mps want rape sentencing tightened up
12 September 2007 

The issue of using a rape complainant’s sexual history in a court case shot to prominence during the rape trial of former deputy president Jacob Zuma. The justice department has included clauses in new minimum sentencing legislation that will forbid judges to use a rape accuser’s sexual history as an excuse for giving the perpetrator a lighter sentence.

The legislation has been approved by Parliament’s justice committee. Other cases that caused a public outcry, such as a father who raped his daughter getting a lighter sentence have resulted in clauses forbidding the use of a close personal relationship and cultural attitudes towards rape in sentencing.

At issue is that the Criminal Law (Sentencing) Act gives judges discretion to impose sentences lighter than the statutory minimum sentence. If they find “substantial and compelling reasons” for a lighter sentence, they may impose one.

However, the amendment bill before Parliament seeks to remove sexual history, cultural attitudes to rape and close personal relationships as possible “substantial and compelling reasons” for lighter sentences.

The matter of a man repeatedly raping a woman, leaving her locked up in a hotel room after the rape only to return to the bar, thereafter raping her repeatedly again went to trial in the regional court where the man was found guilty and the matter referred to the high court for sentencing. The man was given a life sentence as the trial court could find no substantial and compelling reasons for not giving the sentence demanded by the law. (In cases where a gun or weapon is used in the commission of a rape, where it is a second offence and where the victim is raped repeatedly, the prescribed minimum sentence is life imprisonment.)

The sentence was taken on appeal. In the Supreme Court of Appeal, Judge Carole Lewis disagreed. Despite the brutal nature of the rape and kidnap she found the age of the rapist — 29 — the fact that he was employed with three dependent children and the fact that there was a real chance he could be rehabilitated constituted substantial and compelling reasons for a lesser sentence and reduced his sentence to 16 years.

While Judge Edwin Cameron agreed with Lewis, the third member of the bench, Judge Leona Theron, disagreed.

“In my view, the rape of the complainant is one of the worst imaginable. If life imprisonment is not appropriate in a rape as brutal as this, then when would it be appropriate? “This is precisely the kind of matter the legislature had in mind for the imposition of the minimum sentence of life imprisonment. “There is hardly a person of whom it can be said that there is no prospect of rehabilitation. The appellant was 29 at the time and would ordinarily not be regarded as a youthful or immature offender. Employment in itself would not necessarily qualify as a substantial and compelling circumstance,” Judge Theron said.

Democratic Alliance MP Tertius Delport cautioned the committee that the clauses removing grounds for substantial and compelling reasons came dangerously close to prescribing to the courts and perhaps being unconstitutional.

He suggested that judges be allowed to take all matters into account when imposing sentences and that another way of expressing the views of the legislature should be found.

Committee chairwoman Fatima Chohan said that a close personal relationship between a rapist and the victim was an aggravating factor and not one that could mitigate the harshness of the sentence. This also applied to a finding that the virility of a rapist could be seen as a reason for a lesser sentence.

The committee has approved the restrictions on what judges may use to justify lighter sentences. They must now go to the National Assembly and the National Council of Provinces.

Wyndham Hartley, www.businessday.co.za