‘A wall of words’: Redefining the offence of rape in South African law

• Jurisdiction: South Africa
• Published date: 15 August 2019
• Citation: 2003 Acta Juridica 72
• Pages: 72-91
• Date: 15 August 2019
• Author: Lillian Artz

‘A wall of words’: Redef‌ining the offence of

rape in South African law

LILLIAN ARTZ* AND HELÉNE COMBRINCK**

University of Cape Town; University of the Western Cape

‘A def‌inition is the enclosing of a wilderness of idea within a wall of words.’

1

I INTRODUCTION

Nine years into South Africa’s democratic dispensation, the levels of

violence against women, particularly sexual violence,

2

remain alarmingly

high. The frequency, extent and nature of sexual violence in South Africa

have gained international attention over the past years.

3

Although it is a

crime that affects all South Africans, women are far more likely to be the

victims, and evidence suggests that the already unacceptably high rate of

sexual assault continues to increase.

4

Increasingly, too, the link is being

drawn between women’s sexual victimisation and their extreme vulner-

ability to sexually transmitted infections and HIV/AIDS.

5

Against this background, the recent publication of the South African

Law Commission’s

6

Report on Sexual Offences is signif‌icant.

7

This

report, which includes a draft Sexual Offences Bill, represents the

conclusion of the commission’s comprehensive investigation into sexual

*BA Hons (Crim) MA; Chief Researcher, Institute of Criminology, Faculty of Law,

University of Cape Town.

**B Iur LLB Hons BA (PU for CHE) LLM (UCT); Senior Researcher, Community Law

Centre, University of the WesternCape.

1

Samuel Butler Notebooks (1912) Chapter 14 as cited in Oxford Dictionary of Quotations

(1992) 167.

2

The term ‘sexual violence’ is used here as a collective term for the criminal offences

recognised as ‘rape’, ‘indecent assault’ and ‘crimen iniuria’ respectively. See J Burchell and J

Milton Principles of Criminal Law 2ed (1997) at 487–500, 501–5, 510–7 for a def‌inition and

discussion of each of these offences.

3

See eg World Health Organisation World Report on Violenceand Health (2002) 153.

4

South African Police Service: Crime Information Analysis Centre Rape and attempted rape

in the RSA for the period January to September 1994 to 2001, available at http://www.saps.gov.za/

8_crimeinfo/200112/crime/rape.htm, accessed on 16 April 2003.

5

See eg L Vetten and K Bhana Violence, vengeance and gender: A preliminary investigation into

the links between HIV/AIDS and violence against women in South Africa (2001); B Muthien

‘Strategic interventions: intersections between gender-based violence and HIV/AIDS’ (2003)

Unpublished paper prepared for the Gender Project, Community Law Centre, University of

the WesternCape [on f‌ile with authors].

6

Hereinafter referred to as ‘the law commission’.

7

South African Law Commission (Project 107) ‘Sexual offences: Report’(2002).

72

2003 Acta Juridica 72

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offences against children and adults.

8

It recommends a number of incisive

amendments to existing law, ranging from the substantive def‌initions of

criminal offences to matters of procedure and evidence.

9

These rules were

long described as inadequate and unsatisfactory, particularly from the

perspective of rape complainants.

10

One of the more noteworthy proposals put forward by the law

commission is the revised def‌inition of what constitutes ‘rape’. The

commission recommends that the current def‌inition of rape (ie ‘unlaw-

ful, intentional sexual intercourse with a woman without her consent’)be

replaced with the following formulation:

‘Any person who unlawfully and intentionally commits any 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.’

11

In addition, the Bill proposes the introduction of two more sexual

offences relating to unlawful sexual penetration, namely ‘sexual viola-

tion’

12

and ‘oral genital sexual violation’.

13

The question that inevitably arises is what the impact of this

redef‌inition of the offence of rape as proposed by the law commission will

be. Will this merely be an exercise in semantics, or will this reformulation

in some way contribute to the establishment of a criminal justice regime

that responds to the nature and extent of sexual violence in South Africa?

8

See South African Law Commission Issue Paper 10 (Project 108) ‘Sexual offences against

children’(1997); South African Law Commission Discussion Paper 85 (Project 107) ‘Sexual

offences: Substantive law’(1999); South African Law Commission Discussion Paper 102

(Project 107) ‘Sexual offences: Process and procedure’(2001).

9

For example, the abolition of the application of the cautionary rule to the evidence of

victims of sexual violence and the enhancement of existing measures aimed at protecting

vulnerable witnesses while they are giving evidence. See South African Law Commission (n 7)

175–81 and 128–74.

10

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 Bazilli (ed) Putting Women

on the Agenda (1991) 185–6; V Bronstein ‘The cautionary rule: An aged principle in search of a

contemporary justif‌ication’(1992) 8 SAJHR 556; P J Schwikkard ‘Sexual offences –the

questionable cautionary rule’(1993) 10 SALJ 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) 159ff; 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) 198ff;P Singh ‘Protection from violence is a right’in S Liebenberg

(ed) The Constitution of South Africa from a Gender Perspective (1995) 137–8.

11

Subclause 3(1) of the proposed Sexual Offences Bill [hereinafter referred to as ‘the Bill’].

12

Clause 4 of the Bill.

13

Clause 5.

73REDEFINING RAPE IN SOUTH AFRICAN LAW

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