Substantive equality, restorative justice and the sentencing of rape offenders

JurisdictionSouth Africa
Citation(2016) 29 SACJ 273
Date24 May 2019
AuthorAmanda Spies
Pages273-291
Published date24 May 2019
Substantive equality, restorative
justice and the sentencing of
rape offenders
AMANDA SPIES*
ABSTRACT
This art icle explores the concept of substantive equal ity and how, as a
constitutional value, it requ ires the consideration and applicat ion of
restorative justice principles i n the sentencing of rape offenders. Wit h
sexual violence being a di fcult and controversial are a in which to apply
restorative justice principles, t here is a need to understand t he necessity for
its application and analyse how it has been applied by S outh African courts.
The argument is made t hat restorative justice should be see n as a method
that gives effect to substa ntive equa lity values, allowing for a victim’s needs
and context (including that of the offender) to be taken i nto account in
handing down a just sentence.
1 Introduction
The high court decision in S v See dat1 has put the spotlight on the use
of restorative justice principles in the sentencing of rape offenders.
To date, this principle has not been considered in many rape cases
which raises the question as to its applicabilit y and suitability in t hese
matters. This ar ticle intends to explore the concept of restorative justice
as it relates to the sentencing of rape offenders in South Afr ican law.
The analysis that follows will focus on the concept of substa ntive
equality and how, as a constitutional value, it requires the application
of restorative principles in the crimi nal justice system, part icularly in
rape cas es.2 By considering restorative justice pr inciples as part of the
judicial landscape, direct ion could be provided to questions on how
* LLB LLM (U P) PhD (W its), Ass ociate Professor, Department of Publ ic, Constitutional
and Internationa l Law, Universit y of South Africa.
1 S v Seedat 2015 (2) SACR 612 (GP) (herein after Seedat). [Editor ’s note: T he approach
adopted to sentencing in t he high court was not approved on appeal by the Supreme
Court of Appeal i n S v Seedat 2016 JDR 1820 (SCA)].
2 Section 1 of the Cons titution of the Republic of South Afr ica, 199 6 (herein after the
Constitution) st ates ‘The Republic of South Afric a is one, sovereign democratic state
founded on the following values: (a) Human dign ity the achievement of equalit y and
the advancement of human r ights and freedoms.’
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(2016) 29 SACJ 273
© Juta and Company (Pty) Ltd
to be fair to accused persons, while not treati ng victims and witnesses
as i nf er ior.3
2 The application of restorative justice principles in sexual
violence matters
Restorative justice is a term that is not easily dened . In its simplest
form, it is seen as an alternative to punitive methods of pun ishment
and focuses on repairing the ha rm caused by crime, thereby restoring
the parties to a state of ‘wellness or wholeness’ that was di sturbed as
a result of the crime.4 Generally, there exist dif ferent legal contexts
in which restorative justice is applied. The rst, and for what the
concept is probably best known, is the diversion from normal cri minal
proceedings.5 Here the focus would be on victim-offender reparation
through mediation or communit y conferencing where victims,
offenders and a facilitator meet to discuss the ef fects of a particula r
crime and, to make a plan as to how to go about repairing the d amage
and minimise t he likelihood of fur ther harm.6 Other contexts i n which
restorative justice is applied include the application of restorative
justice principles as a component or condition of sentence as a viable
sentencing option, and as a post-sentence component in considering
early release.7
With the level of victim participation in t raditional crim inal justice
systems being mini mal, there has been an acknowledgment that
victims might need to confront the of fender to relay how the crime
impacted on him/her, despite a formal tr ial or even a guilty plea.8
Ultimately, restorative justice emphasises victim participation and
offender accountabilit y through r eparations and reh abilitation rat her
than punishment and incarceration.9
Many scholars have questioned and critiqued the application of this
method of justice, especially concerni ng more serious crimes (such as
3 C Boyle ‘The role of equal ity in criminal law’ (1994) 58 Saskatch L R ev 203 at 216.
4 B Tshehla ‘The restorati ve justice bug bites the Sout h African cr iminal ju stice
system’ (2004) 17 SACJ 1 at 6 .
5 K Daly ‘Restorative just ice and sexual ass ault: An archiva l study of court and
conference cases’ (200 6) 46 Brit J Criminology 334 at 335.
6 MP Koss, KJ Bachar & CQ Hopk ins ‘Restorative justice for sexu al violence: Repairing
victims, bui lding community, and holding offenders acco untable’ (2003) 989 Annals
NY Academy Sci 38 4 at 388.
7 Daly op cit (n5) 335.
8 A Skelton & M Batley Charting Pro gress, Mapping the Future: Restorativ e Justice in
South Africa (2 006 ) 13.
9 Koss, Bachar & Hopkin s op cit (n6) 38 8.
274 SACJ . (2016) 3
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