Sexual Assault (I): Sexual offences in the criminal justice system
18 April 2019
Crimes of a sexual nature, the world over, are prosecuted distinct from any other form of crime. The burden of proof in sexual offence cases is more stringent (although it is not permitted to be). The tests and defences used are subjective as opposed to objective – as with all other crimes. Unlike other crimes, commissions of sexual offences, it can be argued, are skewed predominantly against women and children. They are also the only crimes in which the victim’s behaviour is the focal point, as opposed to that of the accused.
It is only by looking back at the history of the criminalisation of a specific sexual offence – rape – that one can even begin to understand why sexual offences appear to operate on a different plane in the criminal justice system. South Africa’s common law derives from Roman-Dutch and English sources. Historically women were classified as legal objects – not legal subjects as they are today, and as their male counterparts have always been. In other words women were property. As property, a woman’s value rested in her reproductive value. Virginity was particularly important because it assured men of the legitimacy of their children and therefore the continuum of their lineage. When a woman was raped it diminished her value. In other words rape was a crime committed against the owner of the property – equivalent to theft (as it undermined ownership). Although the classification of sexual offences, and rape in particular, have today progressed to “a humiliating, degrading and brutal invasion of the dignity and person of the survivor”, the investigation, prosecution and conviction of such crimes are still treated with caution. This cautionary approach towards sexual offence cases also stems from a discriminatory background. Historically, the world over, women, as the complainants and single witnesses to the crime, were considered inherently unreliable witnesses by the criminal justice system. Women were diagnosed as jealous, vengeful and spiteful by nature. Women were also naturally prone to hysteria and imagining that things had happened which had not happened at all. The “real” victim in those cases was all too often the innocent man as women were inclined to habitually lie about rape. This cautionary approach developed into a legal rule known as the cautionary rule – applied exclusively in and developed specifically for sexual offence cases. The cautionary rule dictated that the victim’s (and not the accused’s) behaviour be tried. The premise from which the courts departed was that the victim was guilty until proven innocent. If the victim was found to be a credible witness, the courts effectively wanted to know what the victim had done in order to have brought the violation upon herself. Had the victim provoked the accused to rape her?
Although the cautionary rule was abolished in 1998 by the South African courts and statutorily by the Sexual Offences Act in 2007, the approach (not the rule) is, arguably, still applied in court rooms today. The abolition of a legal rule seems to have done little in the way of remedying discriminatory attitudes towards victims of sexual abuse – predominantly women.
The issue of consent is another element in sexual offence cases which focuses on the victim’s behaviour. Consenting to a sexual act, which is used as a defence (and effectively puts the victim on trial instead of the accused) uses a subjective test as opposed to an objective test. What this means is that the victim’s state of mind and behaviour at the time of the commission of the offence comes under scrutiny. This is most unusual, as it is the victim who is then required to prove her version (that she did not consent) as opposed to the accused having to prove why he believed the consent to have existed. There is also no acknowledgment by the criminal justice system of the power differentials that exist between the victim and the perpetrator, which could cancel out even express consent on the victim’s part. These ‘coercive circumstances’ that may result in a victim submitting to (or not resisting) a rape give rise to a lesser charge to rape in South African law – classified as compelled rape. Even though South African law has not progressed in respect of consent, international legal jurisprudence has come to recognise coercive circumstances as resulting in the commission of the crime of rape itself. Coercive circumstances include the societal power that men hold over women. A resigned, passive or silent victim may all too often be seen by the criminal justice system as a consenting one – ignoring the fact that sexual acts committed under conditions of inequality may look consensual though are not at all.
In fact, the entire nature of sexual offences is misunderstood. For the time immemorial sexual offences have been (and continue to be) seen as sexual crimes of passion or lust, where men are unable to control their base sexual desires, as opposed to being viewed as crimes of violence. Sexual offences are violent crimes (even in the absence of physical force) perpetrated as a show of power to enforce male dominance – particularly by men in disempowered (economic or social) positions. The Constitutional Court in Masiya correctly explained rape to be “not simply an act of sexual gratification, but one of physical domination. It is an extreme and flagrant form of manifesting male supremacy over females.” The Constitutional Court in Carmichele went on to state that, “sexual violence and the threat of sexual violence goes to the core of women’s subordination in society. It is the single greatest threat to the self-determination of South African women.”
Victims of sexual offences do not only face the institutional and societal barriers mentioned above, which stem from the historic treatment of women and crimes committed against their person. The problem starts long before such cases even reach the prosecutorial terrain. Psychological, social and economic circumstances dictate whether or not victims will even allow themselves to acknowledge the heinous crimes perpetrated against them. Reporting and the investigation of such crimes, once acknowledged, provide probably the greatest barrier to the attainment of retribution for these crimes.
It is impossible to overemphasise the grotesque nature of sexual offences. Because women are disproportionately the victims of sexual offences, men are unable to fully appreciate the social setting or the underlying threat of violence that all women (regardless of class) perceive on a day to day basis. The commission of a sexual offence is so detestable and the violation so deep that a rape victim in the Uber gang case, currently before the South African courts, testified that she begged her assailant to kill her instead of raping her. A plea for death in place of the violation of rape is indicative of the depths of its grotesqueness. It is not merely a physical violation but rather a psychological one with severe consequences on the development of the human person if perpetrated against a person as a child. It is the psychological trauma which plays the most significant role in the reporting aspect (or lack thereof) of sexual offences. The trauma is so severe that victims may struggle for the rest of their lives to process what happened to them. This is one of the factors (aside from economic and social) which results in delayed or non-reporting of sexual offences.
Although 50% of South African women experience sexual violence in their lifetime, with 75% of South African men perpetrating violence against women, only 35.5% of these sexual offences are reported to the South African Police Services (“SAPS”). Additionally, one in five South African children are sexually abused by the age of 17 years. Of the 35.5% of sexual offences reported, between 40%-60% of them are withdrawn by either SAPS or the National Prosecuting Authority (“NPA”), predominantly on the basis that the charges are ‘false’, and only 8.6% of these cases see a successful conviction. There is a widely held view by police personnel that women lie about rape to, for example, blackmail their ex-lovers into paying maintenance. Another major deterrent for reporting sexual offences is that SAPS have a reputation for perpetrating the same crime against the victim when reporting the matter. In other words, if victims of sexual abuse ever pluck up the courage to report these atrocious offences they still have the police, prosecution and courts to contend with. This has been labelled as secondary trauma or stigmatisation.
The obscenely high rate of sexual offences committed in South Africa and low rate of conviction, which is equally as obscene, is a societal issue. This is not only demonstrated by the failures of law enforcement officials, but by the attitude of the perpetrators themselves (and the community that creates this enabling environment). When asked why they commit these crimes, the majority of South African sexual abusers answered that they do it out of boredom, for fun or because they’re entitled to. This perception is not unique to perpetrators, but filters through every level of South African society and state structures. If we do not correct our views on mutual respect and hold one another’s dignity in highest esteem, no amount of legal reform or specialised training will reduce these crimes or improve conviction rates.
By Lee-Anne Germanos, Legal Researcher, HSF, 18 April 2019
Masiya v Director of Public Prosecutions, Pretoria  ZACC 9.
L Artz and D Smythe, ‘Should we consent: Rape Law Reform in South Africa’ Juta 2008 at pg 75.
S v Jackson (35/97)  ZASCA 13 at pg 12.
 Section 60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
Prosecutor v Akayesu case ICTR-96-4-T.
Campbell Scientific Africa (Pty) Ltd v Simmers & Others (2016) 37 ILJ 116 (LAC) at para 20.
 Ibid fn2 at pg 27.
Namibian High Court in S v M in Bothma v Els  ZACC 27 at para 57.
Ibid fn2 at pg 24.
Ibid fn1 at para 24.
Ibid fn1 at para 36.
Carmichele v Minister of Safety and Security (CCT 48/00)  ZACC 22.
Supra at para 62.
Ellison v Brudy in L Fitzgerald and S Swan ‘Why Didn’t She Just Report Him? The Psychological and Legal Implications of Women’s Responses to Sexual Harassment’ (1995) 51 Journal of Social Issues 117 at 125.
 2011 report of Gender Links and South African Medical Research Council in ‘Report of the Special Rapporteur on Violence Against Women, its causes and consequences on her mission to South Africa’ UN A/HRC/3242/Add.2 14 June 2016 at para 11
2016/2017 Victims of Crime Survey in Fourth Respondent’s Submission at para 35.2.3 in Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others (CCT170/17)  ZACC 16.
Ibid fn16 at para 29.
2000 report by the Information Analysis Centre in L Artz and D Smythe, ‘Should we consent: Rape Law Reform in South Africa’ Juta 2008 at pg 200.
 South African Medical Research Council, ‘Rape Justice in South Africa’ 2017 report.
Ibid fn2 at pg 210.
Ibid fn2 at pg 213.
Ibid fn16 at para 29.