Non-consensual, penile penetration of a woman — whether it be anal or vaginal — constitutes rape, the Constitutional Court ruled on Thursday.
However, it refused to find that non-consensual anal penetration of a man is rape, holding that this is the function of the legislators and not the court.
”It can hardly be said that non-consensual, anal penetration of males is less degrading, humiliating and traumatic [than that of females],” Justice Bess Nkabinde found in a majority judgement. ”That this is so does not mean that it is unconstitutional to have a definition which is gender-specific.
”Focusing on anal penetration of females should not be seen as being disrespectful to male bodily integrity or insensitive to the trauma suffered by male victims of anal violation, especially boys of the age of the complainant in this case.”
The challenge was brought by Fanuel Sitakeni Masiya (44), who was charged with raping a nine-year-old girl on March 16 2004. He pleaded not guilty. The evidence found that the child had been penetrated anally, but not vaginally.
At the time, the common-law definition of rape was non-consensual vaginal sexual intercourse. However, the Graskop Regional Court decided that this definition needed to be developed.
”Why must the unconsensual sexual penetration of a girl [or boy] per anum be regarded as less injurious, less humiliating and less serious than the unconsensual sexual penetration of a girl per vaginam?” it asked. ”The distinction appears on face value to be irrational and totally senseless, because the anal orifice is no less private, no less subject to injury and abuse, and its sexual penetration no less humiliating than the vaginal orifice.”
Upholding the finding, the Pretoria High Court held that the distinction between the sentences for rape and indecent assault resulted in ”inadequate protection and discriminatory sentencing”.
Nkabinde found that the high court had erred and set aside its order in its entirety. She held that the extension of the common-law definition of rape to include non-consensual penile penetration of the female anus would be in the interests of justice.
The facts did not require the court to consider whether the definition be extended to include non-consensual penetration of the male anus.
She ordered Masiya’s rape conviction set aside and replaced with a conviction of indecent assault. She referred his case back to the regional court for sentencing.
Nkabinde held that the new definition was not retrospective — and therefore not applicable to Masiya — but effective from May 10, the date of judgement. — Sapa