Rape: Know your rights

2010-05-24 00:00

A WOMAN is raped in South Africa every 17 seconds. Only one in 36 rape cases is reported, and of those, only 15% result in a conviction. SouthAfrica has one of the highest incidences of rape, and the lowest conviction rates in the world.

The reasons are complex — but are related to the grotesquely high levels of inequality in our society, together with the fact that our society is a damaged and traumatised one.

The law on rape in South Africa has undergone significant changes, and is now regarded as progressive and hard to fault. The problem lies with the implementation of the law.

Under the old law, only a man could commit the crime of rape, and no form of penetration besides that of a penis into a vagina would suffice. Under the new definition of rape, a woman can be charged and found guilty of the crime of rape, as can a man who has used an object to forcefully penetrate another in a sexual manner.

Consent is a defence to a charge of rape. However, there are circumstances where that consent would be invalid. This would be where the consent was not given voluntarily, or where the person did not understand what she or he was consenting to. Maybe the person was too young (under the age of 16) or mentally impaired to have the capacity to consent. It could also be where she or he was deceived about the nature of the act to which she or he was consenting. It is not unheard of for rapists to conceal their true identity, and there are many cases where rapists have exploited vulnerable individuals by pretending that the rape was a therapeutic intervention, or a legitimate form of punishment.

Forcing a person to agree to sex will always negate the consent. This could involve threats of violence, but would also extend to an abuse of authority, for example, where an employer threatens to withhold a promotion from the employee, or promises that a person will be given a job if she or he has sex with him or her. This is a very real problem in the South African workplace.

The rape of children, and even babies, takes place regularly throughout South Africa. For many, this is the most shocking crime imaginable. The sad reality is that such cases are particularly difficult to prosecute because of the age of the victim. Although our law has special procedures to protect the child witness, the system still places them at a severe disadvantage. And where a baby is raped, it is often impossible to identify the rapist unless he or she is caught in the act.

Another change introduced to the old law of rape is that being married to a person is not an automatic consent to sex. Spouses must give their consent each time. If consent is withheld, and sex is forced — a conviction of rape can follow. This type of offence occurs most often — but not exclusively — when spouses have separated, but not yet divorced.

The new law has other provisions that are aimed at protecting the health of victims of rape. There are now laws for the provision of post-exposure prophylaxis and antiretroviral medication, as well as other health-care interventions, including the morning-after pill, an HIV test and treatment for any other sexually transmitted infections.

Even if you do not want to report the incident to the police, it is vitally important that you go to a hospital or doctor within 72 hours of the attack so that the right treatment can be given to you. Remember that even if you do not want to report the attack to the police (for whatever reason), you are still entitled to this medical assistance.

• Suhayfa Bhamjee is a senior lecturer in the School of Law, University of Kwa-Zulu-Natal (Pietermaritzburg campus).

THE Pietermaritzburg campus of the Law Faculty of the University of KwaZulu-Natal is celebrating its centenary this year.

As part of its centenary celebrations, legal academics from the Pietermaritzburg campus will be publishing a series of articles on current legal developments, and other interesting topics in The Witness. The series will run over the course of a year, and the articles will appear fortnightly. The intention of the series is to provide useful and stimulating information to Witness readers, and also to provide a link between the law faculty and the broader community. The topics to be dealt with are wide-ranging and will cover the spectrum from constitutional law to employment law and criminal law and beyond. There will also be comment on developments in the legal profession, the criminal justice system and within the Department of Justice itself.

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