Rape Trauma Syndrome Under South African Law: A focus on Instituting Civil Damages for Male and Female victims of Rape: Part 2

• Jurisdiction: South Africa
• Date: 27 May 2019
• Pages: 289-301
• Published date: 27 May 2019
• Citation: (2006) 17 Stell LR 289
• Author: Charnelle van der Bijl

RAPE TRAUMA SYNDROME UNDER SOUTH

AFRICAN LAW: A FOCUS ON INSTITUTING

CIVIL DAMAGES FOR MALE AND FEMALE

VICTIMS OF RAPE: PART 2

Charnelle van der Bijl

BLC LLB LLD

1 Introduction

From an examination of the nature of Rape Trauma Syndrome (RTS)

in Part One, it becomes evident that this complex condition has far

reaching debilitating consequences for victims of rape. It has been shown

that, regardless of the nature of the rape or gender of the victim, the

victim can experience RTS. As research in this area continues to

accumulate, it is evident that a host of psychological reactions may result.

RTS has been tested in the United States’ Courts and this part of the

article will accordingly investigate RTS as a tested phenomenon in legal

decision making in the United States to establish the manner in which

RTS can best be utilised, if at all, in the founding of a delictual action for

psychological harm suffered as a result of a rape.

An examination of the South African law of delict will then be

undertaken to establish the areas in which civil action can be instituted by

victims of rape who suffer from RTS as an infringement of their physical

and psychological well being. An investigation will follow to ascertain

whether RTS is significant enough to be recognised as an autonomous

legal phenomenon in deciding whether to impose delictual liability, or

whether it would be preferable to focus on individual symptoms in the

context of specific delictual actions. Against this background three

possibilities will be canvassed as a hypothesis for the investigation.

Firstly, the possibility of recognising an act of rape as a specific form of

iniuria will be examined. Secondly, the consideration of RTS as a form of

damnum iniuria datum under psychological lesions in delictual liability

will be focused upon. Lastly, the question is posed whether RTS should

rather be considered as a set of symptoms indicating the psychological

harm of rape which would facilitate the assessment of compensation.

2Rape Trauma Syndrome as tested phenomenon

RTS evidence is often used in the United States in criminal cases to

corroborate the prosecution’s claim that there is a lack of consent in rape

cases. The evidence normally consists of a description of the common

after-effects of a rape and whether the complainant’s behaviour is

289

(2006) 17 Stell LR 289

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