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Video gang rape case provides test for legislation

Publish date: 24 April 2012
Issue Number: 475
Diary: Legalbrief Africa Old
Category: South Africa

The brutal gang-rape of a handicapped Soweto teenager - which was recorded on a cellphone - has made headlines around the world and put the international spotlight on the country's crime problems.

Legalbrief reports that the incident and the coverage it has received has also raised a number of legal issues. Eight suspects have been arrested and charged with kidnapping and raping the teenager. Seven of them, ranging from ages 14 to 20, were seen on the video; the other was a 37-year-old man found with the girl on Wednesday. The suspects appeared in the Roodepoort Magistrate's Court on Thursday. The Citizen reports that their case was postponed to Wednesday for further investigation, including a psychiatric evaluation of the victim. Preliminary charges against the accused include, rape, kidnapping, sexual assault, engaging in sex with a minor, committing sexual acts in the presence of a minor and possessing, creating and distribution of child pornography. National Prosecuting Authority spokesperson Mthunzi Mhaga said the ages of the suspects also complicated matters: 'We need to determine the condition of release in respect of the minors, because there are minors and there are adults involved - so we have postponed the case to conduct further investigations.'

The mother of the victim slammed authorities for neglecting to protect her when she was raped before, CNN reports. 'They failed me,' the mother said, referring to South African social welfare authorities who turned down a request to place her daughter in a safe house after the teen was first assaulted, according to the report. 'I asked them for help and they said there was no abuse in our home and no need to remove her,' the mother is quoted in the report as saying. The victim's mother - interviewed by CNN in the impoverished Soweto neighborhood of Bramfischer - claims her daughter was raped in 2009 by a Zimbabwean man who lured the girl into a field with the promise of apples. That case went to court, the mother said, but was thrown out. 'The magistrate said there was no evidence. I think it was because my daughter couldn't explain properly what happened to her in court. She often gets things confused. She could say something that happened today happened yesterday,' the mother reportedly said. Then the girl was raped again in 2010, she said: 'It's 2012 now, and I'm still waiting for DNA results.' Full report in The Citizen Full CNN report

The blaze of publicity and public interest around the videotaped gang rape could provide an important test of legislation around the handling of children in the criminal justice system, experts are quoted as saying in a Mail & Guardian Online report, which notes it could also show up shortcomings in the handling of rape cases. With 60 000 rapes reported in the past financial year - and in a week that also featured the sentencing of a boy who raped a girl in a toilet at a school in Tzaneen, and a report of a rape at a school in Soweto - the search for the victim of the recorded rape and debate around the incident have dominated headlines in SA and abroad. That is expected to put considerable pressure on police and prosecutors to both stick to the law and ensure swift passage of the case, in contrast to the many rape cases that remain unresolved, or take years to bring to a close. Recent legislation requires under-aged offenders to be diverted from the criminal justice system, and kept clear of prisons to a large extent - but that does not mean easy release to the custody of a guardian or lesser sentences, said Beatri Kruger, senior lecturer on criminal and medical law at the University of the Free State, and an expert on sexual offences and children's legal rights. 'Even for minors, prosecutors can oppose bail in the usual way if they feel there is a risk of intimidation of witnesses, for instance. Children need to be held under strict conditions, but they can be held.' Full Mail & Guardian Online report

The media's use of screen shots and audio clips from the video was 'highly problematic', a media analyst said. University of the Witwatersrand journalism professor Anton Harber said that while the media could argue that use of the images and audio were in the public interest, the footage should be used only with 'extreme caution and sensitivity'. 'However, it would be ludicrous to charge the media over this.' A report on the News24 site notes Mhaga said the NPA had 'reservations' about use of the video by the media. The material would be used as evidence when the matter went to court and could be compromised if it were published or broadcast. He also warned the public against accessing the video, as it was child pornography. The video was apparently filmed on a cellphone camera and depicted a 17-year-old girl being raped by at least seven males. Full report on the News24 site

SA's tolerance of sexual violence had led to an increase in attacks 'which are being carried out with impunity', according to Sonke Gender Justice Network spokesperson Mbuyiselo Botha in a report in The Times. 'These attacks are carried out because of a sense of entitlement. In SA, women are fair game, with men carrying out attacks because they know they will get away with it. 'The group mentality around gang rapes comes from young people wanting to prove themselves as real men, masculine, strong and in control. The thinking is that, to be in control, you must conquer a woman, with those involved in such rapes feeding off and affirming each other's bravery and dominance. Botha warned the 'ritual-like' attacks were becoming worse. Full report in The Times

The Daily Dispatch says the incident indicts many components of a troubled South African society: 'Rape is indeed an epidemic, but it is not endemic. It afflicts some parts of our society, but is not common to all of us. If this girl's tragic life is to mean anything, the exposure of her long ordeal must be the turning point in our degenerating attitude to social responsibility. Like receiving stolen goods or taking or paying a bribe, seeing a crime and ignoring it is in itself a crime against the society we seek to build. If each of us is willing to stand up for what we believe in, these scourges that threaten to take us down can be eradicated.' Full Daily Dispatch editorial

Interpol says SA is the world's rape capital - and claims very few rape cases are reported to police. An SABC News report says this came to light when police presented new targets for clamping down on crime against women and children in Parliament last week. It adds a woman born in SA is more likely to be raped than educated. It's estimated a woman is raped every 17 seconds. In the past financial year, just more than a third of the crimes against women were prosecuted in court and only 22% of crimes against children made it onto the court roll, according to the report. Full SABC News report See Africa Analyses