DEFINING RAPE and INDECENT ASSAULT
Community Law Centre
University of the Western Cape
Institute of Criminology,
Faculty of Law
University of Cape Town
The draft Bill provides for incisive amendments to the existing common law definition of rape. This definition has long been described as inadequate and unsatisfactory, particularly from the perspective of rape victims.
We agree that by broadening the definition of rape to be more reflective of the experiences of victims one may indirectly provide more appropriate redress and increase victims' access to the criminal justice system. An example is found in the present distinction between instances of vaginal penetration by the penis (regarded as the offence of 'rape') and acts of forced penetration other than vaginal penetration by a penis (punished as 'indecent assault'). While some may argue that as long as the offender does not go unpunished, it does not really matter whether he or she is charged with rape or indecent assault, we argue that there are a number of practical implications to this distinction.
Firstly, Schedules 5 and 6 of the Criminal Procedure Act treat indecent assault differently from the offence of rape for purposes of the determination of the accused's pre-trial disposition in terms of s 60(11) of this Act. Secondly, indecent assault is also treated differently from rape in terms of Act 105 of 1997. Thirdly, rape trials must be heard in the regional or high court, since the district court lacks substantive jurisdiction in respect of rape. This is not the case with indecent assault, which may also be heard in the district court. Although there may be prescriptions issued by the Directors of Public Prosecutions to the effect that 'more serious' instances of indecent assault should be heard on regional court level, anecdotal evidence indicates that such serious cases are, on occasion, tried in district court.
For a long time, the offence of rape was construed narrowly and limited to situations where the woman's resistance was overcome through physical force. The courts however gradually widened the ambit of the offence by construing 'absence of consent' to include instances where intercourse was obtained through fraud or deception. This is essentially the definition of rape as adopted in South Africa from English common law.
We support the broadening of the offence to be gender-neutral, in other words that the perpetrator and the victim may be either male or female. We similarly support the move away from ‘absence of consent’. The Law Reform Commission points out that this shift represents a shift of focus from the subjective state of mind of the victim to the imbalance of power between the parties on the occasion in question:
'It also allows one to understand that coercion constitutes more than physical force, or threat thereof, but may also include various other forms of exercise of power over another person: emotional, psychological, economic, social or organisational power.'
The replacement of 'absence of consent' as an element of rape highlights a significant symbolic shift in the understanding of the true nature and experience of sexual violence. For the victim, the distinction between rape and consensual intercourse is not to be found in consent. Rather, it revolves around the coercion that is used to vitiate her consent. Therefore, viewing 'absence of consent' as the central element of the offence serves to define the experience from the perspective of the perpetrator, rather than the victim. We accordingly support the approach followed by the Law Reform Commission.
However, we submit that the creation of a distinction between different forms of sexual penetration is problematic. We address this below. In addition, we have also identified other aspects of the definition that require clarification and reformulation.
Our proposals are aimed not only at aligning the definitions of offences with the interests that we aim to protect, but also at ensuring that the legislation is easy to comprehend and apply.
2. PROVISIONS IN THE DRAFT CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL
Clause 2 sets out the proposed redefinition of the offence of rape, and introduces two new statutory offences, namely sexual violation and oral genital sexual violation in clauses 3 and 4 respectively. A further new offence, ‘compelling or inducing indecent acts’, is set out in Clause 6. The Bill does not propose the redefinition of the offence of indecent assault.
3. RECOMMENDATIONS BY THE SOUTH AFRICAN LAW REFORM COMMISSION
The above provisions of the Bill are found in the same format in the draft legislation set out in the Law Reform Commission’s report. In order to gain an understanding of the Commission’s motivation for these proposals, it is valuable to also consult the preceding Discussion Paper on Sexual Offences: The Substantive Law and Discussion Paper on Sexual Offences: Process and Procedure.
Consolidation of Three Penetrative Offences into One Offence of ‘Rape’
As a starting point, it is useful to bear in mind that the offence of rape is aimed at protecting the interests of sexual autonomy and integrity. One of the original points of criticism against the common law offence of rape was its specificity regarding ‘orifice’ and 'object'. Commentators have expressed the view that the definition of rape should be extended to include penetration with objects such as bottles or sticks, and also to include penetration of the victim’s anus or mouth by the genital organs of the perpetrator. As it currently stands, the reformulation of the definition as contained in the draft Bill does not address this concern.
Penetration by an object other than a penis and forced oral penetration are just as violent as penetration by a genital organ. The proposed grading in the definition of offences only serves to minimise other sexual violations and creates an opportunity for the reduction of charges in matters that prosecutors may regard as 'difficult' rape cases. If the legal definition of rape is not sufficiently broad, the experience of the rape victim may not be regarded legally as constituting rape even though she defines it as rape.
‘Who is to say that the sexual humiliation suffered through forced oral or rectal penetration is a lesser violation of the personal private inner space, a lesser injury to mind, spirit and sense of self?… All acts of sex forced on unwilling victims deserve to be treated as equally grave offences in the eyes of the law, for the avenue of penetration is less significant than the intention to degrade.’
The Commission bases its distinction between penile penetration and penetration with 'other objects' on a reluctance to label perpetrators of less serious forms of penetration (for example, 'slight' digital penetration of a victim's genital organs) as 'rapists'. The Commission's hesitation to include other forms of sexual penetration (i.e. vaginal or anal penetration by an object or forced oral intercourse in the form of penile penetration of the victim's mouth) in the definition of rape is therefore aimed at avoiding undue prosecution of an accused for an offence that does not constitute 'real' rape.
If the objective of the reformulation of the definition is to protect the sexual autonomy of rape victims and to advance the notion of rape as an act of violence rather than a sexual act, the emphasis on penile penetration as an element of rape undermines this objective. An alternative to establishing the separate offences of ‘rape’, 'sexual violation' and ‘oral genital sexual violation’ would be to extend the proposed definition of rape to include acts set out in the definitions of the latter two offences and to keep the offence of 'indecent assault' for all non-penetrative sexual acts falling outside of this extended definition.
The provisions of the Namibian Combating of Rape Act may be instructive in this regard. The Act defines 'rape' as the intentional commission of a sexual act with another person under coercive circumstances. A 'sexual act' is defined in s 1(1) to cover a number of penetrative and non-penetrative acts. Significantly, the acts of 'insertion of the penis', 'insertion of any other body part' as well as 'insertion of any object' are all included in the definition of a 'sexual act'.
It is significant to note that the International Tribunal for the former Yugoslavia has accepted that the actions of penetration of the vagina or anus of the victim by objects other than the penis of the perpetrator as well as penetration of the mouth of the victim by the penis of the perpetrator constitute rape. The definition of ‘the crime against humanity of rape’ as set out in the statutes for the International Criminal Court is framed in similar broad terms.
The South African Law Reform Commission's concern with creating a layered scheme of penetration-based offences is further related to sentencing purposes. However, we argue that the introduction of such a graded scheme of definitions is not necessary: it is possible to make such a distinction once there has been a conviction of rape, as is currently the case in terms of Act 105 of 1997.
We concur with the following statement by Davis J in S v Schwartz:
'As controversial a proposition as this is bound to be, as not all murders carry the same blameworthiness, so too, not all rapes deserve equal punishment. That in no way diminishes the horror of rape; it is however to say that there is a difference even in the heart of darkness.'
In principle, therefore, making a distinction between different instances of rape for purposes of sentencing is not in itself objectionable. However, this distinction should not occur on the level of enacting different offences relating to forced penetration.
It should further be noted that the proposed Sentencing Framework Bill, which will repeal the provisions of Act 105 of 1997, places extensive reliance on the notion of 'serious offences'. However, this term is not defined in the Bill. This implies that where one starts diluting the offence of 'rape' to another (less serious) form of violation, there is a real risk that the Sentencing Framework will not capture instances of 'sexual violation' or 'oral genital violation' as 'serious offences'.
We accordingly recommend the consolidation of the offences of ‘sexual violation’ and ‘oral genital sexual violation’ into the offence of rape set out in Clause 2(1).
Deletion of Provision regarding Prima Facie Unlawfulness
Clause 2(2) of the Bill provides that an act which causes penetration is prima facie unlawful if it is committed in any coercive circumstance, under false pretences or by fraudulent means, or in respect of a person who is incapable in law of appreciating the nature of an act which causes penetration.
The background to this provision is firstly found in the Law Reform Commission’s first Discussion Paper. The Commission notes here that once unlawfulness is established by proof that the rape took place in certain circumstances, the onus must be on the accused to prove his or her defence that may or may not be based on consent as a justification for his or her actions. As Van der Merwe points out, the Law Commission did not clearly indicate at this point whether it intended to impose a so called 'reverse onus' (where, instead of the state proving the guilt of the accused beyond reasonable doubt, the onus is on the accused to prove his innocence) or whether it proposed placing an evidentiary burden on the accused. The former would not only fly in the face of established principles of criminal liability, but would also run the risk of being found constitutionally suspect.
In its 2002 Report, the Commission is at pains to state that what is intended in clause (3)(2) is indeed an evidentiary burden.
The Commission is satisfied that its proposal does not place a reverse onus on the accused, but merely an evidential onus… [t]o make it clear that its proposals do not alter the standard of proof required when an accused adduces evidence in rebuttal, it is deemed appropriate to add words to this effect in subclause (10) [sic] - where the accused's entitlement to raise defences at common law is retained.
The crisp question arising here is whether this provision is necessary at all. According to the principles of South African law of evidence, the state bears the burden of proof to prove the guilt of the accused beyond a reasonable doubt. This burden of proof remains on the state throughout the trial. Schwikkard and Van der Merwe note that at the outset of the trial, 'in tandem with the burden of proof', the state must also discharge an evidential burden. The state will do this by establishing a prima facie case against the accused. Once a prima facie case is established, the evidential burden will shift to the accused to adduce evidence in order to escape conviction. The burden of proof however remains with the prosecution.
The state also bears the burden of proving the absence of any defence raised by the accused, for example, the absence of private defence, compulsion or necessity and consent. While there is a procedural duty on the accused to introduce his or her defence (for example by putting his defence to state witnesses during cross-examination), this duty does not in any way translate into a burden resting on the accused to prove his defence.
The proposed provision appears to require the state to present proof of two elements, namely that the accused committed an act causing sexual penetration and that he or she committed such act under coercive circumstances, under false pretenses or in respect of a person incapable of appreciating the nature of penetration. Once the state has established that the act causing penetration was committed under the 'listed' circumstances, this act is prima facie unlawful. According to the Commission, an evidential burden now shifts to the accused to show that his actions were not unlawful. Where the accused wishes to raise the defence of consent to counter the element of unlawfulness, he or she would not have the onus of proving such a defence. The burden of proof to 'disprove' the accused's defence of consent remains on the state.
We accordingly submit that the proposed subclause takes the matter no further than would have been the case if coercive circumstances, false pretenses or the victim's lack of capacity were recognised as elements of the offence that the state has to prove. We therefore propose that this subclause is firstly unnecessary and secondly has the potential of confusing the burden of proof with the evidentiary burden that an accused would bear once the state has provided prima facie evidence of the offence.
The Law Reform Commission's proposal aims to move away from 'absence of consent' and the resultant trial of the victim. As much as this objective is a sound one, it should be acknowledged that it is simply not possible to keep the absence of consent on the part of the victim out of the trial where this is what the accused's defence is based on. It may be possible, for example, to attempt to limit the traumatising impact of cross-examination regarding alleged consent through strict application of the proposed amendments to the law of evidence and procedure. However, we argue that the introduction of a nebulous evidential burden as proposed in clause 2(2) will not contribute to meeting this objective.
We accordingly recommend that the three grounds referred to in this clause be included in the substantive definition of the offence of rape in Clause 2(1), and that Clause 2(2) be deleted in its entirety.
Deletion of Failure to Disclose Life-Threatening Sexually Transmissible Infection from Definition of 'False Pretences or Fraudulent Means'
Clause 2(4)(c) proposes that the notion of 'false pretences or fraudulent means' should include circumstances where 'a person intentionally fails to disclose to the person in respect of whom an act which causes penetration is being committed, that he or she is infected by a life-threatening sexually transmissible infection in circumstances in which there is a significant risk of transmission of such infection'.
The notion of 'false pretences or fraudulent means' as set out in clause 3(4) is largely a restatement of accepted South African law (subclauses 3(4)(a) and (b)). Subclause 3(4)(c) however is a new provision, and is aimed predominantly at penalising the intentional non-disclosure of HIV infection.
The potential criminalisation of harmful HIV-related behaviour has been the subject of an extensive investigation by the SALRC. The Commission came to a final conclusion that the recommendation of legislative intervention would not be principled and noted, inter alia, that it is generally believed that the creation of HIV-specific statutory offences would be counter-productive to public health efforts to curb the spread of the disease, and will entrench further discrimination and stigmatisation of persons with HIV. In addition, it will drain away scarce resources from the most effective HIV prevention programmes such as targeted education campaigns, condom distribution initiatives, and the provision of voluntary, accessible testing, counseling and medical treatment.
In determining whether the intentional exposure of another person to a life-threatening infection such as HIV through sexual intercourse should be included in the context of this Bill, it is useful to consider the act that is being penalised. South African law does not punish persons who fraudulently convince others to have consensual sex with them, other than in the two instances already covered in the Bill, i.e. where the victim is defrauded about the nature of the act or the identify of the perpetrator. We argue that the essence of the act that is punished here is not the defrauding of the person who might not otherwise have been willing to have sex with the perpetrator, but rather the knowing exposure of another person to a life-threatening infection. This can be compared to other instances of such knowing exposure, for example, assaulting a victim by sticking them with a needle with infected blood. To the extent that it may be necessary to enact a statutory offence to punish such behaviour, we argue that the Sexual Offences Bill is not the vehicle to do so.
We also wish to point out that instances of rape committed by a perpetrator knowing that he is infected with HIV are included in the list of offences requiring the imposition of a minimum sentence of life imprisonment on conviction.
We accordingly recommend the omission of this provision from the Bill. We also draw attention to the detailed submission in this regard prepared by the Women’s Legal Centre, which we endorse.
Deletion of Provision Regarding Common Law Defences
Clause 2(9) of the Bill states that nothing in this section may be construed as precluding any person charged with the offence of rape from raising any defence at common law to such charge, nor does it adjust the standard of proof required for adducing evidence in rebuttal. We submit that the inclusion of this provision is unnecessary. The first part of the clause restates trite law, especially since there is nothing in the preceding provisions to suggest that an accused person would be precluded from raising any defence. The second part of the clause is ostensibly aimed at clarifying possible uncertainty arising from Clause 2(2), which deals with prima facie unlawfulness. We argued above that this clause should be deleted; if this recommendation is followed, the second part of Clause 2(9) also becomes wholly redundant.
4.5 Redefinition of the Common Law Definition of Indecent Assault
South African criminal law currently recognises three common law offences relating to sexual assault, namely rape, indecent assault and crimen iniuria.
The Discussion Paper notes that there are divergent opinions on the definition of indecent assault. These opinions can loosely be referred to as the ‘R v Abrahams’ definition (which requires an 'act of indecent physical assault') and the ‘S v F’' definition (which requires that the assault must be committed with intention to commit an indecent act).
The draft Bill proposes the enactment of new ‘penetrative’ offences, including rape, sexual violation and oral genital violation, as well as the offence of ‘compelling or inducing an indecent act’. At the same time, the Bill, while repealing the common law offence of rape, does not repeal or amend the common law offence of indecent assault. We therefore submit that the lines between the existing offences of indecent assault and crimen iniuria and the new statutory offence of compelling or inducing an indecent act are unclear, and we accordingly propose the enactment of a statutory offence of indecent assault.
We propose the following formulation:
A person who unlawfully and intentionally commits an indecent act with another person under coercive circumstances, under false pretences or by fraudulent means or in respect of a person who is incapable in law of appreciating the nature of such act.
4.6 Compelling or Inducing Indecent Acts
The above definition includes situations where the perpetrator performs the indecent act on the victim, for example, where the male perpetrator touches the female victim’s breasts. However, there is a range of situations where the perpetrator may not be the person physically performing the indecent act, but where, for example, s/he coerces the victim to perform the act on him or her. The Bill attempts to address these situations through the provisions of Clause 6; however, the current formulation is cumbersome and unclear.
The acts that Clause 6 purports to penalise would in practice include: compelling, inducing or causing another person to engage in an indecent act with –
the person compelling, inducing or causing the act (i.e. the perpetrator), for example where the perpetrator compels the victim to manually stimulate the perpetrator;
a third person, for example where the perpetrator compels the victim to manually stimulate the third person; or
the other person himself or herself, for example, where the perpetrator compels the victim to masturbate;
an object, including any body part of an animal.
We accordingly recommend the reformulation of this provision to make it clear what is meant. Given that the interest that is to be protected here is the same as in the case of indecent assault as defined in the common law (and the redefinition we propose above), we recommend that these acts be included in the ‘new’ definition of indecent assault. We also recommend the inclusion of the three grounds that may render the act unlawful as included in the definition of rape.
4.7 Compelling or Inducing Acts that Cause Penetration
We are concerned that the formulation of the offence of rape currently does not encompass a situation where the perpetrator [A] forces a second person [B] to have sex with the victim [C]. In this scenario, B would not be liable for rape (he would be able to rely on the defence of necessity). The question is therefore what A’s liability towards B and C respectively should be.
In terms of the proposed definition of rape in Clause 2(1), A would not be guilty of raping C, since the offence requires an act which causes penetration of the anus or genital organs of the victim by the genital organs of the perpetrator. For the same reason, A would not be guilty of raping B either.
We argue that the actions of A constitute a violation of the sexual integrity of both B and C, and accordingly we recommend the inclusion of a provision to address this scenario in the definition of rape. This provision should also be able to address situations where B is not liable due to fraud or false pretences on the part of A, or where B is a person unable to appreciate the nature of the act that causes penetration.
Our formulation as set out below would also incorporate a situation where A compels B to have sex with C, where C is willing. (B’s sexual autonomy is violated, while that of C is not.)
ADDITIONAL COMMENTS: ‘ABUSE OF POWER OR AUTHORITY’
The Bill lists, as one of the instances of coercive circumstances, ‘an abuse of power or authority to the extent that the person in respect of whom an act which causes penetration is committed is inhibited from indicating his or her resistance to such an act, or his or her unwillingness to participate in such an act’.
To the extent that it may perhaps be questioned whether the abuse of power or authority should be included as an instance of ‘coercive circumstances’, we would like to express our support for this provision to be retained. Consider the following incident:
My name is Fikile. I have been looking for a house but could not get it as the councillor of the place said that I should have sex with him before he allocated a stand to me. After registering for a stand, I inquired about my application from the Local Councillor, because people who registered after me were being allocated stands. I then started working at the local offices as a volunteer thinking that I would get a house soon. Many old women complained to me that the councillor indicated that they would not get stands because they were ugly, and he did not enjoy sex with old women. If they needed his assistance they should bring their daughters in order to have sex with him. I kept quiet for I did not have proof of this. In 1996 I went to him again and he mentioned the first test, i.e. sex before getting a stand. He said that I would be on the waiting list for the rest of my life.
This case highlights an important aspect of women’s disempowerment that current legislation does not address. The type of coercion described in this case reflects the unequal power relations between women and men prevalent in much of South African society. Given the subordinated socio-economic position of women in South Africa, it is reasonable to argue that this case is not an isolated one. Women are often subject to different forms of sexual harassment that extends beyond their employment situation and permeates all aspects of their lives.
While it could be argued that coerced sex through abuse of power or authority could be addressed as sexual harassment where it occurs in the workplace (in terms of the Employment Equity Act) or as a form of discrimination through the Promotion of Equality and Prevention of Unfair Discrimination Act, neither of these Acts makes provision for penalising such conduct as a criminal offence. In terms of the current legal position, the only possibility would be to charge the perpetrator with crimen iniuria, which is generally not considered as a serious offence. If one agrees that the interest to be protected here is the victim’s sexual autonomy and integrity, the inclusion of abuse of power in the list of coercive circumstances becomes imperative.
In terms of international law, it is instructive to note that the definitions of the crimes against humanity of rape and sexual violence recognise coercion through abuse of power as elements of these offences.
6. PROPOSED REDEFINITION OF OFFENCES
A person is guilty of the offence of rape if he or she -
unlawfully and intentionally commits an act that causes penetration, however slight, of –
(a) the genital organs or anus of the complainant by the genital organs of the perpetrator or any other object used by the perpetrator;
the mouth of the complainant by the genital organs of the perpetrator; or
the genital organs or the anus of the perpetrator by the genital organs of the complainant;
when committed under coercive circumstances, under false pretences or by fraudulent means or in respect of a person who is incapable in law of appreciating the nature of an act that causes penetration.
(2) Unlawfully and intentionally compels, induces or causes another person to commit an act that causes penetration, however slight, by the genital organs or any other object used by such other person of the mouth, genital organs or anus of a third person under coercive circumstances, under false pretences or by fraudulent means or where such other person is incapable in law of appreciating the nature of an act that causes penetration.
(3) Coercive circumstances, referred to in subsections (1) and (2), include any circumstances where there is –
a use of force against the complainant or another person or against the property of the complainant or that of any other person;
a threat of harm against the complainant or another person or against the property of the complainant or that of any other person; or
an abuse of power or authority to the extent that the person in respect of whom an act which causes penetration is committed is inhibited from indicating his or her resistance to such act, or his or her unwillingness to participate in such an act.
(4) False pretences or fraudulent means, referred to in subsection (3)(a), are circumstances where a person –
in respect of whom an act that causes penetration is being committed, is led to believe that he or she is committing such an act with a particular person who is in fact a different person; or
in respect of whom that causes penetration is being committed, is led to believe that such an act is something other than that act.
(5) The circumstances in which a person is incapable in law of appreciating the nature of an act that causes penetration referred to in subsection (3)(b) include circumstances where such person is, at the time of the commission of such act –
in an altered state of consciousness;
under the influence of any medicine, drug, alcohol or other substance to the extent that the person’s consciousness or judgment is adversely affected;
a mentally impaired person; or
below the age of twelve years.
(6) A marital or other relationship, previous or existing, shall not be a defence to a charge of rape.
(7) The common law relating to –
the irrebuttable presumption that a female person under the age of twelve years is incapable of consenting to sexual intercourse; and
the offences of rape and indecent assault, except where such offences have been committed prior to the commencement of this Act,
(8) Subject to the provisions of this Act, any reference to "rape" in any law must be construed as a reference to the offence of rape under this section, unless it is a reference to rape committed before the commencement of this Act, which must be construed to be a reference to the common law offence of rape.
A person is guilty of the offence of indecent assault if he or she -
(1) unlawfully and intentionally commits an indecent act with another person under coercive circumstances, under false pretences or by fraudulent means or where such other person is incapable in law of appreciating the nature of such an act; or
(2) unlawfully and intentionally compels or induces the complainant to engage in an indecent act with –
(a) the perpetrator him or herself;
(b) the complainant himself or herself; or
(c) a third person
under coercive circumstances, under false pretences or by fraudulent means or where the complainant is incapable in law of appreciating the nature of such act.