Opinionista Sheena Swemmer 3 March 2019

Attempted rape is not treated as a serious offence in SA law

If all sexual offences can result in similar trauma, and should not be distinguished from rape in other ways, why don’t they carry the same kinds of sentences?

On 21 February, more than three years after sexually violating a fellow learner at Hyde Park High School, Bradford Kyd was convicted of attempted rape by the Wynberg Magistrate’s Court. The court sentenced him to eight years in prison (with four years suspended) for his actions. After attending court over the past three years, there was a feeling of relief and some form of justice when Kyd was taken down the stairs to the holding cells to begin his four-year prison term.

It is relatively rare, in our country, to receive a guilty finding for sexual offences such as rape. The Medical Research Council, for example, has examined a representative sample of reported rapes in the country and their journey through the criminal justice system — from how the cases were investigated by police to whether they were prosecuted and finally whether they resulted in convictions. Their findings captured in the report Rape Justice in South Africa show that only 8.6% of rape cases ended with a guilty verdict.

We cannot, however, celebrate this single conviction when there is evidently a misunderstanding of the seriousness of all sexual offences which is clear from the way sentences are handed down for these crimes.

It is now commonly accepted in our law that the trauma resulting from any sexual violation, not only rape, is serious and those sexual offences must be treated equally seriously in law. The Constitutional Court acknowledged this in its recent judgment Levenstein and Others v Frankel and Others, stating “sexual offences may differ in form, but the psychological harm they all produce may be similar”. The court declared unconstitutional a part of our criminal law which imposed time limits for prosecuting most sexual offences, but not rape.

If all sexual offences can result in similar trauma, and should not be distinguished from rape in other ways, why don’t all of them carry the same kinds of sentences?

Rape is a criminal offence which carries a minimum mandatory discretionary sentence. This means that a judge or magistrate must sentence someone convicted of rape to a prison term not less than the minimum sentence prescribed by law — unless they find a compelling reason not to do so. The minimum mandatory discretionary sentence for rape ranges from 15 years for a first offence, to 20 years for a second offence, to 25 years for a third or subsequent offence.

Again, if the consequences for sexual offences are similar, why does only rape fall under the scope of minimum mandatory sentencing? The failure to include all sexual offences may speak to the view that some sexual offences are not as harmful to survivors as others, as well as the idea that there needs to be some physical harm (or penetration) for an offence to be judged as “serious”.

Then again, the very idea of “minimum mandatory discretionary sentencing” is also something of a contradiction in terms. There is both legislation making a particular sentence mandatory, yet also discretion to abandon these minimums. There is a pervasive issue around the balance between these two features.

Diverging from minimum sentences is only permissible under the Criminal Law Amendment Act, where judges and magistrates find substantial and compelling reasons to do so put forward by the person convicted of rape.

Yet, in the same Medical Research Council study outlined above, life sentences were handed down for rape in 11.7% of convictions, while sentences of five to 10 years were handed down in the remaining cases. That means, in about 88.3% of rapes, judges and magistrates found that there were substantial and compelling reasons to deviate from prescribed sentencing.

Some of the reasons considered included whether the perpetrator was a “breadwinner”, the age of the perpetrator, whether the perpetrator was a first-time offender and whether the perpetrator had children of his own.

Judicial officers, it seems, may hold problematic views around the seriousness of rape which manifests when they decide not to apply a minimum sentence.

This is evident in a recent high court case, Magi v S, where the court found that “although the rape in question was serious… it could not by any stretch of imagination be described as one of the worst kinds of rape” — leading the appeal court to decrease the mandated life sentence to 20 years’ imprisonment.

By doing so, the court effectively ignored the Criminal Law Amendment Act and created a new ground requiring a rape to be of a “sufficient seriousness” rather than focusing on substantial and compelling reasons not to give a minimum sentence.

There are two important developments that must take place for the law to be aligned with victims’ rights as set out in our Constitution.

First, all sexual offences must be acknowledged as being equally serious and thus be included under minimum mandatory discretionary sentencing and, second, judges and magistrates must follow the Criminal Law Amendment Act and only divert from mandated sentencing when there is truly a substantial or compelling reason to do so. DM

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