Gaye Davis
Rape may be re-defined to include forced anal intercourse involving both male and female victims if a call this week by the Western Cape Attorney General, Frank Kahn, for new legislation is heeded.
As a common-law offence, the definition of rape centres on the penetration, against her will, of a woman’s vagina by a man’s penis. Although male rape can and does occur, it is punished as sodomy, also a common-law offence. And while many rapes involve forced anal sex, the definition of sodomy is limited to men only – which means rapists of women are charged with the lesser offence of indecent assault.
Kahn wants these anomalies ironed out with new gender-free legislation, he told the parliamentary Portfolio Committee on Justice this week. His hand has been strengthened by a recent landmark judgment in the Cape High Court, which found that to prosecute adult men who engaged in anal sex with each other’s consent violated their constitutional right to equality before the law.
Such activity has until now been deemed criminal. The judgment, which has been welcomed by gay rights campaigners, is binding in the Western Cape but will be persuasive in courts elsewhere in the country.
It has put South Africa on the judicial world map as it is the first to deal with the issue on the basis of equality before the law, rather than people’s right to privacy – a defence which has routinely failed.
The immediate effect of the judgment is that male homosexuals can live without fear of prosecution for acts committed in private with consenting partners. But one of its far-reaching implications is that it will force a re-think of the definition of sodomy.
This week Kahn rejected a proposal in the new Criminal Procedure Act Amendment Bill – which provides for minimum sentences for violent crimes – that rape be divided into degrees of seriousness for sentencing purposes.
The draft Bill proposes a minimum first- offence sentence of 15 years where a rape has caused psychological harm, involved the use of a weapon, was inflicted on a minor or caused physical injury. Rejecting this, Kahn told the committee rape is an assault on a woman’s physical and emotional integrity and cannot be judged “by the number of bruises”.