Rape

COMMON LAW POSITION

 Definition: Rape is the unlawful, intentional sexual intercourse with a woman
by a man, without her consent
 Rape as a crime existed at common law and could also be defined as there
being a “carnal connection” without a woman’s consent

ELEMENTS
1. Unlawfulness
2. Intention
3. Sexual intercourse with a woman [by a man]
4. No consent
 It was a circumstance crime and causation was not required

Unlawfulness
 The most common defence for an accused would be consent, so if consent by
the woman could be shown then the accused was not guilty
 Compulsion was also a possible argument towards a ground of justification in
rape cases
 Pre-1993 a husband could not be guilty of raping his wife as he could raise a
“marital defence”, however this was abolished with s5 of the Prevention of
Family Violence Act.
 S1 of Law of Evidence and Criminal law Amendment Act 103 of 1987: A boy
could be guilty of rape from the age of 7 upwards. There is a rebuttable
presumption the child is innocent.

Intention
 The mens rea required is intention; if the accused subjectively believed that
a woman consented, he may escape liability.
 The accused must have intention to have sexual intercourse, knowing or
foreseeing that the woman did not consent (dolus eventualis is sufficient)

Sexual Intercourse with a Woman

 Rape could only be committed by penetration of the vagina by the penis,
hence a woman could never be guilty of raping another woman, or even of
raping a man
 Slightest penetration was sufficient (still valid today); there did not need to
be any semen or rupturing of the hymen
 Penetration with anything other than a penis was not rape
 Penetration of any other orifice was not considered rape

CASE: Masiya v Director of Public Prosecutions 2007, CC

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  Facts: A 9-year old girl was penetrated anally and according to the common
law definition this did not constitute rape but only indecent assault
 Court held: Common law definition of rape is unconstitutional and should be
extended to include anal penetration
 Comments: Snyman criticizes this on procedural grounds, claiming it is a
court’s role to interpret the law and not to make it.

 If a man persisted in having sex with a woman who originally consented

but changed her mind during the act (withdrew consent):

CASE: R v Handcock
 Facts: A woman commenced having sexual intercourse with the accused but
during the act she heard her employer coming and sought to withdraw
consent but the accused continued
 Court held: Accused was not guilty of rape as the withdrawal of consent
related to her employer finding out and not the sexual intercourse.

 If a woman (A) assisted a man in raping another woman (B), then A would
be guilty only as an accomplice (R v M)

No consent
 Positive resistance indicated lack of consent, but mere submission did not
amount to consent either (S v S).
 Consent is vitiated by threats of violence or duress:

CASE: R v Swiggelaar
Official capacity – submission – threats
 Facts: Accused was a policeman who came to the complainant’s home late at
night and ordered here to accompany him to the police station. She went
unwillingly and on the way he pushed her against a wall and told he would
have sexual intercourse with her. She protested but did not prevent him from
having sexual intercourse. He was convicted of rape. On appeal:
 Court held: Appellant’s conduct had reduced the complainant to a
frightened and tearful subjection at a time and place where a young woman
might well suffer some nervous fear for her own safety, and in his official
position and overwhelming physical superiority and possession of a revolver,
she submitted to the intercourse

CASE: S v Volschenk
Duress
 Facts: Accused was a detective constable and made a raid on a room in which
the complainant was sleeping. He drove her to an isolated spot where he
threatened her with prosecution of a criminal charge if she did not have
sexual intercourse with him. He was convicted of rape. On appeal:
 Court held: There was a threat of imprisonment so the intercourse that
followed was not obtained by consent

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  R v M: “It is essential that the victim’s resistance be overcome by fear, force
or fraud”

 A girl under the age of 12 was irrebuttably presumed to be incapable of

consenting to sexual intercourse (R v Z)
 A man who had intercourse with a woman who was “so devoid of reason
that she cannot exercise judgement at all” was guilty of rape (R v Ryperd
Boesman, SWA)

 A man who had sexual intercourse with a woman who was already dead
would be guilty of attempted rape only. However:

CASE: S v Brobeck (Tennessee)

 Facts: Accused was convicted of murder and rape but medical evidence
showed the woman was already dead at the time of the sexual intercourse.
On the issue of whether a victim had to be alive at the time of rape:
 Court held: There is nothing in the definition to indicate the woman must be
alive or dead. If consent is lacking because the woman is asleep or
unconscious, then there is no reason why this should not extend to the victim
being permanently unconscious in death. Reading the “live only” requirement
into the definition only encourages rapists to kill their victims.

 Fraud vitiates consent if it is either error in persona (mistake as to

identity) or error in negotio (mistake as to the fact)

CASE: R v C
Error in persona
 Facts: The complainant was a woman sleeping in her bedroom at night and in
the course of the evening she awoke and someone was having sexual
intercourse with her. Since it was at night and no lights were on she assumed
it was her husband so continued with the intercourse but realized a short
while later that it was not him. In fact, the accused, a stranger to the
complainant, had entered through the bedroom window and started having
sexual intercourse with her.
 Court held: A woman cannot be said to have consented unless there is
consent not only to the act but to the man concerned. The consent of a
woman, which prevents carnal intercourse from being rape, does not only
require a state of mind of being amenable to the act but also requires the
willingness too.

CASE: The Queen v Flattery

Error in negotio
 Facts: The accused professed to give medical and surgical advice for money.
The complainant was a 19-year old girl who consulted him with respect to an
illness from which she was suffering, and he advised that a surgical operation
should be performed but under the pretence of performing it he had sexual
intercourse with her

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  Court held: The only thing contemplated by the girl and her mother was the
surgical operation which is what she submitted to when the intercourse
occurred. She consented to one thing, he did another materially different on
which she had been prevented by his fraud by exercising her judgement and
will.

CASE: R v Williams
 Facts: A married woman agreed to have sexual intercourse with the accused
after he represented to her that he could remedy the displacement of her
womb. He raised the defence of consent
 Court held: Complainant was familiar with the act proposed and was not
deceived as to the act, only to the result pretended. Accused acquitted.

It became clear that this definition was inadequate as:

 Only vaginal penetration by a penis was accounted for
 Only women being raped
 Rape was a personal crime (S v Kimberley) so a person assisting in a
rape could only be an accomplice not a co-perpetrator
 Sodomy without consent was not considered rape (until S v Masiya but
this only accounted for a female being sodomized)

CURRENT POSITION
 Definition: “Any person (A) who unlawfully and intentionally commits an act
of sexual penetration with a complainant (B), without consent of B, is guilty
of the offence of rape”

CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT

ACT 32 OF 2007

s1(1) – “child”
(a) a person under the age of 18; or
(b) a person 12 years or older but under the age of 16 years.

s1 (1) – “Sexual penetration”

“sexual penetration” includes any act which causes penetration to any extent whatsoever by:
(a) the genital organs of one person into or beyond the genital organs, anus, or mouth of
another person;
(b) any other part of the body of one person or, any object, including any part of the body
of an animal, into or beyond the genital organs or anus of another person; or
(c) the genital organs of an animal, into or beyond the mouth of another person.

S1(2) – Meaning of consent

Consent means voluntary and uncoerced agreement

S1 (3) – Lack of consent

(a) Consent is not voluntary or uncoerced where B submits or is subjected to such a sexual act
as a result of -

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 (i) use of force or intimidation
(ii) threat of harm

(b) Where there is abuse of power or authority by A to the extent that B is inhibited from
indicating his/her unwillingness or resistance to the sexual act.
(c) Where the sexual act is committed under false pretences by fraudulent means, including
where B is led to believe by A that
(i) B is committing such a sexual act with a particular person who is in fact a different
person; or
(ii) Such a sexual act is something other than that act
(d) Where B is incapable in law of appreciating the nature of the sexual act, including where B
is, at the time of the commission of such sexual act -
(i) asleep
(ii) unconscious
(iii) in an altered state of consciousness (medicine, drugs, alcohol or other substance) to
the extent that B’s consciousness is adversely affected
(iv) a child below the age of 12 years
(v) a person who is mentally disabled.

S3 - Rape:
“Any person (A) who unlawfully and intentionally commits an act of sexual penetration with a
complainant (B), without consent of B, is guilty of the offence of rape”

S4 – Compelled Rape
Any person (A) who unlawfully and intentionally compels a third person (C) without the
consent of C, to commit an act of sexual penetration with a complainant (B), without consent
of B, is guilty of the offence of compelled rape.

S15 – Acts of consensual sexual penetration with certain children (statutory rape)
(1) Any person (A) who commits an act of sexual penetration with a child (B) is, despite the
consent of B to the commission of the act, guilty of the offence of having committed an act of
consensual sexual penetration with a child

S55 – Attempt, conspiracy, incitement or inducing another person to commit sexual

offence
Any person who
(a) attempts
(b) conspires with another person; or
(c) aids, abets, induces, incites, instigates, instructs, commands, counsels or procures another
person, to commit a sexual offence in terms of this Act, is guilty of an offence and may be
liable on conviction to the punishment to which a person convicted of actually committing that
offence would be liable.
Link this with “causes” in definition of sexual penetration

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S56 – Defences and Sentencing
(1) Marital defence does not suffice for a charge of rape or sexual assault
(2) When a person is charged with a consensual act of penetration with certain children it will
be a defence if that child deceived the accused person into believing he/she was 16 years or
older and the accused reasonably believed he/she was 16 years or older

CASE: S v Nyalunga 2004, TPD

 Facts: The accused raped a 26-year old woman and was aware of his HIV-
positive status but failed to disclose this.
 Court held: Accused was guilty of attempted murder as he was aware that
the virus could be spread by sexual intercourse and that it caused death and
he continued with the act nonetheless. This charge could also be used where
a victim is exposed to but not infected with HIV.
 R v Currier (Canada): criminal law does have a role to play in deterring those
infected with HIV from putting the lives of others at risk
 R v Williams (Canada): Accused was aware of his HIV-status and continued to
have unprotected sex with his partner without disclosing it to her.

COMMON LAW STATUTORY

 Only a woman could be raped Terms are gender-neutral, accounting
for men and women
 Rape could only occur by a man Gender-neutral terminology, men and
women may be guilty
 Vaginal penetration only Accounts for penetration in the anus
and mouth additionally
 Only per penile penetration Accounts for “any other part of the
body of a person”, “any
object”, any part of body of an animal
 Circumstance crime Consequence crime (“causes”)
 No co-perpetrators; eienhandige misdaad Co-perpetrators possible
(“causes”)

 The legislation is applicable to all forms of sexual penetration without

consent, irrespective of gender of perpetrators and victims.
 Indecent assault has also been replaced with sexual assault.
 Rape has now become a consequence crime which requires causation, and a
person assisting in a rape is no longer necessarily an accomplice as a person
who “causes” an act of sexual penetration is liable as a perpetrator (s1)
 Rape is therefore no longer a personal crime

ELEMENTS
1. Unlawfulness
2. Intention
3. Sexual penetration
4. Consent

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1) Unlawfulness
Rape will be unlawful if there is no ground of justification

2) Intention
 A must know that B did not or could not consent to the sexual penetration
 Dolus eventualis suffices

3) Sexual penetration
 s1 “sexual penetration”
 Additional points:
 Insertion of any body part, other than genital organs, into B’s mouth is not
sexual penetration
 Insertion of any foreign object into B’s mouth is not sexual penetration
 Surgically reconstructed or constructed penis inserted into
vagina/anus/mouth constitutes sexual penetration
 Slightest penetration is sufficient (common law rule)
 Woman can be guilty of rape where she has manipulated a man’s penis with
the result that she is sexually penetrated.

4) Consent
 S1(2) consent is voluntary or uncoerced agreement
 S1(3) instances where there is no consent:

Submission as a result of force, intimidation or threat [s1 (3) (a)]

 The previous view was that intercourse had to take place violently to qualify
as rape but now it is accepted that the victim could be fearful (R v
Swiggelaar) and submit
 Lack of resistance does not mean consent
 Fear aroused by threat of any kind will not be regarded as valid consent, even
if the threats are to a third party

Abuse by the accused of powers of authority [s1(3)(b)]

 If the accused expressly or tacitly used his position of power to influence Y to
consent, then it would not be valid consent
 Example: X police officer threatens to put Y in jail if she does not have
intercourse with him (S v Volschenk)

Consent obtained by fraud [s1(3)(c)]

 At common law fraud had to occur via error in persona or error in negotio;
this still exists under the Act but the Act has extended it to all forms of fraud

SENTENCING
An accused will be sentenced to life imprisonment in the following situations:
 Victim is raped more than once by the accused or co-perpetrator

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 Victim is raped by more than one person and such persons acted in common
purpose
 Where the accused had been convicted of 2 or more offences of rape but not
yet sentenced
 Where the accused knew he had HIV
 Where the victim was below 16 years of age
 Where the victim was disabled and so rendered vulnerable
 Where the victim is mentally ill (as per s1 of Mental Health Act)
 Where the rape involved the infliction of grievous bodily harm