Constitutional Court Judgement Extending Definition of Rape

Meeting report

IMPROVEMENT OF QUALITY OF LIFE AND STATUS OF WOMEN JOINT MONITORING COMMITTEE
15 June 2005
CONSTITUTIONAL COURT JUDGEMENT EXTENDING DEFINITION OF RAPE

Chairperson: Ms M Morutua (ANC)

Relevant documents:
Summary of the Constitutional Court Decision in Masiya v the Director of Public Prosecutions (Pretoria) and Another which extended the Common Law Definition of Rape
Speaking Notes to the Summary of the Constitutional Court Decision in Masiya v the Director of Public Prosecutions (Pretoria) and Another which extended the Common Law Definition of Rape
Current version of Sexual Offences Bill: Criminal Law (Sexual Offences and Related Matters) Amendment Bill [B50B-2003]

Audio Recording of the Meeting

Constitutional Court website

SUMMARY
A Parliamentary Legal Advisor gave a summary of the Constitutional Court extension of the common law definition of rape. He provided background information on the events at the Magistrate’s Court, the High Court decision, the judgement of the Constitutional Court, the common law definition of rape before the court decision, law reform in the United Kingdom and Canada on this issue, the links and impact of this court decision on the Sexual Offences Bill.

The extremely slow passage of the Sexual Offences Bill through Parliament was discussed at length by the Committee.

MINUTES
The Chairperson welcomed the Committee and explained that a parliamentary legal advisor had been called to explain the Constitutional Court decision to the Committee.

Summary of Constitutional Court Decision in Masiya v Director of Public Prosecutions (Pretoria) and Another which extended the Common Law Definition of Rape

Adv Mukesh Vassen (Parliamentary Legal Advisor) explained that an accused had appeared in a Regional Magistrate’s Court on a charge of rape of a nine-year-old girl. Evidence established that he had penetrated the complainant anally, which in terms of the common law at the time necessitated a conviction on the offence of indecent assault, which is a competent verdict to rape. The Magistrate, on his own accord, extended the common law definition of rape to include non-consensual penetration of the penis into the vagina or anus of a person and made the definition gender neutral on the basis that distinction between non-consensual penile penetration of the anus of a female or male, on the one hand, and of the vaginal on the other is irrational, archaic and discriminatory.

This matter was then referred to the High Court for confirmation. The High Court confirmed the conviction of rape by the Magistrate and held that the existing definition of rape was constitutionally invalid. The High Court expressed the view that as indecent assault attracted a more lenient sentence than rape, it resulted in “inadequate protection and discriminatory sentencing” (Masiya, para 15). The definition of rape was also developed to include non-consensual anal penetration in gender neutral terms. The High Court was also of the view that consequential amendments had to be made to certain provisions of the Criminal Procedure Act 51 of 1977 and the Criminal Law Amendment Act 105 of 1997 so as to be gender neutral and consistent with the new definition. The High Court decision was referred to the Constitutional Court for confirmation in terms of section 172(2)(a) of the Constitution.

He explained that Judge Nkabinde writing for the majority of the Court noted that historically, the crime of rape was a patriarchal concept. Judge Nkabinde pointed out that the crime of rape had to seen in the context of the recognition of a female as the survivor of rape rather than other antiquated interests or societal morals being at the core of the definition. He held that although “it could hardly be said that non-consensual anal penetration of males was less degrading, humiliating and traumatic” (Masiya, para 30), the facts before her dealt with the penetration of the anus of a young girl, hence it did not require her to consider whether or not the definition should be included to non-consensual penetration of the male anus by a penis. As such the Court left the question open.

The Court noted that at the time the matter was being heard in South Africa, rape was understood to mean “the intentional, unlawful, sexual intercourse with a woman without her consent". Sexual intercourse here was understood to be “penetration of the women’s vagina by a male penis". The element of unlawfulness of rape was based essentially on the absence of consent” (Masiya, para 26).

Judge Nkabinde held that while this definition of rape presupposed non-consensual sexual penetration of a vagina and excluded the anus it “was unconstitutional in so far it criminalised unacceptable social conduct that was in violation of the Constitution as the constitutional right to be free from all forms of violence, whether public or private, as well as the right to dignity and equality, had to be protected (Masiya, para 27). The Court was of the view that to invalidate the definition of rape because it was under exclusive, would be to throw the baby out with the bath water. Judge Nkabinde held that the Court needed to examine whether the definition of rape could be extended to include anal penetration so as to promote the spirit, purport and objects of the Bill of Rights. The Court was of the view that non-consensual anal penetration of young girls and women constituted a form of violence against them equal in intensity and impact to that of non-consensual vaginal penetration (Masiya, para 37).

Furthermore the Court also noted that while the consequences caused by non-consensual anal penetration might be different to those caused by non-consensual penetration of the vagina, “the trauma associated with the former was just as humiliating, degrading and physically hurtful as that associated with the latter” and as such the inclusion of penetration of the anus of a female by a penis in the definition of rape would increase the extent to which a traditionally vulnerable and disadvantaged group would be protected by and benefit from the law. As such Judge Nkabinde held that the common law definition of rape be extended to include the non-consensual anal penetration of a woman. She held that adopting this approach would harmonise the common law with the spirit, purport and objects of the Bill of Rights.

Adv Vassen said that this ruling was in line with the Sexual Offences Bill currently in Parliament. The Bill defined rape in clause 3 as “any person (A), who unlawfully and intentionally commits an act of sexual penetration with complainant (B) without the consent of B, is guilty of the offence of rape.” Chapters 1 and 2 of the revised Bill were of particular significance. Chapter 1 contained definitions of “sexual penetration" and “sexual violation”. Chapter 2 (headed “Sexual Offences”) dealt in Part 1 with rape and the competent verdict for compelled rape and in Part 2 dealt with sexual assault and compelled sexual assault. The revised Bill adopted a gender neutral approach to both offences.

Before the Court examined the constitutionality of the matter, it noted that historically there had been a patriarchal perspective. He explained the impact of Roman law, Roman Dutch law, English Law and South African Law. The Court had noted that indigenous law restrictively defined the definition of rape. The current focus was on the breach of a more specific right such as “the right to bodily integrity” and “security of the person” and the “right to be protected from degradation and abuse”. The crime of rape should therefore be seen in that context (Masiya, para 25).

The Judge noted that the prevalence of sexual violence in South African society was deeply troubling. The extension of the definition of rape to include anal penetration would not only yield advantages to the survivor but would also express the abhorrence with which society regarded these pervasive outrageous acts. The Court was mindful of the fact that the Sexual Offences Bill was before Parliament but it could not delay, defer or refuse to deal with an extension of the definition when the facts before the Court demanded such an extension and it was clearly in the public interest to do so. Any further delays in or suspension of the extension of the current definition would constitute an injustice upon survivors of non-consensual anal penetration such as the nine-year-old complainant in this case. The result could not be countenanced.

Discussion
The Chairperson stated that the passage of the Sexual Offences Bill (tabled in 2003) through Parliament was taking an extremely long time. The Bill would address most issues mentioned. She said that if South Africa had been more responsible about the issue of rape the processing of the Sexual Offences Bill would have been hastened. She wanted to know why the Bill was stuck. She also voiced her concerns about the provisions that the law makes for prisoners raped in jails. The Committee played an oversight role and they needed legal ammunition to do this. The Sexual Offences Bill would give them clear guidelines and authority to make changes. Why was the Bill delayed?

Adv Vassen explained that the Sexual Offences Bill dealt with rape taking place between males and in so doing, it did indeed cover rape that happens inside prisons. In clause 3, the definition clearly stated that “any person (A), who unlawfully and intentionally commits an act of sexual penetration with a complainant and (B) without the consent of B, is guilty of the offence of rape.” He reiterated that this was not a gender specific definition. He agreed that the Sexual Offences Bill had been delayed. He explained that the Minister of Justice had opposed the application because Parliament was dealing with the issue. However Counsel could not say when the Bill would be passed which is why the Court went ahead and changed the common law definition. It was however true that the Sexual Offences Bill was very comprehensive and would cover everything.

The Chairperson asked what the Law Reform Commission had said or done about the Sexual Offences Bill. How far had they gone with the issue of rape?

Adv Vassen explained that the Law Reform Commission had drafted the original bill. The Sexual Offences Bill had then been overhauled by the Justice Portfolio Committee and updated and improved. Somehow the Bill had been "lost" somewhere after the 2004 elections. The process had then been revived again.

Ms B Ntuli (ANC) asked Adv Vassen if the Committee could get copies and summaries of the laws that he had referred to in his presentation. It was important to understand them and use them for comparisons.

Adv Vassen agreed to send them to the Chairperson.

The Chairperson said that the Committee was concerned about the implications of indigenous/traditional law.

Adv Vassen explained that once the Sexual Offences Bill was passed, it would override indigenous/traditional law.

The Chairperson cautioned that South Africa could not inherit all things from international law. There were some positive things in traditional law and a comparison needed to occur to ensure the inclusion of the good things from the past. With the current law it was extremely difficult to monitor prisons in relation to young offenders. The Sexual Offences Bill was needed for the monitoring function of the Committee. How fast could the Sexual Offences Bill be pushed through?

Adv Vassen pointed out that the delay in the Sexual Offences Bill process was not a constraint to the Committee. He said that they had an oversight role relating to women. He was not sure if that issue fell into the scope of the mandate of the JMC.

The Chairperson stated that it was a gender committee not a committee solely focusing on women.

Adv Vassen said that this was still not a problem because Parliament’s role was oversight role. It was still an issue of indecent assault and the Committee could tackle this.

Ms F Batyi (ID) if the Sexual Offences Bill was still in the process of being finalised, would the status quo remain the same.

Adv Vassen said that the status quo would change since the definition had been expanded. The Court had been unable to wait because there was not a definite date for the passing of the Bill. He repeated that the Court was mindful of the fact that the 2003 Sexual Offences Bill was before Parliament but it could not delay, defer or refuse to deal with an extension of the definition when the facts before the Court demanded such an extension and it was clearly in the public interest to do so. Any further delays in or suspension of the extension of the current definition would constitute an injustice upon survivors of non-consensual anal penetration. That could not be countenanced.

Ms Ntuli said that it was still worrying that cases involving children were being thrown out of court because of the lack of evidence. How could the matter of evidence given by children be improved? A child’s memory needed to be taken into account. The current explanation of ‘not enough evidence’ was not good enough.

Adv Vassen explained that this was an international concern. A balance needed to be found between the correct evidence and meaningful sentencing. There were practical innovations to improve the situation. The Department had to be consulted on this, as it was not his area of expertise.

Ms Ntuli asked what could be done to fast track DNA testing. Currently it was an extremely long process sometimes taking as long as one to two years. How could the Justice and Health departments be made to work much faster?

Adv Vassen reiterated that this was not his area of expertise. He did however point out that it would take a combined effort from the South African Police and the Justice and Health departments. It was within the scope of the Committee to call in the departments and challenge their service delivery.

Ms D Morobi (ANC) said that rapists were getting off. She wanted to know if court structures had systems in place to protect children and allow for children’s terminology that could be ambiguous to be part of court proceedings.

Adv Vassen said that the court does take this into account when dealing with children.
 
Ms Morutoa (ANC) asked what about cases of mentally disturbed victims who sometimes cannot give evidence.

Adv Vassen said that part of the process was to use community mobilisation and awareness projects. He pointed out that the Sexual Offences Bill dealt with children. He said that Chapter 3 of the Sexual Offences Bill dealt specifically with children and mentally handicapped persons. It covered all the loopholes currently in the law system. It was a good, thorough Bill. It also included compulsory HIV testing for suspected offenders.

Ms Ntuli (ANC) asked about the humiliation faced by women in traditional homelands when they are rebuked in public when they are charged with sexual misconduct.

Adv Vassen suggested lobbying with the traditional leaders on that issue.
 
Ms E Mabe (ANC) said that oversight visits in the provinces had been an eye opener. She proposed that legal advisors should attend these visits. They would be able to look at the Bill and see what gaps there are. It would also assist in influencing the Bill to be passed more speedily.

Ms Ntuli asked that the Committee receive copies of the revised Sexual Offences Bill as they needed to have a look at it and ensure that the loopholes were covered and that the Bill went through quickly. If they were going to try and push the Bill through it was important to know what was in it.
 
The Chairperson commented that the Sexual Offences Bill had to be passed and it was the duty of gender machinery to ensure that it went through.

Ms Ntuli asked if the law made provision for customary law and cases concerning customary law.

Adv Vassen replied that rape was a criminal offence thus an offender can still be charged criminally. The Sexual Offences Bill dealt with the Court system and because it was a Bill passed by Parliament the crime was governed by the Court system covering all South Africans.

The Chairperson noted that the Sexual Offences Bill was meant to cover all aspects. She reminded the Committee that they had made protracted efforts to meet with traditional leaders.

Adv Vassen said that the Sexual Offences Bill would be passed imminently and everyone would be governed by the legislation.

The Chairperson said that they had been told it would be passed soon but this had not happened. There was definitely a communication breakdown between the Executive and Members of Parliament.

Committee Report on Limpopo and Mpumalanga oversight visits
The Chairperson acknowledged that the Committee did not have a quorum and thus could not vote to adopt this report.

Adoption of minutes
The Chairperson ruled that due to the lack of quorum the adoption of the minutes would have to be postponed. Minutes were tabled for committee meetings of the 14/02, 23/02, 09/03, 2803, 30,03, 1/05. The Committee agreed to meet on 20 June to adopt these minutes and the Committee Report.

Consideration of Committee Programme
The Committee had to agree on matters to be looked at during the rest of the year given the difficulty of meeting as a joint committee. Priority issues were domestic violence, meeting with gender organisations, the Millennium Development Goals, the rolling out of antiretrovirals and their impact on women, the impact of floods and shack fires in the Western Cape on women, HIV/AIDS orphans, provincial visits, women in local government, gender machinery and feedback on Beijing Review.

The meeting was adjourned.