Only nine out of every 100 child rape cases reported in South Africa resulted in a conviction in 2001 - but proposed legal and procedural changes in rape prosecution may turn the tide against the sexual abuse of children in 2003.
South Africa's rape rate has the dubious distinction of being one of the highest in the world, with 58 children a day estimated to be victims of rape or attempted rape during 2001.
Last year Safety and Security Minister Charles Nqakula said police had handled almost 16 000 cases of rape or attempted rape for children aged 17 or younger between January and September 2001.
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According to a report released by the South African Institute of Race Relations last month, minors were the victims in two out of every five rape or attempted rape cases.
| We want to change 'without her consent' to 'under coercive circumstances' |
The report said only half of all rape cases involving children reported to the police ended up in court in 1999, with more than 8 000 cases being withdrawn during police investigations or in court.
In 1998, following widespread public outrage over South Africa's frighteningly high rape statistics, the South African Law Commission initiated a study into how rape was defined and prosecuted.
The Sex Offences Project committee will publish the results of this four-year study in about a month, said committee member Bronwyn Pithey, who is a senior state advocate at the Sexual Offences and Community Affairs Unit of the National Directorate of Public Prosecutions in the Western Cape.
Pithey hopes the report will prompt re-examination of how rape is defined in South African law, and result in a greater number of successful convictions.
At present, the common law definition of rape describes it as "intentional unlawful sexual intercourse with a woman without her consent".
| 'The survivors don't go to the police station' |
According to Pithey, rape must involve the penetration of a vagina by a penis, so an abuser who sodomises his victim cannot be found guilty of rape. In this case they face the lesser charge of indecent assault.
"The current definition of rape excludes forced anal or oral sex and fails to make provision for male rape victims. Further, it does not allow for penetration with anything other than a penis to be defined as rape."
At present, the rape of a female under the age of 16 carries a minimum sentence of life imprisonment under certain conditions, with rape of a woman over 16 carrying a minimum 10-year sentence. There is no minimum sentence for indecent assault.
Pithey said the definition's phrase "without her consent" tended to make lawyers for the defence of the rape accused focus on proving that the alleged victim had consented to sex. This often led to victims feeling that they, and not their attacker, were on trial.
"We want to change 'without her consent' to 'under coercive circumstances', which will take the emphasis off defending the victim against implications that he or she was somehow responsible for what happened to them."
Pithey's job includes the establishment and management of sexual offences courts in the Western Cape. South Africa's first sexual offences court was established in Wynberg in 1993 and there are now between 20 to 30 partly to fully-fledged sexual offences courts around the country.
Pithey said sexual offences prosecutors had become increasingly involved in the investigation of rape cases, allowing them to guide police in the collection of evidence. Pithey argued that the new system had already resulted in quicker trials and more effective prosecution.
"The horror stories about rape survivors enduring court cases that go on for years are already becoming less common. Our turnover time for sexual offences cases has improved dramatically. On average, a rape trial now takes between six weeks and three months to conclude," Pithey said.
Wynberg's Court J, or "Thuthuleza Court", started to deal exclusively with rape cases involving children over 14 last August. Prosecutors work closely with the Thuthuleza ward at GF Jooste Hospital in Mannenberg - where rape survivors from Khayelitsha, Gugulethu and Mannenberg are taken by a dedicated ambulance unit to be examined and treated.
"The survivors don't go to the police station, they are examined and then interviewed by the police at the hospital," Pithey said.
- This article was originally published on page 4 of Daily News on January 16, 2003
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