DEFINING THE CRIME OF RAPE UNDER THE SOUTH AFRICAN LAW

By
RAKGOALE VIONNAH BOITHATO
60876379

Submitted in partial fulfilment of the requirements for LLB degree

BACHELOR OF LAWS

In the

SCHOOL OF LAW

UNIVERSITY OF SOUTH AFRICA

RRLLB81 ASSESSMENT 2

MR LC COETZEE

(05 APRIL 2023)

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 ACADEMIC HONESTY DECLARATION

1. I understand what academic dishonesty entails and am aware of Unisa’s policies

in this regard.
2. I declare that this assignment is my own, original work. Where I have used
someone else’s work, I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in, this assignment from the work
or works of other people has been referenced according to the prescribed style.
3. I have not allowed and will not allow anyone to copy my work with the intention of
passing it off as his or her own work.
4. I did not make use of another student’s work and submit it as my own.

NAME: RAKGOALE VIONNAH BOITHATO

SIGNATURE: vb rakgoale

STUDENT NUMBER: 60876379

MODULE CODE: RRLLB81

DATE: 01 APRIL 2023

TOPIC SELECTED: CRIMINAL LAW: THE EFFECT OF THE EXPANSION OF

THE DEFINITION OF RAPE.

MARK RECEIVED FOR ASSESSMENTS 1: 93%

MARK RECEIVED FOR ASSESSMENTS 2:

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ABSTRACT
The present statutory definition of rape was narrow with respect to both gender and age,
rape was an act of sexual intercourse by a man with a woman. Rape is not committed
with intent to sexual satisfaction alone. The victim experience serious physical injury and
they in need of medical care along with psychological counselling when they want to
adjust and to renter society without difficulty. Common prejudices against rape victims
are that women and children cannot be raped against their will and that many victims
contribute to rape by dressing seductively.

KEYWORDS
Rape
Victims
Common law
Sexual intercourse
Elements

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LIST OF ABBREVIATION AND ACRONYMS

Abbreviation/Acronym Meaning

HIV Human immunodeficiency virus

SALC South African Law Commission

STIs Sexual transmitted infections

CC Constitutional Court

AIDS Acquired immunodeficiency syndrome

CLAA Criminal Law Amendment Act

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TABLE OF CONTENTS PAGES

1. Introduction………………………………………………………………. 6

2. Problem statement………………………………………………………. 7

3. Hypothesis………………………………………………………………. .8

4. Points of departure and assumptions…………………………………. 8

5. Proposed chapter outlay………………………………………………..10

6. Description of proposed research method…………………………… 11

7. Conclusion………………………………………………………………. 11

8. Bibliography………………………………………………………….…. 12

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 1. Introduction.

Rape is known as a type of sexual assault which involves male person and a
female person into sexual intercourse or different structures of sexual infiltration
carried out with a person without their consent or assent. 1 The action may be
carried out by using physical force or coercion. Rape is a social problem that is
viewed differently across culture globally. The types of rapes are such as date
rape, gang rape, marital rape, incestual rape, child sexual rape and statutory rape.
Rape crime is one of the darkest of the society, it has a long-lasting impacts on
victims. Rape is than any physical wounds. Rape causes people to live with fears
and trauma, effect women with sexual health risk taking behaviours and places
some at greater risk for contracting HIV,STIs, pregnancy and rare cases death.2
Rape is a complex crime to investigate, it is difficult to prevent, and to the social
stigma attached to rape has made it difficult for victims to report it.

The statutory rape refers to the intercourse of other specified type of sexual
contract with a minor.3 A minor who are below the age of consent cannot legally
consent to having sex. This means that sexual contract with a minor violates the
law regardless of whether the minor gives a signal or agreement. Different
countries and cultures had differing views on the act of rape as some cultures allow
kidnapping and rape as a means of force into agreeing to marry the perpetrator. 4
Rape is recognised under international criminal law as a crime against humanity
and an act of genocide. However, rape can be defined as a physical invasion of a
sexual nature, committed on a person under circumstances that are coercive.5

In the South African law, there are different types of penetration which causes the
same violation, and harm, the sentenced must be the same as other sexual
offences. South Africa has the highest instances of rape when compared to other
countries. 15000 cases of rape are reported in each year. However, rape is a crime
of power exerted by men against a woman. The South African courts is tasked with
the responsibility to protect and advance human rights including the right to rape
victims. In Masiya case,6 the Constitutional court (CC) extended the definition of

1 Ann J. Cahill, Rethinking Rape (New York, Cornell University Press 2001).
2 Rebecca Campbell and others, ‘The Impact on Women’s Sexual Health Risk Behaviour Health
[2004] Health Psychological Journal 23 ,67.
3 South African Law Commission, Report on Aspect of the Law Relating to AIDS (Project 85) (SALC
2001).
4 Amsler S and Kleinbach R, ‘Bride Kidnapping in the Kyrgyz Republic’ (1999) 4 International Journal
of Central Asian Studies 1226.
5 Mark Ellis, ‘Breaking the Silence: Rape as an International Crime’ (2007) 38 Cape Western Reserve
Journal of International Law 598.
6 Masiya v Director of Public Prosecutions 2007 (5) SA 30 (CC).

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 rape to include non-consensual and anal penetration of a female but male sexual
organ.

However, as long a rape is defined as an act of sec, the violent nature of the crime
will be ignored. Changing the definition of the crime can only improve the presently
misdirected perception of the crime. The Law Commission states that rape is a
distinct sexual crime and is to be distinguished from unnatural sexual intercourse.7
In addition, this research will focus on the legislations that are responsible for
drafting the law of rape. the main problem arising is the law that protect the rape
victim’s rights. It provides with the cases concerns the development of the common
law to protect rape victim’s rights.

The Masiya case will be discussed as the main case and also the Criminal law
Amendment Act,8 that places its focus to provide an enabling environment that
reconciled the criminal justice system with the experience of the victims by
introducing ways to prevent victims violations and criminalise various forms of
sexual violence. And the Constitution will be considered. Furthermore, this
research also looks at the comparison between the current law ad common law of
rape in South Africa.

2. Problem statement.

Rape is one of the most complex offences in the history of the law. This research
is to investigate the current definition of crime rape and to incorporate victims of
rape who are currently excluded. Based on the preceding theme analysis and
conceptualisation whereby the field of research is clearly identified, the research
seeks to answer the following arising questions:

a) Is the current common law definition of rape the appropriate crime to be

extended to incorporate other victims of rape?
b) Who are the different categories of victims of rape?
c) Are the existing crimes relating to rape sufficient?
d) Will the new proposed definition of rape as suggested by the South African Law
Commission adequately protect all victims of rape?
e) How the new definition affect both men and women?
f) Whether they are the perpetrators or victims of the rape crime?
South African Law Commission (SALC) states that rape consists as unlawful
intentional sexual intercourse with a woman without the consent.9 The element of

7 South African Law Commission, Project 107 Sexual Offences Report (SALC 2002).
8 Masiya v Director of Public Prosecution 2007 (5) SA 30 (2).
9 John Milton, South African Criminal Law and Procedure Volume II Common-law Crimes (3rd edn,
Juta 1996) 406.

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 consent confers a unique quality to the crime of rape, as consent is a defence
which could be raised by accused. The crime of rape is however defined in terms
of lack of consent.
3. Hypothesis

This research focuses on the definition of rape in terms of common and current law
states that rape is the product of a society which denigrates women in South Africa.
It is a comparative study to a certain legal position for laws regarding rape victims
or offenders in South Africa. It also focuses to establish that all the perpetrators
and victims can be meaningfully covered by an umbrella crime of rape. As the right
to privacy and dignity were raised. This research will show that victims of rape do
have rights contained in various legislative instruments.

4. Points of departure and assumptions.

The research point of departure is completely from the constitutional law

perspective. The first point of departure is from legislation which protects victims
of rape. The Constitution will be used as a starting point in this research as it is the
Supreme law of the Republic and no other law may conflict with it is invalid. The
Criminal Law Act (CLA) does not contain any sentencing clause dealing with the
offence of rape or any other offence as created by the Act. The legislation will be
of assistance in helping South African to fight against the high rising number of
rape amongst our communities.10 Secondly, a comparative method approach will
be used. The current status of crime of rape in South Africa will be examined to
allow a comparison between common law and the new sexual offence Act, and it
will also established whether any current South African crime can incorporate a
broad spectrum of penetrative rape offence.11

Common law.

According to common law, rape is defined as the unlawful, intentional, sexual

intercourse with a woman without her consent. The common law definition of rape
is insufficient it excludes most of the possible categories of victim of rape. it denies
protection of male who have been raped by female perpetration both inside and
outside of marriage, female victims of forced sexual penetration per Anum both
inside and outside marriage, male and female children of forced rape per Anum
and per vaginam, male, female and children victims of rape who have been anally,
orally, digitally and object raped and victims of consensual sexual intercourse
where perpetrators HIV/AIDS status was deliberately withheld from them. It
protects part of the female population.

10 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
11 Chapter 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

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 The definition of rape may be reduced to five essential elements that prosecution
needs to prove existed beyond reasonable doubt for criminal liability to result.
Those essential element may be retracted, sexual penetration per unlawfulness,
intentionally, sexual penetration with a women, without consent.12
a) Unlawfulness- the common defence for an accused would be consent, so if
consent by the women could be shown then the accused was not guilty.
Prior to the Prevention of Family Violence Act,13 it indicates that it was not
unlawful for man to rape his wife as acts of forced penetrative were not
identified as rape. the provision ensure that a husband can be convicted of
raping his wife. A boy could be guilty of rape from the age of 7 upwards.14

b) Sexual intercourse with a woman. Rape with a women could only be

committed by penetration of the vagina by the penis. The victim of the
offence could only be a woman.15 It was legally impossible for the offence
to be perpetrated against a man. A women could never qualify as a
perpetrator to rape, whether she caused the men to rape her, per vaginam
or per Anum against his will or inserted a digit or object into anus of a man.16

c) Without the consent- Consent is defined in section 1(2) as an agreement by

choice and freedom and capacity to make choice.17 Absence of consent is
an essential element of forcible rape. generally, in order to sustain a
conviction for rape, a judge need to prove only that a victim did not consent
to the sexual intercourse. Forcible intercourse with an unconscious woman
is considered to be without her consent and amount to rape.

d) Intentionally- The requirement for intention is from mens rea, it entails that
a man is a fault where he intentionally commits the unlawful conduct
knowing it to be unlawful.18 If the accused is subjectively believed that a
women consented, may escape liability. In the light the men are aware that
his conduct or act is unlawful, nevertheless he proceed to do it.
The new definition of rape.
Rape in South Africa is now regulated under Sexual Offence Act. 19 The Act
repealed the Common law definition of rape and replaced it with a statutory crime
of rape which is applicable to all forms or categories of sexual penetration and it a

12 Jonathan M Burchell, Principles of Criminal Law (3rd edn ,Juta 2005).

13 Prevention of Family Violence Act 133 of 1993.
14 Section 1 of the Law of Evidence and Criminal Law Amendment Act 103 of 1987.
15 Burchell, Principles of Criminal Law 707.
16 S v Jonathan en Andere 1987 (1) SA 633 (A).
17 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
18 Burchell, Principles of Criminal Law 4.
19 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

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 non-gender specific. In terms of section 3 of the Act, rape is defined as any person
who unlawfully and intentionally commits an act of sexual penetration with another
person without that persons consent is guilty of rape. The new definition protects
the victims of rape in cases where a person rape another in the mouth, anus, and
any part of the body. The new Act consist of the following elements without
consent, intentionally and unlawfully are like the common law Act.

The is only one element which is different, which is the sexual penetration, in terms
of this Act sexual penetration includes any act which causes a penetration to extent
whatever by either genital organs of a human being or an animal, any part of the
body of one person, any part of the body of an animal. The aim of the new Act is
to includes all sexual offences in one law to make sure that both men and woman
can use the law about sexual crimes, make sure that government department work
together to protect complaints from unfair treatment of trauma, make the age where
both men and women can give consent to have sex which is 16 years old.
In terms of sentencing, the Criminal Law Amendment does not contain ant
sentencing clause dealing with the offence of rape. The courts are still relying on
the common law definition of rape when sentencing rape offenders.20 Section 51
of this Act contains the minimum sentences which may be handed down and
determines what an accused person should prove of he or she submits that he or
she should receive a lesser sentence. The courts are bound by the imposition of
minimum sentences except where an accused can show substantial and
compelling circumstances which justifies the deviation from the prescribed
minimum sentence. The CLAA stipulates life sentence for rape.21
ASSUMPTIONS
The Constitution explicitly guarantees the right to freedom from all forms of
violence from either public or private.22 The Constitution also recognises the right
to life for everyone and provides for the interest dignity of every individual and the
right to have dignity respected and protected.

5. Proposed chapter outlay

20 Criminal Law Amendment Act 105 of 1997.

21 Criminal Law Act 105.
22 Section 12 of the Constitution of the Republic of South Africa, 1996.

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 Chapter 1 This chapter serves as an introduction
which set out the terms and contact of
the research. The chapter further sets
out the problem statement, the
hypothesis and the methodology of the
research
Chapter 2 This chapter will establish who are the
victims of forced penetrative sexual
assault.
Chapter 3 In this chapter a comparative
perspective on the crime of rape in
South Africa is drawn between the
current and common law.
Chapter 4 This will be the final chapter of the
research. As evaluations and
recommendations are made.

6. Description of proposed research method.

This research will make use of comparative approach as I will be using this type of
method to compare the definition of Rape in the current and common law in South
Africa. I will be using the sources such as case law, reports by the South African
Law Commission and also South African legislation when providing the definition
of rape. Different legislation will be cited to show that victims do have rights.
Qualitative research will be used.
7. Conclusion.

The inclusion of the offence of compelled rape by the Sexual offence Act 2007 can
therefore not be seen as a restatement of the positive law, seen as a new offence
which is directed at protecting the rights and interests of the victims. However it is
difficult to have one unified generic definition of rape as rape occur in different
situations, can constitute radically different harms and also have different
meanings for victims. Criminal Act has the effect that a whole lot of contrasting acts
can now be charged as rape including those acts committed not with sexual
gratification in mind.

In conclusion I find the Sexual offence and Related Matters sufficient as it is what
exactly the South African Criminal Law needed to cure the unfair and
discriminatory definition of the rape. In terms of Common law it also attaches much
required degree of sternness to the offence of rape. the present definition of rape
seems to be in accordance with section 9(3) of the constitution of South Africa.

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8. Bibliography

Books

Ann J. Cahill, Rethinking Rape (New York, Cornell University Press 2001)

Burchell, Principles of Criminal Law

Jonathan M Burchell, Principles of Criminal Law (3rd edn ,Juta 2005)

John Milton, South African Criminal Law and Procedure Volume II Common-law
Crimes (3rd edn, Juta 1996)

Journal article

Amsler S and Klinbach R, ‘Bride Kidnapping in the Kyrgyz Republic’ (1999) 4

International Journal of Central Asian Studies

Mark Ellis, ‘Breaking the Silence: Rape as an International Crime’ (2007) 38 Cape
Western Reserve Journal of International Law

Rebecca Campbell and others, ‘The Impact on Women’s Sexual Health Risk
Behaviour Health [2004] Health Psychological Journal

Case law
Masiya v Director of Public Prosecution 2007 (5) SA 30 (2)

S v Jonathan en Andere 1987 (1) SA 633 (A)

Legislation

Constitution of the Republic of South Africa, 1996

Criminal Law Amendment Act 105 of 1997

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007

Law of Evidence and Criminal Law Amendment Act 103 of 1987

Prevention of Family Violence Act 133 of 1993

Law commission reports

South African Law Commission, Report on Aspect of the Law Relating to AIDS
(Project 85) (SALC 2001)

South African Law Commission, Project 107 Sexual Offences Report (SALC 2002

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