The sheer volume of sexual offences committed in South Africa poses one of the great challenges to the criminal justice system. Most recently, the Constitutional Court was confronted with the validity of the common-law definition of rape to the extent that it excluded anal penetration and was gender-specific.
The question was raised in the context of a depressingly all-too-common sexual assault, in this case anal penetration of a young girl. Fanuel Masiya was convicted of rape when the regional court extended the common-law definition of rape to include anal penetration. Because rape carries a more onerous minimum sentence than indecent assault, the matter was referred to the High Court, which confirmed the extension of the definition of rape. This decision was sent to the Constitutional Court for confirmation.
By now, a range of interested organisations had become involved and the enquiry was extended to whether rape should also cover similar sexual assaults on men.
The Constitutional Court had little problem in upholding the decisions of the lower courts. As Judge Bess Nkabinde said in her majority judgement: ”The consequences caused by non-consensual anal penetration might be different to those caused by non-consensual penetration of the vagina, but the trauma associated with the former is just as humiliating, degrading and physically hurtful as that associated with the latter. The inclusion of penetration of the anus of a female by a penis in the definition will increase the extent to which the traditionally vulnerable and disadvantaged group will be protected by and bene-fit from the law.”
The question of extending the definition of rape to non-consensual penetration of a penis into the anus of a male proved more controversial. The majority judgement accepted: ”It can hardly be said that non-consensual anal penetration of males is less degrading, humiliating and traumatic and, to borrow the phrase by Brownmiller, ‘a lesser violation of the personal private inner space, a lesser injury to mind, spirit and sense of self’.”
But that is as far as nine judges of the court were prepared to move. For three reasons, they refused to extend further the definition of rape: courts should not extend the scope of crimes save in exceptional circumstances; women remain the primary victims of rape and the criminal censure of rape should be retained to identify this brutal attempt at ”exercising male supremacy”; and finally, the court should stick to the facts of the case before it.
Chief Justice Pius Langa and Judge Albie Sachs dissented on this conclusion. As the minority judgement observes: ”As is clear from the majority’s extension of the definition to female anal penetration, that concern should not prevent courts from giving effect to the rights and values of the Constitution. The only difference between (this) judgment and that of the majority is what those rights and values demand.”
The minority also noted that the extension of the definition to include anal penetration of a male was hardly likely to reduce the protection afforded by the law to women. The words of the chief justice are telling: ”The unintended effect is to enforce the subordinate social position of women which informed the very patriarchy we are committed to uproot.”
These responses reveal in a polite but devastating fashion the poverty of the majority justification. Their primary excuse for refusing to extend the definition of rape is that this should be a matter for the legislature.
The approach of the majority reveals a disturbing level of newfound deference to the legislature. To be sure, law reform is a matter for the legislature. But it is primarily for the Constitutional Court to develop the common law in the image of the Constitution. That demands a more active approach to common-law development than was the case prior to the Constitution.
The refusal to grasp the more onerous constitutional demand is unfortunate. Certainly the approach of the majority to the common law in this case gives little cause for transformative comfort.
Hence the question: Is there a jurisprudential retreat under way from Braamfontein toward Bloemfontein? For, if the Constitutional Court carries on like this, the two apex courts will certainly meet in Vereeniging.