ABSTRACT

The present statutory definition of raoe wa narrow with respect to both gender and age,
rape was an act of sexual intercourse by a man with a women. Rape is not committed
with intent to sexual satisfaction alone. The victim experience serious physical injurt and
they inneed of medical care along with psychological counselling when they want to adjust
and to reenter society without difficulty. Common prejudices against rape victims are that
women and children cannot be raped against their will and that many victims contribute
to rape by dressing seductively.
LIST OF ABBREVIATION AND ACRONYMS
TABLE OF CONTENTS
1. Introduction………………………………………………………………..

2. Problem statement……………………………………………………….

3. Hypothesis………………………………………………………………..
4. Points of departure and assumptions………………………………….

5. Proposed chapter outlay………………………………………………../

6. Decription of proposed research method………………………………
7. Conclusion………………………………………………………………..
8. Bibliography……………………………………………………………….
 1. Introduction.

Rape is known as a type of sexual assault which involves male person and a famel
person into sexual intercourse or different structures of sexual infiltration carried
out with a person without their consent or assent.1 The acton may be carried out
by using physical force or oercion. Rape is a social problem that is viewd differently
across culture globally. The types of rapes are such as date rape, gang rape,
maritail rape, incestual rape, child sexual rape and statutory rape. Rape crime is
one of the darkest of the society, it have a long lasting impacts on victims. Rape is
than any physical wounds. Rape causes people to live with fears and trauma,
effect women with sexual health risk taking behaviours and places some at greater
risk for contracting HIV,STI, pregnancy and rare cases death.2 Rape is a complex
crime to investigate, it is difficult to prevent, and to the social stigma attached to
rape has made it difficult for victims to report it.

The crime statutory rape refers to the intercourse pr other specified tp]ype of
sexual contract with a minor.3 A minor who are below the age of consent cannot
legally consent to having sex. This means that sexual ontract with a minor violates
the law regardless of whether te minor gives a signal or agreement. Different
countries and cultures had defferin views of the act of rape as some cultures allow
kidnapping and rape as a means of force into agreeing to marry the perpetrator.4
Rape is recognised under international criminal law as a crime against humanity
and an act of henocide. However rape can be difened as a physical invasion of a
sexual nature, committed on a person under circumstances that are coercive.5

In the South African law, there are different types of penetration which causes the
same violation, and harm, the sentenced must be the same as other sexual
offences. South Africa has the highest instances of rape when compared to other
countries. 15000 cases of rape are reportated in each year. However, rape is a
crime of power exerted by men against a women. The South African courts is
tasked with the responsibility to protect and advance human rights including the
right to rape victims. In Masiya case, the Constitutional court, it extended the
definition of rape to include non-consensual and anaul penetration of a female bt
male sexual organ.6

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 However, as long a rape is defined as an act of sec, the violent nature of the crime
will be ignored. Changing the definition of the crime can only improve the presently
misdirected perception of the crime. The Law Commission states that rape is a
distinct sexual crime and is definitely to be distinguished from unnatural sexual
intercourse.7 In addition, this research will focus on the lefislations that are
resoinsible for drafting the law of rape. the main proble arising is the law that
protect the rape victims rights. It provides with the cases concerns the
development of the common law to protect rape victims rights.

The Masiya case will be discussed as the main case and also the Criminal law
Amendment Act,8 that places its focus to provide an enabling environment that
reconciled the criminal justice system eith the experience of the victims by
introducing ways to prevent victims violations and criminalise various forms of
sexual violence. And also the Constitution will be considered. Furthermore, this
research also looks at the comparison between the current law ad common law of
rape in South Africa.

2. Problem statement.

Rape is one of the most complex offences in the history of the law. This research
is to investigate the current definition of crime rape and to incorporate victioms of
rape who are currently excluded. On the basis of the preceding theme analysis
and conceptualisation whereby the field of research is clearly identified, the
research seek to answer the following arising questions:
a) Is the current common law definition of rape thr appropriate crime to be
extended to incorporate other victims of rape?
b) Who are the different categories of victims of rape?
c) Are the existing crimes relating to rape suffient?
d) Will the new proposed definition of rape as suggested by the South African Law
Commission adequately protect all victims of rape?
e) How the new definition affect both men and women?
f) Whether they are the prepetrators or victioms of the rape crime?
South African Law Commision (SALC) states that rape consists in unlawful
intentional sexual intercourse with a women without he consent. 9The elements pg
consent confers a unique quality to the crime of rape, as consent id a defence
which could be raeised bt accused. The crime of rape is however difeined in terms
of lack of consent.
3. Hypothesis

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 This research focuses on the definition of rape in terms of common and current
law states that rape is the product of a society which denigrates women in South
Africa. It is a comparative studt to a certain legal position for laws regarding rape
victims or offenders in South Africa. It also focuses to establish that all the
perpetrators and victims can be meaningfully covered by an umbrella crime of
rape. as the right to privacy and dignity were raised. Thr research will show thrt,
indde victims of rape do have rights contained in various legislative instruments.

4. Points of departure and assumptions.

The research point of departure is completely fron the constitutional law

perspective. The first point of departure is from legislation which protects victims
of rape. The Constitution will be used as a starting point in this research as it is the
Suprime law of the Republic and no other law may conflict with it is invalid. The
Criminal Law Act (CLA) does not contain any sentencing clause dealing with the
offence of rape or any other offence as created bt the Act. The legislation will be
of assistance in helping South African to fight against the high rising number of
rape amongst our communities.10 Secondly, a comparative method approach will
be used. The current status of crime of rape in South Africa will be examined to
allow a comparison between common law and the new sexual offence Act, and it
will also established whether any current South African crime can incorporate a
broad spectrum of penetrative rape offence.11

Common law.
According to common law, rape is defined as the unlawful, intentional, sexual
intercouse with a women without her consent. The common law definition of rape
is insufficient it excludes the majority of thr possible categories of victim of rape. it
denies protection of male who have been raped bt female perpetration both inside
and outside of marriage, female victims of forced sexual penetration per anum both
inside and outside marriage, male and female children of forced rape per anum
and per vaginam, male, female and children victims of rape who have been anally,
orally, dignitally and object raped and victims of consensual sexual intercourse
where perpetrator HIV/AIDS status was deliberatwlt withheld from them. It protect
part of the female population.

The definition of rape may be reduced to five essential elements that prosecution
need to prove existed beyond reasonable doubt in order for criminal liability to
result. Those essential element may be retracted, sexual penetration per
unlawfulness, intentionally,12 sexual pernetration with a women, withput consent. 13

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 a) Unlawfulness- the common defence for an accused would be consent, so if
consent bt thr women could be shown then the accused was not guily. Prior
to the Prevention of Family Violence Act,14 it indicates that t was not
unlawful for man to rape his wife as acts of forced penetrative were not
identified as rape. the provision ensure that a husband can be convicted of
raping his wife. A boy could be guily of rape fro the age of 7 upwards.15

b) Sexual intercourse with a women. Rape with a wpmen could only be

committed bt penetration of the vigana by the penis. The victim of the
offence could only be a wpmen.16 It was legally impossible for the offence
to be perprtrated against a man. A women could never qualify as a
perpetrator to rape, whether she coused the Mn to rape her, per vaginam
or per anum against his will or inserted a digit or object into anus of a man.17

c) Without the consent- Consent is defined in section 1(2) as an agreement by

choice and freedom and capacity to make choice. 18 Absence of consent is
an essential element of forcible rape. generally, in order to subtain a
conviction for rape, a judge need to prove only that a victim did not consent
to the sexual intercourse. Forcible intercourse with a n unconscious woman
is considered to be without her consent and amount to rape.

d) Intentionally- The requirement for intention id from mens rea, it entails that
a men is a fault where he intentionally commits the unlawful conduct
knowing it to be unlawful.19 If the assudef subjuctively belived that a women
consented, be may escape liability. In the light the men is aware that his
conduct or act is unlawfull, nwertheless he proceed to do it.
The new definition of rape.
Rape in South Africa is now regulated under Sexual Offence and Related Matters
Amendment.20 The Act repealed the Common law definition of rape and replaced
ith with a statutory crime of rape which is applicable to all forms or categories of
sexual penetration and it a non-gender specific. In tearm of section 3 of the Act,21
rape is defines as any person who unlawfully and intentionally commits an acts of
sexual penetration with another person without that persons consent is guilty of
rape. the new definition protects the victims of rape in cases where a person rapes

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 another in the mount, o anus and any part of the body. The new Act consist of the
following elements without consent, intentionally and unlawfully are similar to the
common law Act.
The is only one element which is different, which is the sexual penetration, in terms
of this Act sexual penetration includes any act which causes an penetration to
extent whatever by either genital organs of a human being or an animal, any part
of the body of one person, any part of the body of an animal. The aim of the new
Act is to includes all sexual offences in one law to make sure that both men and
woman can use he law with regard to sexual cimes, make sure that government
department work toghetr to protect complaints from unfair treatment ot tauma,
make the age where both men and women can give consent to have sex which is
16 yers old.
Assumptions
Section 12 of the Constitution explicitly guarantees the right to freedom from all
forms of violence from either public or private. The Constitution also recognises
the right to life for everyone, and provides for the interent dignity of every
indu=ividual and the right to have dignity respected and protected.22
5. Proposed chapter outlay
Chapter 1 This chapter serves as an introduction
which set out the terms and contact of
the research. The chapter further sets
out the problem statement, the
hypothesis and th methodology of thr
research
Chapter 2 This chapter will establishe who are the
victims of forced penetrative sexual
assault.
Chapter 3 In this chapter a comparative
perspective on the crime of rape in
South Africa is drawn between the
current and common law.
Chapter 4 This will be the final chapter of the
research. As evaluations and
recommendatons are made.

6. Description of proposed research method.

This research will make use of comperative approach as I will be using this type of
method to compare the definition of Rape in the current and commin law in South
Africa. I will be using thr sources such as case law, reports bt the South African

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 Law Commission and also South African legislation when providing the definition
of rape. different legislation will ne cited to show that victims do have rights. A
qualitative research will be used.

7. Conclusion.

The inclusion of the offence of co,pelled rape bt the Sexual offence Act 2007 can
therefore not be seen as a restatement of the positive law, seen as a new offence
which is directed at protecting the rights and interests of the victims. However it is
difficult to have one unfied generic definitiob of rape as rapre occur in different
situations, can constitute radically different harms and also have different
meanings for victims.23 Criminal Act has the effect tat a whole lot of contrasting
acts can now be charged as rape including those acts committed not eith sexual
gratification in mind.

In conclusion I find the Sexual offence and Related Matters sufficient as it is what
exactly the South African Criminal Law needed to cure the unfair and
discriminatory definition of the rape. In terms of Common law it also attaches much
required degree of sterness to the offence of rape. the present definition of rape
seems to be in accordance with section 9(3) of the constitution of South Africa.

In terms of sentencing, the Criminal Law Amendement does not contain ant
sentencing clouse dealing with the offence of rape. The courts is still continuing
relying of Act 105 of 1997.24 Section 51 contains the minimum sentences which
may be handed down and determines what an accused person should prove of he
or she submits that he or she should receive a lesser sentence. The courts are
bound by the imposition of minimum sentences except where ab accused cn show
substaintaial and compelling circumstances which justifies the deviation from the
prescribed minimum sentence. The CLAA stipultes life sentence for rape.25

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