All sexual offences must be deemed equally serious

It is relatively rare in SA to receive a guilty finding for sexual offences such as rape. The Medical Research Council’s report Rape Justice in SA report has revealed that only 8.6% of rape cases ended with a guilty verdict. ‘It is now commonly accepted in our law that the trauma resulting from any sexual violation, not only rape, is serious and those sexual offences must be treated equally seriously in law,’ says attorney Sheena Swemmer, head of the Gender Programme at the Centre for Applied Legal Studies at Wits University. She says the Constitutional Court acknowledged this in its recent judgment Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others, stating ‘sexual offences may differ in form, but the psychological harm they all produce may be similar’. The court declared unconstitutional a part of our criminal law which imposed time limits for prosecuting most sexual offences, but not rape. In an analysis on the Daily Maverick site, Swemmer points out that the minimum mandatory discretionary sentence for rape ranges from 15 years for a first offence, to 20 years for a second offence, to 25 years for a third or subsequent offence. However, she says the failure to include all sexual offences may be due to the view that some sexual offences are not as harmful to survivors as others, as well as the idea that there needs to be some physical harm (or penetration) for an offence to be judged as ‘serious’. In the Rape Justice in SA report, it was noted that life sentences were handed down for rape in 11.7% of convictions, while sentences of five to 10 years were handed down in the remaining cases. Thus, in about 88.3% of rapes, judges and magistrates found that there were substantial and compelling reasons to deviate from prescribed sentencing. ‘Judicial officers, it seems, may hold problematic views around the seriousness of rape which manifests when they decide not to apply a minimum sentence.’ Swemmer adds there are two important developments that must take place for the law to be aligned with victims’ rights as set out in our Constitution. ‘First, all sexual offences must be acknowledged as being equally serious and thus be included under minimum mandatory discretionary sentencing and, second, judges and magistrates must follow the Criminal Law Amendment Act and only divert from mandated sentencing when there is truly a substantial or compelling reason to do so.’