Crimes Against Bodily Integrity Flashcards
Part 2
Rape
What is the common law definition of rape?
-the unlawful and intentional sexual intercourse by a man with a woman per vagina without consent.
-Anal penetration whether with male or female was not regarded as rape but punished in terms of indecent assault. Oral penetration indecent assault.
-Male rape did not exist in common law.
-Rape by means of objects did not exist in terms of the common law position.
Rape
What is the statutory definition of rape?
-Any person (‘A’) who unlawfully and intentionally commits an act of sexual penetration with a complainant (‘B’), without the consent of B, is guilty of the offence of rape.
-The core of the crime of rape is found in the definition of sexual penetration.
Rape
What is statutory complled rape?
Sec 4 of SOA
Any person who unlawfully and intentionally compels a third person without his/her consent to commit an act of sexual penetration with a complainant without his/her consent, is guilty of the crime of compelled rape
Rape
What did the M case state regarding rape?
FACTS: Rape case where the wife lured and enabled (by holding the complainant down) her husband to rape the complainant.
The wife was found to be guilty as an accomplice of the rape - as her actions do not satisfy the definitional element of the crime - common law rape.
Rape
What did the SM case state regarding Rape?
-The complainant was 15 years of age when the prosecution took place. The complainant was adopted by the appellant and his wife, when she was 7 years of age
-As time progressed, an intimate relationship developed between herself and the appellant. The appellant would give her various gifts in return for sexual favours. \
-This eventually lead to the appealant raping the complainant
>The appellant relied on consent as a defence and stated that the complainant had never objected to the acts.
>However, the complainant’s version was that due to the fact that she was already an adopted child, she feared that she would be again be placed in a foster home. She also feared that the appellant would hurt her physically or even assault her
>The court had to assess whether consent should operate as a defence. In this case, the court rejected the appellant’s defence of consent + held that the complainant only complied to the requests out of fear of losing a home, and a family set-up,
>thus there was no valid consent. The court further held that the accused abused his position of power/authority- as an adoptive parent.
Rape
What did the C case state regarding rape?
- The complainant and her husband and children were celebrating their December holidays.
- The complainant decided she was tired and went inside the lodge room to rest.
-During the evening, she woke up and found someone on top of her. She thought this was husband, and then fell asleep again without checking.
-Later, in the evening - the husband entered the room, and he slept on the other bed (there were two beds in the bedroom).
-The man had sexual intercourse with her again, and she then noticed that this man was not her husband and she started screaming.
-The accused was then found in the surrounding neighbourhood and was charged with rape.
-The accused defence was that she consented to the sexual intercourse as she did not protest against the act.
=The court rejected this argument/defence as the complainant thought it was her husband, she did not consent to the act - as there was fraud to the identity, and thus no valid consent.
In order for valid consent to be present, the consent must relate to both the person (identity) and the act/deed taking place.
Rape
What did the K case sate regarding intoxication and rape?
-Alcohol and drugs (where Y is intoxicated, then consent will be absent)
- The complainant and the accused then had sexual intercourse. Later the complainant filed a case of rape, and stated that she had not constented to the sex - as she was drunk/intoxicated.
- The court only had the evidence of the complainant in terms of the rape charge, and it was also found that the complainant was not a reliable witness - thus the court found that she was not able to prove the lack of consent (she was not heavily intoxicated to the extent where she could not consent).
=The prosecution could not prove a lack of consent beyond reasonable doubt and the accused was found NOT guilty of rape.
Rape
What is the relationship between mental illness and rape?
A mentally ill person is incapale of consenting to a sexual act
Rape
What is the relationship between cultural practices and rape according to the Jezile case?
-The accusused took a 14 year old +married her, lobola negotations were instituted against teh accused’s will
-At some point, the 14 year old left the home of the male/accused and went back to her parent’s home.
-When the accused found her, he sexually assaulted her on numerous occasions and raped her on 7 different occasions.
-The accused was charged with sexual assault and rape. He was convicted in the trial court and appealed against the conviction.
-He relied on the defence of ukuthwala, namely that a cultural marriage had been concluded between the accused and the complainant. He argued that the trial court misdirected itself, by not applying itself within the context of the practice of ukuthwala.
-His defence was that the complainant had consented to all the sexual acts, and as far as the ukuthwala practice, it is often the particular victim - consents to the acts, however, would show a pretence of resistance that is not actually resistance
Rape
What did the court uphold in the Jezile case regarding cultural practices +rape?
-An expert witness to provide testimony as to what the ukuthwala practice entails, and the expert testified that the characteristics of ukuthwala generally entail that the woman has to be of marriageable age,Consent by both parties is essential to perform ukuthwala, the process usually entails a “mock abduction” of the female, during which the women will pretend to resist, but who have in actual fact have agreed to be abducted.
-According to the expert;s evidence, ukuthwala does not amount to the conclusion of a marriage, but rather is a forms of negotiation for marriage.
In this case, the court had regard to the Constitution, and the complainant’s constitutional right, and this was an aberrant form of ukuthwala - where the complainat was taken without her consent. Which led to serious assaults being perpetrated on her
-On appeal, the court rejected and the accused’s reliance on the ukuthwala practice, and he was found guilty, and the appeal was dismissed.
Rape
What did the Coko case state regarding the withdrawal of consent?
-Mere submission to an act does not constitute valid consent
-Any subsequent engagement in a sexual act after the withdrawal of consent will constitute the crime of rape
Rape
Can the crime of rape happen in isolation according to the Swart case?
-Swart lured the victim to his home under the false pretense that she would do his wifes nails
-BUT the accused raped teh complainant and then robbed her by withdrawing money from her account
-The accused was charged with two counts of rape, sexual assault, kidnapping( for tying the complainant and thus limiting her movement) and fraud (for the withdrawal of money from ATM card) and theft (stealing a watch, jewellery and money) and was found guilty of all the listed crimes
-The crime of rape does not occur in isolation
Rape
How does the doctrine of common purpose relate to the crime of rape?
-The case dealt with common law and NOT statutory rape. The group of appellants one evening lodged an attack in the Tembisa. Attacked homes of various victims. During the course of these attacks, 9 females were raped. The appellants were charged with quite a few crimes, and among these crimes, they were charged with the crime of rape.However, not all of the appellants committed the crime of rape.
-In the trial court, the appellants argued that they can not be charged with the crime of rape based on the doctrine of common purpose, because rape is an orthographic offence, which a person can only commit with their own body.
T-he trial court rejected the argument and found them all guilty of the crime of rape.
-The CC held the doctrine of common purpose can apply to the crime of common law rape.
Rape
Why can common purpose not apply to the statutory definition of rape?
STATUTORY position is that anyone who assists in rape under the statutory position is an accomplice - as rape is an orthographic offence/crime.
The reason why CP cannot apply to rape is that the perpetrator is identifiable, thus there is an identifiable perpetrator and further is an orthagraphic crime.
Kidnapping
What is the crime of kidnapping?
Kidnapping consists of unlawfully and intentionally depriving a person of his or her freedom of movement and/or, if such person is under the age of 18 years, the custodians of their right to control over the child.
