Defining the crime of rape under South African law : a reconsideration

Abstract

The study undertaken is concerned with the reformulation of the common law crime of rape from a juridical and socio-psychological perspective. It is based on the premise that the common law definition of rape is insufficient. Specific attention is given to the current crime of rape and the proposed amendments introduced by the South African Law Commission. In the haste to transpose the concept of gender-neutrality implemented in other countries to the crime of rape in South Africa, the basic reasoning behind why the crime of rape should be extended to certain categories of victim has been neglected. Rape as a form of penetrative sexual assault is critically examined. The focus of this study is to identify categories of penetrative sexual assault victim in order to justify the extension of the crime to certain victims and to facilitate the application of an extended definition to factual situations. The classification of victims is accomplished with reference to psycho-social data in order to provide a plausible explanation as to why the crime of rape, which was originally created as a property crime, should be extended to additional victims. The common law crimes which can be applied to penetrative sexual assault victims are critically examined. A comparative overview of the definitions of rape adopted in Australia, Britain and the United States of America is undertaken. An investigation is also undertaken into the impact of HIV on rape victims. The extension of the definition of rape to persons who engage in unprotected sexual intercourse with a person who intentionally exposes him or her to the HIV virus or another life threatening illness is examined. The possibility of consolidating the common law crimes into a statutory offence applicable to harmful HIV related behaviour for purposes of expediency and deterrence is examined. A perspective is therefore provided as to the motivation behind why additional penetrative sexual assault victims should be classified as rape victims. The efficiency of the current and proposed definitions of rape is highlighted and examined. Where lacunae are established, solutions are proposed.