Gender Research amp Advocacy Project LEGAL ASSISTANCE CENTRE This presentation contains specific descriptions of sexual acts that are necessary to explain the law clearly Rape is the intentional commission ID: 1036741
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1. Combating of Rape Act 8 of 2000Gender Research & Advocacy ProjectLEGAL ASSISTANCE CENTRE
2. This presentation contains specific descriptions of sexual acts that are necessary to explain the law clearly.
3. Rape is the intentional commission of a sexual act under coercive circumstances.
4. Comparison with previous lawPrevious law defined rape as “sexual intercourse with a woman without her consent” Current law focuses on presence of coercion instead of absence of consent Focus is now on perpetrator’s actionsRape now includes many intimate sexual acts (not just sexual intercourse)
5. Rape is now gender-neutralBoth males and females can be victims of rapeBoth males and females can be perpetrators of rape
6. What is a “sexual act”?sexual intercourse (insertion of a penis into a vagina, to even the slightest degree)insertion of a penis into a mouth or anusinsertion of any other body part (such as a tongue or a finger) into a vagina or anusinsertion of any part of an animal into a vagina or anusinsertion of any object (such as a bottle or a broomstick) into a vagina or anus (except for genuine medical purposes, with consent)oral stimulation of female genitalsany other form of genital stimulation (such as stimulation of another’s genitals with the hand, or forcing someone to masturbate themselves)
7. What are “coercive circumstances”?physical force against the victim or another personthreats of physical force against the victim or another personthreats to cause other kinds of harm to the victim or another person, in circumstances where it is not reasonable to ignore the threatsvictim is under age 14 and perpetrator is more than 3 years older (more on this below)
8. More “coercive circumstances”victim is unlawfully detainedvictim isphysically or mentally disableddrunk or druggedasleepand so cannot understand what is happening OR communicate unwillingnessrapist pretends to be another person
9. More “coercive circumstances”rapist pretends that what is happening is not actually a sexual act (such as where a doctor pretends that it is a medical treatment)presence of more than one person is used to intimidate the victim
10. Changing your mindRape can take place even where sexual activity started out with mutual consent. If coercion comes into play at any stage, then the sexual act becomes rape. It is rape if coercive circumstances are used to “commit” or to “continue to commit” a sexual act.
11. Gang rape If one person forces the victim to have sex with another person, both can be accused of rape.If 3 people assist each other to take turns to rape a victim, each of them can be charged with committing 3 rapes.
12. Marital rape Rape can take place in a marriage.If a husband forces his wife into a sexual act, or a wife forces her husband into a sexual act, this is rape.No relationship is a defence to a charge of rape. This means a family member of the victim cannot argue that the sexual act was a sexual initiation rite.
13. Child rape (under-14s and under-16s)A sexual act is rape if the victim is under age 14 AND the other party is at least 3 years older, even if there is no other coercive circumstance. (Combating of Rape Act)Any kind of sexual act or “indecent or immoral act” is a crime if the victim is under age 16 AND the other party is at least 3 years older. (Combating of Immoral Practices Act)The age gap makes these forms of contact into crimes even if there was “consent” and no other kind of coercion. The law does not define “indecent or immoral act”. This probably covers touching the genitals or breasts. It might cover other things also.
14. Why the 3-year age gap?The old law did not have an age gap because it protected only girls. Boys were always the culprits. This was not always true, and it was discriminatory.The current law assumes that the older person is exploiting the younger person if there is at least a 3-year age gap. If both persons are about the same age and there is no other form of coercion, it is not possible to say that one person is taking advantage of the other.
15. Examples A 26-year-old who has sex with a 12-year-old is raping the child, even if the child “consents”. The law does not recognise consent for persons under age 16 if there is an age gap of more than three years. If two 12-year-olds have sex with no coercion by anyone, this is not rape because they are the same age. The idea is not to encourage sex between children – but the criminal law is not a helpful solution in this situation.
16. Better ways to discourageearly sexual experimentation improved education about sexuality in schoolsinformation about the risks of sexually transmitted infections and early pregnancycloser family involvement with youthcounselling safe activities for youth
17. Quiz: Is this rape? A girl is taken to the riverbed by her boyfriend and when they get there his friends are waiting to have sex with her. She is too scared to say no and she lets them have sex with her.Yes this is rape. The boyfriend and his friends could each be charged with multiple counts of rape.
18. Quiz: Is this rape? A girl makes her boyfriend drunk at a party and gets him to have sex with her and her friend without being conscious of what he is doing.Yes this is rape. The girl and her friend could both be charged with multiple counts of rape.
19. The uncle of a small girl fondles her private parts.Quiz: Is this rape? A married woman has agrees with her husband that they will use condoms. He comes home drunk and forces her to have sex without a condom. Yes, a rape can happen between a man and his wife.Yes, a sexual act does not have to include penetration.
20. BailThe rape victim has a right to be informed of a bail application. The rape victim has a right to give information on bail, either directly or indirectly. If bail is granted, the court must impose bail conditions that prevent the accused from having contact with the victim. The rape victim must be informed if bail is granted, and informed about the bail conditions.
21. Duties of police officer investigating rapeThe investigating officer must inform the prosecutor of any reason to believe that the victim would be in danger if the accused person is released on bail. The investigating officer must also inform the prosecutor of any other investigations involving the same accused person.Once bail is granted, the investigating officer must inform the prosecutor right away if the accused person violates any of the bail conditions.
22. Rules of evidenceThe sexual history of the victim is NOT relevant.The character of the victim is NOT relevant.The victim’s evidence is NO LONGER treated with special caution just because the case is a sexual offence. Evidence is treated with caution if there is only a single witness, as in any other criminal case. Delay between the rape and laying the charge does NOT indicate that the charge is false. This is because there can be many reasons for a delay – such as shock, shame, or fear of having to discuss sexual matters with the police or in court.
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24. Reducing the trauma of the trialProsecutors have a duty to provide information to the rape victim to help reduce the trauma of the trial (such as how the trial will work and what questions are likely to be asked). Special arrangements for the victim’s testimony can be made if the court has the necessary facilities – such as: rearranging the courtroom using one-way screens or closed-circuit TV so the victim does not have to see the accused while giving evidence support persons to comfort the victim use of intermediaries to restate questions (to avoid being questioned directly by an unpresented accused) other steps that may be “expedient and desirable”.
25. PrivacyA rape case is private – the court will be closed to the public. Information that could reveal the identity of a rape victim cannot be published by the media.
26. Minimum sentencesMinimum sentences apply unless the court finds “substantial and compelling circumstances” for a lesser sentence. To make minimum sentences constitutional, the court must have some discretion to make the punishment fit each case. Minimum sentences do NOT apply to persons under the age of 18 when the rape took place – because it is very important to consider the possibility of rehabilitation for young offenders.Attempted rape can be punished the same as rape, depending on the circumstances.
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28. Three categories of rape for sentencing Minimum sentence = 15 years for first offence and 45 years for subsequent offence: serious physical or mental harm resultedvictim = under age 13 or “exceptionally vulnerable” because of age (old or young)victim = under age 18 AND rapist was child’s parent, guardian, caretaker or other person with authority over the child (such as a teacher or an employer)rapist had HIV or another serious sexually transmitted infectionrape was a gang raperapist used a firearm or other weapon.Minimum sentence = 10 years for first offence and 20 years for subsequent offence: rape involved physical force, threats of physical force, or unlawful detention of victimMinimum sentence = 5 years for first offence and 10 years for subsequent offence:all other circumstances.
29. Legal abortion when a pregnancy result from rapeTwo doctors must provide written certificates that the pregnancy appears to result from rape.A magistrate must issue a written certificate.The rape victim must state in an affidavit, or under oath in court, that the pregnancy is the result of rape. She must either have laid a charge with police OR have good reasons for not laying a charge.The magistrate must find on a balance of probabilities that the pregnancy resulted from rape (lower standard of proof than in a criminal case).The abortion will be performed at a State institution.
30. Myths about rapeRape is only committed by strangers in dark alleys.People say “no’’ when they really mean “yes”.People secretly enjoy rape.The victim is responsible because she was wearing a short skirt.Rape is just rough sex.She didn’t scream or fight back so it wasn’t rape.If there isn’t a weapon involved, it wasn’t rape.A man cannot be raped.
31. SUMMARY: Key innovations of the Combating of Rape Act Broad gender-neutral definition of rapeAbsence of consent changed to presence of coercion Strict bail conditions with chance for victim input Rules of evidence based on gender stereotypes no longer applyProtections for privacy of victim Stiff minimum sentences
32. This publication was made possible with the financial support of the Hanns Seidel Foundation. Hanns Seidel Foundation NamibiaHouse of Democracy70-72 Dr Frans Indongo StreetP.O. Box 90912Windhoek, Namibiainfo@hsf.org.nawww.hss.de/namibia/en/home The views and opinions expressed herein do not necessarily state or reflect those of the Hanns Seidel Foundation.