Cape Town-26-11-2013:This 11 year old girl from Witsands in Atlantis was raped by a 16 year boy . Her mother is holding her Pix Patrick Louw story Genevieve

A recent appeal case shows sexual abuse of a child is taken far more seriously than when the woman is 79, says Carmel Rickard.

Help me here, people: I don’t understand Parliament’s position on elder rape. Why is it that raping a child attracts a mandatory life sentence, but there’s no similar punishment for raping someone in her eighties?

It’s a question you have to ask following an appeal judgment this week dealing with the rape of an elderly woman.

The case comes from the high court in Pretoria and was written by Acting Judge Daniel Thulare with the agreement of Judge Joseph Raulinga.

The appeal involved Bafana Benny Chauke, convicted of having raped his elderly neighbour in 2008. No one doubts Chauke committed the crime – quite the reverse, as you’ll see – and his appeal related only to the life sentence imposed by the trial court.

Life sentence is mandatory for some crimes. For example, you will be sentenced to life if you rape someone repeatedly or are part of a gang rape; if you rape someone knowing you are HIV positive; if you rape someone under 16; if your target is someone mentally disabled; or if you rape someone who “is a physically disabled person, who, due to his or her physical disability, is rendered particularly vulnerable”.

The courts ensure that justice is done to the individual offender even under a mandatory sentence regime by saying this sentence should not be imposed if there are “substantial and compelling circumstances” to pass a different – read shorter – sentence. When Chauke raped his 79-year-old neighbour he flaunted his identity.

As the court put it, he was “so daring that he caused the elder to light up the house for her to see him and also proudly told her who he was, calculated to belittle and embarrass her”.

Her injuries, observed by the doctor who examined her next day, included “multiple abrasions” and tears to her vaginal area. There were also abrasions and bruising on her arms, around her eyes and on her face and chest, all evidence of assault. The court quoted further from the medical report: the woman “was groaning, moaning and shivering at the time of the medical examination”.

Having established that Chauke raped the elderly woman, the court moved on to his circumstances and wrote a full paragraph about his age. “Generally it is accepted, in our country, that one qualifies to be titled a youth until the age of 35.

“At 36, when the offence was committed, (Chauke) was advanced in life. He had fully developed and had reached the age of maturity.

“He is deemed to have reached the stage of being complete as a human being. I venture to suggest that (he) had reached a point where he should fully account for his actions.”

Chauke had five previous convictions for offences committed between the ages of 19 and 22 – assault, assault with intent to do grievous bodily harm and culpable homicide.

These were committed when Chauke was “still a child”, said the court, and the punishments included referral to a reformatory school.

So far we are following the court, but there’s no preparation for what happens next.

The presiding officer in the trial had a duty to make sure she received a proper report on Chauke, said the judges, so she could devise an appropriate sentence taking into account his “individual needs and interests”. By not doing so she arrived at the sentence “arbitrarily”.

“It is not surprising, in my view, that it (Chauke’s sentence) is disproportionately harsh,” the judge concluded. Chauke’s “disposition” was a “consistent knock for attention” on a door “that seems closed and barred”. His “aptitude” called for “programmes for correction that only a proper analysis can discern”.

The court therefore changed the sentence to one of 20 years, to run from December 2009.

Several things confuse me about this judgment. Why didn’t the appeal court call for a report on Chauke of the sort it had in mind? Why is there no comment on the heinous nature of elder rape, and the great damage done to a vulnerable elderly person in such a case?

Why was there so little – virtually nothing, in fact – from the court justifying its view that a life sentence was “disproportionately harsh”? The minimum sentence law makes the youth of a rapist’s target grounds for a serious sentence, but there’s no automatic provision for that sentence when the person raped is elderly. Why did Parliament overlook the vulnerability of old people? I just don’t get it.

* Carmel Rickard is a legal affairs specialist.

** The views expressed heer are not necessarily those of Independent Newspapers.

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