the victims of 41% of all rapes reported in the country.
• While women’s groups in South Africa estimate that a woman is raped every 26 seconds, the South African police estimates that a woman is raped every 36 seconds.
• It is reported that a husband or boyfriend kills a woman every six hours in South Africa.

Just yesterday, a news channel reported that two alleged rapists who were part of a gang which “rampaged through a suburb and forced entry into several informal houses [and] once inside, they assaulted, robbed and raped the houses’ occupants,” were using a loophole in the law which apparently exculpates the accused on the grounds that they could not be accountable as co-perpetrators of the eight rapes committed as “an individual who is present, but does not actually commit the crime of common law rape, can only be held liable as an accomplice to the crime.”

Countering this, the CALS (Commission for Gender Equality and Centre for Applied Legal Studies) said: “A person should be held liable for the fact that they are present when the offence is committed. In order to avoid conviction, an individual will have to show that they ‘actively dissociate’ from the commission of the crime.”

Chief Justice Mogoeng Mogoeng said the final decision should be made objectively and with logic as there were many types of sexual offences, and thought should be given to each one. “I’m not too sure whether… in a case of rape the principle can apply with as much ease as is the case with other crimes,” he said.

The outcome of this particular case will be interesting, not just from a legal standpoint but in the interests of all victims of rape. We trust that the laws of our land and the judges whose duty it is to apply these laws without fear, favour, or prejudice, will lead to an outcome which is just.

Brian Jones (SA7)
Brian’s Passionate Desk
Brian@BriansPD.World
http://bpd.trackbox.world
https://t.me/BriansPD

SOURCES:
1. Azarrah Karrim, Two rapists want their conviction, sentence overturned based on ‘doctrine of common purpose.’ 2019-08-22, 20:46 https://www.news24.com/SouthAfrica/News/two-rapists-want-their-conviction-sentence-overturned-based-on-doctrine-of-common-purpose-20190822
2.CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT ACT 32 OF 2007, http://www.justice.gov.za/legislation/acts/2007-032.pdf
3.Sexual Violence in South Africa, Wikipedia, https://en.wikipedia.org/wiki/Sexual_violence_in_South_Africa
4. National Policy Guidelines for Victims of Sexual Offences – Issued by the South African Police Service, Private Bag X94, Pretoria, 0001 http://www.justice.gov.za/policy/guide_sexoff/sex-guide01.html