ConCourt: It’s not just the man whose penis penetrates who is the rapist

 

 

NEWS ANALYSIS

There have, for centuries, been anachronisms in the law when it comes to rape; anachronisms that can only be attributed to patriarchy.

In a judgment of the Constitutional Court this week, acting Justice Margie Victor recounted how there was a time when a man could not be convicted for raping his wife. This was done away with in 1993. There was a time when the law required that the evidence of a rape complainant be treated with “caution” — she might be “motivated by spite, sexual frustration or other unpredictable emotional causes”, said legal academics in a textbook in 1983. This cautionary rule was also done away with in the 1990s.

There was a time when only a man could rape, and he could only rape a woman. That was done away with in 2007. There was even a medieval law that required a woman to immediately raise “a hue and a cry” after she had been raped, said Victor.

This week, the Constitutional Court clarified that another patriarchal anachronism “has no place in our modern society, founded upon the Bill of Rights”.

A unanimous judgment from acting Justice Rammaka Mathopo decided that it is not just the man whose penis penetrates who is the rapist — a person can be convicted for the common-law offence of rape based on the doctrine of common purpose.


The doctrine allows courts to convict someone as a co-perpetrator if they planned the crime together or were actively involved in it.

There had been much confusion about rape and the doctrine of common purpose before, with different courts reaching different conclusions. Some courts and legal academics had said that common-law rape is an offence that requires “instrumentality” — that, by definition, it requires the insertion of the man’s genitalia into the woman’s genitalia. The person who co-plans the rape, or who holds the woman down even, is an accomplice, not a co-perpetrator, according to the instrumentality argument.

During argument, the Commission for Gender Equality (CGE) argued that this approach was fundamentally flawed: a murder is done by someone’s hands, an assault is done by someone’s fists — yet with these crimes, the doctrine of common purpose applies.

Mathopo précised the commission’s argument thus: “It is both artificial and unprincipled. It is artificial as there is no reason as to why the use of someone’s body should be determinitive in the case of rape, but not in the case of assault or murder. The fallacy in this approach, it was argued, seeks to carve out crimes of a sexual nature and to exclude the application of common purpose to such crimes.”

Mathopo agreed with the CGE, saying the instrumentality approach perpetuated gender inequality and promoted discrimination. “If the doctrine of common purpose extends to crimes of murder, common assault or assault with intent to do grievous bodily harm, it is irrational and arbitrary to make a distinction when a genital organ is used to perpetrate the rape … It would be a sad day if courts were to countenance such an arbitrary distinction.”

Rape was not a crime purely about sex, he said. It was about expressing power through the degradation and violation of a person’s dignity. “There is no rationale for treating the one who penetrated differently from the others who did not.”

The court’s order is limited to the common-law crime of rape — which has since been replaced, and broadened significantly, by the Criminal Law (Sexual Offences and Related Matters) Amendment Act. The order therefore applies to rapes that happened prior to December 2007, when the act came into force.

The court, however, also made clear in its reasoning that instrumentality has been done away with by the Act, implying that the doctrine of common purpose can also be used to convict under the current legal regime.

The doctrine of common purpose got a bad reputation when it was used by apartheid-era courts to wrongly convict people involved in anti-apartheid political activities. Liberation hero Solomon Mahlangu was convicted and sent to the gallows on the basis of the doctrine of common purpose.

Properly applied, however, the doctrine does not mean that any person who is around when someone is raped (or murdered or assaulted) can be convicted. The doctrine requires either someone’s prior agreement to commit an offence or their active association or participation.

In the case this week, a group of men went on a rampage in the Umthambeka section of Tembisa, ransacking, looting and raping. Eight women were raped, including a 14-year-old girl and a visibly pregnant woman. Mathopo said “the terror that poured out on this community was well-orchestrated and meticulously calculated”. The high court was right when it concluded that “included in that plan or understanding was the rapes of the complainants”.

Justice Sisi Khampepe and Victor, both wrote separate, concurring judgments.

Mathopo said that the Constitutional Court would be failing in its duty if it did not “send out a clear and unequivocal pronouncement that the South African judiciary is committed to developing and implementing sound and robust legal principles that advance the fight against gender-based violence”.

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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