MEMORANDUM

To: Chairperson: Joint Monitoring Committee on Improvement of Quality of Life and Status of Women

Copy: Secretary to Parliament

From: Legal Services Office

Date: 13 June 2007

Subject: Summary of the Constitutional Court decision in Masiya v the Director of Public Prosecutions (Pretoria) and Another which extended the common law definition of rape

1. In light of the recent Constitutional Court (hereafter the Court) decision in Masiya v the Director of Public Prosecutions (Pretoria) and Another - as yet unreported and hereafter referred to as Masiya), which extended the common law definition of rape, on 12 June 2007 you requested me to provide a written legal opinion which summarises the judgment and delineates the new legal definition of rape.

Background

2. An accused appeared in the Regional Magistrate's Court on a charge of rape of a nine-year-old girl. The evidence established that he had penetrated the complainant an ally, which in terms of the common law at that time necessitated a conviction on the offence of indecent assault, which is a competent verdict to rape. The Magistrate, however on his own accord, extended the common law definition of rape to include the non-consensual penetration of the penis into the vagina or anus of a person. The Magistrate amended the definition of rape to be gender-neutral on the basis that distinction between non-consensual penile penetration of the anus of a female or male, on the one hand, and of the vagina, on the other, is irrational, archaic and discriminatory.

3. The matter was referred to the High Court for confirmation. The High Court expressed the view that as indecent assault attracts a more lenient sentence than rape it results in "inadequate protection and discriminatory sentencing" (Masiya, para 15). The High Court thus confirmed the conviction of rape.

4. The High Court also held that the existing definition of rape was constitutionally invalid and as such developed the definition to include nonconsensual anal penetration in gender-neutral terms. The High Court furthermore held that consequential amendments had to be made to certain provisions of the Criminal Procedure Act 51 of 1977 and the Criminal Law Amendment Act 105 of 1997 to make it gender-neutral and consistent with the new definition.

5. The decision of the High Court was then referred to the Constitutional Court for confirmation in terms of section 172(2)(a) of the Constitution.

Judgment of the Constitutional Court

6. Nkabinde J, writing for the majority of the Court noted that historically, the crime of rape evolved as a patriarchal concept. She however pointed out that since the advent of our constitutional dispensation, which is based on the democratic values of human dignity, equality and freedom, "there is and has been a gradual movement towards recognition of a female as the survivor of rape rather than other antiquated interests or societal morals being at the core of the definition. The focus is on the breach of a more specific right such as 'the right to bodily integrity' and 'security of the person' and the 'right to be protected from degradation and abuse'. The crime of rape should therefore be seen in that context" (Masiya, para 25).

7. The Court noted that at the time the matter was being heard, in terms of the common law, rape was understood to mean "the (a) intentional (b) unlawful (c) sexual intercourse with a woman (d) without her consent" (Masiya, para 26). The element of unlawfulness here is based essentially on the absence of consent. The Court noted however that this definition of rape excluded nonconsensual penetration of the anus.

8. With regards to whether the Court could consider expanding the definition of rape to make it gender neutral, Nkabinde J held that while "it can hardly be said that non-consensual anal penetration of males is less degrading, humiliating and traumatic" (Masiya, para 30) as the facts before her dealt only with the penetration of the anus of a young girl, it did not require her to consider whether or not the definition should be amended to include male rape.

9. Nkabinde J held that while the common law definition presupposed nonconsensual sexual penetration of a vagina and excluded the anus, it "was not unconstitutional in so far as it criminalises unacceptable social conduct that is in violation of constitutional rights [as iJt ensures that the constitutional right to be free from all forms of violence, whether public or private, as well as the right to dignity and equality are protected" (Masiya, para 27).

10. The Court was of the view that to invalidate the definition of rape because it is under exclusive, would be to throw the baby out with the bath water. Instead Nkabinde J held that Court needed to examine whether the definition of rape could be extended to include anal penetration so as to promote the spirit, purport and objects of the Bill of Rights.

11.ln this regard the Court expressed the view that non-consensual anal penetration of women and young girls constituted a form of violence against them equal in intensity and impact to that of non-consensual vaginal penetration. (Masiya, para 37).

12. Furthermore it also noted that while the consequences caused by nonconsensual anal penetration might be different to those caused by nonconsensual penetration of the vagina, « the trauma associated with the former is just as humiliating, degrading and physically hurtful as that associated with the latter" and as such the inclusion of penetration of the anus of a female by a penis in the definition of rape will increase the extent to which the traditionally vulnerable and disadvantaged group will be protected by and benefit from the law.

13. As such, Nkabinde J held that the common law definition of rape be extended to include the non-consensual anal penetration of a woman. She held that adopting this approach would harmonise the common law with the spirit, purport and objects of the Bill of Rights.

Adv M R Vassen Parliamentary Legal Adviser