Alleged child rapist must be prosecuted, Concourt rules

2011-06-14 12:27

The Constitutional Court has ruled that an accused child rapist should be brought to book after he tried to escape prosecution through a legal technicality.

The man had argued in lower courts that he could not be prosecuted because section 69 of the Criminal Law (sexual offences and related matters) Amendment Act had only come into effect on December 16 2007 – more than two years after he allegedly raped a three-year-old girl.

He was charged in 2009, for the reported rape which allegedly took place in 2005.

The new law, which changed rape from a common law crime into a statutory crime, came into effect in 2007.

The man also argued that he couldn’t be charged with common law rape because under the Amendment Act, rape no longer existed as a common law crime.

It now existed as a statutory crime, which means that it is defined according to new rules, including that men – and not only women – could be raped, and including anal and oral penetration in the definition of sexual offences.

The magistrates court upheld his objection, saying that section 69 “did not provide for prosecution in circumstances where the alleged crime was committed before the Act came into force but the investigation was initiated after that date”.

It referred the matter to the high court, which ruled that section 69 was unconstitutional, and ordered that the wording of the law be altered.

It was then referred to the Constitutional Court to confirm the high court order.

However, the Constitutional Court, in a unanimous judgment, found that the man’s reasoning was so absurd that it could not be taken seriously.

“It is impossible to interpret the provisions to render any sexual offences incapable of prosecution,” stated the Constitutional Court judgment today.

“This would lead to absurdity so glaring that it could never have been contemplated by the legislature.”

The Constitutional Court ruled that the section was not invalid, and declared that “section 69 does not preclude the investigation, prosecution or punishment of the common law offence of rape committed before December 16 2007”. 

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