RAPE CASES:
S v
Abrahams[1]
Facts and the Judgments
Here, the SCA overturned the
sentence of the High Court (judgment by Foxcroft J) where it was found that the
accused who had raped his own 14-year-old daughter was not a threat to society
as a whole and that this was a mitigating factor that could be considered in
deciding whether or not to impose life imprisonment. The judgment seemed to say that the fact that
the rape had been committed in the family context was a factor constituting
“substantial and compelling circumstances” justifying the court’s departure
from the prescribed sentence of life imprisonment.
The SCA held that the High Court had
materially misdirected itself in imposing a sentence of seven years. He had erred in failing to take into account
the sexual jealousy and possessiveness that, in part, motivated the
attack. The SCA asserted that any
suggestion that rape within a family was less reprehensible was untenable.[2] Foxcroft J had also failed to take into
account the extent of damage suffered by the complainant. The SCA accordingly substituted the original
7-year sentence for one of 12 years.
Concerns:
While overturned by the SCA, the
trend seems to be that judges will find assaults in the familial context to be
less blameworthy (see Mvamvu above). In
stark contrast to perceptions of certain sentencing adjudicators, sexual
offences committed by close friends, family, or prior spouses can feel more
violative to a survivor.
S v
Mahomotsa[3]
Facts and the Judgments
Here, two women under the age of 16
were raped by a 23-year-old man. Both
were raped more than once by the accused.
The second rape had occurred while the accused was awaiting trial on the
first count. During the first rape he
had threatened the complainant with a firearm and during the second he had
threatened her with a knife. At the High Court, Kotze J firstly listed a number
of mitigating factors, which included the fact that the complainants did not
lose their virginity as a result of the incidents. They had already been sexually active, and
one of them, although only at school, had sexual intercourse with another
person two days before the incident. In
addition, the complainants had not sustained any physical injuries or psychological
harm. The court then held that the
following constituted a “substantial and compelling circumstance”:
Although there was
intercourse with each complainant more than once, this was the result of the
virility of a young man still at school who had intercourse with other school
pupils against their wishes, and, note, school pupils who had previously been
sexually active. Where one is dealing
with school pupils, and where, in addition, it appears that the two girls
concerned had already had intercourse before, one really shouldn’t lose perspective,
especially not in relation to the first count, which dealt with a complainant
who had in any event been naughty a few days earlier and had intercourse with
someone else. The injustice which she suffered in this case does not demand an
unusually severe sentence.[4]
Concerns:
Inherent in the reasoning of the
High Court is the myth that rape is not traumatic unless there are physical
scars and injury, that there are no psychological consequences where a woman
was sexually active prior to the rape, and that so-called “rape” is often
merely a matter of misunderstood male virility.
The SCA held that Kotze J had
materially erred in finding that the accused’s “virility” as “substantial and
compelling circumstances” for departure from the minimum sentence.[5] The court disagreed with the factoring in of
the complainants’ sexual history in favour of the accused.
What the SCA still failed to address
were the norms of teenage sexuality inherent in the High Court judgment. Underlying Kotze J’s judgment is the idea
that it is somehow abnormal for teenagers to engage in sexual relations and
that they were “naughty” for having done so.
The NPA has criticised the judgment
of the SCA based on the fact that the SCA found “substantial and compelling
circumstances” to exist in (1) the youth of the accused; (2) the absence of serious violence; and (3) the fact that the rapes did not fall within
the worst category.
This decision has led many judges to now deviate from the
prescribed sentence of life imprisonment based on the argument that the rapes
do not fall within the worst category.
S v Njikelana[6]
The Facts and Judgment
Here the accused was charged and
convicted of raping a 16-year-old complainant twice. In committing the attack on the complainant,
he pushed her off a bridge and she was injured, albeit “not seriously.” The accused used considerable force in raping
the complainant.
In finding that a departure from the
life sentence was warranted, the court took into account the fact that the
accused was “uneducated and unsophisticated,” and had been drinking, that the
complainant was not “seriously injured,” her lacerations were “superficial” and
in terms of physical injuries, she had “only one small scar on her forehead,
which is hardly visible.”
S v G[7]
The Facts and Judgment:
The accused was convicted in
regional court on a charge of raping a ten-year-old girl and was referred to
the High Court for sentencing. The
accused abused his position of trust as a father-figure (he was the mother’s
boyfriend) in committing the rape.
Though Borchers J found that the accused showed no remorse for his
actions and that trauma persists for the complainant, he found that this “is
not among the worst cases of rape that appear before the courts in South
Africa.”[8],
he found the following to be “substantial and compelling” circumstances
justifying a departure:
·
The accused was a first-time offender;
·
the violence he employed “was not excessive, and he
therefore did not inflict serious physical injuries on the complainant”; and
·
The accused had already been in custody for two years
The judge doubted that these factors
“can be said to amount to substantial and compelling circumstances as envisaged
by Act 105 of 1997,” however, the judge felt bound by the decisions of the
Supreme Court of Appeal (including Mahomotsa, Abrahams,
and Rammoko) in which life sentences for rape were not imposed
for the reason, inter alia, that “the complainants were not seriously
physically injured as no excessive violence was employed.”[9]
Concerns:
There are many problems with this
judgment. First, it creates a sort of
double exception to the minimum sentencing legislation. Where the court cannot fit the case into the
“substantial and compelling” exception, it will look at precedents and if it
concludes that this is “not one of the worst rapes” it will avoid application
of the minimum sentence. This befuddled
two-pronged test fails to acknowledge that minimum sentences were meant to
recognize that all rapes are inherently abhorrent and serious, and those
falling into listed offences should as a default be treated as such and
subjected to the imposition of a minimum penalty.
The judges reference to the violence
the rapist used as “not excessive” misses the point that rape, by
definition, is excessive force.
Further, the reliance on the fact that the rape did not inflict “serious
physical injuries” also fails to recognise the distinct nature of rape whereas
the most serious (yet invisible) injuries are often those to the dignity and
psychological well-being of women.
S v Mvamvu[10]
The Facts and Judgment:
This was a decision of
the Supreme Court of Appeal. Here the
State appealed an effective 5-year prison sentence imposed on the accused for
the multiple rape, abduction and assault of his estranged customary law
wife. Here Mvamvu, who had a domestic
violence protection order against him, held the complainant against her will
for three days during which he raped her on six occasions before she managed to
escape. Two weeks later he forcibly removed
the complainant from her home and again assaulted and raped her twice.
The SCA found that the
court a quo had misdirected itself in certain respects of sentencing and
so it reconsidered the appropriate sentence.
In finding that substantial and compelling circumstances existed
justifying the imposition of a lesser sentence than life imprisonment, the SCA
considered as mitigating:
· that the Complainant and
Mvamvu were not strangers and that they had lived together in a customary
marriage for a number of years before the rape;
· there was no evidence
that the Complainant suffered any lasting psychological trauma;
· she only suffered minor
injuries;
· Mvamvu honestly believed
he had a “right” to conjugal benefits;
· Mvamvu grew up and lived
in a world of his own, shaped by the norms, beliefs and customary practices by
which he lived his life; and
· it did not appear that
the prime objective of the rapes was to do harm to the Complainant.
Though the SCA noted that
rape is a serious offence, it was not convinced that this case warranted the
imposition of mandatory life imprisonment.
Concerns:
In addition to some of
the concerns about the stereotypes discussed above, there are a number of other
important concerns arising from this judgment, which one author has termed a
“retrograde step” for the recognition of marital rape.
S v Swart[11]
Facts and finding
The accused had been
convicted of housebreaking with intent to rape, two counts of rape and two
counts of indecent assault. There was evidence that the accused had been
heavily under the influence of alcohol. Substantial and compelling circumstances
having been found to exist, the trial
Court took into account that unless the accused was cured of his drinking
problem he might well offend again when he was released from prison, that it
was doubtful whether a sentence of imprisonment would convey the message to
those of the general public who drank heavily that they would be imprisoned if
they committed rape while heavily intoxicated and that retribution was a
worthless and perhaps primitive objective if it left the offender
unrehabilitated, and society as a result in danger on his release from prison.
The accused was sentenced to seven years' imprisonment, suspended on various
conditions, inter alia relating to his treatment for alcohol abuse and
including a three year period of correctional supervision.
In an appeal against
sentence by the State the SCA held as follows:
Held, that the sentence
imposed on the accused had been directed towards curing the accused of his
drinking problem, while the grave crimes that he had committed had faded far
into the background. The trial Court had been materially misdirected in the
approach that it took. In the case of serious crimes society's sense of outrage
and the deterrence of the offender and other potential offenders deserved
considerable weight. Amongst the permissible sentencing options that the
Legislature had made available to the courts, imprisonment was pre-eminently
designed to fulfil those purposes and it was not open to a court to dismiss it
perfunctorily, as the trial Court had been inclined to do. The result in the
present case had been that the sentence imposed had been startlingly
inappropriate and the misdirection allowed the Court on appeal to reconsider
the sentence.
Held, further, that while
the accused's state of intoxication was also a consideration to be taken into
account in determining a proper sentence, it was not one that could be
permitted to obscure the gravity of the crimes.
Held, further, that the
offences, taken together, in the circumstances warranted a sentence of 12
years' imprisonment. Taking into account that the respondent had been
imprisoned for 21 months while awaiting trial, and that he had already served a
substantial portion of the sentence of correctional supervision that had been
imposed by the trial Court, the appropriate sentence to be served by the
accused was imprisonment for eight
years.
Concerns:
From a reading of the
facts (not the summary above but what actually happened) and from the impact
that the acts had on the victim who stated that “I had no confidence in
myself. I have not been able to
work. I have not been able to look for
work, I could not bring myself to it. In
the first few weeks after it if I went outside I wore dark glasses. I wore this skirt that I am wearing
today. I hardly go anywhere without it
because it covers me up. I did have a
breakdown within the Lynnmed. I could
only stay in for a week because our medical aid, we did not have enough money
on our medical aid. I have been on
Prozac and I have been on Urbanol. I had
to give those up because our medical aid ran out towards the end of the year. When my husband was having to work the shifts
that he started that night I was lying in bed with every light in the flat on
with all my clothes on, with three kitchen knives and my husband’s gun in the
bed. That is how badly I felt. I was a wreck”.
Notwithstanding the
victims suffering the SCA took into affect the 21 months spent by the accused
awaiting trial in delivering a sentence wholly inappropriate to the crimes
committed and in direct contrast to the minimum sentence prescribed under Part
I of Schedule 2.
[1] 2002(1) SACR 116 SCA.
[2] Ibid. at 124g-125g.
[3] 2002 (2) SACR 435
(SCA).
[4] Translation of
the Women’s Consortium from the Afrikaans original.
[5] Mahomotsa, supra
note 20 at 442d-f.
[6] 2003 (2) SACR 166 (C).
[7] 2004 (2) SACR 296 (W).
[8] Page 299.
[9] Ibid. at 299.
[10] 2004 SCA (Case No: 350/2003).
[11] 2004 (2) SACR 370
(SCA).