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20CR - Rape - Lecture notes 20
Criminal Law (University of Johannesburg)
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Rape
COMMON LAW POSITION


Definition: Rape is the unlawful, intentional sexual intercourse with a woman by a man, without her
consent
Rape as a crime existed at common law and could also be defined as there being a “carnal connection”
without a woman’s consent
ELEMENTS
1. Unlawfulness
2. Intention
3. Sexual intercourse with a woman [by a man]
4. No consent
 It was a circumstance crime and causation was not required
Unlawfulness

The most common defence for an accused would be consent, so if consent by the woman could be
shown then the accused was not guilty

Compulsion was also a possible argument towards a ground of justification in rape cases

Pre-1993 a husband could not be guilty of raping his wife as he could raise a “marital defence”,
however this was abolished with s5 of the Prevention of Family Violence Act.

S1 of Law of Evidence and Criminal Amendment Act 103 of 1987: A boy could be guilty of rape from the
age of 7 upwards. There is a rebuttable presumption the child is innocent.
Intention

The mens rea required is intention; if the accused subjectively believed that a woman consented, he
may escape liability.

The accused must have intention to have sexual intercourse, knowing or foreseeing that the woman did
not consent (dolus eventualis is sufficient)
Sexual Intercourse with a Woman

Rape could only be committed by penetration of the vagina by the penis, hence a woman could never
be guilty of raping another woman, or even of raping a man

Slightest penetration was sufficient (still valid today); there did not need to be any semen or rupturing
of the hymen

Penetration with anything other than a penis was not rape

Penetration of any other orifice was not considered rape
CASE: Masiya v Director of Public Prosecutions 2007, CC
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Facts: A 9-year old girl was penetrated anally and according to the common law definition this did not
constitute rape but only indecent assault
Court held: Common law definition of rape is unconstitutional and should be extended to include anal
penetration
Comments: Snyman criticizes this on procedural grounds, claiming it is a court’s role to interpret the
law and not to make it.
If a man persisted in having sex with a woman who originally consented but changed her mind
during the act (withdrew consent):
CASE: R v Handcock
 Facts: A woman commenced having sexual intercourse with the accused but during the act she heard
her employer and sought to withdraw consent but the accused continued
 Court held: Accused was not guilty of rape as the withdrawal of consent related to her employer
finding out and not the sexual intercourse.

If a woman (A) assisted a man in raping another woman (B), the A would be guilty only as an
accomplice (R v M)
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No consent

Positive resistance indicated lack of consent, but mere submission did not amount to consent either (S
v S).

Consent is vitiated by threats of violence or duress:
CASE: R v Swiggelaar
Official capacity – submission – threats
 Facts: Accused was a policeman who came to the complainant’s home late at night and ordered here to
accompany him to the police station. She went unwillingly and on the way he pushed her against a wall
and told her would have sexual intercourse with her. She protested but did not prevent him from having
sexual intercourse. He was convicted of rape. On appeal:
 Court held: Appellant’s conduct had reduced the complainant to a frightened and tearful subjection
at a time and place where a young woman might well suffer some nervous fear for her own safety, and
in his official position and overwhelming physical superiority and possession of a revolver, she
submitted to the intercourse
CASE: S v Volschenk
Duress
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Facts: Accused was a detective constable and made a raid on a room in which the complainant was
sleeping. He drove her to an isolated spot where he threatened her with prosecution of a criminal
charge if she did not have sexual intercourse with him. He was convicted of rape. On appeal:
Court held: There was a threat of imprisonment so the intercourse that followed was not obtained by
consent
R v M: “It is essential that the victim’s resistance be overcome by fear, force or fraud”
A girl under the age of 12 was irrebuttably presumed to be incapable of consenting to sexual
intercourse (R v Z)
A man who had intercourse with a woman who was “so devoid of reason that she cannot exercise
judgement at all” was guilty of rape (R v Ryperd Boesman, SWA)
A man who had sexual intercourse with a woman who was already dead would be guilty of
attempted rape only. However:
CASE: S v Brobeck (Tennessee)



Facts: Accused was convicted of murder and rape but medical evidence showed the woman was already
dead at the time of the sexual intercourse. On the issue of whether a victim had to be alive at the time
of rape:
Court held: There is nothing in the definition to indicate the woman must be alive or dead. If consent is
lacking because the woman is asleep or unconscious, then there is no reason why this should not extend
to the victim being permanently unconscious in death. Reading the “live only” requirement into the
definition only encourages rapists to kill their victims.
Fraud vitiates consent if it is either error in persona (mistake as to identity) or error in negotio
(mistake as to the fact)
CASE: R v C
Error in persona
 Facts: The complainant was a woman sleeping in her bedroom at night and in the course of the evening
she awoke and someone was having sexual intercourse with her. Since it was at night and no lights were
on she assumed it was her husband so continued with the intercourse but realized a short while later
that it was not him. In fact, the accused, a stranger to the complainant, had entered through the
bedroom window and started having sexual intercourse with her.
 Court held: A woman cannot be said to have consented unless there is consent not only to the act but
to the man concerned. The consent of a woman, which prevents carnal intercourse from being rape,
does not only require a state of mind of being amenable to the act but also requires the willingness to
CASE: The Queen v Flattery
Error in negotio
 Facts: The accused professed to give medical and surgical advice for money. The complainant was a 19year old girl who consulted him with respect to an illness from which she was suffering, and he advised
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
that a surgical operation should be performed but under the pretence of performing it he had sexual
intercourse with her
Court held: The only thing contemplated by the girl and her mother was the surgical operation which is
what she submitted to when the intercourse occurred. She consented to one thing, he did another
materially different on which she had been prevented by his fraud by exercising her judgement and
will.
CASE: R v Williams


Facts: A married woman agreed to have sexual intercourse with the accused after he represented to
her that he could remedy the displacement of her womb. He raised the defence of consent
Court held: Complainant was familiar with the act proposed and was not deceived as to the act, only to
the result pretended. Accused acquitted.
It became clear



that this definition was inadequate as:
Only vaginal penetration by a penis was accounted for
Only women being raped
Rape was a personal crime (S v Kimberley) so a person assisting in a rape could only be an
accomplice not a co-perpetrator
 Sodomy without consent was not considered rape (until S v Masiya but this only accounted for
a female being sodomized)
CURRENT POSITION

Definition: “Any person (A) who unlawfully and intentionally commits an act of sexual penetration with
a complainant (B), without consent of B, is guilty of the offence of rape”
CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT ACT 32 OF 2007
s1(1) – “child”
(a) a person under the age of 18; or
(b) a person 12 years or older but under the age of 16 years.
s1(1) – “Sexual penetration”
“sexual penetration” includes any act which causes penetration to any extent whatsoever by:
(a) the genital organs of one person into or beyond the genital organs, anus, or mouth or another person;
(b) any other part of the body of one person or, any object, including any part of the body of an animal, into or beyond
the genital organs or anus of another person; or
(c) the genital organs of an animal, into or beyond the mouth of another person.
S1(2) – Meaning of consent
Consent means voluntary and uncoerced agreement
S1(3) – Lack of consent
(a) Consent is not voluntary or uncoerced where B submits or is subjected to such a sexual act as a result of (i)
use of force or intimidation
(ii)
threat of harm
(b) Where there is abuse of power or authority by A to the extent that B is inhibited from indicating his/her unwillingness or
resistance to the sexual act
(c) Where the sexual act is committed under false pretences by fraudulent means, including where B is led to believe by A that
(i)
B is committing such a sexual act with a particular person who is in fact a different person; or
(ii)
Such a sexual act is something other than that act
(d) Where B is incapable in law of appreciating the nature of the sexual act, including where B is, at the time of the
commission of such sexual act (i)
asleep
(ii)
unconscious
(iii)
in an altered state of consciousness (medicine, drugs, alcohol or other substance) to the extent that B’s
consciousness is adversely affected
(iv)
a child below the age of 12 years
(v)
a person who is mentally disabled.
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S3 - Rape:
“Any person (A) who unlawfully and intentionally commits an act of sexual penetration with a complainant (B), without
consent of B, is guilty of the offence of rape”
S4 – 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 consent of B, is guilty of the offence of compelled rape.
S15 – Acts of consensual sexual penetration with certain children (statutory rape)
(1) Any person (A) who commits an act of sexual penetration with a child (B) is, despite the consent of B to the commission of
the act, guilty of the offence of having committed an act of consensual sexual penetration with a child
S55 – Attempt, conspiracy, incitement or inducing another person to commit sexual offence
Any person who
(a) attempts
(b) conspires with another person; or
(c) aids, abets, induces, incites, instigates, instructs, commands, counsels or procures another person, to commit a sexual
offence in terms of this Act, is guilty of an offence and may be liable on conviction to the punishment to which a person
convicted of actually committing that offence would be liable.
Link this with “causes” in definition of sexual penetration
S56 – Defences and Sentencing
(1) Marital defence does not suffice for a charge of rape or sexual assault
(2) When a person is charged with a consensual act of penetration with certain children it will be a defence if that child
deceived the accused person into believing he/she was 16 years or older and the accused reasonably believed he/she was 16
years or older
CASE: S v Nyalunga 2004, TPD
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Facts: The accused raped a 26-year old woman and was aware of his HIV-positive status but failed to
disclose this.
Court held: Accused was guilty of attempted murder as he was aware that the virus could be spread by
sexual intercourse and that it caused death and he continued with the act nonetheless. This charge
could also be used where a victim is exposed to but not infected with HIV.
R v Currier (Canada): criminal law does have a role to play in deterring those infected with HIV from
putting the lives of others at risk
R v Williams (Canada): Accused was aware of his HIV-status and continued to have unprotected sex
with his partner without disclosing it to her.

COMMON LAW
Only a woman could be raped
Rape could only occur by a man
Vaginal penetration only
additionally
Only per penile penetration


Circumstance crime
No co-perpetrators; eienhandige misdaad

The legislation is applicable to all forms of sexual penetration without consent, irrespective of gender
of perpetrators and victims.
Indecent assault has also been replaced with sexual assault
Rape has now become a consequence crime which requires causation, and a person assisting in a rape is
no longer necessarily an accomplice as a person who “causes” an act of sexual penetration is liable as a
perpetrator (s1)
Rape is therefore no longer a personal crime

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STATUTORY
Terms are gender-neutral, accounting for men and women
Gender-neutral terminology, men and women may be guilty
Accounts for penetration in the anus and mouth
Accounts for “any other part of the body of a person”, “any
object”, any part of body of an animal
Consequence crime (“causes”)
Co-perpetrators possible (“causes”)
ELEMENTS
1.
2.
3.
4.
Unlawfulness
Intention
Sexual penetration
Consent
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1) Unlawfulness
Rape will be unlawful if there is no ground of justification
2) Intention


A must know that B did not or could not consent to the sexual penetration
Dolus eventualis suffices
3) Sexual penetration







s1 “sexual penetration”
Additional points:
Insertion of any body part, other than genital organs, into B’s mouth is not sexual penetration
Insertion of any foreign object into B’s mouth is not sexual penetration
Surgically reconstructed or constructed penis inserted into vagina/anus/mouth constitutes sexual
penetration
Slightest penetration is sufficient (common law rule)
Woman can be guilty of rape where she has manipulated a man’s penis with the result that she is
sexually penetrated.
4) Consent


S1(2) consent is voluntary or uncoerced agreement
S1(3) instances where there is no consent:
Submission as a result of force, intimidation or threat [s1(3)(a)]

The previous view was that intercourse had to take place violently to qualify as rape but now it is
accepted that the victim could be fearful (R v Swiggelaar) and submit

Lack of resistance does not mean consent

Fear aroused by threat of any kind will not be regarded as valid consent, even if the threats are to a
third party
Abuse by the accused of powers of authority [s1(3)(b)]

If the accused expressly or tacitly used his position of power to influence Y to consent, then it would
not be valid consent
 Example: X police officer threatens to put Y in jail if she does not have intercourse with him (S v
Volschenk)
Consent obtained by fraud [s1(3)(c)]

At common law fraud had to occur via error in persona or error in negotio; this still exists under the Act
but the Act has extended it to all forms of fraud
SENTENCING
An accused will be sentenced to life imprisonment in the following situations:

Victim is raped more than once by the accused or co-perpetrator

Victim is raped by more than one person and such persons acted in common purpose

Where the accused had been convicted of 2 or more offences of rape but not yet sentenced

Where the accused knew he had HIV

Where the victim was below 16 years of age

Where the victim was disabled and so rendered vulnerable

Where the victim is mentally ill (as per s1 of Mental Health Act)

Where the rape involved the infliction of grievous bodily harm
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