The adequacy of rape criminalisation in modern South Africa: A comparative study

• Citation: (2023) 36 SACJ 83
• DOI: https://doi.org/10.47348/SACJ/v36/i1a5
• Published date: 31 July 2023
• Pages: 83-122
• Author: Botha, R.
• Date: 31 July 2023

The adequacy of rape

criminalisation in modern South

Africa: A comparative study

RINDA BOTHA*

JANINE PEENS**

ABSTRACT

In the past ftee n years, South Afr ica has embarked on substant ial reform

of its sexual offences laws. In m any respects, these reform s are like those

in other jurisd ictions, addressing issue s of def‌inition and sentencing. Yet

the country’s rape stat istics remain st artlingly h igh, and rape sentencing

remains inconsiste nt. To assess the adequacy of rape cri minalisation i n

South Africa, t his article st arts off wit h an overview of relevant local case

law. It becomes clear that, although the state is not a lways consistent in

prosecuting the accused o f all variants of sex ual penetration, prose cution

in terms of the cu rrent, broader denit ion of rape is common, as is the

imposition of mini mum sentences for these convictions. Also, courts rem ain

inconsistent in inter preting which factors should count as sub stantial and

compelling circum stances to justify a lesser sentence. A comparative look at

the legal position in England a nd Canada rstly con rms that rape r emains

a global concern, and that Sout h Africa is not the on ly jurisdict ion that has

grappled with deni ng and sentencing the offence. Yet South Africa cou ld

stand to learn a few lessons from t hese two countries to f urther improve its

law on rape. Recommendations include adopt ing a more succinct denit ion

of rape, introducing more conduct-spe cic charges and sentenci ng (similar

to England’s ‘assault by penetration’), and providing a well-dene d list of

substantial and compel ling circumst ances to establish greater lega l clarity

in the sentencing of rape offender s.

1 Introduction

South Africa’s rape statistics are well docu mented, and shocking.1

According to ofcial crime statistics for the fourth quarter of 2021/22,

released in June 2022, 10 818 people were raped in the rst three

* BIuris (UFS) LLB (U FS) LLM (UFS) LLD (U FS), Senior Lecture r, Faculty of Law,

University of the Free St ate.

** LLB (UFS) LLM (UFS).

1 A Gouws ‘Rape is endemic i n South Africa. Why t he ANC government keeps missing

the mark’ The Conversation, 4 Aug ust 2022, available at htt ps://theconversation.

com/rape-is-endemic-in-south-africa-why-the-anc-government-keeps-missing-the-

mar k-1882 35, accessed on 21 Novembe r 2022.

https://doi.org/10.47348/SACJ/v36/i1a5

83

(2023) 36 SACJ 83

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months of 2022. This represents a 13,7 per cent increase over the

corresponding period in 2020/21.2

With unacceptable levels of rape persisting, this art icle examines

the adequacy of the current denition and sentencing of rape in South

Africa. This is done through an overview of relevant legislation and

case law. In addition, to help determine the effectiveness of South

Africa’s legal position and legislation governing rape, the article also

compares the South African position with that in England and Canada

to assess whether our law is in line with i nternational standards.

Indeed, we have come a long way since the thirteenth to fteenth

centuries, when the sentence for rape was a mere ne payable to the

father of the victim.3 South African common law dened rape as

the ‘intentional unlawful sexual intercourse with a woman without

her consent’.4 The introduction of this denition triggered robust

development of the law, to the extent that, by 1887, the death

sentence was deemed the only appropriate sentence for raping a

woman.5 Similarly, the commencement of the Constitution of the

Republic of South Africa6 (hereinafter the Constitution) has prompted

many developments regarding the legal position of rape, especially

concerning legislation dealing with the sentencing of rapists. The

Criminal Law Amendment Act 105 of 1997 (hereinafter the ‘Criminal

Law Amendment Act’) abolished the death penalt y in accordance

with a Constitutional Cour t ruling7 and set out mandatory minimum

sentences for rape.8

The denition of rape too has evolved since the Constitution took

effect. The Crimi nal Law (Sexual Offences and Related Matters)

Amendment Act 32 of 2007 (hereinaf ter the ‘Sexual Offences

Amendment Act’) repealed the common law denition and introduced

a signicantly expanded version, which will be d iscussed in this article.

2 B Cele ‘Minister Bhek i Cele: Quarter four crime statis tics 2021/2022’ South African

Government, 3 June 2022, available at https://www.gov.za/s peeches/ministe r-bheki-

cele-re lease- quarter- four-crim e-stati stics-202122-3-jun-2022 -0000, acce ssed on

13June 2022; SAPS ‘Police recorded cri me statistics, Republic of South A frica, fourth

quarter of 2021/2022  nancial year ( January to M arch 2022)’ available at ht tps: //

www.saps.gov.za/ services/downloads/fourth_quarter_presentation_2021_2022.pdf,

accessed on 13 June 2022. See a lso SAPS ‘Crime statistics, Re public of South Africa,

fourth quar ter 2020/2021 (Ja nuary to March 2 021)’ available at https://www.saps.

gov.za/services /fourth_ quarter _ 2020_21_cr imestats.pdf, accessed on 19 Januar y

2023.

3 J Temkin Rape and the Legal P rocess 2ed (2002) 57.

4 J Burchell and J Milton Principles of Criminal Law 2ed (20 00) 487; JRL Milton South

African Criminal L aw and Procedure 3ed (1996) Vol II 447.

5 Milton op cit (n4) 465.

6 Constitution of t he Republic of South Africa, 1996.

7 S v Makwanyane 1995 (3) SA 391 (CC); 1995 (2) SACR 1 (CC).

8 Milton op cit (n4) 343.

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But is this development in line with international standards? And

more importantly, is it appropriate for South Africa’s unique set of

socioeconomic circumstances and st rong link between patriarchy and

women abuse?9

2 Historical overview of major influences on South Africa’s

legal approach to rape

According to the common law denition of rape,10 only coercive sexual

penetration of a female vagina by a male penis qualied as a rape

crime.11 Historical ly, therefore, the male was always the perpetrator

and the female always the victim.12 If the victim happened to be a

man, and forced anal penetration took place, the offence was, instead,

considered an act of indecent assault.13 Likewise, it was considered

indecent assault, and not rape, if the accused used his  nger, tongue

or a foreign object to commit the deed.14 Also, the slightest penetration

of the female’s labia was sufcient to constitute rape. It was irrelevant

whether semen was released, the female became pregnant, or the

hymen was ruptured.15

In terms of sentencing, South Afr ican presiding ofcers had absolute

discretion in imposing an appropriate sentence on a convicted rapist

under the common law.16 After 1910, the Native Territories Penal

Code17 greatly inuenced South African criminal law.18 Section 159

stated that rape offenders ‘shall be punished with i mprisonment, with

or without hard labour, for a term which may extend to twenty years,

or with ogging or whipping or with ne or any two or more of

such punish ments’.19 In 1917, the South African Criminal Procedure

and Evidence Act20 was passed, which still allowed the death penalty

9 SO Ademiluka ‘Patr iarchy and women abuse: Persp ectives from Anc ient Israel and

Africa’ (2018) 31 Old Testament Essays 339 at 352.

10 Discussed above.

11 Masiya v Director of P ublic Prosecution s Pretoria ( The State) (CCT54/06) [2007]

ZACC 9; 2007 (5) SA 30 (CC); 2007 (8) BCLR 827 (CC) at para [27].

12 J Burchell Princip les of Criminal Law 3ed (2005) 707.

13 L Artz and D Smy the (eds) Should We Consent? Rape La w Reform in South Africa

(200 8) 25-26.

14 CR Snyman Crimin al Law 6ed (2014) 344; C Hall ‘Rape: T he politics of de nition’

(1988) 105 S ALJ 67 at 68.

15 Burchell op cit (n12) 706.

16 A Spies ‘Perpetuat ing harm: The se ntencing of rape offender s under South Af rican

law’ (2016) 133 SALJ 389 at 393.

17 Act 24 of 1886.

18 DS Koyana The Inuenc e of the Native Penal Code on South African Cr iminal Law

LLD (University of S outh Africa) (1988).

19 Ibid.

20 Act 31 of 1917.

The adequacy of rape criminalisation in modern

South Africa: A comparative study 85

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