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Court rules on anal penetration

2007-05-10 11:26

Johannesburg - Non-consensual penetration of a man's anus does not constitute rape, the Constitutional Court ruled on Thursday.

However non-consensual penetration of a woman's anus does, the court found.

Delivering the judgment Justice Nkabinde found that extending the definition to include penetration of a man encroached on legislative terrain.

The court overturned the conviction of Fanuel Setakeni Masiya for the rape of a nine-year-old girl found to have been anally but not vaginally penetrated.

It found that the extended definition of rape could not be applied retrospectively to Masiya. It came into effect from the date of judgment.

While rape of a minor carried a minimum sentence of life imprisonment, there is no prescribed sentence for indecent assault.

The court found that Masiya's crime was one of indecent assault, not rape, and referred the case back to the Pretoria Regional Court for sentencing.

- SAPA

Comments have been closed for this article.

Globo 5/10/2007 11:33:19 AM
O , now I understand. Why didn't I think of this before..
mark 5/10/2007 11:40:10 AM
We have become a sick society!!! So a man can be brutalised in such a horrific way but it is not considered to be rape! What an insult to our nation and its people.I wonder what the innocent victims in our prisons will think about this.?
mosvms 5/10/2007 11:45:16 AM
How low is the country going to sikn before we get to the point of no return. This incredible judgment wouldn't be in the interests of the Government who do nothing to protect prisioners in jail who are subjected to this type of abhorrent crime?
Horrified 5/10/2007 11:46:33 AM
That's ludicrous! Maybe his honourable Justice Nkabinde should be sodomised against his will before he'd rethink his ruling. This is really shocking...
Ranter 5/10/2007 11:46:42 AM
Only a women could make this kind of ruling. How on Earth are the two any diffrent? How in the World can Non-consensual penetration of a man's anus not be rape? The Constitutional Court has failed every single man in this country. Well done!
MP 5/10/2007 11:47:03 AM
Can't see how a man can be raped any other way..
Craig 5/10/2007 11:47:11 AM
Why is anal penetration of a woman rape but of a man not? This is illogical and ridiculous!
John Camp 5/10/2007 11:47:53 AM
This just goes to show how 3rd world SA actually is. We must be the laughing stock of the world. Lawless! And people wonder why crime is on the up. We have people like "Justice" Nkabinde to thank.
Willem Esterhuyse 5/10/2007 11:55:19 AM
Once read the following: "There is right and wrong and the two are very distinct when you look straight at them." The constitutional court's "finding" is absurd, as is the overturned conviction. The problem is that people's sense of right and wrong is totally screwed.
Mishka 5/10/2007 11:55:51 AM
I think our justice system should be reviewed by whoever writes them. The above mentioned ruling is wrong and i'm sure many people will agree. It's no suprise i guess. If the courts evicted Zuma for rape and it wasn't even anal, this doesn't suprise me at all. Sam
Aubrey Mochela 5/10/2007 11:59:15 AM
I think anyone who touches a child sexually should be sentenced to death. The issue around forced anal penetration of men not being classified as rape is wrong. If my 10 year old son is anally penetrated by a 40 year old man, you wont call it rape. I think the culprit deserves dearth sentence. If I have a 18 gay son who is penetrated forcefully by someone this should be rape more especially after agreeing that same sex can marry. Our courts / constitution can be confusing at times.
Mike 5/10/2007 12:00:59 PM
Anal or vaginall penertration , male or female , adult or child.If it is forced on you , its RAPE.The person doing the forcing should be hung by the neck .There are is no in between,I was on drugs or booze ur Honour.Thats why I did it .Hang them all, that abuse the children and the weak. Mike
LM 5/10/2007 12:03:57 PM
In a country with one of the highest rape stats in the world (if not the highest), A country where babies are raped!!!!! How can anyone live in such a place?
gen 5/10/2007 12:04:09 PM
how can the standard differ between men and women? that is ridiculous, it is rape not indecent assualt. Non-consensual penetration of a man's anus IS rape. i am shocked at this, i really am. if i was a man i would be so angry at the outcome of this judgement. it is actually demeaning.
Bryan 5/10/2007 12:05:09 PM
What happened to our constitution of no discrimination between genders? Or is the constitution only applied selectively? Yet again the criminal wins and the victim loses.
Koos 5/10/2007 12:05:41 PM
Holding a landlord responsible for a municipalities failure to collect water and lights, legalising gay marriages, now this. We deserve the high crime rates we have, because we are led by people who have no sense of right and wrong!!!
GT 5/10/2007 12:08:13 PM
that's exactly what I think anyway ...
Darren 5/10/2007 12:09:38 PM
Now that's democracy!
Rediculous 5/10/2007 12:10:11 PM
Justice Nkabinde - what were you thinking? A normal man on the street could have called this one correctly. NON-CONSENSUAL IS RAPE !!!!!
Rod 5/10/2007 12:12:44 PM
This is indicative of our eroding values in the justice system. To over turn a judgement of a 9 year old girls transgressor is sick. I hope all those who sit on the panel sleep well at night. However, I doubt this, as their wage packages more than compensate for the guilt. Forced penetration is rape!!!!!!!!!! Lets hope that Justice Nkabinde's family member's are not subject to this idiotic precident.
Jason 5/10/2007 12:13:11 PM
has our legal system completely lost the plot? What an absurd ruling - incredulous!
TK 5/10/2007 12:13:24 PM
They cant be serious, this is pathetic. So someone being violated is just ok? I cant believe it!
Christiaan 5/10/2007 12:15:24 PM
How can any rightminded person make a ruling like this. Any compromise without consent of anybody's body should constitute a criminal offence and penetration should always be rape whether oral, anal or vaginal! We are all equal!
WCS 5/10/2007 12:16:56 PM
The SA Bill of Rights states... "Human Dignity. Everyone has inherent dignity and the right to have their dignity respected and protected." Aren't we supposed to be protected by our Constitution, whether male or female, adult or child?
Wil 5/10/2007 12:22:09 PM
Men and Women are equal in our country or that is what i thought. The people who make these laws dont really think what they doing because if they do then we as South Africans are in alot of trouble.
Mark 5/10/2007 12:24:04 PM
This judgement is crazy and makes no sense at all.The Public Protector and the Gender Commision should both fight this absurd ruling on behalf of all males who have been victims of this horrific largely unreported crime.Justice Nkabinde has given crimminals a new tool to brutalise an already cowared nation.
KG 5/10/2007 12:26:23 PM
I understood the Constitutional Court to be the final arbiter of justice and upholder of human dignity. I was obviously wrong.
Sibusiso Zithulele 5/10/2007 12:27:26 PM
I don`t agree with Justice Nkabinde when he says if it is a male it is not rape. My friend was on trial and was over powered by and gang raped and was infcted with STD in the prosess.He tride to report the matter the following day and nothing was done by the authority instead he was transfered to the hosptital and guess what he Died. Now my question is what are the human rights and when and where do they applie?
mgom 5/10/2007 12:27:55 PM
The actual action constitute rape not on whom or what is done.
alf De Melo 5/10/2007 12:29:46 PM
Somebody should show Justice Nkabinde pictures of the human body and explain them to him. What a banana...i can only say that it's laughable.
chick 5/10/2007 12:31:45 PM
This government consists out of lawful protection to the criminals or anything found to be criminal. Victims unfortunately pull at the far end of this governmental ridicule. SA protects their criminals, whereby the victims stand no chance, and seemingly never will. Consideration for death penalty should be given to those who are causing this disaster infact!
frank cobain 5/10/2007 12:33:11 PM
I would like to see the Constitutional Court attempt to explain how they came to the decision that only forced female anal penetration is rape? Surely that smacks of gender discrimination, which is against the constitution?
JOKE !! 5/10/2007 12:34:14 PM
Non consensual penetration, Zuma an honorary priest.... i'm sorry, this country is an absolute joke, never mind other crimes, time to look at other not so greener pastures at least they get basic human rights correct !!!
Waterboer 5/10/2007 12:35:59 PM
Who are these people, do they have common sense, i don't think so. Just show that we have more compassion with the purpetrator than the victim in south africa.
Willem 5/10/2007 12:37:08 PM
I think the judge need to spent a night in Polsmoor before he can judge on a subject like this. In what age does he live? Willem Mulder
Jake 5/10/2007 12:38:35 PM
If this is the ruling of the constitutional court then justice is better served at the hands of the victims. I will lose my mind if sexual transgression of ANY kind is committed against anyone of my family, and the punishment I shall inflict on the guilty party shall be legendary. I agree wholeheartedly with Aubrey Mochela and Mike. This ruling is idiotic.
Mom of boys 5/10/2007 12:38:43 PM
I feel physically ill knowing that Masiya will soon be back on the streets to rape another child. Knowing how the law can protect him, he will probably turn his focus on little boys, as then he is not a rapist! Lock up your sons! How is it that someone can force themselves upon you in the most disgraceful way and not be brought to book about it? Justice Nkabinde - you've failed us, you've failed us, you've failed us!
Sean 5/10/2007 12:38:49 PM
Redefine rape and suddenly the rape stats look better, no matter the moral ramifications, and I thought nothing that happened in SA could still surprise me !!!
JS 5/10/2007 12:42:07 PM
The bigger concern her is that if Justice Nkabinde can get something so simple wrong, how can the public have trust in Justice Nkabinde to rule on more complicated matters?
JS 5/10/2007 12:42:50 PM
The bigger concern here is that if Justice Nkabinde can get something so simple wrong, how can the public have trust in Justice Nkabinde to rule on more complicated matters?
Dee 5/10/2007 12:44:49 PM
Rape is rape, whether its is anal or vaginal, male or female. Lets hope not too many rapists get to hear about this one! The law has just created a huge loophole which I'm sure will be fully taken advantage of by the criminals who commit these atrocities.
BC 5/10/2007 12:45:25 PM
To think that Justice Nkabinde has the privledge and honor to make a good impact on the law abiding citizens of the country, to protect the innocent. He maybe appointed into a position of power and has the muscle to change laws but unfortunately he lacks the grey muscle between his ears ? his brain. But I am sure what he lacks with brains he makes up with the combination of stupidity and stubborness. Now that combination is probably more dangerous than a rapist!!
Lepeke 5/10/2007 12:46:24 PM
Non-consensual anal penetration is a rape irrespective of whether a victim is male or female. Anyway how will a man get raped except through anus? I'm of the view that judgement on this issue required common sense other than anything else.
Dennis 5/10/2007 12:47:48 PM
Ridicolous, Another step to protect the criminals in our country, instead of the tax payers. Now this is a just reflection of the government
Sipho 5/10/2007 12:48:35 PM
The honourable judge must know very well as a law expert that a rape is a rape irrespective of how that act was performed as long as it was non-consensual and again whether you're a male or female.
Zero 5/10/2007 12:49:46 PM
So what would Justice Nkabinde like to call it?
ElectroMan 5/10/2007 12:51:29 PM
Maybe the judge ruled this way, because Gay marriages are not recognized as heterosexual marriages and therefor it will be contradicting the constitution if he rules that a man can penetrate a man lawfully and therefor be seen as rape...
Tsiko 5/10/2007 12:57:35 PM
It appears from I read here that the learned Judge said that it is for the legislator to determine the definition of rape. Furthermore, the conviction may have been overturned but was it replaced with a conviction for something else? PLEASE report responsibly on matters like these..?
Gillian 5/10/2007 12:59:07 PM
If any act is non consensual and the word NO was mentioned then it is rape, be it anal or otherwise, I am the mother of boys and if anyone were to touch them in that way I would hang for what I would do to the RAPIST, NO IS NO
Bella 5/10/2007 12:59:43 PM
Shocking! Any form of sexcual abbuse is rape. If a man gets penetrated against his will it is rape. The perpetrator is having sex, he is not assaulting him. The fact that there was never a law stating that this is a form of rape reflects very badly. This will be great for future rapists. They have been given a loophole to a different kind of rape. Well done Justice Nkabinde.Why not just hand rapists little boys on a platter while you're at it. And they wonder why people are leaving the country.-B
Realmkeeper 5/10/2007 12:59:47 PM
This Judge really needs to get fired. As a constitutional judge he has made himself guilty of sexism. The SA constitution does not define race, sex or background before the law. That meens he has just brought the bill of rights into disrepute by defining protection based on sex for a universal crime. By his judgment he has confirmed that the mechanics of anal rape, be it to a male, female or child is the same, but confirmed that the Legal system is still baised towards sex and race.
S 5/10/2007 1:01:39 PM
How on earth would extending this definition "encroach on legislative domain"? This sounds like a case of using legal jargon to cover up a pretty flimsy reason (whatever that may be)
Kido 5/10/2007 1:02:22 PM
Nonsense, It's non-consensual! So this justice system is really backward!! Criminal in jail can "rape" others and not be charged.
Lebiog 5/10/2007 1:02:56 PM
This country needs to re-look the selection of judges. They are supposed to protect the nation, male, female, the elderly and children. Exactly what is the selection criteria?. The way it sounds any plain idiot can become a judge.
Cynic 5/10/2007 1:05:50 PM
Clearly Honourable Nkabinde has lost the plot.
Motsamai 5/10/2007 1:09:20 PM
What differentiation did the court make of this.Rape is rape and sebono ke sebono by anyother name.What the law is doing now is protecting women only and putting a lot of young,unconsenting boys to risk in a country so rife with rape and HIV.This is highly disgusting from a a country with such a democratic constitution.Do they realise the impact this will have on male rape since it is now legal for gay-marriages?
Dissapointed Mom and Wife... 5/10/2007 1:10:50 PM
I cannot believe this! This is an insult to the man of our country - He himself is a man (I suppose), he should've known better than to make such a rulling. What would he say if the tables were turned??? Maybe that's what should happen! Vaginal and anus penetration in men and women IS rape - Other countries recognise. We will really be the laughing stock of the century.
Japie 5/10/2007 1:13:31 PM
The SA Bill of Rights states... "Human Dignity. Everyone has inherent dignity and the right to have their dignity respected and protected." what a load of bull!!!! 13 pages on the rights of a criminal and one (1) page on the rights of the victim!!!With a President like ours what else do you expect!!! Japie
Thula 5/10/2007 1:14:07 PM
If we sit back, we will be culpable. If we do not go out and forcefully protest the decision we will be singing the same song many years to come. We can change the constitution as we elected the mindless leaders

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