Violence against Women and HIV/AIDS in Sub Saharan Africa:
The Enforcement of Rape Laws in Tanzania, Zimbabwe and
South Africa
By Stephanie Pearce
Introduction
Over the past five years increasing numbers of reports and researchers have been
linking the dual epidemics of Violence against Women and HIV/AIDS in Sub-Saharan
Africa. It is becoming apparent that to adequately deal with either of these issues, states
must take an integrated approach to programming and service provision. To do this
effectively it is necessary to understand the links between Violence against Women and
HIV/AIDS and identify opportunities for improvements, growth and change in current
strategies.
One strategy employed in recent years is the implementation of legislation that
criminalizes sexual offences and provides harsh sanctions for the commission of these
offences. This paper will examine the sexual offence legislation of three Sub Saharan
African countries with the goal of identifying strengths and weaknesses of the legislation
and its implementation process and possible linkages with the prevalence of HIV/AIDS
within that country.
The paper is divided into five sections. The first section will discuss the research
question and methodology used in preparing this paper, the second section will include
brief overview of the available research on Violence against Women and its intersection
with HIV/AIDS, as well as general problems in dealing with the crime of rape through
the criminal justice system around the world. The third section of this paper includes
three country-based case studies, namely Tanzania, Zimbabwe and South Africa. Each
case study will provide the background of the relevant legislative provisions and relevant
statistics and will identify practical challenges and opportunities in enforcing the
legislation. Section four of the paper will discuss the legislation and enforcement
mechanisms from the viewpoint of Difference Feminism. Finally Section Five will
synthesize the research findings in a list of possible recommendations and a discussion of
model legislation. Relevant statutory provisions and statistics will be included either in
text or as Appendices.
SECTION I) RESEARCH QUESTION AND METHODOLOGY
This paper will address the topic of Violence against Women and intersections
with HIV/AIDS through an analysis of criminal law provisions dealing with rape.
Specifically this paper will analyse the fairness and effectives of enforcement of strong
rape laws in three African countries. In total, five countries were chosen for analysis,
three that will be discussed in this paper, and two others namely Botswana and Namibia
that have been analysed by my research partner in her paper. Tanzania and Zimbabwe
were chosen based on the priorities of the research team, availability of information and
the new implementation of strong sexual offence legislation. These countries also provide
a nice contrast as Tanzania has a relatively low HIV/AIDS prevalence rate of 8.8%,1
enjoys a relatively stable political environment, and implemented its sexual offence
legislation in 1998. Conversely, Zimbabwe has a relatively high HIV/AIDS prevalence
rate of 24.6%, is in a state of political unrest and implemented its sexual offence
legislation in 2001.
South Africa was chosen because of its unique situation as the country with the
highest rate of reported rapes per capita worldwide, and also the country with the highest
number of people living with HIV in the world, with an estimated 5.3 million infected at
the end of 2003.2 A huge amount of information is available on the joint endemics in
South Africa. The goal of this case study was to review the available research and attempt
to ascertain specific problems either in the legislative framework of the sexual offence
legislation, in the enforcement of this legislation or both.
The research methodology for this paper included both quantitative and
qualitative analysis. No primary research was carried out in the preparation of this paper;
rather the analysis is based on a review of existing literature and research. The
quantitative analysis involved an examination of relevant statistics on crime and legal
enforcement in each country using International and National Victim Surveys and
National Crime Surveys. Qualitative analysis involved a review of secondary sources for
discussions of the strengths and weaknesses of the relevant legislation and issues relating
to enforcement of this legislation. Sources include legal indexes, as well as international
and domestic NGOS websites. Finally, when possible, relevant case law was reviewed
for examples of judicial interpretation of legislative provisions.
Violence against Women and the Intersection with HIV/AIDS
“‘Gender inequalities are a major driving force behind the AIDS epidemic’;
women and girls are particularly vulnerable to infection and carry a
disproportionate amount of the burden of the pandemic’s social and economic
impact.”3
On January 17, 2005, the United Nations Special Rapporteur on Violence against
Women, Yakin Erturk delivered a report on the integration of the human rights of women
1
Prevalence Rates are taken from UNAIDS 2004 Report on the Global Aids Epidemic, online: UN AIDS
Web page, http://www.unaids.org/bangkok2004/report.html
2
UNAIDS, AIDS Epidemic Update, December 2004, online: UNAIDS Web page,
http://www.unaids.org/wad2004/report.html.
3
UNAIDS Fact Sheet, Gender and HIV/AIDS, online, UNAIDS HIV/AIDS and Gender Web Page
http://www.unaids.org/fact_sheets/ungass/html/Fsgender_en.,html, cited in “HIV/AIDS and the
Humanitarian Catastrophe in Sub Saharan Africa”, Report of the Standing Committee on Foreign Affairs
and International Trade, B. Patry and I. Cotler, Chairs, (Ottawa; Communications Canada, 2003) at 17.
and the gender perspective.4 This report focused on the intersections of violence against
women and HIV/AIDS and called for states to create integrated and effective responses
dealing with gender inequality as a root cause and consequence of the disease.5 The
Special Rapporteur listed a number of recent UN initiatives that have focussed on this
topic as both an indication of growing international attention to this issue, as well as the
cause for the focus of her report.
In 2001, the Commission on the Status of Women addressed the thematic issues
“Women, the Child and HIV/AIDS.” In General Assembly Resolution s-26/2 from the
twenty-sixth special session on HIV/AIDS, governments committed themselves to
implement national action programmes to empower women to freely decide matters
related to their sexuality and to protect themselves from HIV infection. The Commission
on Human Rights emphasized that the advancement of women and girls is key to
reversing the HIV/AIDS pandemic in Resolution 2004/27. Resolution 2004/46 by the
same body emphasized that violence against women and girls increases their
vulnerability to HIV/AIDS, that infection further increases women’s vulnerability to
violence and that violence against women contributes to the conditions fostering the
spread of HIV/AIDS.6 The culmination of these statements by other bodies, as well as the
request of the Commission that Special Rapporteurs integrate the protection of HIV
related human rights in their mandates prompted this report.
The World Health Organization identifies the relationship between VAW and
HIV/AIDS in a number of publications including information bulletins, a World Report
on Violence and Health (2002), and Conference Proceedings from 2000, entitled WHO
Violence against Women and HIV/AIDS: Setting the Research Agenda. These reports,
like much of the literature in this area focus on VAW as both a cause of increased HIV
infection, as well as a consequence of disclosing HIV infection. The identified
intersections between VAW and HIV/AIDS are typically organized into the following
categories.
1) Direct Transmission through Sexual Violence
The literature indicates that coercive and forced sexual relations are a route of
transmission for HIV to women. During forced sexual relations the risk of transmitted
HIV infection is higher due to the occurrence of abrasions and cuts in either the vaginal
tract or anus facilitating entry of the virus. For physiological reasons, the risk of infection
is even higher for young girls, because their vaginal tracts are immature and tear more
easily during sexual intercourse.7
Yakin Erturk, “Intersections of Violence Against Women and HIV/AIDS,” Report of the Special
Rapporteur violence against women its causes and consequences, Economic and Social Council, UN ESC,
E/CN.4/2005/72 (2005)
5
Ibid at 2.
6
Ibid at 6.
7
World Health Organization Information Bulletin, “Violence Against Women and HIV/AIDS: Critical
Intersections;” and World Health Organization, World Report on Violence Against Women and Health
(Geneva: World Health Organization, 2002) at 124.
4
Within the context of domestic and intimate partner violence, women are
particularly susceptible to HIV infection through re-infection. The virus can mutate over
time when exposed to medication. Therefore regular unprotected intercourse with an HIV
infected man, even if the woman herself has already contracted HIV, exposes her to the
possibility of re-infection from a mutated version of the virus.8 Female physiology
combined with women’s inability to access health care and treatment make women more
susceptible to re-infection than men.9
2) Indirect Transmission through Sexual Risk Taking
The literature suggests that women’s experiences with violence are linked to increased
sexual risk taking including having multiple partners or engaging in transactional sex.
Studies also discuss the relationship between sexual abuse during childhood and forced
sexual initiation during adolescence and increased risk taking behaviours.10
3) Indirect Transmission through Inability to Negotiate Condom Use
There is an argument made that experience of violence, including physical and sexual
violence, by a woman’s intimate partner may limit her ability to negotiate condom use.11
The ability to negotiate condom usage is also linked to the perceptions associated with
the use of condoms, for example implications of infidelity or the association with sex
workers and “casual” women.12
4) Violence as a Consequence of Being HIV Positive
Violence or a fear of violence has been indicated as a reason that women do not seek HIV
testing and do not disclose results that testing to their partners.13 From the perspective of
men, there is anecdotal evidence from South Africa that suggests that HIV may
encourage men to rape women, or knowingly transmit the disease to their sexual partners
without disclosure out of a desire to spread the infection.14
5) Violence Related to Harmful Practices
The literature suggests that other indicates other cultural practices may lead to increased
HIV infections. These practices include: lobola, polygamy, dry sex, age gaps in
8
Erturk, supra note 4 at 11.
Ibid.
10
WHO Information Bulletin, supra note 7.
11
Ibid.
12
“Violence, Vengeance and Gender – A Preliminary Investigation Into the Links Between Violence
Against Women and HIV/AIDS in South Africa,” Centre for Study of Violence and Reconciliation
(Johannesburg: Centre for Study of Violence and Reconciliation, 2001): at 10.
13
Ibid. at. 11
14
Ibid. at 9; and Ania Lichtarowicz, “Africa sees rise in sex terror,” (BBC News February 24, 2007),
online: BBC News Web Page, http://news.bbc.co.uk/go/pr/fr/-1/hi/world/africa/3492482.
9
marriages, sugar daddies, wife inheritance and female genital mutilation.15 These
practices will be discussed in the following case studies where relevant.
The Supporting Evidence
While the more recent reports by the World Health Organization decline to cite
their references for the arguments listed above, the literature shows that each of these
propositions has mixed foundation in evidence at best. An article published in Social
Science and Medicine in 2000 on the intersections of HIV and Violence indicated that
there are more questions than answers when it comes to actual research findings on this
topic.16 This article reviewed 24 studies that identified violence as a risk factor of HIV
and six studies that described the problem of violence resulting from HIV infection. This
review, together with other articles focussing on quantitative studies in this area show
that the links made above are not wholly supportable by research findings.
1) Forced or Coercive Sexual Intercourse
According the review by Maman et al. there is no evidence to support the proposition that
forced and coercive sexual intercourse with an infected partner leads to increased risk of
HIV infection. Studies in this area have all been cross sectional, and therefore it is
impossible to determine any direct causal relationship between forced sex and HIV from
these studies.
In the WHO Conference Proceedings, “Violence and HIV/AIDS, Setting the
Research Agenda” there is a discussion of Rape and post-exposure prophylaxis in South
Africa [this will be discussed in greater detail under the South African case study.] This
discussion highlights the difficulty in measuring whether coercive sexual intercourse has
increased the risk of HIV Transmission. The report explains that worldwide individuals
have a lifetime of potential exposure to HIV/ infection, citing 15 year-old boys within
Africa at a 65% chance of developing HIV within his lifetime, and women at an event
higher rate. Within this context, the experience of sexual assault may contribute very
little to the overall risk of acquiring HIV infection.17
A study by the Centre for the Study of Violence and Reconciliation, Violence
Vengeance and Gender: A Preliminary Investigation into the Links Between Violence
Against Women and HIV/AIDS in South Africa, indicates that information about women
who become HIV positive after rape is limited and anecdotal and often comes from
Facing the Future Together, Report of the United Nations Secretary-General’s Task Force on Women,
Girls and HIV/AIDS in Southern Africa, (UNAIDS Special Taskforce, 2004) at 22, “Violence, Vengeance
and Gender…” supra note 12 at 6- 7; and Irturk supra note 4 at 11-12.
16
Suzanne Maman, Jacquelyn Campbell, Michael D. Sweat and Andrea C. Gielen, “The Intersections of
HIV and Violence: Directions for Future Research and Interventions,” in Social Science & Medicine 50
(2000): 459-478
17
“Violence and HIV/AIDS: Setting the Research Agenda,” (Geneva: World Health Organization, 2000):
at 35.
15
newspaper reports. This study also indicates that there is no available information as to
the HIV status of convicted or alleged rapists.18
The difficulty in determining statistical support for this intersection lies in the nature
of the problem. For reported rapes that are perpetrated by assailants unknown to the
victim, links can only be determined if the victim is tested for HIV directly following the
attack, and for HIV negative women again in 6 months to a year to determine if she has
developed HIV. For incidents of intimate partner violence, the transmission of rape may
occur during consensual sex. The links that researchers try to make in these situations is
that women who have experienced violence intimate partner violence are less likely to
negotiate condom usage and more likely to engage in sexual risk taking, discussed below.
2) Indirect Transmission through sexual risk taking
According to the review by Maman, there is evidence to support the idea that
individuals with a past history of childhood sexual assault are more likely to engage in
HIV risk taking behaviours.
The Centre for the Study of Violence and Reconciliation study Violence,
Vengeance and Gender, held that the research on childhood abuse and its link to sexual
risk taking is inconclusive.
The 2002 WHO report on Violence and Health indicates that forced sex in
childhood increases the likelihood of engaging in unprotected sex, having multiple
partners, participating in sex work and substance abuse. However no authorities or
studies are cited to support this statement.
3) Indirect Transmission through Inability to Negotiate Condom Use
There is modest support between intimate partner violence and inability to
negotiate condom use according to four studies reviewed by Maman et al.
A cross sectional study carried out in three South African provinces surveyed
1164 women. Of this group, 33% of women suggested condom usage, 44% of their
partners agreed, 36% said they didn’t like condoms and 2% accused them of infidelity.
None of those women were threatened with violence and none were made to leave. Those
that were more likely to suggest condom use were younger, closer in age to their partner,
more likely to be unmarried and had higher levels of educations. These women were also
more likely to have experienced physical or financial abuse by their intimate partner in
the last year and to have experienced some in their lives.19
“Violence, Vengeance and Gender,” supra note 12 at 10.
Rachel Jewkes, Jonathan Levin, Loveday A. Penn-Kekana, “Gender inequalities, intimate partner
violence and HIV preventive practices: finding of a South African cross-sectional study,” in Social Science
and Medicine 56, (Pergamon Press, 2003): 125 at 128.
18
19
This study also measured if the women had discussed HIV with their partners.
Here 39% of the sample had discussed HIV with their partners. Those that had were more
likely to be younger, closer in age to their partners, more likely to be unmarried and have
higher levels of education. The findings related to age gaps indicated that an age
difference between the partners as a measure of gender inequality shows the importance
of inequalities as barriers to communication on these matters in a relationship. In cases
where there was an age gap of five or more years between the man and the woman, the
women were less likely to have discussed HIV. The authors concluded that the statement
that gender inequalities reduce women’s ability to protect themselves is over-reductionist,
because indicators of gender inequalities in relationships are seen as working in
contradictory ways.20
A 2004 cross sectional study of 1366 women attending antenatal clinics in South
Africa found that women who reported subjective experience of being controlled within a
relationship, regardless of overt violence, were less likely to use condoms. Meanwhile,
there were no associations found between partner violence and condom use.21
The document, “Violence, Vengeance and Gender – A Preliminary Investigation
Into the Links Between Violence Against Women and HIV/AIDS in South Africa,” cites
a 1996 study of 85 young African women where 56% of them indicated that they would
not discuss or request condoms for fear of violence or rejection.22
These conflicting findings suggest that there is modest evidence at best to support the
proposition that violence against women undermines ability to negotiate condom usage.
Research should focus on particular indicators of gender inequality within relationships,
rather than simply on measures of violence.
4) Violence as a Consequence of Being HIV Positive
Maman et al. reviewed six studies examining the experience of HIV infected
women with violence. The results from these studies provide conflicting evidence of an
association between HIV status disclosure and risk of violence.23 Problems with the
majority of the studies included a failure to consider a woman’s previous history of
violence as well as considering the partner’s reactions were assessed only immediately
following disclosure. In one study from 1998, the authors found that a greater proportion
of HIV negative women than HIV positive women reported violence within the last six
months, and that recent violence was inversely associated with AID symptoms. However,
the cross sectional nature of the study and lack of information on partners and the
relationship status of the women make it difficult to draw definitive conclusions.
20
Ibid. at 131.
Kristin L. Dunkle et al, “Gender-based violence, relationship power, and risk of HIV infection in women
attending antenatal clinics in South Africa, ” in The Lancet, Vol. 363, (May 1 2004) at 1419.
22
“Violence, Vengeance and Gender”, supra note 12 at 10.
23
Maman et al., supra note 16 at 474.
21
More recently, a survey of 245 women in a clinic in Tanzania carried out in 2001
found that following disclosure of HIV status for 245 women, women experienced
negative outcomes for both positive and negative status. The same study held that HIV
positive women were 2.68 times more likely to have experienced violent episodes
perpetrated by their current partner, and young women with HIV were ten times more
likely to do so. They were also more likely to have had a physically violent partner in
their lifetime and have experienced an episode of physical and sexual violence.24 The
Special Rapporteur holds this study as finding that “the primary barrier for HIV testing
and serostatus disclosure that women described was fear of conflict with partners.”25
Conclusions
Despite the now accepted relationship between VAW and HIV AIDS there is a
distinct lack of published evidence to support and explain these intersections. Research is
needed in this area to help understand how certain aspects of gender inequality and
violence against women actually affects the transmission of HIV/AIDS. With that
cautionary note, it is widely accepted even by those who raise the evidentiary dearth on
this topic, that integrated approaches to VAW and HIV/AIDS are needed in order to
address both epidemics effectively.
SECTION II) DIFFICULTIES IN THE ENFORCEMENT OF SEXUAL OFFENCE LEGISLATION
“Women who say do not always mean no. It is not just a question of saying no, it is a
question of how she says it, how she shows it and makes it clear. If she doesn’t want it,
she only have to keep her legs shut and she would not get it without force and there
would be marks of force being used.” Judge Wild, Crown Court of Cambridge,
Instructions to Jury, 1982
Attempts to deal with sexual offences through criminal legislation have been
riddled with procedural, societal and resource related problems. Rape trials have been so
difficult for the victim that they are described in the literature as “secondary
victimisation.”26 This victimisation is related to definition of the crime of rape,
evidentiary issues, myths and misconceptions held by members of the criminal justice
system and the related societal conceptions that lead to these myths, low reporting rates
and lenient treatment of rapists. This section will briefly canvas some of the predominant
challenges of dealing with sexual offences through the criminal justice system, as a
backdrop to the following case studies.
Suzanne Maman, Jessie K. Mbwambo, Nora Hogan et al, “HIV-Positive Women Report More Lifetime
Partner Violence: Findings From a Voluntary Counselling and Testing Clinic in Dar Es Salaam, Tanzania,”
in American Journal of Public Health, Volume 92 (8) (Washington: American Public Health Association:,
August 2002): 1331-1337 at 1335.
25
“Violence, Vengeance and Gender” supra note 12 at 12.
26
Jennifer Temkin, Rape and the Legal Process (Oxford: Oxford University Press, 2002) at 3; Lisa Vetten,
“While women wait…(2) Can specialist sexual offence courts and centres reduce secondary victimisation?”
in Nedbank ISS Crime Index, Volume 5, No. 3 (2001), online: Institute for Security Studies Web Page,
http://www.iss.org.za/.
24
Experience of Rape Victims
While the definition of rape varies in each jurisdiction common constituent
elements include coerced sexual intercourse with a person without their consent. The
definition of rape alone has caused considerable problems with prosecution. The
emphasis on coercion has resulted in an emphasis on the use of physical force and
evidence of this force. Consequently, date rape, intimate partner rape, rape facilitated
through the use of non physical threats, manipulation or fear and rape using physical
force that did not result in physical evidence became difficult to prove and almost
impossible to prosecute. Consequently in some jurisdictions in the 1980s the definition of
rape moved to centre on lack of consent. For example within the Canadian legislation this
change was made to “direct attention away from rape as a sexual offence and towards the
right of every person to be free from physical assault.”27 However the focus on consent
has also been problematic as in many jurisdictions it has placed a positive burden on the
victim of the assault to prove that she did not consent.
These definitional issues are compounded by social myths and misconceptions
surrounding rape, particularly intimate partner and marital rape, held by members of the
criminal justice system. These myths include the “Virgin/Vamp” distinction, which
embodies the idea that some women invite rape by dressing or behaving in a certain way.
Another related myth is that, “No does not always mean no.” This idea is seen repeatedly
throughout judicial comments, as seen above. One author cites a famous scene from
Gone With the Wind as evidence of this societal norm. Here, Rhett Butler forcibly
carries a protesting Scarlett to bed.28 This belief is particularly applicable to intimate
partner rape. This corresponds to the myth that some women consent to brutal, violent
and forced sexual intercourse.29 This belief can be described as perceiving the woman as
a masochist or rape fantasist.30 Together these beliefs have lead to accusatory cross
examinations, and scrutiny of the complainant’s behaviours throughout the trial while on
trial, with a focus on what she wore, said or how she behaved, including whether she
drank or smoked or used bad language as reflective of her consent to the act in question.31
This relates to evidentiary issues discussed below.
Finally, the pervasive belief that women make false accusations of rape for varied
personal readings mitigates successful prosecution of sexual offences. Police and
prosecutors have cited various reasons which include the preservation of one’s reputation
in the face of a suspicious parent, husband or fiancé,32 seeking revenge or malice against
an ex boyfriend, and in the case of marital rape, using rape as a “weapon to subordinate
the foundation of society, the institution of marriage.”33 There is little evidence to
27
Law Reform Commission of Canada, Working Paper No. 22 Sexual Offences (Ottawa: Law Reform
Commission of Canada, 1978) at 22.
28
Nancy M. Lemon, Domestic Violence Law, (St. Paul, Minn: West Group, 2001) at 450.
29
Jeanne Marsh, Alison Geist and Nathan Caplan, Rape and the Limits of Law Reform, (Boston, Mass:
Auburn House Pub. Co., c1982); at 3.
30
Temkin, supra note 26 at 123.
31
Ibid. at 197.
32
Ibid at 5; Marsh, supra note 29 at 91 – 92.
33
Lemon, supra note 28 at 454.
support these widely held beliefs, and in fact studies have shown that statistics for false
rape reports in the United States is 2%, the same as for most other similar crimes.34
The most harmful of all myths and misconceptions is the idea that forced sex
between intimate partners, and/or between men and women when men have greater
power is not violence. Studies show that violence against women is linked to societal
understandings of gender equality in power. In societies with high levels of rape women
hold limited power and authority and males express contempt for women as decision
makers. In these societies masculinity is predicated on an ideology of toughness and an
acceptance of interpersonal violence. Conversely in societies with low incidence levels of
rape, women are respected and influential members of the community. In these
communities, the relationship between the sexes tends to be symmetrical and equal and
most importantly rape is regarded with abhorrence and treated very seriously.35
Related to this belief is the idea that men cannot rape their intimate partners or
wives. The view that rape within marriage is pervasive amongst men and women,
members of the criminal justice system and non-legal actors worldwide. In 1979
California State Senator Bob Wilson is quoted as asking “If you can’t rape your wife who
can you rape?” The belief that marital rape is not a crime permeates the three countries
that will be studied in the paper, together with other views regarding gender inequality
and the right of men to have sex with women at whim. Each of these will be discussed
when relevant.
Evidentiary Issues
Issues within the criminal justice process also create impediments to prosecuting
rape. As mentioned above, meeting evidentiary burdens can pose problems for rape
victims. There is a general rule that rape victims may draw on previous complaints made
to a third party to combat the assumption that her evidence is false. This permits the
complainant to give evidence that at the earliest reasonable opportunity she voluntary and
without prompting reported the rape to the third party. This rule causes problems where
the victim makes a late complaint and does not consider the effect of the rape on the
victim and the corresponding time necessary to feel emotionally able to file a
complaint.36
A second evidentiary issue that has been particularly problematic in the
prosecution of rape is the use of sexual history evidence. This often takes the form of
bringing up the complainant’s past sexual history by cross-examining her about previous
sexual relationship or suggesting that she has a bad reputation. While different
jurisdictions have prohibited this type of evidence from being brought forward at trial,
34
Ibid.
These specific findings are from anthropologist Peggy Reeves Sanday, cited in Lisa Vetten, “Roots of a
Rape Crisis,” in Crime and Conflict No. 8 (1997): 9 – 12. The links between gender inequality and violence
against women are made throughout the literature however.
36
Temkin, supra note 26 at 195-197.
35
even when these rules are in place, some judges will allow such evidence or innuendo to
be brought forward. Again, this is particularly relevant in intimate partner rape.
Finally corroboration rules require additional confirmatory evidence other than
testimony from the victim implicating the accused person.37 This has taken the form of
the “cautionary rule” of evidence, which has been formally abolished in each of the three
jurisdictions discussed below.
Underreporting
Together these problems with prosecution have contributed to underreporting of
rape. It is universally recognized that number of offences recorded by the police is a
small proportion of the number of rapes that actually take place.38 Reports and studies
suggest anywhere between 8% and 39% of rapes are reported to the police.39 Reasons for
not reporting are firstly related to rough handling by the police and court systems. Other
reasons include feelings of shame, humiliation, self-blame, the desire to keep the rape
secret, the wish to avoid court appearances which are regarded as an ordeal and the wish
to avoid trial by newspapers’ publicity. Some women also fear retaliation by their
assailant.40 In the countries studied here, societal backlash, including ostracization and
the inability to get or remain married were also reported.
Low rates of reported rape are also related to the failure of police and prosecutors
to accept and pursue complaints.41 In United States, England, and Scotland rates of
reported rapes have increased over the past twenty years in response to changing attitudes
in becoming less tolerant of rape, and changes in how the police respond and record
allegations.42
SECTION III) COUNTRY CASE STUDIES
A) TANZANIA
i. Legislative Provisions
In Tanzania, rape is defined and criminalized in the Sexual Offences Special
Provisions Act passed in 1998 (see Appendix A). According to Section 130 of this Act, a
male person commits the offence of rape if he has sexual intercourse with a girl or
women who is not his wife (unless he and his wife are separated at the time of the
offence) and she does not consent to it at the time of intercourse.43
37
Ibid. at 254.
Ibid. at 5.
39
Lemon, supra note 28 at 86.
40
Temkin, supra note 26 at 16.
41
Ibid. at 14.
42
Ibid. at 12.
43
Sexual Offences Special Provisions Act 1998 (Act. 4/98) [SOSPA]. .
38
According to a paper presented at a workshop on parliamentary democracy on
November 29th, 2004, the Sexual Offences Special Provisions Act was partially the result
of lobbying efforts by Women Rights Organizations and the Tanzanian Women Lawyers
Association. In 1997 these groups were concerned with gender based violence and the
need for a law that would adequately address issues of sexual harassment and violence
based on ones sex. A series of activities were undertaken by the members of the Feminist
Activist movement coordinated by the Tanzania Media Women Association TAMWA to
engage stakeholders and convince parliamentarians to pay serious attention to acts of rape
and sodomy amongst other violent acts and to assign strong penalties to these crimes.44
Consent
Consent is not valid where it has been obtained by the use of force, threats or
intimidation or by putting the victim in fear of death or of hurt while she is in unlawful
detention. A child under the age of 18 is unable to consent unless she is above the age of
15 and is married to the defendant. Consent is vitiated where the complainant is not of
sound mind, i.e. where the complainant is intoxicated by any drugs or matter
administered by a third party or the defendant, or if there is a mistaken belief in the
identity of the rapist and the complainant believes herself to be married to the rapist.
Physical Requirements
According to Section 130(4) for the purposes of proving the offence of rape
penetration, however slight is sufficient to constitute the sexual intercourse necessary to
the offence. Section 130(4)(b) states that evidence of resistance such as physical injuries
to the body is not necessary to prove that sexual intercourse took place without consent.
Sentencing
Sentencing for the offence of rape under Section 130 is imprisonment of not less
than 30 years plus corporal punishment and compensation to the victim. Punishments will
be harsher for defendants who have abused their position of authority including religious
leaders, traditional healers, and management in remand homes.45 Harsher punishments
will also be given in the case of complainants under the age of 18 years. In the case of
gang rape, punishment upon conviction is imprisonment for life. This is applicable
regardless of the role of the perpetrator in the act.46
Other sexual offences
Grave Sexual Abuse: Other offences include grave sexual abuse, or male rape, as
defined in s. 138(1). Here the offence is defined as, “Any person who for sexual
44
Mary John Mwingira, The Experience of Civil Society and Particularly NGOs in Engaging With
Parliamentarians in Tanzania, Paper presented at a workshop on Parliamentary Democracy (November 29,
2004).
45
SOSPA Sections 130 (3) (a) through (e).
46
Ibid. Section 131A(1) and (2)
gratification does any act by the use of his genital or any other part of the human body or
any instrument on any orifice or part of the body of any other person, being an act which
doesn’t match amount to rape under Section 130, commits the offence of grave sexual
abuse if the act was done: without consent of the person, or with the consent or the person
where that consent was obtained through force, threat or intimidation or when the person
was of unsound mind.
The punishment for grave sexual abuse includes 15 to 30 years imprisonment plus
corporal punishment and compensation. If the victim is under the age of 15 years this
punishment is increased to twenty to thirty years imprisonment plus corporal punishment
and compensation.
Sexual Harassment: Acts or words that cause sexual annoyance or harassment,
including any act that does not amount to rape under Section 130 are included as sexual
harassment. Proceedings for these actions must be instituted no more than sixty days
after the occurrence of the event. Sexual harassment is punishable by a fine of 200,000
shillings and imprisonment and compensation or a combination of these three
punishments.47
Sexual Assault: Sexual assault occurs when someone with the intent to cause
sexual annoyance utters any word or sound makes any gesture or exhibits any word or
object intending that such word or sound shall be heard. This act is punishable by a term
of imprisonment not exceeding five years or a fine not exceeding 300,000 shillings or
both.48
ii. Quantitative Analysis – Statistics
The United Nations Survey of Crime Trends and Operations of Criminal Justice
Systems Covering the Period 1990 –2000, published by the Office on Drugs and Crime
Division for Policy Analysis and Public Affairs,49 provides only limited statistics for
Tanzania. This study provides rates of recorded crimes for 1995, 1996 and 1997; but does
not provide rates of prosecutions of convictions for these same years. Based on these
statistics, rape was more prevalent than assault through Tanzania for this time period.
Year
1995
1996
1997
47
Occurrences of
Rape
979
1,386
1,576
Per 100,000
Inhabitants
3.30
4.54
5.04
Occurrences of
Assault
422
550
513
Per 100,000
Inhabitants
1.42
1.80
1.64
Ibid. Section 138(d)(1)
Ibid. Section 135 (1)
49
United Nations Survey of Crime Trends and Operations of Criminal Justice Systems Covering the Period
1990 –2000, United Nations: Office on Drugs and Crime Division for Policy Analysis and Public Affairs
(1996), online: United Nations Crime and Justice Information Network, http://www.uncjin.org/index.html.
48
The 1995 United Nations International Crime Victim Survey indicated that 10.8% of the
population in Dar Es Salaam were victimised by sexual incidents; versus 6.6% that
experienced assault. Of those incidents, only 28.6% of the sexual incidents were reported
to the police versus 66% of the assaults.50
In a 2004 victim survey of 13,733 people living in Arusha, Dar es Salaam and
Mtwara the only 42 people, or 1.2% of the population surveyed reported experiencing
sexual assault in the preceding twelve months.51 Of these 24 victims reported the incident
to the police.52 The authors of the survey acknowledged both that it is difficult to
ascertain information about incidence of sexual assaults and that the percentage of
victims reporting is likely skewed because those victims who are most likely to report
sexual violence to the police will also be likely to indicate the incident in a victim survey.
Sentences Served
A study carried out in 1995 of 62 sexual offence cases in one district of Tanzania
occurring between 1989 and 1991 indicated that problems existed in sentencing practices.
At that time, the minimum sentence for rape was life imprisonment. However the
majority of cases received a punishment of five years imprisonment, and in some cases
the only punishment was a fine. The author of the study held that these sentences failed to
consider the gravity of the crimes being committed. It was felt that this lenient treatment
towards sexual offences was contributing to their prevalence in Tanzania society.53
According to a survey of two districts in Dar Es Salaam cited in a 2001 report, of
51 cases of rape filed since 1998, 42 were still pending, six were withdrawn and three
were adjudicated. Of these three the sentences ranged from life imprisonment, 30 years
imprisonment and corporal punishment and corporal punishment for a fourteen-year-old
defendant. As of the end of February 2001, no case had been appealed to the High
Court.54
iii. Qualitative Analysis
a) Interpretation of “rape” in the case law
50
International Crime Victim Survey, (Rome, UNICRI, 1995): online: International Crime Victim Survey
Web Page, http://ruljis.leidenuniv.nl/group/jfcr/www/icvs/data/D_vic.htm.
51
Aki Stavrou and Jennifer O’Riordan, “Victimisation in Tanzania: Survey of Crime in Arusha, Dar es
Salaam and Mtwara,” (Institute for Security Studies, August 2004), online: Institute for Security Studies
Website, http://www.iss.org
52
Ibid. at 86
53
The Honourable R.J.A. Mwaikasu, “Criminal Law as a Vehicle for the Protection of the Right to
Personal Integrity, Dignity and Liberty of Women (in Respect of Offences of Rape, Defilement, and
Indecent Assault): The Case of Tanzania Mainland in M. Cherif Bassiouni and Z. Motala, The Protection of
Human Rights in African Criminal Proceedings (Dordrecht: Martinus Nijhoff Publishers, 1995): at 257.
54
Women of the World: Laws and Policies Affecting Their Reproductive Lives Anglophone Africa (Centre
for Reproductive Rights, 2003) at 125.
Reports of the High Court and Court of Appeals decisions in Tanzania are
published in the Tanzania Law Reports. The most recently published set of reports that is
available to the University of Toronto covers up to 1997. Thus, since there is no available
reported case law since the implementation of the new Act.
Cases dealing with the offence of rape under the old law indicate some procedural
problems, which have been addressed in the new legislation. Other problems highlighted
have not and cannot be amended through legislation, but instead are an issue of pervasive
judicial and societal attitudes.
In Dhahiri Aly v. Republic55, a 1989 case in the high court, a child’s evidence
regarding an act of defilement was dismissed. Here it was held that while the trial
magistrate held that the victim could not understand the nature of an oath or affirmation,
he did not proceed to find out whether the victim was possessed of sufficient intelligence
and that she understood the duty of speaking the truth. A new trial of the assailant was
ordered.
In Ally Athumani v. Republic56, a 1991 case the trial court had proceeded as if the
assailant was mistakenly charged with rape rather than defilement. To show that rape
had occurred, the court needed to prove that there was lack of consent, however in cases
of defilement consent is irrelevant, there must only be proof of age under the age of 14
years. The assailant was found guilty of rape. The High Court ruled that this was a case
of defilement and not rape, and as there was no evidence of age, the defendant could not
be found guilty of defilement. Rather than send the case back for a retrial however,
Justice Masanche quashed the conviction and released the defendant. Had some effort
been made to ascertain the age of the victim, and had the defendant been found guilty of
defilement a punishment of life imprisonment would have applied.
Finally in Kabulungu Juma v. Republic57, a 1991 decision of the High Court,
Justice Korosso held that where a woman consented to sexual intercourse with a
medicine man because she believed the act to be a medical procedure to determine if her
infant was naturally positioned in her womb, there was no act of rape. The court held
that this was voluntary consent therefore vitiating the offence of rape, overturned the
conviction of the lower court.
b) Evidentiary Standards
The cautionary rule of evidence is based in British Common Law as articulated in
Moses Charles Deo v. Republic, “In any sexual offence, if the person against whom the
offence is alleged to have been committed be an adult, the court should warn itself that it
is not safe to convict on the uncorroborated evidence of the complainant but that if it is
satisfied o f the truth of the complainant’s evidence, it may, after paying attention to the
55
Shahiri Aly v Republic 1989 TLR 27 (HC)
Ally Athumani v. Republic 1991 TLR 59 (HC)
57
Kabulungu Juma v. Republic 1991 TLR 154 (HC)
56
warning, nevertheless convict.”58 In this case the ruling judge suggested that it might not
be time to re-look into the whole question of corroboration as it relates to sexual offences.
The cautionary rule of evidence was abolished by the Section 27 of the Act,59
which amends the Evidence Act 1967 with the addition of the following subsection:
“(7) Not withstanding the preceding provisions of this section, where in criminal proceedings involving
sexual offence the only independent evidence is that of a child of tender years or of a victim of the sexual
offence, the court shall receive the evidence and may after assessing the credibility of the evidence of the
child of tender years of as case may be the victim of the sexual offence on its own merits, notwithstanding
that such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceeding ,
in the court is satisfied that the child of tender years or the victim of the sexual offence is telling nothing
but the truth.”60
Due to research constraints there is no accessible case law discussing the new evidentiary
rules.
Section 164 of the Evidence Act 1967 allows that when a man is prosecuted for
rape or attempted rape then it may be shown that the victim was of a generally immoral
character. This is in contradiction to the new Act provisions that make the lack of consent
the fundamental characteristic of rape.61
c) Role of the Victim
The new Act allows that all evidence can be given in camera and the evidence and other
witnesses involved in these proceedings shall not be published by or in any newspaper or
other media. 62 The cases may however be published in official court reporters.
d) Marital Rape
According to Section 5 of the Act, a man can only be charged with raping his wife
if he is lawfully separated from her at the time of the Act. A couple may be deemed
lawfully separated even if the family or clan members arranged the separation. 63
e) Child Rape
A child under the age of 18 is unable to consent to sexual intercourse. There is
however an exception for children above the age of 15 that are married and not separated
58
Moses Charles Deo v. Republic 1987 TLR 134 (CA)
SOSPA Section 27.
60
Ibid.
61
Tumaini Silaa, “Implementation of Law Relating to Rape in Tanzania,” Presentation, in Report of the
Tanzania Medial Training Workshop on Covering Gender Violence, Dar Es Salaam, (September 23 –2 7,
2002) at 13, online: Gender Links Publications Web page, http://www.genderlinks.org.za/docs.
62
SOSPA Section 24.
63
SOSPA Section 5
59
from the accused. There is also a penal code provisions that allows a child of African or
Asiatic origin, who is below the age of 15 years to get married.64
f) Rape and HIV
There are no specific legal provisions outlawing the transmission of HIV or
providing harsher sanctions for sexual offences committed by HIV positive assailants.
The Tanzania penal code does include a provision that relates to transmission of
dangerous diseases, however this provision is hardly used. Moreover, in cases of
enforcement the offender would receive a fine only.
iv. Problems with Enforcement
In September 2002 the Tanzania Media Women Association held a workshop on
Covering Gender Violence in Dar Es Salaam. The objectives of the workshop were
directed at covering gender-based violence in the media and how to demonstrate more
sensitive approaches and generate increased reportage on the issue. Through the
presentations and publications provided to the participants a number of issues with
enforcement of the Act were highlighted. Tumaini Silaa, President, Tanzania Women’s
Lawyer Association (TWLA) gave a presentation on many procedural problems in
enforcing the law. Articles in the Appendix of the conference proceedings also highlight
and explain problems with enforcement. Together the issues raised by these authors will
be discussed below.
Resource Related Problems
Police
In order to report the act of rape women must attend the nearest Police Station
post. For most women this means walking long distances to police stations, and in rural
areas this distance increases. This can lead both to underreporting, as well as to the
destruction or corruption of physical evidence. Time delays between the time of the
offence and the time of the report makes evidence harder to obtain and insufficient
evidence has been cited as is the prime factor leading to the dismissal of rape cases.65
Privacy within the police station posts is also an issue. There are few female
police officers, and there is a lack of private interview rooms. This means that
complainants will be filing complaints and making statements in open areas with several
people present, largely males. This can inhibit the complainants, reducing the amount of
information they will provide and increasing the likelihood that the charge will not be
pursued.
64
Silaa, supra note 61 at 12.
Bakari Machumu, “SOSPA: more bark than bite,” in Report of the Tanzania Medial Training Workshop
on Covering Gender Violence, Dar Es Salaam, (September 23 –2 7, 2002) at 67, online: Gender Links
Publications Web page, http://www.genderlinks.org.za/docs.
65
An article written by Bakair Machumu also indicates that although the legislation
allows for in camera evidence to be given in these trials, this is not always the case in
practice due to resource limitations.66 When sexual assault cases are tried in open courts,
cross-examination tends to instil feelings of shame, loss of good reputation, dignity and
integrity. This will result at times in the complainant giving incoherent and unbelievable
testimony. The article goes on to describe the agony experienced by women victims of
sexual assault in giving evidence as a witness in open court. In the words of one victim,
“There is no difference between being raped and giving evidence as a key witness, at the
trial of your alleged rapist except that this time it happens in front of a crowd…”67
Public Awareness
In addition, other authors raise the problem of lack of awareness regarding the
new law. One author blames the Government of Tanzania for this, stating that, “Although
the SOSPA came into effect on 1st July 1998 most people are not aware of it due to
limited efforts by Governments to create awareness of the Act.”68 Another article
explains that over 50% of women interviewed including journalists admitted that they
had never heard of the law or did not understand its provisions, including legal
practitioners. 69 In fact one lawyer cited a case where a Magistrate reported ruled on a
rape case based on the old legislation.
Procedural Problems
Silaii states that some cases will be arbitrarily dismissed by police officers, as
purely private matters or as an inevitable by product of a relationship. Another
procedural problem lies with the gathering of evidence through a form PF 3. This form
was created before the new law, and as of 2002, had not been revised to reflect the
changes in the law. The form requests a medical examination and report from a
recognized hospital by a medical officer. It explains the nature and dimension of injury
the part of the body injured, the gravity of the crime and the kind of weapon used in
committing the offence. The problem therefore lies with the focus on psychical injuries,
and will equate the absence of physical injury with no harm sustained. Most medical
officers will fail to address psychological injuries including fear of pregnancy and
contracting sexual transmitted diseases including HIV/AIDS. This leads to the acquittal
of assailants where the rape did not involve physical force,70 despite the legislative
provision that states evidence of physical resistance is not necessary to establish rape.
Another problem related to medico legal coordination, is the mischaracterization
of “penetration” by medical officers. According to the legal definition rape occurs when
there is any degree of penetration however slight. However, because of lack of awareness
66
Ibid. at 66.
Mkawi, supra note 53 at 268.
68
Adrian Njau, “Faculty Form Lets Rapists get off scot-free” in Report of the Tanzania Medial Training
Workshop on Covering Gender Violence, Dar Es Salaam, (September 23 –2 7, 2002) at 61, online: Gender
Links Publications Web page, http://www.genderlinks.org.za/docs.
69
Machumu, supra note 65 at 66.
70
Njau, supra note 68.
67
of this provision amongst police and medical officers, penetration is not recorded where it
did in fact occur.71
Culture-Specific Problems
As discussed above, there is a positive correlation between incidents of violence
against women and societal attitudes relating to gender inequality. Researchers who
studied the incidence of violence among women in Tanzania clinics held that imbedded
social norms related to sexuality and physical violence put women in this country at risk
of both HIV infection and violence. Informants in this survey indicated that there is a
perceived threshold of acceptable violence in the community.72 Unsurprisingly another
author cites community perception as a reason inhibiting rape victims from filing
complaints. Negative consequences of reporting sexual violence given here include
being excluded from the community, being unable to marry or remain married.
Otherwise, settlement out of court of rape accusations can preclude police reports.
In these cases, elders, parents or traditional leaders will carry out the settlement. The
assailant will mainly be asked to pay a small sum of money to the elders or the parents or
husband of the victim. The use of monetary compensation as a punishment is common
within the Tanzanian penal system, as can be seen in the legislated punishments for rape.
Finally the author indicates that in some tribes, abducting a girl is a way of
conducting marriage. In these marriages consent is lacking and rape may then occur. The
girl who was abducted is then curtailed by custom and the community around her from
reporting the act.73
Women refugees are particularly vulnerable to rape, sexual assault and other
forms of violence. In 1997 Human Rights Watch began monitoring the situation of
Burundi refugees in Tanzania Refugee Camps, in response to reports of high levels of
sexual violence within the camps and inadequate responses by the Government of
Tanzania and the United Nations High Commission for Refugees. Through missions to
the camps HRW made findings of high levels of sexual and physical violence against
Burundian refugee women. This violence occurred at the hands of both male refugees and
local Tanzanian nationals.
One of the most serious reported incidents occurred in May 1999, when fifty or
more refugee women were raped by over 100 Tanzanian men in Kasulu district. By
November 1999 only 11 men had been arrested. All eleven of these cases were
subsequently dismissed when the prosecutor arrived for court late.
The report highlights other problems in the enforcement of rape laws. Some
examples include police officers demanding bribes before they would investigate the
71
Silaa supra note 61 at 11.
Maman et al., supra note 24.
73
Silaa, supra note 61 at 11.
72
crime, or even blaming the victim for the assault.74 Other problems included lack of
information, as many women refugees were unaware of what to do or where to report the
cases, and settlement methods including the payment of compensation for the rape a child
going to the father of that child.
The issue of rape within refugee camps is a serious one, and is under the mandate
of the United Nations High Commissioner for Refugees. The UNHCR responded to the
issues with increased attention and judicial access and redress for victims of rape.
However, these cases are prosecuted within the Tanzania legal system and therefore are
susceptible to the problems of that system, as well as the unique issues facing refugees.
vi.
Lessons from the Jurisdiction
The “Stepping Stones” program was developed for use in peer groups of men and
women. This program helps men participate and discuss a range of issues relating to
violence. These programmes have helped men participating take responsibility for their
actions, relate better to others, have greater respect for women and communicate more
effectively. This has resulted in reported reductions in violence against women in some
communities in Tanzania.75
B) ZIMBABWE
i. Legislative Provisions
In Zimbabwe rape is defined and criminalized in the Sexual Offences Act
(2001).76 According to Section 8 of this Act, rape includes all non-consensual acts
including oral sex and acts involving insertion of objects into the genitals or the anus.
This provision applies to all persons whether or not they are married to the other person,
where there is a lack of consent.
Consent
The Act contains no provisions regarding the content of consent and when it can
be vitiated. However, Sections three and four of the Act criminalize extramarital
intercourse and indecent and immoral acts with young persons and persons with
intellectual handicaps. These offences are punishable by a level ten fine (200 000 TZS
or $184.00 USD) or imprisonment for up to ten years; or by both fine and imprisonment.
74
Seeking Protection: Addressing Sexual and Domestic Violence in Tanzania's Refugee Camps, (Human
Rights Watch Report, October 2000), online: Human Rights Watch Website,
http://www.hrw.org/reports/2000/tanzania/
75
World Health Organization Report, supra note 7 at 165.
76
Sexual Offences Act. Acts 8/2001, 22/2001 (s. 4). [SOA].
Penetration
According to Section 8(2) penetration to any degree shall be sufficient to
constitute the offence of rape.
Sentence
There is nothing in the Act that proscribes the punishment for rape, however two
secondary sources state that the punishment for rape is ten years imprisonment, with a
minimum sentence of five years.77 Harsher sentences are provided for sexual offences
when it is proved that at the time of the offence the convicted person was infected with
HIV, whether or not he was aware of his infection. In these situations the defendant is
liable for imprisonment not exceeding twenty years.
ii. Quantitative Analysis – Statistics
In 1998, 1999 and 2000 the number of assaults in Zimbabwe vastly outweighed
the number of sexual incidents. Also, sexual assault conviction rates were higher than
assault conviction rates, however these rates were relatively low at 25% or less.78
Year
Assaults
1998
1999
2000
75,693
87,584
93,062
Sexual
Incidents
5,564
5,857
5,567
Rate of Convictions
(assaults)
14.66%
11.46%
11.33%
Rate of Convictions
(sexual incidents)
25.11%
22.69%
22.69%
Sentences
In 1996 the Zimbabwe National Sentencing Commission carried out an analysis
of sentencing patterns for rape crimes. The data indicated that 33% of assailants received
a sentence of one year or less. Ninety-eight percent of offenders enjoyed partial sentence
suspension, with 39% of convicts getting between two and five years reduction to their
sentence. Previously, past an average sentence was two years imprisonment with one
year suspended compared to recently imposed minimum five-year sentences for rape and
seven years for statutory rape.79
In S v. Mundowa80, a 1998 decision the High Court carried out a review of case
law on sexual assaults on minors. Here the court stated that previous cases were all
punishable by fines, and this is not in accordance with real and substantial justice. The
Women of the World, supra note 54 at 143, and Ruth Ansah Ayisi, Wife Reveals why she Won’t use the
Sexual Offences Act,” in Covering Gender Violence, Conference Report (January 28 to February 1, 2002),
online: Genderlinks Web page, http://www.genderlinks.org.za
78
United Nations Survey of Crime Trends and Operations of Criminal Justice Systems Covering the Period
1990 –2000, supra note 49.
79
Women of the World, supra note 54 at 143.
80
S v. Mundowa 1998 (2) ZLR 392 (HC)
77
court held instead that custodial sentences were more appropriate punishments for this
crime. This was in particular light of the high prevalence of HIV/AIDS within Zimbabwe
and the possible consequences of sexual offences given this context. The court also
drew attention to the danger of “Sugar Daddies” taking advantage of young women,
calling for this behaviour to be punishable by jail time.
iii. Qualitative Analysis
a) Interpretation of “rape” in the case law
The case reporters available from Zimbabwe include cases up to 2000. Thus there is
no available case law under the new Act. A survey of case law from 1990 to 2000 dealing
with rape highlight several issues of law and interpretation that may still be relevant in
the judicial system.
Definition
In S v. Svosvai81 the High Court held that forcible buggery of a 17 month-old girl
was the same as rape because there are no differences in the negative effects on the
victim. Other case law provides insight into judicial interpretations of consent,
“legitimate” victims and witness credibility, and are discussed below under enforcement
issues.
a) Evidentiary Standards
The cautionary rule of evidence has been abolished, and this was confirmed in
Banana v. State82 in May 2000, where the Supreme Court held that there was no need for
corroboration from other witnesses to prove sexual assault.
b) Role of the Victim
There are no legislative provisions to protect the victim during the trial. However,
in some areas, victim friendly unit operates in court to allow the victim to give evidence
in a separate room that is installed with a camera. The victim then is protected from
seeing their assailant and is able to give evidence with less fear and intimidation.83 Again,
in practice there are resource limitations. For example, one of the major victim friendly
courts in Harare was rendered dysfunctional for some time because of problems with the
technical equipment due to poor maintenance. Rape cases were therefore tried being tried
in normal courts during this time.84
81
S v. Svosvia 1999 (1) ZLR 183 (HC)
S v. Banana 2000 (1) ZLR 607 (SC)
83
Samuel Ojero Adol, “Victim Friendly Units: A Step in the Right Direction in Zimbabwe’s Juvenile
Justice System,” online: Fredskorpset website,
http://www.fredskorpset.no/templates/FredskorpsDagbok____17920.aspx.
84
Ibid.
82
d. Marital Rape
Marital rape is illegal according to Section 8 (1) of the Act. The punishment for
marital rape is ten years imprisonment.85
e. Child Rape
Section four of the Act criminalizes having extra marital intercourse, or
committing an indecent or immoral act with a male or female child under the age of 16.
It is a defence to this provision if the accused can convince the court that he had reason to
believe the victim was 16 years of age at the time of the offence.86
f. Rape and HIV
As explained above there are harsher punishments attached to offenders who were
HIV positive at the time that the sexual offence was committed. It is also illegal to
knowingly transmit HIV. This offence is punishable by a minimum of 20 years in prison
and can be made to pay a fine of up to fifty thousand dollars as compensation.
However, in order to charge someone with wilful transmission there is a need to
prove wilful intention and the burden to show this lies with the victim. There are also
issues with timing and the ability to ascertain if the defendant was HIV positive at the
time of the offence. Section 17 of the Act provides that once an offender is charged with
a sexual offence an appropriate sample shall be taken. This sample will then be tested if
the assailant is found guilty; or will be destroyed where the defendant is acquitted.87
Waiting periods between the time of the offence and the reporting of the crime, and
between the report and the laying of charges may make this information difficult to
ascertain.
iv. Challenges with Enforcement
In early 2002 Gender Links and Inter Press Service convened a Media Training
Workshop on “Covering Gender Violence.” From January 28, to February 1, 2002 fifteen
members of the media and media organizations participated in this workshop with the
goal of learning how to effectively cover gender violence in the media. The proceedings
from this conference together with materials prepared for the conference participants
highlight some difficulties with the practical enforcement of the Sexual Offences Act.88
This information will be augmented with examples from relevant case law.
85
SOA, Section 8
SOA, Section 4
87
SOA, Section 17
88
Covering Gender Violence, Conference Report (January 28 to February 1, 2002): online Genderlinks
Webpage, http://www.genderlinks.org.za
86
Resource Related Problems
a) Public Awareness
The issue of public awareness of the sexual offence legislation, particularly the
criminalization of marital rape was raised repeatedly. Members of the media, lawyers,
law enforcement workers and citizens have indicated lack of awareness of the new
legislation. In one testimonial a woman suggested the advertisement of the provisions
using electronic media, brochures and pamphlets at churches.
Justice, Legal and Parliamentary Affairs Minister Patrick Chinamasa conceded
that making the law accessible to the people is a big challenge however lack of resources
have prevented a public awareness campaign.89 The legal programme officer at the
Zimbabwe Women Lawyer’s Association commented that the Government of Zimbabwe
has left most of the burden of legal education with non-governmental organizations.
b) Support Structures and Access to Medications for victims
Victim Friendly Units were established in 1997 to help redress sexual offences.
Each unit is meant to have a victim friendly officer to deal with sexual offences, and the
units are structured to have gender balance within them. According to an article by
Samuel Ojereo Adol from September 14, 2004, public confidence in these units has seen
more cases being reported which would have otherwise gone unreported.90 However a
survey in 2002 indicated that these units do not exist in many localities; and no special
training is given to officers who join the unit.91
Procedural Problems
In June 2000 the Law Development Commission released an inquiry paper that
examined some procedural problems with the Sexual Offence Act. This report addressed
attacks made on complainant’s character and the question of consent in sexual assault
cases. The Commission suggested the elimination of cross- examination and evidence of
prior or other sexual activity by the complainant with the accused or others unless this
information is necessary for the accused to have a fair trial.92
Characterization of the idea of consent has also been problematic in the case law.
In a 1989 decision, the Supreme Court of Zimbabwe held that mistaken belief of identity
of the victim where consent had previously been given was a valid defence. Here the
accused had made “an appointment” with a woman at a bar to meet later for sexual
intercourse. That evening the drunken assailant entered a house, which he thought
belonged to the woman. He climbed into bed with a woman and began to molest her.
“Ever Heard of Sexual Offences Act?” in Covering Gender Violence Conference Report, supra note 77
at 43.
90
Ojero Adol, supra note 83.
91
Ibid.
92
Women of the World, supra note 54 at 143.
89
The court held that a mistake of fact needed to be bona fide or reasonable, not both. To
determine if something is bona fide is a subjective test.93 Also in S v. Romeo Ndongolve,
a 1999 High Court decision the court indicated that consent would only be overcome
where physical force is used and once consent is given for sex and money has been paid,
the consent cannot be withdrawn94
Evidentiary issues related to children were also raised throughout the case law. In
S v. Munema95 the Supreme Court held that where a child did not complain immediately
about an incident, this is evidence that she is not badly injured. Also in 1997 the High
Court held that the spontaneity, promptness and voluntary nature of the complaint would
go towards its admissibility.96
Mischaracterization of “penetration” by medical officers was an issue in two
cases, one in 199 and one in 2000. 97 In both cases the High Court held that the legal
definition of penetration is different than the medical definition. For legal purposes any
degree of penetration is sufficient.
Culture-Specific Problems
V.T.V. Mutyamaenza of the Zimbabwe Women Lawyers Association commented
that the Act does not deal with rape in customary marriages, for example where young
daughters are married off early and thus exposing them to dangers such as HIV. 98
At several points throughout the conference proceedings references are made to
the links between HIV and gender violence, as discussed in Section One above. Barbara
Dembedza of the Women Aids Support Unit discusses the links between gender violence
and HIV/AIDS and premises these links on societal understandings of power and
equality. Dembedza states that studies show that raising children in an egalitarian society
enables them to be responsible adults in comparison to raising children in patriarchal
society. She goes on to state that a society in which traditional gender roles are
encouraged makes boys more likely to be violent adults, to rape women or batter their
intimate partners and also engage in high risk sexual behaviours. The author ends her
discussion by calling for a better understanding of gender norms in order to understand
HIV/AIDS.99
Musasa Project National Director said that a “recent study” revealed that men
used lobola to regard their wives as commodities, and thus feel that they are able to do
93
S v. Lungu 19189 (3) ZLR 27 (SC)
State v. Romeo Ndongobva, 1999 HB (39/99)
95
S. v. Munemo 1992 (2) ZLR 222 (SC)
96
S v. Zaranyika 1997 (1) ZLR 539 (HC)
97
S v. Mhanje (2000) HC and S v. Sabaw and Anor (1999) HC
98
V.T.C. Mutyamaenza, “Sexual Offences,” in Covering Gender Violence Conference Report, supra note
77 at 24.
99
Barbara Dembedza, “HIV/AIDS and Gender Violence,” in Covering Gender Violence Conference
Report, supra note 77 at 27 – 28.
94
what they want with their “property.100” Lobola refers to a bride price. Dembedza
supports this finding and suggests that the feeling is mirrored by women, “…for some
women lobola in itself is enough for them to justify coerced sex.”101
Marital Rape
Anecdotal evidence suggests that for various cultural reasons it is difficult for
women to consider bringing their husbands to court. Indeed, one year after the Act was
in place there had been no complaints brought forward of rape within marriage. A
testimonial cited by Ruth Ansah Ayisi reflects the reluctance of women to use the Act
against their husbands. Here a woman who is fully informed about the Act stated that she
would not use it against her husband because it would be difficult to support her children
without him, and “It really isn’t our culture to take our husbands to court. His relatives
would be angry. They could try to fix me through our children.”102
Caroline Gwature suggests that the belief that a woman is unable to charge her
husband with rape is pervasive. Thus while the law focuses on non-consensual acts, for
many women the concept of consent is difficult to understand, given their socialization.
Gwature provides a testimonial of a woman who was beaten by her husband simply for
asking where he had been during long absences, and her consequent fear of asking to use
condoms.103
This reluctance is well founded in judicial beliefs. In H v. H in 1999 the High
Court held that the exception for marital rape should be eliminated, but that courts should
approach cases of alleged rape of husbands by wives with caution. The court’s rationale
for this caution is as follows, “Because the marital relationship is so intensely personal
and generative of the most powerful of human emotions, the courts will have to approach
allegations of rape with substantial discretion and tact.”104
C) SOUTH AFRICA
“It is a fact that a woman being born in South Africa has a greater change
of being raped, than learning how to read.” Carolyn Dempster, BBC
News. April 9, 2002, “Rape – Silent War on SA Women”
i. Description of relevant legislative provisions
Rape is a common law offence in South Africa, and is defined as a male having unlawful
and intentional sexual intercourse with a female without her consent. Sexual intercourse
presupposes penetration of the female sex organ by the male penis. Statutory rape is
Caroline Gwature, “Gender Violence Spreads HIV/AIDS,” in Covering Gender Violence Conference
Report, supra note 77 at 44.
101
Dembedza, supra note 99 at 27.
102
Ansah Ayisi, supra note 77 at 46.
103
Gwature, supra note 100 at 44-45.
104
H v. H. 1999 (2) ZLR
100
defined as having intercourse with a girl under 16 years of age. The Prevention of
Family Violence Act of 1993 (now replaced by the Domestic Violence Act) makes rape
in marriage illegal throughout South Africa.
Draft Sexual Offences Bill (2003)
The Government of South Africa has introduced the Criminal Law (Sexual
Offences) Amendment Bill105 into Parliament, but at the time of writing it had still not
been passed. The Bill was introduced in 2003, and has been the subject of public
discourse and debate.
Section 2 (1)(a) of the Criminal Law (Sexual Offences) Amendment Bill defines the offence of rape as
follows: “A person who unlawfully and intentionally commits an act which causes penetration to any extent
whatsoever by the genital organs of that person into or beyond the anus or genital organs of another person,
or any act which causes penetration to any extent whatsoever by the genital organs of another person into
or beyond the anus or genital organs of the person committing the act, is guilty of the offence of rape.
(2) An act which causes penetration is prima facie unlawful if it is committed –
a)
in any coercive circumstance
b) under false pretences or by fraudulent means; or
c) in respect of a person who is incapable in law of appreciating the nature of an act which causes
penetration
Coercive circumstances include where there is use of force against the complainant or
another person or against the property of the complainant or any other person; where
there is a threat of harm or where there is an abuse of power.
Fraudulent pretences or fraudulent means referred to in subsection (2)(b) are
circumstances where there is a mistaken belief in identity by the person whom the act is
being committed against; when the victim is lead to believe that the act is something
other than what it is; and when the person fails to disclose to the person in respect of
whom an act is being committed that he or she is infected by a life threatening sexually
transmissible infection in which there is a significant risk of transmission to the person.
5) The circumstances in which a person is incapable in law of appreciating the nature of an act which
causes penetration referred to in subsection 2(c) include circumstances where such a person is at the time of
the commission of the act –
a)
b)
c)
d)
e)
f)
105
asleep
unconscious
in an altered state of consciousness
under the influence of any medicine, drug, alcohol or other substance to the extent that the person’s
consciousness or judgement is adversely affected
a mentally impaired person or
below the age of 12 years
B50-2003, Criminal Law (Sexual Offences) Amendment Bill 2003, [The Bill].
Sentence
In 1997 the Government of South Africa passed Criminal Law Amendment Act 1997,
No. 105. This Act outlines mandatory minimum sentences for certain serious crimes –
including rape. According to Neser, this Act was required to combat inconsistency in
sentencing for similar crimes. Sentencing in rape cases as of 1995 showed a “conspicuous
lack of consistency.”106 The penalties handed down by the courts were erratic and
“frequently lenient.”107
Neser identified a need to show a unified and strong approach against growing rates
of serious crime in South Africa, and to communicate a clear message that justice will be
done. According to Section 51(1) of this Act, a person who is convicted of the following
types of rape will be sentencing to imprisonment for life:






When committed where the victim is raped more than once either by the accused
or by any co-perpetrator or accomplice;
By more than one person where they acted in the execution of furtherance of a
common purpose or conspiracy;
B a person who has been convicted of two or more offences of rape but has not
yet been sentenced in respect of such convictions;
Or by a person knowing that he had AIDS or HIV.
Where the victim is
o a girl under the age of 16 years;
o a physically disabled woman who, due to her physical disability is
rendered particularly vulnerable;
o Or is a mentally ill woman who contemplated in s. 1 of the Mental Health
Act.
Or when the rape involves the infliction of grievous bodily harm.108
Section 51(1)(2) provides that a person who has been convicted of the following types of
rape will be sentenced to a minimum period of ten years for a first offence, 15 years for a
second offence and 20 years for a third offence when they commit rape in circumstances
other than those referred to above; or indecent assault on a child under the age of 16
years, involving the infliction of bodily harm
Section 17 of the Bill provides that effects to the victim should be considered in
determining an appropriate sentence upon conviction. Also Schedule 1 of the Act outlines
a number of principles to be considered in determining an appropriate sentence. These
include: considering the safety and security of the victim, the family of the victim and the
community, the sanction should promote the recovery of the victim and the restoration of
the family of the victim and the community; where appropriate offenders should make
J.J. Neser, “Mandatory Minimum Sentences in the South African Context,” in Crime Research in South
Africa Vol 3 No. 3 (June 2001), online: Crime Research in South Africa Web page, http://www.crisa.org.za.
107
Human Rights Watch, “South Africa: The State Response to Domestic Violence and Rape,” (Human
Rights Watch, 1995) at 50, online: Human Rights Watch Website, http://www.hrw.org
108
Act No. 105, 1997, Criminal Law Amendment Act 1997, Section 51.
106
restitution which may include material, medical or therapeutic assistance to victims and
their families or dependants.
Other Sexual Offences
Sexual Violation
3. A person who unlawfully and intentionally commits an act which causes penetration to any extent
whatsoever by any object, including any part of the body of an animal, or part of the body of that person,
other than the genital of that person, into or beyond the anus or genital organs of another person, is guilty of
the offence of sexual violation.
Oral genital sexual violation
4. A person who unlawfully and intentionally commits an act which causes penetration to any extent
whatsoever by the genital organs of that person, or the genital organs of an animal, into or beyond the
mouth of another person is guilty of the offence of oral genital sexual violation.
ii. Quantitative Analysis Comparative Analysis – Statistical
Rate of Occurrence
The South African Police Services document and publish rates of reported rapes in South
Africa are documented by the South African Police Services. The rate of unreported rapes
is much harder to determine. Commentators suggest that anywhere between 30 and 70%
of rapes go unreported each year.109 A report prepared by Statistics South Africa in 2000
entitled, “Quantitative Research Findings on Rape in South Africa,”110 canvassed a
number of different quantitative studies on the occurrence of rape in South Africa. One of
the concluding findings of this report is that across the studies more than 50% of victims
reported the occurrence of sexual offences to the police. This 30 to 70% estimate is thus
based on quantitative findings.
Others suggest that the rate of unreported rape is actually much higher. Crime
journalist, Mike Earl Taylor suggests that only 1 in 35 rapes are actually reported, citing
SAPS as the source of this statistic.111 Human Rights Watch also cites this figure in a
1995 report “South Africa: The State Response to Domestic Violence and Rape.”
Meanwhile, Rape Crisis Cape Town, a victim support group, estimates that real figure for
rape is 20 times the reported figure, indicating that only 5% of rapes are reported to
police.112 There is no evidence given to support this estimate.
Jessica Spratt, “Descending into Barbarism,” SAIRR Fast Facts (October 1999), online: South Africa
Institute of Race Relations Website, http://www.sairr.org.za/.
110
Quantitative Research Findings on Rape in South Africa, (Pretoria: Statistics South Africa, 2000) at 10.
111
Mike Earl Taylor, “HIV/AIDS the stats, the virgin cure and infant rape,” (ScienceinAfrica , April 2002),
online: Science in Africa Website, http://www.scienceinafrica.co.za/2002/april/virgin.htm
112
Jane Logan, “Rape In South Africa,” Homemakers Summer 2000. Online: homemakers web page,
http://www.homemakers.com.
109
Reported occurrence of rape is high, with the rate per 1,000 increasing from 1995
to 2003. The UN Crime Survey reported the following rates of occurrences:113
Year
1995
1996
1997
1998
1999
2000
2001
2002
2003
Number of rapes
reported
47,506
50,481
52,159
49,280
51,249
53,008
54,293
52,425
52,733
Rate per 1,000
people
10.89
10.92
10.72
10.46
11.36
12.51
12.11
11.53
11.37
According to the Victims of Crime Survey, 88.1 % of rapes were carried out by a single
perpetrator. In most cases women were raped with threat of physical injury; often with
use of knives, 68.0%% or at gun point 16.5%114 Findings from rape dockets analysis
show that of those cases reported to police, rapes occurred more frequently than average
on Saturdays, particular between 7:00 p.m. and 1:00 a.m.115
Lisa Vetten provides a critique of the Statistics South Africa victim survey raising
the issue that these surveys do not take gender into consideration. The author points out
that surveys may not be suitable to capturing victim’s experiences of violence and that
reluctance to discuss sexual assault and domestic violence may lead to an under counting
of these crimes. Vetten also points out that in collecting data Statistics South Africa
found that some male headed households in traditional rural setting refused to allow
anyone other than themselves to be interviewed for the study.116
Rate of Conviction
The South African Law Commission carried out a review of Rates of Convictions
and other outcomes of Crime in response to the 1997 Criminal Law Amendment Act of
1997.117 This study reviewed 15,529 cases involving five crime categories reported to the
police in eight police areas in South Africa in 1997 and 1998; and checked these crimes
in two years later to determine how many had resulted in convictions.
According to this report between January 1997 and April 1998, 68% of rape cases
dealing with adult victims did not go to court; 15% of these cases were withdrawn in
court; 9% resulted in a finding of not guilty and 5% resulted in a conviction. The
remaining 3% were still at trial at the time of the study. For rape cases with a victim
113
United Nations Survey of Crime Trends and Operations of Criminal Justice Systems Covering the
Period 1990 –2000, supra note 49.
114
Quantitative Research Findings on Rape in South Africa, supra note 110 at2.
115
Ibid.
116
Lisa Vetten, “The influence of Gender on Research: A Critique of Two Victim Surveys.”
117
South African Law Commission Research Paper 18 “Conviction Rates and Other Outcomes of Crimes
Reported in eight South African Police Areas,” (Pretoria: South African Law Commission) at 18.
under the age of 18 during the same time period, 58% of the cases did not go to court;
18% were withdrawn in court; 9% resulted in a finding of not guilty; 9% resulted in a
conviction and 6% still had ongoing trials. Thus for adult rape cases, more trials resulted
in acquittals than convictions, and for child rape cases approximately one in ten reported
cases would result in a conviction.118
These conviction rates were compared to statistics for England and Wales and the
United States. The South African rate at 7% lagged behind the England and Wales
conviction rate of 10% and the United States conviction rate of 19%. The Statistics South
Africa report cites conviction rates recorded by SAPS in 1998.119
Outcome of Police Investigation
N
%
Case referred to court
22 121
47.6
Cases withdrawn before reaching court
8 456
18.2
Unsolved Cases
15 037
32.4
Unfounded cases
802
1.9
TOTAL
47 476
100.0
Outcome of court cases
Guilty
4 382
19.8
Not Guilty
4 319
19.5
Withdrawn after court proceedings
10 103
45.6
Cases settled out of court
998
4.5
Other
2 319
10.5
Total
22 121
100.00
From these statistics one can see a conviction rate of 19.8% of those cases referred to
court; and of 9% of total reported cases. This report also cites conviction rates of rapes or
attempted rapes reported in 1998 to SAPS in comparison to other violent crimes.120
Cases resulting in a conviction as a
proportion of cases that were prosecuted
in 1998
Drunken Driving
%
Cases Resulting in a Conviction as a
proportion of reported in 1998
%
93.3
Drug Related
53.3
Drug Related
90.7
Drunken Driving
53.3
118
Ibid.
Quantitative Research Findings on Rape in South Africa, supra note 110 at 23.
120
Ibid.
119
Common assault
81.2
Murder
15.7
Housebreaking
80.5
Assault
12.6
Car Theft
75.1
Common Assault
9.7
Assault
72.0
Rape
8.9
Car Hijacking
67.2
Housebreaking
5.2
Murder
63.9
Robbery
2.6
Robbery
63.0
Car theft
2.3
Rape
50.4
Car Hijacking
1.9
This shows that for 1998, rape prosecutions were the least successful with a conviction
rate of only 50.4%121.
Non Reporting
Statistics South Africa administered a “Victims of Crime” Survey in 1998 measuring the
incidence of crime from the point of view of the victim from 1993 to 1998. Thus this
study includes crimes that were not reported to law enforcement agencies and those
which were reported.122
According to the survey, 2.1% of women aged 16 years or above reported being
sexually abused between the beginning of 1993 and March 1998. Of these women, 56.2%
had reported the incident to police. Reasons for not reporting the incident included: fear
of reprisals by the assailant (20.8%); solving the crime without police assistance (18.7%)
and the belief that the police would not take the crime seriously (10%).123
This survey indicated a discrepancy between reporting rates depending on the
race of the victim.
Individual Crimes Reported among different populations between 1993 and 1997124
Total Number
Reported
306, 737
153,087
% of offences
reported
50.1%
11,460
18,447
0
0
0%
0%
Population
African/Black
Population
Indian Population
White Population
121
Ibid. at 24.
Statistics South Africa, “Victims of Crime Survey 1998,” (Pretoria: Statistics South Africa, 1998).
123
Ibid. Table 11.13
124
Ibid. Tables 11.3, 11.5 and 11.6
122
The SAPS survey also indicated that conviction rates varied from jurisdiction to
jurisdiction, with Johannesburg having the lowest conviction rates in all categories of
violent crime. Overall the South African conviction rate for violent crime is 6%.125
Reasons for Low Conviction Rates
The South African Law Commission cited “numerous well documented” problems with
the South African criminal justice system that could account for low conviction rates.
These include under trained and overworked detectives and prosecutors who have
inadequate support staff and services, high levels of illiteracy in the police, problems with
disciple and morale and the reluctance of members of the public to cooperate with the
police when they are witnesses or have evidence about crimes.126
Sentences/Actual Sentences Served
The only available statistics on sentencing of sexual offenders are found in the Statistics
South Africa overview of quantitative research. According to this report, in 1998 there
were 11.569 prisoners serving sentences for sexual offences, 9.2% of whom were under
the age of 20; 31.6% were 20 to 25 and 59.2% were above the age of 25.127
iii. Qualitative Analysis
a) Evidentiary Standards
Section 18 of the Bill abolishes the cautionary rule of evidence, which applies caution
and requires corroboration of victim’s evidence in sexual offence cases.
Despite the provisions of the common law, any other law or any rule of practice, a court must not treat the
evidence of a witness in criminal proceedings pending before that court with caution and must not call for
corroboration of evidence solely on account of the fact that the witness isa) a complainant of a sexual offence or
b) a child128
Section 16 of the Bill provides that inferences may not be drawn based solely on the fact
that previous consistent statements have not been made or the length of delay between the
alleged commission of the offence and the reporting of the offence. This section also
allows evidence of the surrounding circumstances and impact of the sexual offence on the
complainant to be adduced in a criminal proceeding in order to prove whether a sexual
offence is likely to have been committed towards or in connection with the person
concerned or in coercive circumstances.129
125
Ibid.
South African Law Commission, supra note 117.
127
Quantitative Research Findings on Rape in South Africa, supra note 110 at 27.
128
The Bill, Section 18.
129
The Bill, Section 16.
126
b) Role of the Victim
The preamble to the Bill takes note that women and children are particularly vulnerable
to sexual offences, including prostitution and that South African common law and
statutory law fail to deal effectively and in a non discriminatory manner with activities
associated with sexual offences thereby failing to provide adequate protection against
sexual exploitation.130 The purpose of the new Bill then is to afford complainants of
sexual offences the maximum and least traumatizing protection that the law can afford.
Further to this Schedule 1 of the Bill outlines the principles that are to be considered in
the application of the Act. These principles include the right of the complainant to not be
discriminated against, to be treated with dignity and respect and to be ensured access to
the mechanisms of justice.131
To this end, the Bill includes provisions to protect victims and witnesses to sexual
offences. Sections 14 and 15 of the Bill outline vulnerable witness protections, and the
responsibility of the prosecution to notify a witness that they may be declared to be a
vulnerable witness.132 According to section 15 a child or a complainant giving evidence
in a sexual offence criminal proceeding is a vulnerable witness. Vulnerable witnesses
may be protected by one or more protective measures including being able to give
testimony by closed circuit television; giving witness through an intermediary; directing
that the proceeding cannot be held in open court; and prohibiting the publication of the
identity or identifying information regarding the complainant or their family. The court is
able to otherwise order any protective measures it feels necessary. In the case of a child
witness being a vulnerable witness they must be appointed an intermediary for the
purpose of giving testimony.
Section 17(b) of the Bill allows that for the purposes of imposing an appropriate
sentence, the extent of the harm suffered by the person concerned will be considered. For
this purpose, evidence of the surrounding circumstances and impact of the sexual offence
on a complainant may be adduced at the criminal proceeding.133
c) Marital rape
Marital rape was recognized as a crime in the 1993 Prevention of Family Violence Act.
As of 1995 there had been few prosecutions of marital rape, which a Human Rights
Watch Report attributed to the difficulty in obtaining evidence, the use of the cautionary
rule and ingrained attitudes of largely male judges.134 This Act was subsequently
replaced by the “Domestic Violence Act” in December 1999. An evaluation of the Act in
130
The Bill, Preamble.
The Bill, Schedule 1.
132
The Bill, Sections 14 –15.
133
The Bill.
134
Human Rights Watch, supra note 107 at 50.
131
2001 found that lack of resources and trained personnel undermined its
implementation.135
According to Section Six of the Bill, “a marital or other relationship, previous or
existing is not a defence to a charge of rape.”136 However Section 9 (7) of the Bill
provides that a person cannot be charged with indecent act with a child with their consent
when they are married to the child; unless the child is below the age of 12 years old.
d) Child Rape
The current common law defines statutory rape as man having sex with a child under the
age of 16 years old. The Bill provides that rape occurs where the person upon whom
penetration is exercised is unable to understand the nature of the Bill, including people
under the age of 12 years.
Section 17 defines the offence of an act, which causes penetration or indecent acts
with children with their consent. Here the Act provides that a person who commits an act
that causes penetration to a child that is above 12 years old but below the age of 16
despite the consent of the of the child is guilty of the offence and is liable upon
conviction to a fine or imprisonment not exceeding six years. It is a defence to this
section to prove that such child deceived the accused into believing the child was above
the age of 16 years at the time of the alleged commission of the offence, and the accused
reasonably believed the child was above the age of 16.
According to Section 17 (4) a person who commits an indecent act with a child
below the age of 16 years is despite the consent of the child, guilty of an offence
punishable upon conviction with a fine, or imprisonment for a period not exceeding four
years or to both a fine and such imprisonment. Section 51 of the Bill defines the sentence
for conviction of rape of a child under the age of 16 years as imprisonment for life.
VIRGIN MYTH
The incidence of child rape is high in South Africa. Statistics from the South African Police Services from
1996 to 1999 indicate that 40% of rape victims were under the age of 18 and that rape was the most
prevalent crime against children. According to police statistics about 2% of rapes in metropolitan areas are
perpetrated against infants and 8% against toddlers. From this the conclusion can be drawn that 10% of
reported rapes in South African cities are committed against children under the age of three years.137
Chineze J. Onyejewke, “The Interrelationship Between Gender Based Violence and HIV Aids in South
Africa,” in Journal of International Women’s Studies Vol. 6 #1 (November 2004).
136
The Bill, Section 6.
137
Linda M. Richter, “Baby Rape in South Africa,” in Child Abuse Review Vol. 12 392 – 400 (British
Association for the Study and Prevention of Child Abuse and Neglect , 2003), online: Wiley InterScience
Journal Homepage, http://www3.interscience.wiley.com/cgi-bin/jabout/5060/Society.html.
135
A particularly sensational case of infant rape was widely publicized in the South African media in 2001. In
the subsequent two months, the rapes of five infants under the age of 12 months were reported. These
incidents fuelled media reports and speculation of the links between the “Virgin cure” and infant rape. 138
The myth of the Virgin Cure has its history in 16 th century Europe and more prominently in 19 th century
Victorian England where there was a widespread belief that sexual intercourse with a virgin was a cure for
syphilis, gonorrhoea and other STDs. Some commentators have suggested that the virgin cure myth is
prompting child rape within South Africa. Evidence in the literature to support this link is purely
anecdotal. To date there is no quantitative evidence available to support a link between child rape and the
virgin cure myth.
Dr. Rachel Jewkes, the Director of MRC’s Gender and Health Research Group has discussed this issue at
length holding that while the virgin cure myth does exist in South Africa is it infrequently a motivating
factor for child rape. Dr. Jewkes cites a lack of evidence of increased rates of infant rape, as well as lack of
evidence that perpetrators were HIV positive and were aware of this status. The doctor attributes one to two
of the reported five incidents to particularly brutal gang violence, and quotes the Director of the Teddy
Bear Clinic at Wynberg Court as stating that he has heard reference to the virgin cure explanation in only
one child abuse case.139
In “Baby Rape in South Africa,” published in Child Abuse Review in 2003 Linda M. Richter discusses the
particular phenomenon of infant rape and its possible explanations. Richter cites two sources to support the
fact that infant rape occurs throughout the world and probably occurs at all times, although scholarly work
on this topic is sparse. She goes on to state that information collected in child rape cases shows a very low
infection rate, which suggests that the search for a rape cure is unlikely to be a primary motivating factor.
Conversely, Mike Earl Taylor, a Research and Development Officer has often been cited for the converse
argument. Taylor uses common factors between two cases of infant rape and based on a “balance of
probabilities” argues that the virgin cure myth is a motivating factor for infant rape. The author claims that
infant rape has neither a sexual nor power motive and that this offence is particular to South Africa to
support his case.140
e) Interaction between rape laws and HIV/AIDS
Section 2(4)(C) of the Bill states that when a person “intentionally fails to disclose to the
person in respect of whom an act which causes penetration is being committed, that he or
she is infected by a life threatening sexually transmissible infection in circumstances in
which there is a significant risk of transmission of such infection to that person,” they are
guilty of the offence of rape.
Section 51 of the Act provides a punishment of life imprisonment for rape when
the perpetrator was aware that they were HIV positive at the time of the offence.
On February 21, 2003 the “Compulsory Testing of Alleged Sexual Offenders
Bill” was introduced into the South Africa National Assembly. This Bill has yet to be
138
Ibid.
Rachel Jewkes, Lorna Martin and Loveday Penn-Kekana, “The virgin cleansing myth: cases of child
rape are not exotic,” in The Lancet, Vol 359 (February 23, 2002), online: www.thelancet.com.
140
Richter, supra note 137 provides a good overview of this topic. The evidence in the literature that
supports the link between the virgin cure myth and its relationship to HIV AIDS is anecdotal. For example,
police suggest that maybe 1/20 men that are apprehended believe the virgin cure.
139
passed. This Bill provides that victims of a sexual offence or other interested person (i.e.
where the victim is under the age of 14, mentally ill or unconscious) may bring an
application to an investigating officer for an order that the alleged offender be tested for
HIV. When a Magistrate is satisfied that there is prima facie evidence that a sexual
offence has been committed against the victim by the alleged offender and the victim
may have been exposed to body fluids of the offender and no more than 50 days have
passed from the date of the alleged offence the magistrate must order the collection of
two body specimens from the offender, the testing of those specimens and disclosure of
HIV test result to the victim. The order must then be carried out within 60 calendar days
from the date on which it is alleged that the sexual offence took place.
iv. Challenges to Enforcement
There has been a great deal written about the high occurrence of rape in South Africa, its
connection to HIV/AIDS and how to best remedy this endemic. In 1995 Human Rights
Watch prepared a report entitled, “The State Response to Domestic Violence and
Rape.”141 This report relies on anecdotal evidence gathered by staff researchers, as well
as statistics, some of which have been cited above from SAPS.
In 2002 the South Africa Law Commission prepared a four part series of
discussion papers on process and procedure relating to sexual offences. The second of the
four discussion papers highlights a number of procedural, legislative and non legislative
issues in the criminal justice system and provides recommendations to deal with
difficulties encountered by victims of sexual violence and some of social factors that
contribute to high incidence of sexual offences.142
The following challenges to enforcement have been drawn largely from these two
documents, as well as from smaller media reports and statements from NGOs where
indicated.
Culture Specific Problems
As discussed above societal attitudes regarding gender relations can affect the occurrence
of violence against women and the rate of reporting of these crimes. In discussing the
unique case of South Africa the literature suggests two common reasons for the high
incidence of sexual violence against women: 1) Culture of violence and 2) Gender
inequality.
It is suggested that the legacy of apartheid that underpinned the state for so many
years has led to extremely high levels of violence throughout society including in the
home. State sanctioned racism and sexism has prejudiced black women in particular, as
141
Human Rights Watch, supra note 107.
South African Law Commission, “Sexual Offences, Process and Procedure,” Volume 1 (Pretoria: South
African Law Commission, February 28, 2002).
142
they form the population group that has the least education and work under the worst
conditions. According to a 1993/1994 race relations survey, recorded victims of rape are
concentrated among poor and disadvantaged women.143 In addition, throughout the
apartheid regime crime was largely ignored within black communities, and police were
meant to protect only the white minority. This led to rampant under-policing within the
South African state, leading to a lack of police resources during the transitional period in
the 1990s.144
Rape is connected to the broad socio cultural milieu that is layered with beliefs of
male dominance, supremacy and aggression. This is true for South Africa, where
commentators refer to pervasive societal attitudes that men believe they are sexually
entitled to women. According to a senior scientist at the South African Medical Research
Council,
In South Africa you have a culture when men believe that they are sexually entitled to
women. You don’t get rape in a situation where you don’t have massive gender inequalities.
One of the key problems in this country is that people who commit rape don’t think they are
doing anything wrong.145
According to the People Opposing Women Abuse, in a survey of 26,000
Johannesburg students one-half of all students believed that forced sex was not sexual
violence. Also, results of a baseline survey of South African men aged 16 to 60 provided
the following figures: 22% of men approved of hitting their partners; 48% believed that
women were raped because of the way they dress and 58% believed a woman could not
be raped by her husband.146
It has also been suggested that the unique history of racism within the country
compounds the above dynamic through the creation of powerlessness and impotence
amongst black males. The inferior status amongst men often translates into feelings of
personal failure and then into a sense of inferiority. This consequently translates into
violence against women who are vulnerable and less able to defend themselves
physically. This leads to a situation where violence is used as a means of increasing self
esteem.147
Gang Rape and “Jackrolling”
Studies from Johannesburg and Capetown indicate that between 27 and 33% of reported rape cases in the
late 1990s involved more than one perpetrator. Rape care providers are becoming increasing worried about
143
Human Rights Watch, supra note 107.
Ibid.
145
Carolyn Dempster, “Rape – Silent War on SA Women,” (BBC News Africa, April 9, 2002), online:
BBC News Website, http://www.bbcnews.co.uk
146
Alessandra Guedes, “Addressing Gender Based Violence from the Reproducyive Health Sector,”
(IGWG, May 2004) at 25.
147
Steve Mokwena, “The Era of the Jackrollers: Contextualising the Rise of youth gangs in Soweto,” in
(Centre for the Study of Violence and Reconciliation, 2001).
144
the frequency of rape by groups of men not affiliated with gangs as well as gang rape. 148 For instance Rape
Crisis Capetown states that its clients are predominantly adolescents and most of them have been gang
raped.
The well-publicized practices of the “Jackrollers” as described by Steve Mokwena in a 1991 article are an
example of this phenomenon. The “Jackrollers” were a gang of male youth whose practices were rape,
abduction, and car theft and bank robbery. The practice of jackrolling is now understood to mean gang
rape. It is carried out by mainly younger men and often committed in public. There is a common township
saying that, “Jackroll is not a crime, it is just a game.” 149 Interviews with boys in the township demonstrate
feelings of idolatry towards the jackrollers, and belief in the idea that girls “have to give it” regardless of
their own desires.150
Procedural Problems
Delays: Delays in the court proceedings may affect the victim negatively by eroding their
memory; delaying the onset or completion of healing process and prolonging the anxiety
and trauma associated with court appearances. In the South African criminal justice
system delays are a frequent problem for the following reasons due to postponements for
further investigation, the failure of witnesses to show up for court appearances, the
accused’s attorney failing to show up; postponement to acquire the evidence of expert
witnesses; or lost or unavailable dockets.151
“Lost files” are also a common problem, this is a euphemism meaning that
someone else had blocked the case or that the police were asking the survivor for a bribe
for the case to proceed.152 In the specialized Sexual Offence Courts reporting is
centralized and thus this behaviour is more closely monitored.
In the WHO World Report on Violence and Health Chapter on Sexual Violence it
was mentioned that courts are now being trained to interrupt judicial proceedings to hear
the testimony of expert witnesses upon arrival in court, to ensure that this testimony is not
lost due to delays and requesting the witness to return on another day.153
South African Police Services
The National Police Commissioner issued National Instruction No. 22 in 1998, entitled
“Sexual Offences: Support to Victims and Crucial Aspects of the Investigation.” This
document provides encompassing guidelines as well as disciplinary procedures for any
members of SAPS who disregards the instruction. The instruction does include a caveat
whereby the police are able to disregard the instruction for a compelling reason.
Julia C. Kim, Lorna M. Martin and Lynette Denny, “Rape and HIV Post-Exposure Prophylaxis:
Addressing the Dual Epidemics in South Africa,” in Reproductive Health Matters 2003; 11 (22) (Elsevier:
2003) at 110.
149
Mokwena, supra note 147.
150
Ibid.
151
Human Rights Watch, “Deadly Delay: South Africa’s Efforts to Prevent HIV in Survivors of Sexual
Violence,” March 2004 Vol. 16 No. 3(A), at 28, online: Human Rights Watch Website, http://hrw.org.
152
Ibid.
153
WHO World Report supra note 7 at 169.
148
A key aspect of the Instruction is that “no victim may be turned away.” This
means that by law SAPS members are not allowed to screen cases. However, in practice
SAPS members exercise discretion almost invisibly. 154 Unless a victim is entered into
the information system as a case of sexual violence, the police are not accountable for the
case. According to an estimate by CIET Africa, in 1997 for every 394 women raped, 272
would go to the police, only 17 would become “cases” of which five would be referred to
the court by the police and of which one perpetrator would be convicted.155 Decisions to
take on cases by police members may be influenced by personal perceptions of the
victim’s credibility or biases as to what are “real cases.”156
In 1995 it was recorded that widespread reports of police mistreatment of rape
survivors contributes to low percentage of reported rapes. Women face greater difficulty
filing charges if they did not resist physically, did not sustain serious injuries or do not
act sufficiently distressed; dressed “provocatively” or dated the perpetrator in the past. In
practice, “very few members of the SAPS comply with or seem to be aware of its
existence.”157 Often the first officer at the scene of the rape or the officer on duty at the
charge office will take a sworn statement from the victim before the investigating officer
is informed of a rape report. These statements will frequently be made in open charge
rooms in front of everyone, predominantly males.158 This statement will then form the
basis upon which a decision to proceed with an investigation will be made. These
officers lack training or skills in dealing with sexual offences. In 1995 90% of police
officers surveyed in a study by Human Rights Watch indicated that they would not know
what to do when faced with a rape allegation.
Anecdotal evidence gathered in interviews by a Human Rights Watch reporter
and documented in a 2004 report indicated that police are required to accompany the
victim to the hospital but will sometimes simply provide them with legal forms and send
them to the hospital alone. The police have also been known to frequently discourage
children from filing complaints and sometimes telling them they need to pay to open a
case and for transportation to the hospital. Finally NGOs working with child victims told
of cases where police refused to open cases for sexual violence survivors who reported
more than seventy two hours after the incident, telling the survivors that they could not
investigate the case because there was no evidence.159 Child rape survivors who are able
to file charges are also frequently faced with attempts by the police to take formulaic
statements, which later undermine the credibility of their evidence.160
In addition, female victims will infrequently be given the choice as to whether
they would prefer to speak to female officer.161 According to Human Rights Watch, as of
154
South African Law Commission, supra note 142 at 38.
Ibid.
156
Ibid.
157
Ibid.at 41
158
Human Rights Watch (1995) supra note 107 at 53.
159
Human Rights Watch (2004), supra note 152 at 45 – 46.
160
Ibid. at 47.
161
South African Law Commission, supra note 142 at 41.
155
1995 only 15% of the police force was female, and there was a need for more female
officers.162
Other issues that dissuade complainants from reporting crimes to the police
include corruption163 and racism. Deeply entrenched racist and sexist views pervade
South African society, and may work against black women in the exercise of these beliefs
by members of the police. For example, preventing the police from investigating
allegations of rape against black women, and instilling the idea that black women are
fabricating stories or rape to gain access to abortion.164
Language Barriers Complainants may also face language barriers, and there is no
statutory right to access to professional interpreters which means that the victims verbal
account of the incident m ay not be accurately reflected in the statement.165
Medical Examinations The police are also responsible for ensuring that a victim
attains a medical examination and when they fail to do so evidence may be lost. The
medical evidence is crucial for the successful prosecution of sexual offence cases.
Frequently such evidence is badly taken or incomplete. Previous to 2002, South Africa
operated a system of District Surgeons who were responsible for carrying out these
procedures. These district surgeons had a reputation amongst women’s groups of being
horrendous.166 Also long delays between the commission of the crime and the
examination by the District Surgeons were problematic. This delay would often result in
destruction or contamination of medical evidence. The delays were caused both by
overburdening of the surgeon as well as the fact that victims will often have to travel to
the place where the examination is being held, sometimes the victim will be transported
with the alleged offender.167
The Department of Health made a move from District Surgeons to decentralized
local clinics with the goal of becoming more accessible to victims.168 As of 2004
responsibility for rape survivors lay with the attending medical officer at each health care
facility. However no national standardized training has been offered to doctors or nurses
in the health system. This means that junior doctors are asked to perform sophisticated
clinical forensic examinations and manage rape survivors without adequate supervision
or support.169
Crimes by Police Some SAPS officials themselves commit sexual offences, and
allegations of sexual abuse are particularly abundant from people detained in police
162
Human Rights Watch, (1995), supra note 107 at 43.
Ibid.
164
Ibid.
165
Ibid. at 42
166
Human Rights Watch (1995), supra note 107 at 52; South African Law Commission, supra note 142 at
53.
167
Human Rights Watch (1995) supra note 107 at 42.
168
Ibid. at 60.
169
Kim et al., supra note 148.
163
holding cells.170 This is supported by a study carried out by the Women’s National
Coalition and cited by Human Rights Watch. 171
Public Prosecutors & the Courts
“The ability of a raped woman to get justice in a South African court depends
heavily on whether she fits the court’s image of a raped woman. Judges,
magistrates and prosecutors all bring their own stereotypes to determination of
whether a woman has been raped.”172
National Guidelines for Prosecutors in Sexual Offence Cases were disseminated
by the Department of Justice in May 1998. These guidelines provide that sexual offence
cases should be dealt with by specialist prosecutors and prescribe how consultation with
victims, accredited health care practitioners and police should be dealt with. The
prosecutor assigned to a sexual offence case should be selected based on his or her
personal make up and ability to relate to the victim. However, in practice the non
compliance with the directives are not sanctionable as they do not place a duty on
prosecutors to act in accordance with them.
The prosecutor has considerable discretion in determining if a case should be
heard or not. These decisions are often based on the Prosecutor’s own determination of
whether there is a realistic prospect of conviction, and may be based on factors such as
the relationship of the offender to the complainant, the amount of force used, the level of
resistance shown by the victim and the quality of the evidence. This is particularly
problematic as the Human Rights Watch report suggests that the problem of
inexperienced prosecutors is inherent in prosecuting sexual offences.173
Court System
As seen above conviction rates for rape, both adult and child, in South Africa are
extremely low. Biases and attitudes of judges contribute to this low conviction rate.
According to the literature “judges often discount the testimony of rape survivors
and hand down lenient sentences to rapists.”174 A brief review of some case law provides
examples of personal norms influencing the conviction and sentencing decisions of
judges.
For example in a 1994 case a trial court set aside a sentence for two men who had
raped a 19 year old virgin. The rationale for overturning the conviction was fourfold: the
rape was not based on violence, but need for sexual gratification; the woman raped had
suffered no serious injury or psychological injury; she knew one of the men well and was
not raped by total strangers and she must have known she was lying when they said they
170
South African Law Commission, supra note 142 at 42.
Human Rights Watch, (1995), supra note 107 at 13.
172
Ibid. at 45.
173
Ibid. at 43.
174
Ibid.
171
had a gun.175 This reasoning provides a clear example of rape myths pervasive within the
judicial system.
In another 1994 case the Magistrate made a distinction in sentence based on the
fact that the victim who was raped at gunpoint was a prostitute. He clarified that had she
been an “innocent woman” there would be a much harsher sentence imposed.
Rape and PEP
In 2002 the Government of South Africa committed to providing Post Exposure
Prophylaxis to victims of sexual violence. The government then effectively reneged on
this promise for various procedural and political reasons. Lack of coordination and
knowledge transfer amongst key stakeholders was a key issue as the police in many
instances were unaware of this policy and neglected to provide any assistance to rape
victims, much less inform them of their right to access PEP. This lack of information
transfer meant that victims were also unaware of their rights, and therefore did not
request or follow up on this treatment. On the national level, the Government of South
Africa undertook a policy not to provide Anti Retroviral treatment and therefore did not
supply PEP at national health centres. Finally resource limitations mean that PEP was
unavailable at health centres in poor and rural areas.176
As discussed in the first section, there is no conclusive date on the effectiveness
of ART in preventing HIV transmission after sexual exposure.177 This treatment was
developed to treat occupations exposure such as a needle stick injury. It is in this context
that the US Centers for Disease control and Prevention has stated that physicians should
consider this treatment only in individual circumstances where probability of infection is
high, therapy can be initiated promptly and adherence to the regimen is likely. “It should
not be used routinely and should never be considered a form or primary prevention.”178
Yet despite lack of definitive recommendations many centres have begun to offer
PEP following sexual exposure. The states of Massachusetts, New York and California
have official policies or guidelines in place for the use of PEP following sexual assault.
Also France, Italy, Spain, Switzerland and New South Wales in Australia have official
policies recommending the use of non- occupational PEP.
In determining if PEP should be provided the five following factors should be
taken into consideration to balance the benefits and risks. The first factor is the
probability that the source contact is HIV infected, given the high prevalence of HIV in
South Africa the probability of the source contact being infected is high. The second
factor is the likelihood of transmission. This factor mitigates in favour of PEP provision
because rape is associated with higher rates of transmission than consensual sex; and
175
Ibid.
Human Rights Watch (2004) supra note 152 at 102.
177
Ibid.
178
Km et al, supra note 148.
176
gang rapes will also result in overall higher risk of transmission. The interval between
exposure and initiation of therapy is the third factor to consider.
The period after which protection is lost in humans is unknown, although most
PEP protocols have incorporated presentation before a 24 to 72 hour time limit. A case
study of one clinic in South Africa were PEP is provided has noted a decrease in the time
interval between first contact at a police station and presentation to the hospital from
three days to 12 hours.179 The provision of PEP is also being integrated into ‘one stop
rape crisis centres” discussed below. Together this suggests that the provision of PEP
may improve the overall efficacy of rape investigations. The fourth factor to consider is
the efficacy of the drug used to prevent the infection and the fifth is drug adherence. The
evidence suggests that there are no additional benefits of dual or triple therapy over mono
therapy. The non-compliance with therapy would be a matter of concern due to
theoretical risk of reduced efficacy as well as the risk of generating drug resistance.
Studies suggest that a person’s self perceived risk of HIV infection due to exposure may
influence their compliance with PEP. However, there is no empirical evidence to this
effect.180
The authors of this study suggest that provision of PEP raises deeper principles of social
justice in SA. This is a way of preventing HIV infection following rape and is a matter of
health and human rights. With appropriate implementation, monitoring and evaluation,
these initiatives are ideally placed to begin generating models for the broader expansion
of PEP within the country.
f. Lessons from the Jurisdiction
Sexual Offence Courts
In 1993 the Wynberg Sexual Offences Court was established. As of 2004 the National
Prosecution Authority had established 43 sexual courts throughout South Africa. These
courts are aimed at centralizing the prosecution of sexually based offences, and having
trained staff and facilities to minimize the contact between victims and perpetrators. As a
result of training and more time being devoted to difficult cases these courts are
achieving much higher conviction rates for sexual offences.
By centralizing reporting the courts are meant to help improve substandard police
practices that involve cases being lost. In addition these courts provide for protection for
witnesses. For example, children can testify from a separate room using closed circuit
television and with access to a social worker intermediary. Women also received
increased support within these courts. The prosecutors also receive increased training,
including training in the use of DNA evidence. Moreover the courts are staffed with two
prosecutors, therefore one can proceed with particular trials while the other consults with
and prepares rape victims for court.181 The sexual offence courts are achieving between
179
Ibid. at 107.
Ibid. at 108.
181
Vetten (2001), supra note 26.
180
75 to 90% conviction rates compared to a 50% conviction rate for sexual offences in
regular courts. Also the average time for a trial in a sexual offence court is six to nine
months, compared to a year and a half of more in regular courts.182
In 1999 the National Prosecuting Authority created the Sexual Offences and
Community Affairs Unit to improve the handling of sexual offences cases against women
and children.183 This unit is responsible for the establishment of sexual offence courts and
multidisciplinary centres for survivors of sexual offences and domestic violence, as
discussed below.
The replication of the Wynberg Court is indicative of its success. However the
Law Commission paper cautions that the roll out of specialized sexual offence courts
must be accompanied with human and financial resources and commitment.184 For
example, at one point two of the four court rooms at Wynberg Court were not in
operation as too few magistrates were available. Also training programs and schedules
must take into consideration high staff turnover. The National Prosecuting Authority
hoped to have 60 specialized sexual offence courts by the end of 2004,185 and it is hoped
that by 2010 all sexual offences will be tried in special courts.186
Other Initiatives
Other initiatives that the South African government had undertaken to address the
problems with sexual offence prosecution include:
One-stop care facilities These facilities provide professional service by all crisis
intervention role players in one building including SAPS, district surgeons and
counselling services. Organizations are experimenting with these facilities across
Botswana, Namibia and Zambia, and they are available in over 90 sites across South
Africa.187
Victim Empowerment Program This program provides for comfort rooms within
police stations allowing victims to give their statements away from the charge counter
and in private.
Victim Care Package These packages are provided to SAPS and are dispensed to
sexual offence victims. The contents include necessary toiletries and disposable panties.
The underwear worn during an offence are often used as evidence in these cases, and the
provision of disposable underwear facilitates this.
Nicole Itano, “S. Africa finds rape courts work,” in The Christian Science Monitor (January 29, 2003),
online: Christian Science Monitor Website, http://www.csmonitor.com.
183
Human Rights Watch (2004), supra note 152 at 59.
184
South African Law Commission supra note 142 at 77.
185
Human Rights Watch, (2004), supra note 152 at 59.
186
Itano, supra note 182.
187
UNAIDS Special Taskforce, supra note 15 at 33.
182
Specialized Police Units There are 27 child protection units and 156 SAPS
members specialized in policing crimes against children. This initiative has expanded to
include. Family Violence Child Protection and Sexual Offences Units. As of 2002 there
were 15 of these units with the aims of establishing one in each of the 42 police areas.188
SECTION IV) FEMINIST LEGAL THEORY AND UNDERSTANDING RAPE PROVISIONS
This section will critique the content and implementation of the above provisions
from the analytical framework of feminist legal theory, as explained in Nicola Lacey’s
“Feminist Legal Theory and the Rights of Women.”189 Feminist legal theory involves a
critical analysis of both the substance and the framework of legal rights. This theory
understands sex as referring to biological differences between men and women, and
gender as the social construction of the identities of men and women. Feminist legal
theory operates on the assumption that sex and gender have shaped the world in a way
that is unjust. Rather than being comprised of differentiation between men and women,
sex and gender also consist of domination, oppression and discrimination. Differentiation
between men and women in the legal system has worked to the disadvantage of women.
This theory understands the roots of women’s oppression to lie in both biological
differences and in social decision making. To this end, political and social changes have
the possibility to affect serious change for women. 190
Feminist legal theory has had a strong focus on removing sexual differentiation
from the legal system, replacing it with gender neutrality. In recent years, a strain of
difference feminism has developed within feminist legal theory, and now almost all
feminist legal theories fall within this category. Difference feminism focuses on
challenging socially constructed views of men and women. In this way it calls for a shift
from accepting gender neutrality to questioning this concept as an ideal. In challenging
the socially constructed differences between men and women, this view also considers
the role of the law in constructing, underpinning and maintaining sexual differences.
Thus, by understanding the construction and operation of the legal system, we can help to
understand social construction of gender identity that had lead to oppression of women
and consequent violations of their rights. Difference feminism employs several themes in
its analytical framework. Each is discussed below with a view to the rape laws identified
above.
A) Substance of the Law as Reflecting Implicitly a Male Point of View191
The first of these is the idea of the “Substance of Law as Reflecting Implicitly a
Male Point of View.” This analysis focuses on whether women’s interests and
perspectives have entered the law, or if by using gender neutrality in legal provisions,
they have in fact been shielded from view. Rape is one of the few legal provisions where
188
South African Law Commission, supra note 142.
Nicola Lacey, “Feminist Legal Theory and the Rights of Women,” in K. Knop ed., Gender and Human
Rights (Oxford: Oxford U. Press, 2003) at 13 – 30.
190
Ibid. at 15.
191
Ibid. at 27.
189
the law has traditionally contained sexual differentiation on its surface. Rape has
traditionally been defined as a man having non-consensual sexual intercourse with a
woman. This sexual differentiation has been considered positive as it recognizes the
particular vulnerability of women to sexual violations, and the predominance of female
victims of this crime.
Lisa Vetten argues that the use of gender-neutral language in conducting research
on sexual offences is misleading and “ridiculous.” Vetten explains that in presenting
findings on the relationship between victim and perpetrator in terms of sexual offences
categories such as spouse/partner and boy/girlfriend are used. The use of these terms
implies that women commit sexual assaults at a rate at least equivalent to that of men.
This use of language then disguises the well documented fact that men are the main
perpetrators of sexual assaults.192
On the other hand, some have argued that the construction of rape laws to define
women as the victims and men as the perpetrators reinforces gender stereotypes of men
being the “doers” and women the “recipients” in sexual relations. This point will be
discussed further below in the section on imagery within the law.193
In the three country examples at hand, we have three different takes on gender
neutrality. The Tanzania law uses a gender specific definition of rape requiring
penetration of the male sexual organ into the female sexual organ. This is problematic as
it subordinates the rape of men, which is defined as a lesser crime of grave sexual abuse,
and carries a lighter sentence. This constitutes discrimination on the basis of gender. The
Tanzania definition is also problematic as it is premised on heterosexual intercourse and
does not consider other sexual violations, for example forced fellatio or cunnilingus to
constitute the act of rape. These acts are considered under provisions related to less
serious sexual crimes.
The Zimbabwe definition is gender neutral and includes all acts of penetration
including forced oral sex as rape. As explained above the drawback to this provision is
the lack of recognition of the vulnerability of women and children as the victims of
sexual assault. The South African proposed legislation seems to balance the competing
priorities of equally protecting interests of men and women, and recognizing the
particular vulnerabilities of women and children. The definition of rape here focuses on
coercion rather than consent, which alleviates the problem of sexual stereotyping cited
above. The provision itself is gender neutral and focuses on coercion through physical
violence, fraud, or when the victim is unable to understand the act in question. However
the preamble to the Act emphasizes the need to protect the interests of women and
children who have been disproportionately affected by these acts.
192
Vetten, supra note 116.
Nicola Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory, (Oxford: Hart
Publishing, 1998); at 103.
193
On a slightly more dismal note, the South African common law offence of rape
which is still in force is gender specific, requires the act of sexual intercourse and does
little to protect male victims of rape or to displace negative gender stereotypes.
B) The Constitution of the Legal Subject as Male
The legal subject is constructed as a rational individual in control of cognitive
capacities that inhabits the public sphere. In the definition of this subject there is no
consideration of a person’s body, emotions or private life, the subject considered to exist
only within the public sphere.194 In this way the construction of the legal subject is male,
and does not consider the experiences of non male subjects who are either incapable of
rational thought due to age or capacity including children, the elderly and persons with
disabilities, or who do not fully occupy the public sphere such as women, members of
racial minorities, gay lesbian and bisexual and transgendered people, or people with
disabilities. This characterization is particularly ill fitting for the majority of complainants
of rape – women and children.
The creation of the legal subject presupposed that legal subjects are rational
individuals that make principled decisions based on their cognitive capacities. The
complainants in rape cases will experience feelings include fear, shame and
embarrassment. Some will experience countervailing emotions of natural sexual interest
and a sense that the acts in question are reprehensible. In the case of intimate partner
violence, victims will experience feelings of betrayal towards their partner for resisting
their advances. The ability of a person to make a rational decision in these circumstances
is highly limited given these emotions.
However, the traditional evidentiary requirements for prosecution of this crime
are reliant upon the existence of such rational thought and action. Only the Zimbabwe
legislation abolishes the need for evidence of physical resistance to prove a case of rape.
Even where this legislative provision exists, police and prosecutors will commonly screen
out rape cases where there is no evidence of physical resistance. This practice is
influenced by the completion of medical forms, such as in Tanzania, which tend to
measure only physical effects of the sexual offence. The timing of the complaint and the
exhibited levels of distress will also influence beliefs in the credibility of the witness and
the willingness of police and prosecutors to move forward with the charge.
This requirement assumes one specific reaction to the experience of sexual
violence. That is, a person finds themselves to be the subject of violence and sexual force
and in not consenting to this use of force, decides rationally to resist physically to the
force. This does not allow for the verbal expression of non-consent, or even physical
resistance that does not result in physical evidence such as bruising or marks. It also fails
to appreciate the wide variety of possible reactions to sexual violence including shock,
paralysing fear or submission in fear that further resistance will lead to increased levels of
violence. In such situations of heightened emotion, any party’s capacity for rational
194
Lacey,(2003) supra note 189 at 27.
thought would be compromised (assuming of course that the rational reaction to sexual
violence is in fact physical resistance). This will be particularly true for young and
inexperienced victims.
C) Legal Methods as Masculine
The legal process is adversarial and operates on the assumption that all parties
enter the system on equal footing. This process involves the formation of precise rules
and the application of these rules to a set of facts. This does not leave space for a
contextual approach to the problem at hand - or its solution. The use of masculine legal
methods is problematic in dealing with rape for a couple of reasons.
First the adversarial nature of the legal system is problematic for cases of rape.
The definition and application of rape laws requires evidence that is almost exclusively
provided by testimony of the victim and the alleged perpetrator. In the absence of
testimony of other witnesses, which is rare, particularly in cases of intimate partner
violence, the testimony of the two parties will form the basis of the prosecution. The
evidence of the female victim is weighed against that of the male accused and one
version of events is assumed to be more credible than the other. This balancing of
conflicting evidence is worrisome for two reasons: firstly underlying gender inequality
within the societal context may privilege the evidence of the male over the female
without reason. The practice of adversarial cross-examination techniques does not take
into consideration the reluctance of women to directly confront their attackers or to speak
out against male actors in general.
In addition, as mentioned above the parties are assumed by the legal system to be
equal, and therefore systemic discrimination or societal inequality is not accounted for
when evaluating the facts of the case. In all three case studies above, societal gender
inequality was identified as a significant factor in the effective enforcement of rape laws.
Societal attitudes towards sex and rape including being ostracized from one’s
community, or being unable to marry or remain married influence the willingness of
women to report rape. In South Africa pervasive ideas of racism and sexism were found
to be a determinative factor in levels of violence against women. Also cultural practices
and beliefs in all three countries lead to the ingrained idea that men can exercise control
over women in the form of sexual violence. This is reflected in the practice of lobola, as
well as the attitudinal belief that marital rape is not a crime.
In addition, the legal system does not take into account inequality between the
relevant actors based on age. The South African legislation provides some protections for
vulnerable witnesses including children. However overall the legal system does not
accommodate the inequality experienced by children when adjudicating claims of child
sexual abuse. In South Africa there was evidence that police were dissuading children
from laying claims of rape. In Zimbabwe case law indicated that child witnesses were
considered to be less than credible for no reason other than their age. For example where
a child was held to be unable to understand an affirmation or oath, her evidence was
disregarded as she was deemed to not be of sufficient intelligence to give evidence.
Procedural issues such as the use of inconsistent language between initial statements and
future statements were also held to operate against the credibility of child witnesses. This
is a particular problem where cases experience considerable delays because as children
age their use and comprehension of language also matures.
This problem is also seen in the contradictory legal provisions in the Tanzanian
law, which allows that a child under the age of 18 may not consent to sexual intercourse
unless she is above the age of 15 and married to the other party. This provision allows
that a 15 to 17 year old girl is unable to consent to sexual intercourse, she is however able
to consent to marriage.
In addition to the presumption of equal parties, the legal system also operates to
the detriment of women by its application of set rules to particular sets of facts. This
process means that a contextual approach to the crime cannot be taken. For example the
cautionary rule of evidence worked to this effect, requiring corroboration of a victim’s
testimony, and in absence of this corroboration casting doubt on the value of this
evidence. Happily this rule has now been abolished in all three jurisdictions.
The South African legislation attempts to accommodate for this weakness by
including a provision that allows evidence of the surrounding circumstances of the crime
and the effect on the victim of the Act to be adduced in the trial. The South African
legislation also provides for the widest variety of circumstances under which consent is
vitiated including the abuse of authority by traditional leaders, acts of physical force and
intimidation and acts where the complainant is unable to understand the nature of the Act.
Because of these broad definitions, it is hoped that the application of the new legislation
to facts of rape cases will be more flexible and contextual than it has been in the past. The
effect of these provisions in practice is of course still unknown.
The focus on penetration in the Zimbabwe and Tanzania legislation has the risk of
causing similar results. While there are other legislative provisions in existence to deal
with non-penetrative sexual acts, the application of this definition will lead to screening
of sexual offence victims by medical examiners, as well as by police, prosecutors and
magistrates as seen above.
D) The Images of Women and Men, Femininity and Masculinity in Legal Discourse
Difference feminism also involves an analysis of feminist and masculine imagery in
the law. Problems with imagery relate both to legislative conceptions of consent and
coercion as well as the characterization of “legitimate” victims in the operation of rape
law. Both the Tanzania and Zimbabwe provisions refer to the element of “consent.” It is
suggested in the literature that a move to the language of consent in the 1980s definitions
of rape law was premised on the idea of moving away from the requirement of physical
coercion or force.195 However other authors suggest that the language of consent is
problematic in that it reinforces negative stereotypes about male-female sexual relations.
195
Law Reform Commission of Canada, supra note 27.
That is, that the heterosexual make “penetrates, who procures, who threats and coerces”
while the women are in roles of “passivity and victimisation.”196 According to individual
models of consent, the constitution of rape in terms of the victim’s lack of consent
presupposes a subordinate position for the victim.
Secondly, the characterization of the “legitimate” victim in the operation of rape laws
is problematic. For example, only the Zimbabwe legislation abolishes the need for
evidence of physical resistance. However as seen in practice, the screening of rape cases
by police and prosecutors is affected by the absence of this evidence. This creates an idea
that the legitimate victim of rape is one who resists with such physical force that she
sustains bruises and other visible markings.
Other factors seen in the above discussion that affect the decision to follow through
on a rape complaint, or the conviction of this complaint include whether the complaint of
the victim was prompt, and whether the victim is a prostitute or an “innocent woman.”
This can be seen for example in Evidence Act of Zimbabwe which allows evidence as to
the complainant’s “moral character” to be admissible in rape proceedings.
The existence of previous relationships is also an influential factor. The relevant
legislation criminalizes marital rape, with the exception of Tanzania where marital rape is
only illegal when the couple are legally separated. However, only the South African
legislation mandates that all previous relationships are irrelevant for the influence the
rape proceedings. In practice the existence of a current or previous relationship between
the complainant and the accused will lead to underreporting of the victim; and reluctance
to prosecute on behalf of the police or prosecution.
Also the Tanzania law relating to intoxication only provides that intoxication vitiates
consent when the perpetrator or a third party administered the intoxicating matter. Selfinduced intoxication does not vitiate consent. Moreover, in the case of intoxication if the
accused can show that there was prior consent between the two, consent is not vitiated by
intoxication. This reflects the presumption that in the absence of direct refusal to engage
in sexual intercourse, women are always willing to engage in sexual activities.
E) The Conceptual Framework of Legal Reasoning
This analysis requires looking at the moral and political assumptions that are
concealed by the broader structure of legal regulations, and the ideas upon which the
legal system is premised. This enables the identification of norms that underpin the legal
system, and which the legal system indirectly promotes.197
One such norm is the division of the public and private spheres. Liberal political
thought assumes the world to be divided into public and private spaces and issues:
government actions are included in the public sphere as are the exercise of civil and
196
197
Lacey (1998), supra note 192 at 103.
Lacey (2003), supra note 189 at 27.
political rights. The public sphere is thus protected under the legal system. Conversely,
private lives including lives within the home are considered to be within the private
sphere and not within the realm of public regulation or interference. Private lives instead
are thought to involve the exercise of individual autonomy and should be free from
interference from the state. Given that the majority of violations of women’s rights occur
with the domestic environment in the private sphere this distinction has been highly
detrimental to the safety and security of women.
The public/private division is evident in the enforcement of rape laws. Firstly the
prosecution of accused rapists in cases where the victim did not know the assailant is
much more frequent that the prosecution of date rape cases, or rape within marriage. The
history of marital rape provisions reflects the reluctance of the state to interfere with the
private lives of individuals. In all three cases marital rape has been criminalized very
recently, the earliest provision taking effect in South Africa in 1993.
As discussed above sexual offences perpetrated by strangers have a higher reporting
rate than those perpetrated by someone known to the victim, particularly intimate
partners. In all three countries there was evidence of the reluctance both to report and to
investigate intimate partner violence and rape.
F) The Enforcement of Laws
The final tenet of difference feminism is the examination of how the law is being
interpreted and enforced by legal and non-legal actors. As discussed in detail
above, each jurisdiction faces challenges with enforcement. These challenges are
related in part to male domination within the criminal justice system. For
example, the disproportionate amount of male police officers and the relationship
between this gender imbalance and the experiences of rape victims was identified
as a problem. The dominance of male prosecutors and judges and the
corresponding existence of personal biases and rape myths was also identified as a
problem.
The enforcement of rape laws in these three jurisdictions has been undermined by
procedural, resource related and societal problems. The lack of effective
enforcement mechanisms has contributed to a culture of impunity for sexual
offences. The relationship between the sentencing of sexual offenders and
deterrence will be discussed in the next section.
SECTION V) RECOMMENDATIONS AND MODEL LEGISLATION
Recommendations to governments, international organizations and NGOs
regarding best practices and future directions to address the double pandemics of
Violence Against Women and HIV/AIDS have been prepared and disseminated by a
number of authors. The following reports have all documented such recommendations:
Not a Minute More by UNIFEM (2002); World Health Organization: Violence Against
Women and Health (2001), Addressing Gender Based Violence from the Reproductive
Health/HIV Sector: A Literature Review and Analysis by IGWG (2004); Setting the
Research Agenda On Violence Against Women And HIV/AIDS by WHO Conference
Proceedings; Facing the Future Together, Report of the United Nations SecretaryGeneral’s Task Force on Women, Girls and HIV/AIDS in Southern Africa, (2004); and
Confronting the Crisis: Women and HIV/AIDS Joint Report by UNAIDS, UNIFEM and
UNFPA.
A number of common themes cross cut these reports. A brief canvassing of these
common themes and key recommendations under each area will be discussed below. This
discussion will be following by a more focussed discussion of recommendations
regarding the legislation itself and the enforcement of this legislation. Each
recommendation is made with the caveat that programming should only be undertaken
with adequate resources to both initiate and maintain the services. Thus, all
recommendations should be read contextually in light of resource availability both
financial and human capital, and existing state structures.
Multi-Sectoral Programming
Although the empirical evidence is currently lacking, it is accepted that at least there is
the existence of some links between Violence Against Women and HIV/AIDS. The
recognition of these links requires an integrated approach to dealing with the joint
pandemics. Some suggestions for this approach include:




Cross training HIV/AIDS workers and domestic violence workers. 198
Providing referrals to domestic violence services, including shelters, to HIV positive
women upon testing. 199
Ensuring that all sexual offence survivors receive information and counselling on the
risks of HIV infection, the efficacy of Anti Retroviral Treatment in reducing the risk
of transmission, safer sex practices and pre and post-test counselling.200
A review of programs in developing countries that have addressed or challenged
Gender Based Violence with a link to Reproductive Health and HIV Sectors carried
out in May 2004 held that the most promising programs:
o Tended to use multiple strategies.
o Established partnerships among sectors that build on each other’s strengths to
cover a wide need or survivors and effect change on multiple levels.
Changing Societal Beliefs and Altering Norms of Gender Inequality
As discussed above, gender and sexual norms related to masculinity and femininity play a
central role in contributing to violence against women. Programs directed at combating
violence against women thus been focussed on altering societal beliefs and norms of
198
WHO Information Bulletin, supra note 7.
“Violence, Vengeance and Gender,” supra note 12.
200
Ibid.
199
gender inequality. 201 Two aspects of this programming are building public awareness
and community activism by men.
Public Awareness



Public awareness campaigns as to the occurrence and danger of violence against
women and the legislative and social support services available should be
undertaken.
Clear communication as to the transmission of HIV/AIDS, and the risk of
transmission through sexual violence should be prioritized.
Public information and education campaigns should be initiated that challenge
coercive sexual practices and marital rape.202
Community Activism by Men


Men are both instigators of violence and essential to the solution. By involving
men in programs to end gender violence the participants are being educated
themselves while helping to educate others.203
Men working with other men tends to lower rates of recidivism among abusers
and helps to prevent abuse from happening.204
Gender Equality Programming



A key cause of HIV amongst young women in Africa is intergenerational and
transactional sexual relations. It is recommended that programming directed and
empowering girls and young women will decrease these practices.205
Programming on gender equality should target youths.206
Promising initiatives promote change at both the individual and community
levels; however, when attempting to change attitudes among specific groups,
initiatives should highlight the importance of addressing individual experiences
and perceptions of violence first and foremost.207
ABC Programming Is Inadequate
HIV/AIDS Programming that focuses on abstinence, being faithful and condom usage
does not reflect the lived realities of women in Sub Saharan Africa. There needs to be a
recognition that many women cannot choose to abstain and the choice to use condoms
201
WHO Information Bulletin, supra note 7.
Violence, Vengeance and Gender, supra note 12.
203
UNFPA, Confronting the Crisis, A Joint Report by UNAIDS/UNIFEM and UNFPA (2004), at Chapter
6, online at UNFPA Website, http://www.unfpa.org.
204
UNIFEM, Not a Minute More, (UNIFEM, 2003)
205
UNAIDS Special Taskforce, supra note 15 at 22.
206
Ibid.
207
Guedes, supra note 146.
202
may be met with violence. Strategies must instead consider other things including public
awareness.
Condom promotion and other HIV prevention programs will have limited impact
unless they take into account the role of violence in women’s lives; women who are
victims of violence or threats of violence do not have the means of HIV protection within
their effective control; sharing the responsibility of HIV prevention with men and
creating structural level changes to enforce condom use can help to remove the sole
responsibility of prevention from women whose ability may be limited by threats of
abuse. Similarly development of HIV prevention methods for women controlled by
women such as vaginal microbicides should also be encouraged.
Legal Process208
As discussed above there are specific problems with the enforcement of rape laws in each
of the countries studied. Specific recommendations for change are related to the provision
of police services, medico-legal services, and victim services.
Police Services

Prioritization of sexual offence cases involving HIV positive complainants.

Efforts should be made to increase the proportion of female police officers.

Guidelines for the arrest and charging of sexual offence cases should be
developed for the police where they do not exist. Where these guidelines do exist,
some type of monitoring mechanism and sanctions should be put into place to
ensure compliance with these guidelines.
Where resources are available specialized investigative units and specialized
sexual offence courts should continue to be established.

Medico Legal Services

208
Sexual offence legislation should be amended to mandate medical treatment
provision to survivors of sexual violence as part of comprehensive package of
support that includes counselling, treatment for sexually transmitted infections
In 1999 the International Centre for Criminal Law Reform and Criminal Justice Policy prepared a
comprehensive Resource Manual of Model Strategies and Practical Measures on the Elimination of
Violence Against Women in the Field of Crime Prevention and Criminal Justice. This document provides
complete and detailed recommendations in the topics of criminal procedure, police, sentencing and
corrections, victim support and assistance, health and social services.




and testing for and prevention of HIV transmissions as result of rape.209 This
treatment should be carried out in “one stop treatment centres.” 210
Health care centres and workers should be trained to recognize signs of genderbased violence, and to deal with sexual offences appropriately.
o One recommendation suggests the implementation of comprehensive
guidelines and protocols for treating female victims. These protocols
would detail the type of information to request and record; assessments for
risk of pregnancy and STIs as well as others.
Police, prosecutors, judges and magistrates should receive training on the use of
medico-legal evidence in the case of rape and domestic violence.211
Psychological care and support for rape victims should be administered to help
reduce the risk of future risky sexual behaviour, particularly among child
victims.212
Governments should develop a clear policy on the administration of PEP for
victims of sexual violence.
Sentencing



Where they do not already exist, guidelines on sentencing sexual offenders should
be developed. These strategies should direct sentencing to meet the goals of:
holding offenders accountable for their acts; stopping violent behaviour;
considering the impact on victims and their family members and promoting
sanctions that are comparable for other violent crimes.213
Victim impact statements should be taken into account when sentencing an
offender.
Other sentencing options when resources are available should include offender
programmes; and offender treatment and education programmes.
Sentencing and Sentencing Goals
In the case studies it became apparent that each country had assumed highly punitive sanctions to punish
sexual offences. The ranges of sentences were from 10 years to life imprisonment with the inclusion of
fines and corporal punishment. Given the stark contrast these provisions have with Canadian sentences of
14 months to 14 years imprisonment for sexual assault and aggravated sexual assault, these practices raise
the question of whether long sentences of imprisonment are serving the interests of society and of the
justice system.
The competing goals of sentencing include retribution, rehabilitation, general and specific deterrence,
denouncement, and protection. According to an article by Ross Kinemo rehabilitation is at the centre of
Tanzanian penal policy. The author goes on to argue that the sentence of thirty years is not rehabilitative as
Human Rights Watch, “Submission to the Parliamentary Portfolio Committee on Justice and
Constitutional Development, Parliament of South Africa, on the draft Criminal Law (Sexual Offences)
Amendment Bill 2003, Amnesty International and Human Rights”, (Amnesty International, September 12,
2003), online at Amnesty International Website, http://www.amnesty.org
210
UNFPA supra note 203.
211
Human Rights Watch, (1995) supra note 142.
212
WHO World Report, supra note 7.
213
Resource Manual, supra note 208 at 49.
209
this exceeds the life span of many Tanzanians. In addition, this article concludes corporal punishment is
cruel and inhumane and is also contrary to the rehabilitative goal of sentencing. 214
As discussed above, sentencing in South Africa was altered by the implementation of a Mandatory
Minimum Sentences Act. This Act was implemented because of dissatisfaction of the public and members
of the judiciary with inconsistent and unprincipled sentencing practices. Previously sentencing was purely
discretionary. It is suggested that factors considered in meting these sentences included the nature of the
crime, the criminal and the nature of society. In this way the courts were meant to employ a “unitary”
theory of sentencing.215 The adoption of the Minimum Sentences Act provides for less discretion for the
judiciary in assigning sentences. However there is an exemption clause that allows the court to diverge
from the mandates of the Act in compelling circumstances.
The concern of the public and members of the judiciary that is highlighted again and again in the literature
and media reports is the idea that criminals are not receiving harsh enough penalties, and therefore crime
continues. Thus corresponds to the general deterrence theory of sentencing, which suggests that punishment
is imposed with the aim of deterring the community from committing an offence similar to that of the
convicted person before the court. The theory is premised on the belief that the average person is deferred
from committing a crime by the punishment imposed.
The difficulty with this theory, and this argument to support the long custodial sentences imposed in these
jurisdictions, is that there is no empirical evidence to support the view that lengths of sentences are
effective in reducing crime rates. The best support of general deterrence is that the likelihood of
apprehension is important in reducing the crime rate. 216 In order for longer sentences to have a greater
deterrent effect than shorter sentences it must be demonstrated that the public is aware of the sentence, the
offender will perceive the likelihood of apprehension, and will then choose to commit offences with lower
sentences.217
Given the evidence of low conviction rates in South Africa and the enforcement problems in Tanzania and
Zimbabwe that also imply lower rates of conviction and a culture of impunity for sexual offenders, the
theory of general deterrence and these sentences will not and do not improve crime rates.
Victim Services

Gender sensitive court procedures should be implemented to help ensure that
victims are not victimized twice. These procedures could include general
guidelines for treatment of victims by members of the criminal justice system; and
specialized courts for the prosecution of sexual offences.218
Areas for Future Research
Each piece of literature in this area identifies research needs in different areas depending
on the priorities of the particular report and organization. One thing is clear – more
quantitative and reliable research is needed on the particular links between HIV and
Ross, Kinemo, “Contemporary Tanzania Penal Policy: A Critical Analysis,” Mzumbe University
Prof. Stephen Terblanche, “Sentencing in South Africa: lacking in principle but delivering on justice?”
216
Martin, Schonteich, “Sentencing in South Africa, Public Perception and Judicial Process,” (Institute for
Security Studies, November 1999); also cited R v. McLeod (1993) (Sask CA) [McLead]
217
McLeod
218
Resource Manual, supra note 208 at 61 – 62.
214
215
Violence Against Women. Other recommended areas for research focus are highlighted
below.




The link between incidents of rape and HIV infection rates. In particular, develop
guidance on how to integrate research and violence questions into ongoing HIV
reproductive health studies; and how to integrate key HIV risk behaviour and
outcome measures into violence related studies.219
The effect of PEP on HIV infection rates for victims of sexual violence.
The particular characteristics of relationships that involve gender inequality that
influence women to engage in risky sexual behaviours, including reluctance to
request condom usage.
Conviction rates and sentencing rates for sexual offenders.
Model Legislation
This paper was initially researched with a view to providing model legislation. However
through the above examination of the three case studies, it is clear that strong or effective
legislation is a very small part of the fight to combat violence against women. Problems
with enforcing this legislation abound, particularly in the very unique political and social
environments of Sub Saharan African countries.
The problems with rape legislation that are highlighted throughout the literature
are almost uniformly addressed in South Africa’s draft bill. This is doubtlessly due to the
extensive consultation processes undertaken by that country’s government in the
preparation of the bill, including the preparation of several drafts, discussion papers, and
the invitation to members of civil society to comment on the Bill.
The strengths of the legislation include:






The abolition of the cautionary rule of evidence.
Extensive victim protection services.
The existence of sentencing guidelines.
A definition of rape that is broad, gender neutral and couched in terms of all
forms of coercion rather than the language of consent.
The recognition that the Bill is directed at the protection of women and children
who are particularly vulnerable to sexual violence and coercion.
The non-relevance of previous relationships between the victim and the accused.
Other strengths within the South African system include:




219
The establishment and operation of specialized sexual offence courts.
Mandatory minimum sentence legislation.
Specialized units within the police services to address child and family violence.
All in one care units for the victims of rape.
Violence and HIV/AIDS: Setting the Research Agenda,” supra note 17.
Thus the South African rape legislation and accompanying structures can be used as a
theoretical model. However the challenges arise in practice. For these reasons model
legislation has not been included, instead there is the suggestion that the South African
Bill (included in Appendix B) is model legislation. Its implementation environment
however leaves much to be desired.
Conclusion
Addressing sexual violence through the criminal justice system is difficult
regardless of jurisdiction. In countries riddled with social and economic problems
including lack of resources and service provision largely through uncoordinated efforts of
international donors and NGOs, and with prevailing social norms of gender inequality
these problems are exacerbated. To deal effectively with the issue of rape within Sub
Saharan Africa, a multi pronged approach must be taken, to address the coordination and
provision of adequate resources, the effective implementation of existing legislation and
shifting societal norms to improve gender relations.
This paper has highlighted a number of issues, both practical and legislative that
inhibit the effective enforcement of rape legislation. Regardless of the strength of the
legislation the conclusion remains the same: strong legislation requires effective and fair
enforcement mechanisms, and a supportive enabling environment. Without this
background, the legislation is merely words on paper, which provides little comfort to
thousands of women suffering from violence and HIV/AIDS.
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