Condom no mitigation against rape - judge

Published Jul 9, 2024


Wearing a condom can never be a mitigating factor to warrant a lesser sentence for rape - especially if the victim is a child.

This is according to the Gauteng High Court, Pretoria, who turned down the appeal lodged by convicted rapist Thomas Malesa, against his life imprisonment sentence meted out to him for raping a 12-year-old child.

He was earlier sentenced by the Benoni Regional Court, but he is now complaining that his sentence is shockingly high. According to him a sentence of 10 years imprisonment would have been more fair.

He was 44-years-old in 2017 when he raped the child. The appellant overheard her conversing with a friend that she wanted to own a memory card in order to play gospel music.

On the day of the incident, he invited her to his room to fetch the memory card. On her arrival he made her undress and raped her. He was using a condom which came off twice. He replaced the condom each time with another.

He stopped raping the child when he was caught by her uncle. The police were called, and he was arrested.

In sentencing him, the lower court commented that the victim was “so tiny and frail.” It was found that Malesa preyed on the child in view of her home circumstances. He lured her to his shack under the pretext that he was going to give her a memory card.

Malesa said the fact that he had pleaded guilty should also be taken into account in his sentencing, as he thus “showed remorse.”

But the court said from the facts of this case it could be inferred that the appellant was not remorseful; but rather regretful that he was caught by the complainant’s uncle.

Regarding his argument that he should receive a more lenient sentence and hat he had used a condom, the court said: “As a point of departure, the appellant was not supposed to rape the complainant at all… Taking into account the evidence in totality, his use of a condom in the process of violating a child young enough to be his own, cannot by any means be considered as heroic and is irrelevant.”

In further pleading for mercy, Malesa argued that the child did not suffer severe injuries.

But the court said the act of rape on its own was brutal. Various courts have expressed their disdain about rape and found that the offence of rape is serious and prevalent in the jurisdictional areas of the court.

The judge commented that rape is a humiliating, degrading and brutal invasion of the privacy, dignity and the person of the victim, and is an appalling and utterly outrageous crime which violates a woman’s body.

In confirming the life sentence, the court noted that gender based violence against women and children was a serious scourge.

“This society gets raped and or sometimes killed with impunity. The courts do their best in imposing the ultimate sentence, that of life imprisonment, but some perpetrators of these hideous crimes, like the appellant, are not deterred. There is no other way except to impose a sentence according to what is prescribed in the legislation,” the court said.

Pretoria News

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