The present common law definition of rape was ”archaic” and resulted in inadequate protection for victims of sodomy and discriminatory sentences, a Pretoria High Court judge has said.
Judge Natvarial Ranchod on Tuesday declared the common law definition of rape unconstitutional as it currently stood and extended the definition of rape to include anal penetration.
His ruling also brings male rape into the ambit of rape.
Ranchod was asked to rule on the constitutionality of the definition of rape after a Graskop regional magistrate found 44-year-old Fanuel Masiya guilty of raping a 9-year-old girl, although the girl only testified that he had sodomised her.
The magistrate found that the common law definition of rape was discriminatory, illogical, unjust, irrational and unconstitutional. He said the magistrate’s court had a duty to promote constitutional objectives when developing the common law, given Parliament’s unreasonable delay in promulgating adequate laws and referred the case to the High Court for sentencing.
Ranchod ruled that the magistrate had acted in accordance with justice when he made his ruling.
He said the common law limitation to vaginal penetration had become anachronistic and offensive. It was based on social values that were no longer valid and negated the constitutional imperatives of due protection of all children, whether male or female and the equal upholding by the law of the dignity and respect of all persons.
”It is unfairly discriminatory with reference to the offender, the victim and the type of deeds [anal and vaginal penetration] that constitute in equally severe ways an attack on the personal [sexual] integrity and dignity of the victims concerned. It results in inadequate protection and discriminatory sentencing,” he added.
The judge declared certain provisions of the Criminal Procedure Act and schedules relating to bail provisions invalid and unconstitutional to the extent that they were gender specific.
He postponed Masiya’s sentencing until the Constitutional Court had made a determination on his order of constitutional invalidity of the Act.
Child law experts have welcomed the ruling, saying that it will put an end to discrimination against the victims of anal penetration. It will also put an end to the practice of imposing more lenient sentences for sodomy, which had up to now been regarded as indecent assault, as opposed to possible life sentences that could be imposed for rape. — Sapa