R v K

• Jurisdiction: South Africa
• Judge: Schreiner JA, Steyn JA, Malan JA, Van Blerk JA and Reynolds AJA
• Judgment Date: 05 June 1958
• Citation: 1958 (3) SA 420 (A)
• Hearing Date: 06 May 1958
• Court: Appellate Division

Schreiner, J.A.:

I have had the opportunity of reading the judgment of E my Brother STEYN and I agree with his conclusion and in general with his reasons for reaching it. I find it difficult, however, to fix any more precise legal test of when a person who has connection with a drunken woman is guilty of rape than the one to be extracted from the language of the established definition of rape. The offence consists in having connection with a woman, other than the man's wife, without her F consent, from which it follows that if the Crown proves that there was no consent, and also, of course, that the accused knew this, it has established his guilt. In the ordinary kind of case the absence of consent is proved by the complainant's evidence that she did not consent, supported by proof that her will was overborne by force or by G such a threat of force as produced submission but not consent. In such cases the complainant is in possession of her faculties and even when she submits she normally leaves the accused in no doubt that she is unwilling. The position is more difficult in cases where the woman has been defrauded into consenting and more difficult still when her mind is affected not by the accused's threats or fraud but by a pre-existent H disability, such as that produced by mental disease, hypnosis, drugs or intoxicating liquor. In such cases there may be, and in the case of intoxication there certainly is, a wide range of degrees of disability. At the one end of the scale, if the woman is insensible from any cause she clearly cannot be a consenting party, nor is it easy to see how the impression could arise that she was consenting. At the

Steyn AR

other end of the scale is the case where the woman is only slightly affected by liquor. It may be that her judgment, moral as well as intellectual, is in a measure impaired, but it would be going too far to say in such cases that, although by words or conduct she could convey A the impression of consent, such impression was really false, and consent must be taken to have been absent. It is no doubt reprehensible for a man to have connection with a woman if he has reason to think that her consent to intercourse is in any degree the result of her having taken intoxicants, and it is certainly more reprehensible if he has induced B her to take the intoxicants with the object of making her more pliant. But the law does not make such conduct the offence of rape.

In the judgment of STEYN, J.A., a dividing line is fixed at the stage where, to the accused's knowledge, the woman is unable to appreciate what she is doing. This line is not supported by authority and I am not satisfied that it should be drawn. The civilian writers and the English C decisions seem to agree in mentioning in connection with intoxication only the extreme case of insensibility, but I do not think they were doing more than giving an illustration, selecting the most straightforward and certain one, of cases in which a man could be guilty of rape though the woman did not show her unwillingness because her D mental condition did not allow her to do so. I am accordingly in agreement with STEYN, J.A., that there may be cases in which the woman is not insensible but in which she is nevertheless, to the accused's knowledge, incapable of consenting. But when, in any particular case, this stage has been reached must in my view remain a question of fact and cannot usefully be made the subject of further definition.

E In the present case the Crown's difficulty was that the complainant was obviously untruthful and it was not possible to say beyond reasonable doubt whether in her condition she possessed sufficient understanding to be able to consent to intercourse, or whether she was able to and did convey her consent to the appellant in such a way as to lead him to F think that she was mentally fit to consent. In the circumstances, unsatisfactory as the evidence of the appellant was and deplorable as was his conduct on his own admissions, the Crown failed to prove that he was guilty of rape.

MALAN, J.A., and REYNOLDS, A.J.A., concurred in the above judgment.

Judgment

G Steyn, A.R.:

Die appellant is in die Hof a quo tesame met ene J. C. van verkragting skuldig bevind en tot drie jaar gevangenisstraf met dwangarbeid...