No condom means longer jail

2010-12-04 00:00


THREE appeal court judges have found unanimously that if a man rapes a woman without wearing a condom it constitutes an aggravating factor.

This is the first time the appeal court has sent a signal to the country’s courts that rape without a condom must be regarded as aggravating for imposing the minimum sentence of life imprisonment for rape.

They were delivering judgment in the case in which Patrick Booysen from the Eastern Cape was sent to prison for life for raping a 10-year-old girl.

Booysen was appealing his sentence only.

Appeal court judges Visvanathan Ponnan, Nonkosi Mhlantla and Zukisa Tshiqi rejected the appeal, saying, among other things, the fact that Booysen did not even put on a condom before taking away an innocent child’s virginity is yet another aggravating factor.

“The whole world is fighting the HIV and Aids pandemic. The majority of rape victims do not have only the physical, emotional and psychological problems of a rape to deal with, but are, in addition, subjected to the stigma of Aids and HIV.

“The child was assaulted just because she was defenceless. The aggravating circumstances justify no other sentence than life imprisonment,” the judges said.

Pretoria legal expert Marinus Wiechers says this is the first time an appeal court has issued such a warning about condoms.

“I am in favour of it, as long as the courts are not under the impression that a rapist who does wear a condom should get any sentence lighter than life imprisonment.”

However, Pietermaritzburg women’s lobby groups said rapists who use condoms should not be treated better than other rapists.

“By using a condom it does not mean that the rapist is showing concern for the victim. Maybe he is just protecting himself from getting HIV,” said Justice and Women manager Jenny Bell.

Childline’s national advocacy and training manager, Joan van Niekerk, said using a condom during rape means the perpetrator had planned the crime.

“Those who use condoms should get a heavier sentence.

“They normally use condoms to escape detection. Their act is not impulsive,” she said.

Debbie Harrison, local Lifeline and Rape Crisis director, also differed with the judges.

“If they were the kind of men who like to protect women [from getting HIV and Aids] they would not be rapists. They should get a stiffer sentence. They use condoms to avoid leaving forensic evidence behind,” she said.

Debbie Harrison Lifeline/Rape Crisis

They should get a stiffer sentence. They use condoms to avoid leaving forensic evidence.

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