Pretoria - In terms of the Sexual Offences Act, any form of penetration is now classified as rape and could see a child rapist get life in jail, but a judge questioned whether an act such as oral sex with a child indeed deserved the highest sentence.
Pretoria High Court Judge Ferdi Preller on Wednesday gave a stepfather a lifeline by overturning his three life term sentences on three charges of rape and child pornography charges.
The judge overturned two of the rape charges and some of the pornographic charges, and instead sentenced him to a 10-year jail term, half of which was suspended.
In 2011, the man was sentenced in a Limpopo regional court, but turned to the high court to appeal against his convictions and sentences.
The stepfather, a soldier in a Limpopo town, was said to have raped his 10-year-old stepdaughter by, among others, committing an oral sexual deed with her. As this constituted penetration in terms of the act, he was convicted of rape.
Commenting on this, Judge Preller said: “Any form of penetration is now classified as rape and is subject to the prescribed minimum sentence (life imprisonment). That includes fellatio and probably cunnilingus as well, if the tongue of the penetrator should enter the (private) parts of the victim.
“It was obviously the intention of legislators that an indecent act with a minor should receive a heavier sentence if it involves any form of penetration. One wonders though if it can really be the intention in the case of cunnilingus when a literal slip of the tongue could make the difference between something like five years’ imprisonment and life.”
In this case police confiscated hundreds of pictures at the home of the victim and her parents. These show images of sexual deeds with unidentified people, but also depict the child and accused in an act of oral sex.
A medical report stated the child is still a virgin and had not been penetrated by other means.
In overturning two of the rape charges based on the pictures handed to court, the judge said it could not be said it was the accused and the victim in the pictures. While the child was adamant it was her, the judge said this was not proved beyond reasonable doubt.
The mother, now living with her new lover, claimed she recognised her child’s thigh on one of the pictures and her then-husband’s foot on another. Judge Preller rejected this evidence on appeal.
He, however, confirmed a charge relating to the stepfather showing the child pornographic images of him and his wife having sex. The judge said it appears both the accused and his wife had a “predilection” for pornography and they at times filmed and stored their acts on a computer kept in their bedroom.
“The wife was no shrinking violet in this regard,” the judge said.
The police’s child protection unit recovered hundreds of pictures from the then-couple’s home. But Judge Preller said the sometimes blurry pictures did not, beyond any reasonable doubt, depict sexual acts with minors.
He stressed nothing in his judgment condoned what the stepfather had done and sexual molestation of a minor remained a serious crime. But the father had a “blatantly unfair” trial as the magistrate seemed biased. He did not think the accused was a hardened criminal and he had probably “more than learned” his lesson in jail pending the appeal.
Pretoria News