Case Note: Constitutional Court changes law around gang rapes

On 11 December 2019, the Constitutional Court handed down a monumental judgment in a case that tested the doctrine of common purpose in cases of common law rape. Under common purpose, a person is guilty if they were part of a group that committed the act, whether they physically committed the act or not.

The applicants had reasoned that common law rape requires the element of penetration/insertion of the male sexual organ into the female sexual organ, as such, any person who does not commit such an act would not be held criminally liable. However, the Court held that the doctrine of common purpose holds in matters of rape and, as such, rape is not limited to the physical involvement in the crime. The mere fact that they were committing these crimes as a group is reason enough that there was an agreeable purpose to their actions.

The Court went further to explore the deep effects that rape has on survivors. The court held that, “Rape is often mischaracterised as being an act of sexual intercourse, absent of consent, committed by inhumane monsters. This is a dangerous mischaracterisation of rape. Words matter. Words give a construction of a certain viewpoint of the world, and this viewpoint tends to be gendered… The requirement of sexual penetration is a legal requirement which relates to the biological element of sexual intercourse. For many victims and survivors of rape, they ‘do not experience rape as a sexual encounter but as a frightening, life-threatening attack’ and ‘as a moment of immense powerlessness and degradation.'”

The Court went on to say that “[r]ape, at its core, is an abuse of power expressed in a sexual way. It is characterised with power on one side and disempowerment and degradation on the other. Without more being said, we know which gender falls on which side. The notion that rape is committed by sexually deviant monsters with no self-control is misplaced.”

Lawyers against Abuse welcomes this judgment as it interprets the law in a way that understands the deep implications of rape for those that suffer it.

See full decision here:

By Beverly Gumede, LvA Legal Officer, and Ncumisa Sopazi, LvA Legal Assistant

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