Rape law conundrum faces top court

It heard an application yesterday by the State and the Minister of Justice and Constitutional Development arising from the case of a man accused of sexually assaulting a three-year-old girl. The man argued he could not be charged under the new law because he committed the offence before it came into force, says the report. He argued the law in place when he committed the offence no longer existed and the existing law did not apply to him. The common law applicable in 2007 defined rape as penetration without consent, but Section 69 broadens the definition and includes indecent assault and other forms of sexual abuse. The report notes that the man been tried and convicted before 2007, he would have received a lesser sentence if it was found he had not penetrated the child, whereas under the new law, his sentencing in all probability would have been more severe. Full report in The New Age

A Business Day report notes the provisions of the Act were found by the South Gauteng High Court to be unconstitutional in that they rendered the common law crime of rape committed before the commencement of the Act, but only reported or investigated thereafter, to be immune from prosecution. The report says the Act repealed the common law charge and widened the definition of rape to include other sexual offences not recognised as rape under common law, which has been developed through court decisions rather than legislative statutes. Section 69 grants the court the power to continue a matter pending before it before December 2007 as if the Act had not been passed. The report notes the section also says that in matters investigated before the Act became operational and where the accused has not appeared in court, cases may be instituted, continued and concluded as if the Act had not been passed. Full Business Day report