Blunt incongruities in the Criminal Justice Amendment Act

A march in solidarity with rape victims. (Gallo)

A march in solidarity with rape victims. (Gallo)

The child was three when his attacker ordered him to perform oral sex on him. The Criminal Justice Amendment Act has prescribed sentences for this crime: no less than a life sentence for the rape of a child unless there are “substantial and compelling reasons” to give him a lesser sentence.

Yet two judges in the high court in Cape Town last week reduced the man’s sentence from life to an effective 13 years, causing an outcry from children’s rights activists.

Their reasoning? In essence, the child was too young to understand the horror of what was happening to him.

It is a regular occurrence, and one that lawyers argue is accepted because precedent-setting judgments have resulted in jurisprudence, relied on by judges when sentencing rapists, that does not take into account the full damage that rape causes. 

Minimum sentencing legislation
In 1997, there was a response to the public outcry about high levels of crime: mandatory minimum sentencing legislation. The Criminal Law Amendment Act was signed into law in an attempt to standardise harsh sentences for violent crime offenders, such as rapists. This means that a first-time offender must receive a minimum of 10 years for rape, for example. A mandatory life sentence is imposed under certain conditions, for example, if the victim is under 16 or physically or mentally handicapped. 

Judges may only depart from these sentences if “substantial and compelling reasons” exist to do so. This does not include the severity of the physical injuries sustained by the victim. The legislation is seen as controversial: the Mail & Guardian understands that three separate reports, submitted to the department of justice, recommending that mandatory minimum sentencing be done away with, have been ignored. Judges interviewed by the South African Law Reform Commission in 2000, which recommended changes to the legislation, said that being forced to impose certain sentences interfered with their judicial independence.

A good deterrent
But there are others who believe that the legislation is a good deterrent for would-be criminals. The legislation was intended to be a temporary measure, to be enacted for a period of two years, with a view to reviewing how sentencing is carried out after that. But it was repeatedly extended, and entrenched by amendments to the Criminal Law Amendment Act in 2007. 

Gender activists say the legislation is arbitrarily applied and that judges hand down lower sentences based on reasoning that places the burden on rape victims to prove that they either suffered extreme physical harm or psychological scarring in order to sentence rapists to life. There is no shortage of judgments to support this view.

The jurisprudence has evolved to the extent that the test for deviation from the prescribed sentences is proportionality: rapists must not be given sentences that are disproportionate to their crime. This is a slight diversion from the higher test, which is that minimum prescribed sentences are to be the norm, and that judges must only deviate from them under exceptional circumstances.

The Supreme Court of Appeal previously remarked that the Act gives little direction for how sentencing should occur: instead, what judges must bear in mind while deciding on a sentence is described in “a handful of blunt” paragraphs, the court said. Former Supreme Court of Appeal judge Robert Nugent, furthering the point made in another judgment, remarked: “The Act demands the imposition of the prescribed minimum sentences unless a court is satisfied in a particular case that there are ‘substantial and compelling circumstances’ that justify the imposition of a lesser sentence.

“What is striking about that regime is the absence of any gradation between 10 years’ imprisonment and life imprisonment. The minimum sentence of 10 years’ imprisonment progresses immediately to the maximum sentence that our law allows once any of the aggravating features is present, irrespective of how many of those features are present, irrespective of the degree in which the feature is present, and irrespective of whether the convicted person is a first or repeat offender.

“On the face of it a first-offending 18-year-old boy who rapes his 15-year-old girlfriend on one occasion must receive the same sentence as a recidivist serial rapist who repeatedly gang rapes and beats senseless a disabled victim whom he consciously infects with HIV. 

“The 18-year-old boy who rapes his 15-year-old girlfriend must also receive the same sentence as the adult recidivist who rapes an infant. The offender who imprisons and rapes his victim repeatedly every day for a week is considered to be no more culpable than one who rapes his victim twice within ten minutes. It requires only a cursory reading of the Act to reveal other startling incongruities.”

Professor Stephan Terblanche from the University of South Africa described the Act: “The number of absurdities that have been identified and which will no doubt be identified in future is simply astounding. The Act’s lack of sophistication disappoints from beginning to end. There are too many examples of disproportionality between the various offences and the prescribed sentences.” 

In the absence of this “sophistication”, the jurisprudence, developed over time and by precedent-setting cases heard in the high courts, has been relied on by judges to interpret the act with more finesse.

In State v (Henna) Malgas, considered one of the bedrock judgments on the matter, five judges of the Supreme Court of Appeal described the terms under which judges can and can’t deviate from the prescribed sentencing rule: “undue sympathy”, “aversion to imprisoning first offenders” or personal doubts about sentencing legislation are not reasons that can be given for handing down a lighter sentence than is prescribed in the Act, the court said.  But some judges regularly move around this precedent.

In State v Nkawu, Judge Clive Plasket heard a case in which a 10-year-old girl was taken from her house and anally raped. Plasket said: “The physical injuries suffered by the complainant were not serious. They are indicative of a relatively minor degree of force being used. They are not permanent in nature. “There is evidence that she suffered discomfort and pain for a while. A clinical psychologist, Karen Andrews, gave evidence of the psychological impact of the rape on the complainant.

“I do not intend dealing with her evidence in any detail. Suffice it to say that, serious as the adverse impact on the complainant was, it was of the nature and severity that one would expect in a case such as this: in essence, the psychological trauma suffered by the complainant is not out of the ordinary.” 

Mateenah Hunter, a human rights lawyer and gender advocate at Sonke Gender Justice, believes that Plasket was wrong here. “The Criminal Law Amendment Act of 1997 specifically states that ‘an apparent lack of injury to the complainant’ does not constitute substantial and compelling reasons,” Hunter said. She said this “incorrect application of the law” is not uncommon. 

“And, in addition, there is sexist reasoning ignoring the psychological damage to the complainant; damage that will last for the rest of [her] life, in comparison to the physical wounds [that] can sometimes heal and disappear,” she said. Hunter said the way that the complainant’s psychological trauma is described as “nothing out of the ordinary”  and trivialises her experience as “something that just happens”.

Sanja Bornman, attorney at the Women’s Legal Centre, said lowering the test for deviating from prescribed sentencing rules is not true of all judges. “But there are some very problematic judgments in this regard,” she said. 

“Our society is permeated by rape myths, such as rape being ‘not so bad’ when there are no physical injuries. Our judges come from our society. So it is disappointing, but perhaps unsurprising that some believe a lack of physical injury to be indicative of a rape that deserves less punishment. 

“However, in deciding whether to reduce a rape sentence, an apparent lack of physical injury to the victim can never be a substantial and compelling reason to do so. The statute law is clear, and there is good reason for this,” Bornman said.

Hunter said judges, particularly some male judges, do not try to understand the lived experiences of rape victims. “I think sometimes judges are unaware of their sexist or biased reasoning, and they approach the issue as clinically as possible, looking only at the law and at legal precedent,” she said. 

The long-term psychological, emotional and mental impacts of the rape on the complainant are not given due weight, she said. “I feel like it would be very different if this was something that was happening to men on a large scale.” Bornman said precedent-setting cases in the high courts “directly impacts” the development of sentencing jurisprudence, especially for magistrates’ courts where most criminal matters are heard.

“What is equally worrying is the message being sent to victims and the general public, and the entrenchment of rape myths in the language and tenor of our case law,” she said.

Sarah Evans

Sarah Evans

Sarah Evans is a Mail & Guardian news reporter.She's a recovering musician who became a journalist while interning for the Diamond Fields Advertiser in Kimberley.She spent three years reporting there before completing an internship at the Mail & Guardian Centre for Investigative Journalism (amaBhungane).Her areas of interest include crime, law, governance, and the nexus between business and politics.Her areas of disinterest include skyscrapers. Read more from Sarah Evans


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