Moving beyond 30 years of Anglo-American rape law reforms: Legal representation for victims of sexual offences
| Jurisdiction | South Africa |
| Author | Dee Smythe |
| Pages | 167-186 |
| Date | 19 August 2019 |
| Published date | 19 August 2019 |
Moving beyond 30 years of Anglo-
American rape law reforms:
Legal representation for victims of
sexual offences
DEE SMYTHE
∗∗
A
BSTRACT
ABSTRACTA
The South Afr ican Law Commission has proposed a number of substantive and
procedural reforms to South Africa’s laws governing sexual offences. This article
argues that, while important in principle, these reforms are unlikely to shift police
and prosecution practices or to meaningfully increase the numbers of offences
prosecuted or perpetrators convicted. Support for this argument is drawn from the
experiences of other Anglo-American jurisdictions in implementing similar reforms.
The current law reform process does, however, present an important opportunity
to consider possible reforms that have the potential to shift institutional norms
informing current criminal justice practice, and to provide meaningful protection
for victims of sexual offences forced to navigate that system. One such reform,
which has met with some success in other jurisdictions, is the introduction of
a legal representative to engage with the criminal justice process on behalf of
the victim. This article looks at the legal and constitutional rationale for such an
innovation and at models used in comparative jur isdictions, concluding that such
a reform would go a long way towards ensuring that the existing rights of rape
victims are meaningfully enforced.
Introduction
The alarmingly high prevalence of sexual offences in South Africa and the
particularly brutal nature of these attacks stand in glaring contrast to the
South African government’s stated commitment to addressing violence
against women in this country. On the one hand, South Africa’s Constitution
enshrines the right to gender equality
1
and is unique in containing a
right to freedom from all forms of violence, whether public or private in
167
∗
This article has benefi ted substantially from the input of the Western Cape Sexual Offences
Working Group and of participants in the 2004 Legal Studies Colloquium at Stanford
Law School. Particular thanks are due to Professors Barbara Fried and Tom Grey for their
valuable comments.
∗∗
BA LLB (UCT) JSM (Stanford),
Senior Researcher in the Gender, Health and Justice
Research Unit, Faculty of Health Sciences, University of Cape Town.
1
The Constitution of the Republic of South Africa Act 108 of 1996 (hereinafter ‘the
Constitution’) s 9.
(2005) 18 SACJ 167
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168
SACJ •
(2005) 2
origin.
2
Over the ten years since apar theid offi cially ended South Africa
has passed progressive domestic violence legislation,
3
the State President
has designated violence against women and children a priority area for
state efforts to combat crime, and Parliament is currently considering a bill
which will substantially reform the South African laws on sexual offences.
4
On the other hand, South Africa has one of the highest rates of reported
rape in the world,
5
with a substantial number of rapes going unreported.
South African commentators liken the nature of sexual assaults in this
country to those perpetrated during armed confl ict, in terms of the types
of degradation and the extent of injuries involved.
6
Studies suggest that
a third to half of all rapes occurring in South Africa are perpetrated by
more than one offender,
7
with the number of rape homicides estimated
to be twelve times higher than in the United States.
8
For ever y 100 rape
cases reported in South Africa, only some 15 are prosecuted, with fewer
than half of those resulting in a guilty verdict.
9
Given this context, it is
imperative that the South African government acts decisively to address
this pressing problem. This article contends that the proposed reforms
to South Africa’s rape laws will not provide us with such a radical
intervention. This is not least because, although symbolically important,
many of the proposed reforms have proved to be relatively ineffectual
in shifting criminal justice attitudes and practices in the countries from
which South Africa has borrowed them, and in which they have been
implemented over the past 30 or so years. This article argues therefore
that the South African government should take the opportunity dur ing
2
Section 12(1)(c) of the Constitution.
3
Domestic Violence Act 116 of 1998.
4
Criminal Law (Sexual Offences) Amendment Bill [B50-2003].
5
L Artz and K Kunisaki ‘Rape during armed confl ict and refl ections on the “uncivil war” on
women in South Africa’ in S Abdullah et al (eds)
Why is there So Much Violence against
Women in Post-Apartheid South Africa?
(2003) 19, proceedings from a conference held
Women in Post-Apartheid South Africa? (2003) 19, proceedings from a conference held Women in Post-Apartheid South Africa?
on 14 April 2003.
6
Artz and Kunisaki op cit (n5) point, for example, to factors such as the high levels of
mutilation and other injuries that attend rape in South Africa, as well as the prevalence of
multiple-perpetrator and gang rapes, and forced pregnancy.
7
L Swart et al ‘Rape surveillance through distr ict surgeons’ offi ces in Johannesburg 1996-
1998: Findings, evaluation and prevention implications’ (2000) 30(2)
South African
Journal of Psychology
1; LJ Martin
Violence against Women: An Analysis of the
Epidemiology and Patterns of Injury in Rape Homicide in Cape Town and in Rape in
Johannesburg
(1999). Rape Crisis (Cape Town) reported in 1998 that 55% of the women
they counselled had been raped by more than one offender. Twenty-fi ve percent of these
rapes were perpetrated by known gangs. In multiple-perpetrator rapes the number of
offenders ranged from two to 30 in respect of any one victim. See Artz and Kunisaki op
cit (n5).
8
Martin op cit (n7).
9
The Crime Information Analysis Centre indicates that of 52 975 rape cases reported to the
police at a national level in 2000, only 8 297 were prosecuted, with a guilty verdict in 7.7%
of those cases. See
CIAC Monitor Analysis: Rape and Attempted Rape Statistics
(2001).
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