Two kinds of rape. One’s legal

The implications of the controversial Rape in Marriage legislation can best be understood by creating a hypothetical example, says the Dean of the University of the Witwatersrand 's Law School, June Sinclair. "Imagine a man and a woman who live together," she says. "The man forces the woman to have sex with him. Under South African law he can be convicted of rape. "Now imagine that the same two people are married, but separated. The man comes to where the woman lives, breaks the door down, and forces her to have sex with him. Ac­ cording to the law he cannot be convicted of rape."

The legislation has caused a furore beyond the debating halls of parliament: it flies in the face of earlier proposals of a Law Commission report recommending that provision should be made for legal action against a man who rapes his wife. The legislation is based on the findings of a Joint Committee on the Criminal Law and the Criminal Procedures Acts Amendment Bill, which argues that husbands should not be charged with the rape of their wives. However, the legislation envisages the abolition of the existing immunity of husbands against prosecution for the rape of their wives.

The law provides: "Whenever a man has been convicted of assault in any form on his lawful wife and could, but for the existence of the marriage relationship between them at the time of commission of the crime, have been convicted of rape, the fact that he could have been convicted of rape had he not been married to his wife, shall be regarded by the court as an aggravating circumstance at the passing of sentence."

According to Sinclair this "only goes halfway", and does not legitimise the fact that the law treats women who have been victims of the same crime differently, on the grounds that one is married and the other is not. The committee report notes that there is a wide divergence of opinion in South Africa regarding any reform of the law on rape in this regard. "Even members of the South African Law Commission were not unanimous in their recommendation on it," the report notes.

According to the report; if an amendment proposing that men be li­ able for charges of rape against their wives were passed, it would give rise to an increase in the already-high rate of divorce. "The mere threat of a charge of rape will probably, in the light of the grave consequences and the social implications and sanctions involved, lead to the termination of a marriage relationship. "The possibility of reconciliation between the spouses will likewise be thwarted by a rape charge," the report said. It is further argued that it is "undesirable to intrude" into the realms of the marriage relationship and family-related matters by means of criminal law. The rape in marriage clause is viewed as being in conflict with marriage vows and the essence of the institution.

The report also expresses fears that allegations of rape within marriage would give rise to problems of evidence, since the marriage relationship makes proof of the crime especially difficult Testimony given to the committee from district surgeons, among o e, witnesses, suggested the police would be inundated with investigations as a result of the enactment of the clause. The committee further feared that the "intimate unique nature o marriage", "guaranteed and founded on a relationship of mutual trust" would make it unacceptable for an offender within the marriage context to be threatened or visited with such a severe penalty.

The committee argues that adequate remedies exist in civil law to afford protection to women against sexual harassment in marriage. The interdict and decree of divorce is cited as being available to women. Also cited are the remedies offered by criminal law, which can be invoked for sexual intercourse accompanied by violence­ namely indecent assault, and assault with intent to do grievous bodily harm. These carry lesser penalties than the penalty of rape.

Sinclair says an old fashioned notion of irrevocable consent to sex within marriage underlies the new legislation. Sinclair said she was deeply disappointed that "after deep research, discussion and agonising by the South African Law Commission, the Joint Committee and now parliament choose to reject the enlightened recommendations of the commission ­ recommendations that would have put South Africa on a par with other countries in the western world.

This article originally appeared in the Weekly Mail.

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Thandeka Gqubule
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