Court slammed over ‘gender biased’ judgment

In her judgment, Judge Bess Nkabinde said: ‘It can hardly be said that non-consensual, anal penetration of males is less degrading, humiliating and traumatic (than that of females)... That this is so does not mean that it is unconstitutional to have a definition which is gender-specific.’ According to a report on the News24 site, she added: ‘Focusing on anal penetration of females should not be seen as being disrespectful to male bodily integrity or insensitive to the trauma suffered by male victims of anal violation, especially boys of the age of the complainant in this case.’ The facts did not require the court to consider whether the definition be extended to include non-consensual penetration of the male anus. Full report on the News24 site

The case at issue involved the conviction of Fanuel Setakeni Masiya for the rape of a nine-year-old girl found to have been anally but not vaginally penetrated. Masiya had pleaded not guilty to rape. However, the Graskop Regional Court decided that the definition of rape needed to be developed. ‘Why must the unconsensual sexual penetration of a girl (or boy) per anum be regarded as less injurious, less humiliating and less serious than the unconsensual sexual penetration of a girl per vaginam,’ it asked. ‘The distinction appears on face value to be irrational and totally senseless, because the anal orifice is no less private, no less subject to injury and abuse, and its sexual penetration no less humiliating than the vaginal orifice.’ Upholding the finding, the Pretoria High Court held that the distinction between the sentences for rape and indecent assault resulted in ‘inadequate protection and discriminatory sentencing’. However, Nkabinde found that the High Court had erred and set aside its order in its entirety. Although she held that the extension of the common law definition of rape to include non-consensual penile penetration of the female anus would be in the interests of justice, she ordered the perpetrator’s rape conviction set aside and replaced with a conviction of indecent assault. She referred his case back to the regional court for sentencing. Nkabinde held that the new definition was not retrospective – and therefore not applicable to the case brought before it – but effective from May 10, the date of judgment. Full report on News24 site Judgment

Criticism of the Constitutional Court ruling was vociferous. On his Constitutionally Speaking blog, Pierre de Vos, law professor at UWC, described the majority judgment as ‘not only illogical and self-contradictory, it is also, with respect, irresponsible. It represents a sad abdication by the court of its ethical and legal responsibility to uphold the Constitution and champion the interests of the marginalised and the vulnerable in our society – without providing any logical and coherent basis for such an abdication.’ He adds: ‘As Justice Pius Langa argues in his minority judgment …this case is not about males and females, it is about altering our understanding of why rape is prohibited. Rape is about dignity and power, which means that anal rape is equal to vaginal rape regardless of the sex of the survivor. The fact that the majority chooses to turn a blind eye to this injustice reflects sadly on them and reminds us that blind justice is no justice at all.’ Read the full De Vos article

It was a surprising conclusion for a court with the responsibility of upholding the principles of equality, according to Joan van Niekerk, Director of Childline. She told The Mercury that the issue of male rape, particularly of children, remained ‘largely unaddressed’ by the justice system. Van Niekerk added that – in addition to devaluing the impact of sexual assault on boys – the ruling also failed in that it did not deal with female-on-female penetrative assaults where objects were used. Liesl Gerntholtz, Director of the Tshwaranang Legal Advocacy Centre, said the ruling was particularly disappointing in light of the much-delayed Sexual Offences Bill, which is before Parliament (and which deals with both the matter of male rape and rape using objects). She said it was unfortunate that only two judges had decided against a cautious approach. Nkabinde’s judgment may have been the majority judgment, but the two dissenting judges, Chief Justice Langa, and Judge Albie Sachs, raised pertinent points that could be used should a similar matter involving a young boy come before the court again. Langa found that even in extending the definition to include males amounted to a slight departure from the facts of the case, it was warranted. Once it was accepted that anal rape was ‘as severe an infringement of the victim’s dignity’ as vaginal rape, it ‘made no sense’ to distinguish between the two. Full report in The Mercury (subscription needed)

Male-on-male rape would be kept invisible by the ruling, according to the OUT LGBT (Lesbian/Gay/Bisexual/ Transgender) group. ‘This gender bias amounts to unfair discrimination and serves to perpetuate gender stereotypes about male sexuality and keeps male-on-male rape invisible,’ spokesperson Melanie Judge is quoted as saying in a report on the IoL site. Full report on the IoL site

The Commission on Gender Equality (CGE) also expressed its disappointment. ‘The CGE, being a gender-sensitive body, would have liked to see the definition of rape being extended to include non-consensual anal penetration of men as well,’ said spokesperson Yvonne Mogadime in a report on the IoL site. She added the CGE viewed the basis of the Constitutional Court\'s ruling to be a conservative approach. Full report on the IoL site

And the SA Men’s Forum says the ruling will discourage men from coming forward. Mbuyiselo Botha, spokesperson for the Men’s Forum, told SABC News: ‘The ruling is so sad in that it will discourage men who are violated sexually to report such instances … it is very important for all of us to recognise that men also get raped and get sexually violated.’ Full SABC News report