DEFINING RAPE and INDECENT ASSAULT1
Authors:
HELéNE COMBRINCK
Senior Researcher
Gender Project
Community Law Centre
University of the Western Cape
LILLIAN ARTZ
Criminologist
Institute of Criminology,
Faculty of Law
University of Cape Town
1.
INTRODUCTION
The draft Bill provides for incisive amendments to the existing common law definition of
rape. This definition has long been described as inadequate and unsatisfactory,
particularly from the perspective of rape victims.2
We agree that by broadening the definition of rape to be more reflective of the
experiences of victims one may indirectly provide more appropriate redress and increase
victims' access to the criminal justice system.3 An example is found in the present
distinction between instances of vaginal penetration by the penis (regarded as the
offence of 'rape') and acts of forced penetration other than vaginal penetration by a penis
(punished as 'indecent assault'). While some may argue that as long as the offender
does not go unpunished, it does not really matter whether he or she is charged with rape
1
.
2
.
3
.
This submission is largely based on L Artz and H Combrinck ‘”A wall of words”: redefining
the offence of rape in South African law Acta Juridica (In Press).
See in this regard generally B Pithey et al Legal Aspects of Rape in South Africa (1999);
also inter alia D Hansson ‘Working against violence against women’ in S Bazili (ed)
Putting Women on the Agenda (1991) at 185-186; V Bronstein ‘The cautionary rule: an
aged principle in search of a contemporary justification’ (1992) SAJHR at 556; P J
Schwikkard ‘Sexual offences – the questionable cautionary rule’ (1993) SALJ at 46; K
Ross ‘An examination of South African rape law’ in Women, Rape and Violence in South
Africa (1993) Unpublished paper prepared for the Community Law Centre [copy on file
with authors]; M Reddi 'A feminist perspective of the substantive law of rape' in S
Jagwanth et al (eds) Women and the Law (1994) 159 159 et seq; P J Schwikkard ‘A
critical overview of the rules of evidence relevant to rape trials in South African law’ in
Jagwanth et al (op cit) 198 198 et seq; P Singh ‘Protection from violence is a right’ in S
Liebenberg (ed) The Constitution of South Africa from a Gender Perspective (1995) 3738.
A Pantazis 'Notes on male rape' (1999) 12 SACJ 369 370 et seq.
or indecent assault, we argue that there are a number of practical implications to this
distinction.
Firstly, Schedules 5 and 6 of the Criminal Procedure Act4 treat indecent assault
differently from the offence of rape for purposes of the determination of the accused's
pre-trial disposition in terms of s 60(11) of this Act.5 Secondly, indecent assault is also
treated differently from rape in terms of Act 105 of 1997.6 Thirdly, rape trials must be
heard in the regional or high court, since the district court lacks substantive jurisdiction in
respect of rape.7 This is not the case with indecent assault, which may also be heard in
the district court. Although there may be prescriptions issued by the Directors of Public
Prosecutions to the effect that 'more serious' instances of indecent assault should be
heard on regional court level, anecdotal evidence indicates that such serious cases are,
on occasion, tried in district court.8
For a long time, the offence of rape was construed narrowly and limited to situations
where the woman's resistance was overcome through physical force. The courts
however gradually widened the ambit of the offence by construing 'absence of consent'
to include instances where intercourse was obtained through fraud or deception. This is
essentially the definition of rape as adopted in South Africa from English common law.
We support the broadening of the offence to be gender-neutral, in other words that the
perpetrator and the victim may be either male or female. We similarly support the move
away from ‘absence of consent’. The Law Reform Commission points out that this shift
represents a shift of focus from the subjective state of mind of the victim to the
imbalance of power between the parties on the occasion in question:
4
5
.
.
6
.
7
.
.
8
Act 51 of 1977.
S 60(11)(a) provides that where an accused is charged with an offence listed in Schedule
6, he or she will be detained in custody unless he or she adduces evidence to satisfy the
court that exceptional circumstances exist which in the interests of justice permit his or
her release. S 60(11)(b) provides that where an accused charged with an offence listed in
Schedule 5, the accused will be detained in custody until he or she adduces evidence to
satisfy the court that the interests of justice permit his or her release.
Act 105 of 1997. Sec 51 of this Act provides for the mandatory imposition of minimum
sentences under certain circumstances.
Magistrate's Court Act 32 of 1944.
The experience of a victim of sexual violence may vary greatly depending on whether the
matter is heard in district or in regional court. District courts prosecutors are generally
less experienced than regional court prosecutors, and district courts rarely have the
special facilities for victims of sexual violence such as closed-circuit TV systems and
separate waiting rooms allocated to regional courts. Case loads also differ, with district
courts generally bearing a heavier case load, making thorough pre-trial consultation with
witnesses extremely difficult if not impossible.
'It also allows one to understand that coercion constitutes more than
physical force, or threat thereof, but may also include various other forms
of exercise of power over another person: emotional, psychological,
economic, social or organisational power.'9
The replacement of 'absence of consent' as an element of rape highlights a significant
symbolic shift in the understanding of the true nature and experience of sexual violence.
For the victim, the distinction between rape and consensual intercourse is not to be
found in consent.10 Rather, it revolves around the coercion that is used to vitiate her
consent. Therefore, viewing 'absence of consent' as the central element of the offence
serves to define the experience from the perspective of the perpetrator, rather than the
victim.11 We accordingly support the approach followed by the Law Reform Commission.
However, we submit that the creation of a distinction between different forms of sexual
penetration is problematic. We address this below. In addition, we have also identified
other aspects of the definition that require clarification and reformulation.
Our proposals are aimed not only at aligning the definitions of offences with the interests
that we aim to protect, but also at ensuring that the legislation is easy to comprehend
and apply.
2.
PROVISIONS IN THE DRAFT CRIMINAL LAW (SEXUAL OFFENCES)
AMENDMENT BILL
Clause 2 sets out the proposed redefinition of the offence of rape, and introduces two
new statutory offences, namely sexual violation and oral genital sexual violation in
clauses 3 and 4 respectively. A further new offence, ‘compelling or inducing indecent
acts’, is set out in Clause 6. The Bill does not propose the redefinition of the offence of
indecent assault.
3.
RECOMMENDATIONS BY THE SOUTH AFRICAN LAW REFORM
COMMISSION
9
South African Law Commission Discussion Paper 85 (note >) Par 9.4.7.3.14. See also
Hall (note >) 75-76.
Combrinck and Khan (note >) 39.
Ibid.
.
10
11
.
.
The above provisions of the Bill are found in the same format in the draft legislation set
out in the Law Reform Commission’s report. In order to gain an understanding of the
Commission’s motivation for these proposals, it is valuable to also consult the preceding
Discussion Paper on Sexual Offences: The Substantive Law and Discussion Paper on
Sexual Offences: Process and Procedure.12
4.
PROPOSED CHANGES
4.1
Consolidation of Three Penetrative Offences into One Offence of ‘Rape’
As a starting point, it is useful to bear in mind that the offence of rape is aimed at
protecting the interests of sexual autonomy and integrity. One of the original points of
criticism against the common law offence of rape was its specificity regarding ‘orifice’
and 'object'.13 Commentators have expressed the view that the definition of rape should
be extended to include penetration with objects such as bottles or sticks, and also to
include penetration of the victim’s anus or mouth by the genital organs of the
perpetrator.14 As it currently stands, the reformulation of the definition as contained in the
draft Bill does not address this concern.15
Penetration by an object other than a penis and forced oral penetration are just as
violent as penetration by a genital organ. The proposed grading in the definition of
offences only serves to minimise other sexual violations and creates an opportunity for
the reduction of charges in matters that prosecutors may regard as 'difficult' rape cases.
If the legal definition of rape is not sufficiently broad, the experience of the rape victim
may not be regarded legally as constituting rape even though she defines it as rape.16
‘Who is to say that the sexual humiliation suffered through forced oral or
rectal penetration is a lesser violation of the personal private inner space,
a lesser injury to mind, spirit and sense of self?… All acts of sex forced on
unwilling victims deserve to be treated as equally grave offences in the
eyes of the law, for the avenue of penetration is less significant than the
intention to degrade.’17
12
.
13
.
.
15 .
14
16
17
.
.
South African Law Commission Discussion Paper 85 (note >) at Par 9.4; South African
Law Commission Discussion Paper (note >) at >>>; South African Law Commission
Report (note >) at Par 3.3.
Pithey et al (note >) 28.
Ibid.
It should be noted that the current formulation of Clause 2(1) does include anal
penetration.
Bacik et al (note >) at 2.
Susan Brownmiller Against Our Will (1977) at 378.
The Commission bases its distinction between penile penetration and penetration with
'other objects' on a reluctance to label perpetrators of less serious forms of penetration
(for example, 'slight' digital penetration of a victim's genital organs) as 'rapists'.18 The
Commission's hesitation to include other forms of sexual penetration (i.e. vaginal or anal
penetration by an object or forced oral intercourse in the form of penile penetration of the
victim's mouth) in the definition of rape is therefore aimed at avoiding undue prosecution
of an accused for an offence that does not constitute 'real' rape.
If the objective of the reformulation of the definition is to protect the sexual autonomy of
rape victims and to advance the notion of rape as an act of violence rather than a sexual
act, the emphasis on penile penetration as an element of rape undermines this objective.
An alternative to establishing the separate offences of ‘rape’, 'sexual violation' and ‘oral
genital sexual violation’ would be to extend the proposed definition of rape to include
acts set out in the definitions of the latter two offences and to keep the offence of
'indecent assault'19 for all non-penetrative sexual acts falling outside of this extended
definition.
The provisions of the Namibian Combating of Rape Act may be instructive in this regard.
The Act defines 'rape' as the intentional commission of a sexual act with another person
under coercive circumstances. A 'sexual act' is defined in s 1(1) to cover a number of
penetrative and non-penetrative acts.20 Significantly, the acts of 'insertion of the penis',
'insertion of any other body part' as well as 'insertion of any object' are all included in the
definition of a 'sexual act'.
It is significant to note that the International Tribunal for the former Yugoslavia has
accepted that the actions of penetration of the vagina or anus of the victim by objects
other than the penis of the perpetrator as well as penetration of the mouth of the victim
by the penis of the perpetrator constitute rape.21 The definition of ‘the crime against
humanity of rape’ as set out in the statutes for the International Criminal Court is framed
in similar broad terms.
The South African Law Reform Commission's concern with creating a layered scheme of
penetration-based offences is further related to sentencing purposes. However, we
18
19
.
.
20
.
21
.
South African Law Commission (note >) 23.
We recommend the reformulation of the common law offence of indecent assault –
please see discussion below.
The Act also includes cunnilingus (oral stimulation of the female genitals) and any other
form of genital stimulation in its definition of a 'sexual act'. It could be argued that the
inclusion of these non-penetrative acts delineates the offence too broadly, and that it
should be limited to penetrative acts.
Ref.
argue that the introduction of such a graded scheme of definitions is not necessary: it is
possible to make such a distinction once there has been a conviction of rape, as is
currently the case in terms of Act 105 of 1997.22
We concur with the following statement by Davis J in S v Schwartz:23
'As controversial a proposition as this is bound to be, as not all murders
carry the same blameworthiness, so too, not all rapes deserve equal
punishment. That in no way diminishes the horror of rape; it is however to
say that there is a difference even in the heart of darkness.'24
In principle, therefore, making a distinction between different instances of rape for
purposes of sentencing is not in itself objectionable. However, this distinction should not
occur on the level of enacting different offences relating to forced penetration.
It should further be noted that the proposed Sentencing Framework Bill, which will repeal
the provisions of Act 105 of 1997, places extensive reliance on the notion of 'serious
offences'. However, this term is not defined in the Bill.25 This implies that where one
starts diluting the offence of 'rape' to another (less serious) form of violation, there is a
real risk that the Sentencing Framework will not capture instances of 'sexual violation' or
'oral genital violation' as 'serious offences'.
We accordingly recommend the consolidation of the offences of ‘sexual violation’
and ‘oral genital sexual violation’ into the offence of rape set out in Clause 2(1).
4.2
Deletion of Provision regarding Prima Facie Unlawfulness
Clause 2(2) of the Bill provides that an act which causes penetration is prima facie
unlawful if it is committed in any coercive circumstance, under false pretences or by
fraudulent means, or in respect of a person who is incapable in law of appreciating the
nature of an act which causes penetration.26
22
.
23
.
.
24
25
.
26
.
Criminal Law Amendment Act 105 of 1997. The Act distinguishes between different
instances of rape; however, the basic operational concept is that of the offence of 'rape',
and the 'grading' occurs in terms of the circumstances under which the offence is
committed.
1999 2 SACR 380 (CPD).
At 386b-c. The Supreme Court of Appeal (per Cameron JA) referred to this dictum with
apparent approval in S v Abrahams 2002 1 SACR 116 (SCA) at 127e.
See in this regard L Artz and D Quenet Comments on Discussion Paper 91 Sentencing:
A New Sentencing Framework (2000) Unpublished paper submitted to the South African
Law Commission 1-2 [on file with authors].
These phrases are explained in more detail in subsequent clauses. 'Coercive
circumstances' is defined in clause 3(3), 'false pretences or fraudulent means' is defined
The background to this provision is firstly found in the Law Reform Commission’s first
Discussion Paper. The Commission notes here that once unlawfulness is established by
proof that the rape took place in certain circumstances, the onus must be on the
accused to prove his or her defence that may or may not be based on consent as a
justification for his or her actions.27 As Van der Merwe points out, the Law Commission
did not clearly indicate at this point whether it intended to impose a so called 'reverse
onus' (where, instead of the state proving the guilt of the accused beyond reasonable
doubt, the onus is on the accused to prove his innocence) or whether it proposed placing
an evidentiary burden on the accused.28 The former would not only fly in the face of
established principles of criminal liability, but would also run the risk of being found
constitutionally suspect.29
In its 2002 Report, the Commission is at pains to state that what is intended in clause
(3)(2) is indeed an evidentiary burden.30
The Commission is satisfied that its proposal does not place a reverse
onus on the accused, but merely an evidential onus… [t]o make it clear
that its proposals do not alter the standard of proof required when an
accused adduces evidence in rebuttal, it is deemed appropriate to add
words to this effect in subclause (10) [sic] - where the accused's
entitlement to raise defences at common law is retained.31
The crisp question arising here is whether this provision is necessary at all. According to
the principles of South African law of evidence, the state bears the burden of proof to
prove the guilt of the accused beyond a reasonable doubt. This burden of proof remains
on the state throughout the trial. Schwikkard and Van der Merwe note that at the outset
of the trial, 'in tandem with the burden of proof', the state must also discharge an
27
28
.
29
.
30
31
.
in clause 3(4) and the circumstances in which a person is incapable 'in law of
appreciating the nature of an act which causes penetration' are set out in clause 3(5).
South African Law Commission Discussion Paper 85 (note >) Par 9.4.7.3.8. See also J
Milton 'Re-defining the crime of rape: the Law Commission's proposals' (1999) 12 SACJ
at 367.
SE van der Merwe 'Re-defining rape: Does the Law Commission really wish to introduce
a reverse onus?' (2001) 14 SACJ at 62-66.
Van der Merwe (op cit) 68; see also H Combrinck and Z Khan Comments on Discussion
Paper 85 (1999) Unpublished paper submitted to the South African Law Commission [on
file with authors].
South African Law Commission (note >) 33.
Ibid. Subclause 3(2) should be read with subclause 3(9), which provides that nothing in
this section may be construed as precluding any person charged with the offence of rape
from raising any defence at common law to such charge, not does it adjust the standard
of proof required for adducing evidence in rebuttal.
evidential burden.32 The state will do this by establishing a prima facie case against the
accused. Once a prima facie case is established, the evidential burden will shift to the
accused to adduce evidence in order to escape conviction.33 The burden of proof
however remains with the prosecution.
The state also bears the burden of proving the absence of any defence raised by the
accused, for example, the absence of private defence, compulsion or necessity and
consent.34 While there is a procedural duty on the accused to introduce his or her
defence (for example by putting his defence to state witnesses during crossexamination), this duty does not in any way translate into a burden resting on the
accused to prove his defence.35
The proposed provision appears to require the state to present proof of two elements,
namely that the accused committed an act causing sexual penetration and that he or she
committed such act under coercive circumstances, under false pretenses or in respect of
a person incapable of appreciating the nature of penetration. Once the state has
established that the act causing penetration was committed under the 'listed'
circumstances, this act is prima facie unlawful. According to the Commission, an
evidential burden now shifts to the accused to show that his actions were not unlawful.
Where the accused wishes to raise the defence of consent to counter the element of
unlawfulness, he or she would not have the onus of proving such a defence. The burden
of proof to 'disprove' the accused's defence of consent remains on the state.36
We accordingly submit that the proposed subclause takes the matter no further than
would have been the case if coercive circumstances, false pretenses or the victim's lack
of capacity were recognised as elements of the offence that the state has to prove. We
therefore propose that this subclause is firstly unnecessary and secondly has the
potential of confusing the burden of proof with the evidentiary burden that an accused
would bear once the state has provided prima facie evidence of the offence.
32
.
33
.
34
.
.
36 .
35
PJ Schwikkard and SE van der Merwe 'The standard and burden of proof and evidential
duties in criminal trials' in PJ Schwikkard et al Principles of Evidence (1997) 393 at 394.
It is possible that even if the accused does not adduce evidence, he will not be convicted
if the court is satisfied that the prosecution has not proved guilty beyond reasonable
doubt. The lengths to which the accused will have to go to 'counter' the state's prima facie
case will depend on the strength of the case made by the state. Schwikkard and Van der
Merwe loc cit.
Idem at 395.
Idem at 397.
South African Law Commission (note >) at 33.
The Law Reform Commission's proposal aims to move away from 'absence of consent'
and the resultant trial of the victim.37 As much as this objective is a sound one, it should
be acknowledged that it is simply not possible to keep the absence of consent on the
part of the victim out of the trial where this is what the accused's defence is based on. It
may be possible, for example, to attempt to limit the traumatising impact of crossexamination regarding alleged consent through strict application of the proposed
amendments to the law of evidence and procedure. However, we argue that the
introduction of a nebulous evidential burden as proposed in clause 2(2) will not
contribute to meeting this objective.
We accordingly recommend that the three grounds referred to in this clause be
included in the substantive definition of the offence of rape in Clause 2(1), and
that Clause 2(2) be deleted in its entirety.
4.3
Deletion of Failure to Disclose Life-Threatening Sexually Transmissible
Infection from Definition of 'False Pretences or Fraudulent Means'
Clause 2(4)(c) proposes that the notion of 'false pretences or fraudulent means' should
include circumstances where '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'.
The notion of 'false pretences or fraudulent means' as set out in clause 3(4) is largely a
restatement of accepted South African law (subclauses 3(4)(a) and (b)). Subclause
3(4)(c) however is a new provision, and is aimed predominantly at penalising the
intentional non-disclosure of HIV infection.38
The potential criminalisation of harmful HIV-related behaviour has been the subject of an
extensive investigation by the SALRC.39 The Commission came to a final conclusion that
the recommendation of legislative intervention would not be principled and noted, inter
alia, that it is generally believed that the creation of HIV-specific statutory offences would
be counter-productive to public health efforts to curb the spread of the disease, and will
entrench further discrimination and stigmatisation of persons with HIV.40 In addition, it will
37
38
39
40
.
.
.
South African Law Commission Discussion Paper 85 (note >) Par 9.4.7.3.14. See also
our discussion of the objectives of rape law reform above.
See South African Law Commission Report at 34-35.
See South African Law Commission Project 85 Fifth Interim Report on Aspects of the
Law relating to AIDS The Need for A Statutory Offence Aimed at Harmful HIV-Related
Behaviour (2001).
At Par 12.10.8.
drain away scarce resources from the most effective HIV prevention programmes such
as targeted education campaigns, condom distribution initiatives, and the provision of
voluntary, accessible testing, counseling and medical treatment.
In determining whether the intentional exposure of another person to a life-threatening
infection such as HIV through sexual intercourse should be included in the context of this
Bill, it is useful to consider the act that is being penalised. South African law does not
punish persons who fraudulently convince others to have consensual sex with them,
other than in the two instances already covered in the Bill, i.e. where the victim is
defrauded about the nature of the act or the identify of the perpetrator. We argue that the
essence of the act that is punished here is not the defrauding of the person who might
not otherwise have been willing to have sex with the perpetrator, but rather the knowing
exposure of another person to a life-threatening infection. This can be compared to other
instances of such knowing exposure, for example, assaulting a victim by sticking them
with a needle with infected blood. To the extent that it may be necessary to enact a
statutory offence to punish such behaviour, we argue that the Sexual Offences Bill is not
the vehicle to do so.
We also wish to point out that instances of rape committed by a perpetrator knowing that
he is infected with HIV are included in the list of offences requiring the imposition of a
minimum sentence of life imprisonment on conviction.41
We accordingly recommend the omission of this provision from the Bill. We also
draw attention to the detailed submission in this regard prepared by the Women’s
Legal Centre, which we endorse.
4.4
Deletion of Provision Regarding Common Law Defences
Clause 2(9) of the Bill states that nothing in this section may be construed as precluding
any person charged with the offence of rape from raising any defence at common law to
such charge, nor does it adjust the standard of proof required for adducing evidence in
rebuttal. We submit that the inclusion of this provision is unnecessary. The first part of
the clause restates trite law, especially since there is nothing in the preceding provisions
to suggest that an accused person would be precluded from raising any defence. The
second part of the clause is ostensibly aimed at clarifying possible uncertainty arising
from Clause 2(2), which deals with prima facie unlawfulness. We argued above that this
clause should be deleted; if this recommendation is followed, the second part of Clause
2(9) also becomes wholly redundant.
41
.
Ref to Act.
4.5
Redefinition of the Common Law Definition of Indecent Assault
South African criminal law currently recognises three common law offences relating to
sexual assault, namely rape, indecent assault and crimen iniuria.
The Discussion Paper notes that there are divergent opinions on the definition of
indecent assault.42 These opinions can loosely be referred to as the ‘R v Abrahams’
definition (which requires an 'act of indecent physical assault') and the ‘S v F’' definition
(which requires that the assault must be committed with intention to commit an indecent
act).
The draft Bill proposes the enactment of new ‘penetrative’ offences, including rape,
sexual violation and oral genital violation, as well as the offence of ‘compelling or
inducing an indecent act’. At the same time, the Bill, while repealing the common law
offence of rape, does not repeal or amend the common law offence of indecent assault.
We therefore submit that the lines between the existing offences of indecent assault and
crimen iniuria and the new statutory offence of compelling or inducing an indecent act
are unclear, and we accordingly propose the enactment of a statutory offence of
indecent assault.
We propose the following formulation:
A person who unlawfully and intentionally commits an indecent act with another
person under coercive circumstances, under false pretences or by fraudulent
means or in respect of a person who is incapable in law of appreciating the nature
of such act.
4.6
Compelling or Inducing Indecent Acts
The above definition includes situations where the perpetrator performs the indecent act
on the victim, for example, where the male perpetrator touches the female victim’s
breasts. However, there is a range of situations where the perpetrator may not be the
person physically performing the indecent act, but where, for example, s/he coerces the
victim to perform the act on him or her. The Bill attempts to address these situations
through the provisions of Clause 6; however, the current formulation is cumbersome and
unclear.
42.
Par 3.10.2.3 at 196.
The acts that Clause 6 purports to penalise would in practice include: compelling,
inducing or causing another person to engage in an indecent act with –
(a)
the person compelling, inducing or causing the act (i.e. the perpetrator), for
example where the perpetrator compels the victim to manually stimulate the
perpetrator;
(b)
a third person, for example where the perpetrator compels the victim to manually
stimulate the third person; or
(c)
the other person himself or herself, for example, where the perpetrator compels
the victim to masturbate;
(d)
an object, including any body part of an animal.
We accordingly recommend the reformulation of this provision to make it clear what is
meant. Given that the interest that is to be protected here is the same as in the case of
indecent assault as defined in the common law (and the redefinition we propose above),
we recommend that these acts be included in the ‘new’ definition of indecent assault. We
also recommend the inclusion of the three grounds that may render the act unlawful as
included in the definition of rape.
4.7
Compelling or Inducing Acts that Cause Penetration
We are concerned that the formulation of the offence of rape currently does not
encompass a situation where the perpetrator [A] forces a second person [B] to have sex
with the victim [C]. In this scenario, B would not be liable for rape (he would be able to
rely on the defence of necessity). The question is therefore what A’s liability towards B
and C respectively should be.
In terms of the proposed definition of rape in Clause 2(1), A would not be guilty of raping
C, since the offence requires an act which causes penetration of the anus or genital
organs of the victim by the genital organs of the perpetrator. For the same reason, A
would not be guilty of raping B either.
We argue that the actions of A constitute a violation of the sexual integrity of both B and
C, and accordingly we recommend the inclusion of a provision to address this scenario
in the definition of rape. This provision should also be able to address situations where B
is not liable due to fraud or false pretences on the part of A, or where B is a person
unable to appreciate the nature of the act that causes penetration.
Our formulation as set out below would also incorporate a situation where A compels B
to have sex with C, where C is willing. (B’s sexual autonomy is violated, while that of C is
not.)
5.
ADDITIONAL COMMENTS: ‘ABUSE OF POWER OR AUTHORITY’
The Bill lists, as one of the instances of coercive circumstances, ‘an abuse of power or
authority to the extent that the person in respect of whom an act which causes
penetration is committed is inhibited from indicating his or her resistance to such an act,
or his or her unwillingness to participate in such an act’.43
To the extent that it may perhaps be questioned whether the abuse of power or authority
should be included as an instance of ‘coercive circumstances’, we would like to express
our support for this provision to be retained. Consider the following incident:44
My name is Fikile.45 I have been looking for a house but could not get it as the councillor
of the place said that I should have sex with him before he allocated a stand to me. After
registering for a stand, I inquired about my application from the Local Councillor,
because people who registered after me were being allocated stands. I then started
working at the local offices as a volunteer thinking that I would get a house soon. Many
old women complained to me that the councillor indicated that they would not get stands
because they were ugly, and he did not enjoy sex with old women. If they needed his
assistance they should bring their daughters in order to have sex with him. I kept quiet
for I did not have proof of this. In 1996 I went to him again and he mentioned the first
test, i.e. sex before getting a stand. He said that I would be on the waiting list for the rest
of my life.46
This case highlights an important aspect of women’s disempowerment that current
legislation does not address. The type of coercion described in this case reflects the
unequal power relations between women and men prevalent in much of South African
society. Given the subordinated socio-economic position of women in South Africa, it is
reasonable to argue that this case is not an isolated one. Women are often subject to
different forms of sexual harassment that extends beyond their employment situation
and permeates all aspects of their lives.
43
.
.
45.
46.
44
Clause 3(c).
The following complaint was received by the CGE during 1999:
For purposes of confidentiality, pseudonyms will be used in this submission.
The case is still under investigation.
While it could be argued that coerced sex through abuse of power or authority could be
addressed as sexual harassment where it occurs in the workplace (in terms of the
Employment Equity Act)47 or as a form of discrimination through the Promotion of
Equality and Prevention of Unfair Discrimination Act,48 neither of these Acts makes
provision for penalising such conduct as a criminal offence. In terms of the current legal
position, the only possibility would be to charge the perpetrator with crimen iniuria, which
is generally not considered as a serious offence. If one agrees that the interest to be
protected here is the victim’s sexual autonomy and integrity, the inclusion of abuse of
power in the list of coercive circumstances becomes imperative.
In terms of international law, it is instructive to note that the definitions of the crimes
against humanity of rape and sexual violence recognise coercion through abuse of
power as elements of these offences.49
6.
PROPOSED REDEFINITION OF OFFENCES
Rape
A person is guilty of the offence of rape if he or she (1)
unlawfully and intentionally commits an act that causes penetration, however
slight, of –
(a)
the genital organs or anus of the complainant by the genital organs of the
perpetrator or any other object used by the perpetrator;
(b)
the mouth of the complainant by the genital organs of the perpetrator; or
(c)
the genital organs or the anus of the perpetrator by the genital organs of
the complainant;
when committed under coercive circumstances, under false pretences or by
fraudulent means or in respect of a person who is incapable in law of
appreciating the nature of an act that causes penetration.
(2)
Unlawfully and intentionally compels, induces or causes another person to
commit an act that causes penetration, however slight, by the genital organs or
any other object used by such other person of the mouth, genital organs or anus
of a third person under coercive circumstances, under false pretences or by
fraudulent means or where such other person is incapable in law of appreciating
the nature of an act that causes penetration.
47
.
.
49 .
48
Act 55 of 1998.
Act 4 of 2000.
Ref.
(3)
(4)
(5)
(6)
(7)
(8)
Coercive circumstances, referred to in subsections (1) and (2), include any
circumstances where there is –
(a)
a use of force against the complainant or another person or against the
property of the complainant or that of any other person;
(b)
a threat of harm against the complainant or another person or against the
property of the complainant or that of any other person; or
(c)
an abuse of power or authority to the extent that the person in respect of
whom an act which causes penetration is committed is inhibited from
indicating his or her resistance to such act, or his or her unwillingness to
participate in such an act.
False pretences or fraudulent means, referred to in subsection (3)(a), are
circumstances where a person –
(a)
in respect of whom an act that causes penetration is being committed, is
led to believe that he or she is committing such an act with a particular
person who is in fact a different person; or
(b)
in respect of whom that causes penetration is being committed, is led to
believe that such an act is something other than that act.
The circumstances in which a person is incapable in law of appreciating the
nature of an act that causes penetration referred to in subsection (3)(b) include
circumstances where such person is, at the time of the commission of such act –
(a)
asleep;
(b)
unconscious;
(c)
in an altered state of consciousness;
(d)
under the influence of any medicine, drug, alcohol or other substance to
the extent that the person’s consciousness or judgment is adversely
affected;
(e)
a mentally impaired person; or
(f)
below the age of twelve years.
A marital or other relationship, previous or existing, shall not be a defence to a
charge of rape.
The common law relating to –
(a)
the irrebuttable presumption that a female person under the age of twelve
years is incapable of consenting to sexual intercourse; and
(b)
the offences of rape and indecent assault, except where such offences
have been committed prior to the commencement of this Act,
is repealed.
Subject to the provisions of this Act, any reference to “rape” in any law must be
construed as a reference to the offence of rape under this section, unless it is a
reference to rape committed before the commencement of this Act, which must
be construed to be a reference to the common law offence of rape.
Indecent assault
A person is guilty of the offence of indecent assault if he or she (1)
unlawfully and intentionally commits an indecent act with another person under
coercive circumstances, under false pretences or by fraudulent means or where
such other person is incapable in law of appreciating the nature of such an act; or
(2)
unlawfully and intentionally compels or induces the complainant to engage in an
indecent act with –
(a)
the perpetrator him or herself;
(b)
the complainant himself or herself; or
(c)
a third person
under coercive circumstances, under false pretences or by fraudulent means or
where the complainant is incapable in law of appreciating the nature of such act.