Lenient child rape sentences ‘undermine justice’
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A special review judgment delivered in the Durban High Court, with two judges concurring, recently reviewed and set aside the sentences that magistrate K Bodlani imposed on rapists in the uMlazi Regional Court, describing her decisions in the cases involving minors as “shocking” and “deviating disproportionately” from the prescribed minimum sentence of life imprisonment for the rape of a minor.
The cases were referred for special review by the acting regional court president for KwaZulu-Natal and the uMlazi regional magistrate.
Bodlani had imposed a sentence on the first accused of five years’ imprisonment, wholly suspended for seven years, for the rape of his 11-year-old daughter, and on the second accused a sentence of 10 years’ imprisonment, half of which was suspended for 10 years, for the rape of a10-year-old girl.
She handed down a sentence to a third accused of four years’ imprisonment, suspended for six years for the rape of a 15-year-old girl.
In a fourth rape matter sent on review, a sentence of 25 years was handed down by Bodlani with a non-parole period of 18 years for the accused.
In the special review judgment, the court described the sentencing in the first three matters as “not only shockingly inappropriate” but said it had the potential to undermine the administration of justice.
“The community and the public in general will lose faith in the ability of the courts to dispense fair and appropriate justice and will be aghast that the offenders who have preyed on vulnerable children will be allowed into the community without appropriate retribution and rehabilitation,” the judgment read.
The judges said while sentences must be “tempered by mercy”, the magistrate in the matters under review appeared to have been “totally overcome by mercy” and became “impervious to the significance and weight” of the facts and other factors.
“There is simply no correlation between the facts and the sentences imposed in each of these matters. In (the first matter) the magistrate seems to have been satisfied that it was in the best interests of the child to be exposed to the very person who abused her trust and sexually violated her,” it read.
The judgment also said the magistrate had “lost sight of her own finding that the accused deliberately exposed the complainant to HIV” in the second matter.
In the third matter, it appeared that she had accepted “intoxication” - which had not been proved in the trial - as a strong mitigating factor in sentencing.
In the fourth matter, the judges found that the sentence imposed was incompetent as the non-parole period fixed was contrary to the sentencing provisions of the Criminal Procedure Act.
The review judgment ordered that all four matters be referred back to the uMlazi Magistrate’s Court for sentencing proceedings to be heard afresh before another magistrate.
Child Rights and Child Protection consultant Joan van Niekerk said the sentences had been imposed without the specialist assessment of trauma to the victim and of the offenders’ ability to rehabilitate.
“We know that physically children heal very rapidly - within a couple of days trauma doctors say there can be no signs of physical trauma, but there is the emotional trauma.
“The child raped by her father is a particularly heinous crime because he has the responsibility to protect her from harm,” she said.
“The other issue is the use of alcohol, which is not a mitigating factor, you still have to take responsibility for your actions. It is a dangerous view from this perspective because it will raise an expectation among other offenders. This magistrate needs to be retrained. She appears to have no concept of trauma to children, the rehabilitation ability of offenders and the appropriateness of sentencing,” she said.
Women and Men Against Child Abuse founding director Miranda Jordan said the decision to set aside the sentences was “excellent” but action needed to be taken to retrain the magistrate.
“This crime robs the victim of childhood and adulthood, and there are ramifications, both psychological and physical. The impact is long term because the child will need therapy for most of its life, or in certain stages of its life, like becoming a teenager or getting into a sexual relationship.”
“This crime is viewed seriously by all of society, including our Justice Department which says the minimum sentence is 25 years’ imprisonment. We have national child protection weeks, and 16 days of activism and still we have someone who deviates from the minimum sentence,” she said.