S v Masiya is an important case in South African criminal law, decided by the Constitutional Court.
Facts The accused was charged in a regional court with rape, in that, on a certain day in 2004, he had sexual intercourse with the complainant, then a nine-year-old girl. On the day the act was committed, the legislation creating a new statutory crime of rapeAct 32 of 2007. had not yet existed. The accused was charged with common-law rape.
The evidence brought to light that the accused had not inserted his penis into the complainant's vagina, but into her anus. The state argued that the accused had to be convicted of the common-law crime of indecent assault, because, in terms of the rules of common law then applicable, such conduct did not qualify as rape, but only as indecent assault. At that time the common-law crime of rape could be committed only if an accused had sexually penetrated the complainant's vagina.
In a surprising move, however, the regional court magistrate held that the common-law definition of rape was unconstitutional, inasmuch as sexual penetration of the complainant's anus was not punishable as rape, but only as indecent assault. The magistrate argued that indecent assault was a less serious crime than rape, and that a conviction of a less serious crime discriminated against the complainant, since there were no rational grounds upon which non-consensual penetration of a woman's anus, instead of her vagina, should be regarded, not as rape, but only as indecent assault. The magistrate also held that a magistrate's court has the power to consider the constitutionality of a rule of the common law and, if necessary, to change it. The magistrate accordingly convicted the accused of rape.
The Criminal Law Amendment Act 105 of 1997 provides that the magistrate does not have the power to impose punishment in such a serious matter as the present. The case had to be referred to the High Court for the purpose of the imposition of punishment. This was done.
The High court confirmed the decision of the magistrate's court, but the imposition of punishment was postponed until the Constitutional Court had confirmed the change in the definition of the common- law crime of rape.The judgment of the High Court has been reported as S v Masiya (Minister of Justüe and Constitutional Developomet Intervening) 2006 (2) SACR 357 (T).
The Constitutional Court therefore had to decide whether the magistrate's court and the High Court had acted correctly in broadening the definition of the common-law crime of rape on the ground that the old definition had been unconstitutional.
Arguments The High Court had emphasised the alleged inequality and discrimination engendered by the definition, and the resultant inadequate and discriminatory sentences. In oral argument, counsel for Mr Masiya argued against the development only if the developed definition of rape were to apply to him. The DPP and amici substantially supported the judgment of the High Court, arguing that the definition perpetuates gender inequality and promotes discrimination. The DPP further contended that the definition perpetuates leniency in sentencing.
The Minister opposed the development. She relied on the decision of the Constitutional Court in S v Mhlungu to contend that the Regional Court should have decided the guilt or otherwise of Mr Masiya on the facts, and without considering the constitutional issue of developing the definition of rape.
The amici, likewise, contended that, apart from the gendered nature of the origins of the definition, the elements of the crime of rape perpetuate gender stereotypes and discrimination because they are suggestive of the fact that only males can commit the crime, and only females can be raped. They argued that, once it is recognised that the primary motive for rape is not sexual lust, but the desire to gain power or control over another person, with sex being the violent means by which that power is exercised, the rationale for maintaining the gender distinction falls away.
Judgment Nkabinde J determined that the primary questions to be considered were the following:
whether the current definition of rape was inconsistent with the Constitution, and whether the definition needed to be developed; whether Mr Masiya was liable to be convicted in terms of the developed definition; whether the declaration of invalidity of the relevant statutory provisions should be confirmed; whether the merits of the criminal conviction should be dealt with by Constitutional Court; and appropriate relief.
Constitutionality of the definition Nkabinde J found it useful to examine the historical perspective of the criminalisation of rape, so as to determine its developmental direction. The word "rape" originates from the Latin words raptus, rapio and rapina, respectively meaning "tearing off, rending away, carrying off, abduction, rape, plundering;" "to seize, snatch, tear away, to plunder a place, to hurry along a person or thing;" and "robbery, pillage, booty plunder". As such, raptus in Roman law was generally understood as an offence consisting of the violent "carrying away" of women, and is better translated, in Nkabinde J's view, as "abduction.
The crime of rape in Roman law, Nkabinde J found, was based on a prohibition of unchaste behaviour. Punishment for non-consensual sexual intercourse protected the interests of the society in penalising unchaste behaviour, rather than the interests of the survivor.
In this period, patriarchal societies criminalised rape to protect the property rights of men over women. The patriarchal structure of families subjected women entirely to the guardianship of their husbands, and gave men a civil right not only over their spouses' property, but also over their spouses' persons. Roman-Dutch law placed force at the centre of the definition, with the concomitant requirement of "hue and cry" to indicate a woman's lack of consent. Submission to intercourse through fear, duress, fraud or deceit, as well as intercourse with an unconscious or mentally impaired woman, did not constitute rape but a lesser offence of stuprum.
In English law the focus originally was on the use of force to overcome a woman's resistance. By the mid-eighteenth century, force was no longer required for the conduct to constitute rape. The scope of the definition was increased to include cases of fraud or deception. This latter definition was adopted in South Africa.
In indigenous law, Nkabinde J wrote, rape was restrictively defined. Generally, the law stressed the responsibility of a group rather than of the individual. For instance, in Pedi law, in rape cases women must be assisted by their fathers or husbands. Compensation accrued not to the survivor but to her household, under the guardianship of the husband or the father. The law excluded cases of sodomy and marital rape. In some communities, intercourse with a prepubescent girl-child was also excluded from the definition. These acts often constituted merely assault or "unnatural sexuality."
It is evident to Nkabinde J, from the history of the law of rape, that the object of the criminalisation of rape was to protect the economic interests of the father, husband or guardian of the female survivor of rape, to perpetuate stereotypes, male dominance and power, and to refer to females as objects.
With the advent of South Africa's constitutional dispensation, based on the democratic values of human dignity, equality and freedom, the social foundation of these rules had, in Nkabinde J's view, disappeared. Although she believed that the great majority of females, for the most part in rural South Africa, remained trapped in cultural patterns of sex-based hierarchy, there had been, she noted, a gradual movement towards recognition of a female as the survivor of rape, "rather than other antiquated interests or societal morals being at the core of the definition." The focus was now on the breach of "a more specific right such as the right to bodily integrity" and security of the person, and the right to be protected from degradation and abuse. The crime of rape, wrote Nkabinde J, should therefore be seen in that context.
Current law In South African law, as Nkabinde J was writing, rape was understood as the non-consensual penetration of a vagina by a penis. The generally accepted definition of rape, according to Heath J in S v Ncanywa,1992 (1) SACR 209 (Ck). was "the (a) intentional (b) unlawful (c) sexual intercourse with a woman (d) without her consent." Heath J remarked that "the element of unlawfulness is based essentially on the absence of consent."
The four elements in the definition of rape were echoed by Van der Merwe J in S v Zuma, in which the absence of mens rea was relevant. The scholars Burchell and Milton stated that the definition of rape is "the intentional unlawful sexual intercourse with a woman without her consent." Snyman preferred this definition: "Rape consists in a male having unlawful and intentional sexual intercourse with a female without her consent." Nkabinde J noted that both shared an understanding of "sexual intercourse" as the "penetration of the woman's vagina by the male penis."
The definitions presupposed non-consensual sexual penetration of a vagina by a penis. Nkabinde J held that the definition of rape was not unconstitutional insofar as it criminalised conduct that was clearly morally and socially unacceptable. In this regard it was different from the common-law crime of sodomy, which had been declared unconstitutional by the Constitutional Court because it subjected people to criminal penalties for conduct which could not constitute a crime in the new constitutional order. Nkabinde J could find nothing in the current definition of rape to suggest that it was fatally flawed in a similar manner:
The current definition of rape criminalises unacceptable social conduct that is in violation of constitutional rights. It ensures that the constitutional right to be free "from all forms of violence, whether public or private, as well as the right to dignity and equality are protected. Invalidating the definition because it is under-inclusive is to throw the baby out with the bath water. What is required then is for the definition to be extended instead of being eliminated so as to promote the spirit, purport and objects of the Bill of Rights.
Moreover, continued Nkabinde J, the current law of rape has been affected by statutory developments in recent decades. In 1993, the rule that a husband could not rape his wife, the so-called marital rape exemption, was abolished; the presumption that a boy is incapable of committing rape was abolished in 1987. There had also been changes to the law of evidence relating to sexual offences. These changes, wrote the judge, reflected South African society's changing understanding of rape:
Due in no small part to the work of women's rights activists, there is wider acceptance that rape is criminal because it affects the dignity and personal integrity of women. The evolution of our understanding of rape has gone hand in hand with women's agitation for the recognition of their legal personhood and right to equal protection. To this end, women in South Africa and the rest of the world have mobilised against the patriarchal assumption that underlay the traditional definition of rape. They have focused attention on the unique violence visited upon women. Much of this activism focused on creating support systems for women, such as rape crisis centres and abuse shelters; and also on the process whereby rape is investigated and prosecuted. It is now widely accepted that sexual violence and rape not only offend the privacy and dignity of women but also reflect the unequal power relations between men and women in our society.