The adequacy of rape criminalisation in modern South Africa: A comparative study

Abstract

In the past fifteen years, South Africa has embarked on substantial reform of its sexual offences laws. In many respects, these reforms are like those in other jurisdictions, addressing issues of definition and sentencing. Yet the country’s rape statistics remain startlingly high, and rape sentencing remains inconsistent. To assess the adequacy of rape criminalisation in South Africa, this article starts off with an overview of relevant local case law. It becomes clear that, although the state is not always consistent in prosecuting the accused of all variants of sexual penetration, prosecution in terms of the current, broader definition of rape is common, as is the imposition of minimum sentences for these convictions. Also, courts remain inconsistent in interpreting which factors should count as substantial and compelling circumstances to justify a lesser sentence. A comparative look at the legal position in England and Canada firstly confirms that rape remains a global concern, and that South Africa is not the only jurisdiction that has grappled with defining and sentencing the offence. Yet South Africa could stand to learn a few lessons from these two countries to further improve its law on rape. Recommendations include adopting a more succinct definition of rape, introducing more conduct-specific charges and sentencing (similar to England’s ‘assault by penetration’), and providing a well-defined list of substantial and compelling circumstances to establish greater legal clarity in the sentencing of rape offenders.