The Constitutional Court will decide on Thursday whether to extend the definition of rape to men.
At the moment, rape is defined as non-consensual vaginal penetration. The Pretoria director of public prosecutions has asked the court to include non-consensual anal rape in that definition. Under the law as it stands, this offence is considered indecent assault.
The challenge follows the Pretoria Magistrate’s Court’s conviction of Fanuel Sitakeni Masiya for the rape of a nine-year-old girl even though she was found to have been penetrated anally, but not vaginally.
The Pretoria High Court confirmed the judgement, holding that the definition of rape was inconsistent with the Constitution. It found that the distinction between anal and vaginal penetration was arbitrary and the traditional definition of rape archaic.
Masiya contends that the extension of the definition in his case infringed his constitutional right to a fair trial. While raping a minor carries a minimum sentence of life imprisonment, there was no prescribed sentence, in his case, for indecent assault.
Also party to the case is the office of the minister of justice and constitutional development, which argues that the extension of the definition of rape is being provided for in the Sexual Offences Bill.
The Centre for Applied Legal Studies and the Tshwaranang Legal Advocacy Centre, which have been admitted as friends of the court, contend that while the matter should first be heard by the Supreme Court of Appeal, the definition should be extended. — Sapa