judges flout guidelines and let rapists off lightly 
9 March 2008

In one example, the judge said the victim, ‘being the pretty girl she is, might have brought out the animal in the accused’.  Research unit says many use flimsy excuses for failing to impose mandatory sentences.

Judges are under fire for dishing out light sentences to rapists based on shocking court rulings, that include an attacker having intended “no harm” to five victims other than to satisfy his lust.

Women’s groups are demanding judges show more compassion for rape victims and want attackers handed much harsher sentences.  This follows research by the University of Cape Town’s Gender, Health and Justice Research Unit, which has named judges who fail to impose minimum mandatory sentences on rapists.  The unit and the Women’s Legal Centre say many judges use flimsy excuses to impose light sentences. Examples include:

Judge Jeremy Pickering sentenced a man to 15 years last year for raping his six-year-old daughter. The judge said the man acted “on the spur of the moment”.

Judge AJ Visser sentenced Joseph Ntuli to eight years, with four years suspended, for raping a 14-year-old girl twice. In the 2003 sentencing, Judge Visser said the victim, “being the pretty girl she is, might have brought out the animal in the accused”.

Acting Justice Beverly Franks did not sentence two accused to life for stabbing a woman in the face, robbing and raping her, because they “showed mercy by not killing her”.  Judge Hendrick Musi sentenced a man to an effective 13 years for raping five girls under the age of 16. He said the rapist “intended no harm other than to satisfy his sexual lust”.

There was a public outcry in 1999 when Judge John Foxcroft sentenced a father to seven years for raping his 14-year-old daughter, saying: “The harm of the rape was limited to the victim and not society.” The State appealed and the sentenced was increased to 12 years.

Judge Carole Lewis sentenced a man who kidnapped, raped his victim five times and assaulted her to 16 years because he was employed and “relatively young”. The man was 29.
Thuli Madonsela, commissioner at the South African Law Reform Commission, urged the public to lodge complaints with the Judicial Services Commission against judges who imposed lenient sentences. “Each judge uses their own moral compass; if they don’t think a crime was that bad, they will find so-called grounds for deviating.”
“Judges think they’re above the law,” said People Opposed to Women Abuse executive director Delphine Serumaga. “Derogatory statements in judg ments are not new, they re-enforce the message to rapists that they can have excuses. We need to monitor individual judges over a series of years and call them to order to justify their statements. You can’t blame the tool, blame the user.”

Childline national co-ordinator Joan van Niekerk said the organisation was “very concerned about a totally unacceptable situation”. “These ‘slaps on the wrist’ will not inhibit behaviour.”

Police statistics show 52 617 cases of rape were reported last year. The law sets a minimum life sentence (25 years) for cases where a victim is raped more than once or is younger than 16.
Judges are required to find “substantial and compelling circumstances” if they want to impose less jail time.

The Criminal Law Amendment Act was changed on December 31 last year to include reasons a judge may not use to hand down lighter jail time. These include a victim’s previous sexual history, an apparent lack of physical injury, an accused’s cultural or religious beliefs about rape and any relationship between the accused and the complainant before the offence was committed.

While this is a step in the right direction, UCT researchers Steffi Roehrs and Yonina Hoffman-Wanderer say their unit’s review of rape case law shows that the law is not far-reaching enough. “It is still wide open for judges to give grounds they believe are ‘substantial and compelling’.” They want the list extended.

Grounds the unit wants covered include the accused’s age, use of intoxicating substances, the apparent lack of emotional harm to the victim and the accused having a poor education or disadvantaged background.

Sam Waterhouse, advocacy manager of Resources Aimed at the Prevention of Child Abuse, said: The UCT unit trains magistrates about sexual offences. Director Lillian Artz said this should be extended to judges.

Lauren Cohen, www.thetimes.co.za