PROPOSED AMENDMENTS TO RAPE LAW - PowerPoint Presentation

1. PROPOSED AMENDMENTS TO RAPE LAWGender Research & Advocacy ProjectLEGAL ASSISTANCE CENTRE2022

2. The amendments are based primarily on the study of the implementation of the Combating of Rape Act by the Legal Assistance Centre: Rape in Namibia (2006). These and some additional proposals were discussed at stakeholder workshops convened by Namibia’s Law Reform and Development Commission (LRDC) in 2008 and 2009. LRDC issued a report on the proposed amendments in 2012.

3. 1. COERCIVE CIRCUMSTANCES − ABUSE OF AUTHORITYNew subsection to cover abuse of power or authority to the extent that the person in question cannot communicate unwillingness.

4. Motivation: fill a gap in the existing list of coercive circumstances to address an existing Namibian situationmay help to combat widespread child rape (esp in cultures where children are taught that they cannot “say no” to adults) may help to combat rape in workplace contexts

5. 2. MINIMUM SENTENCESAmendments to –(1) punish rapes of persons with disabilities more severely (2) generally increase minimum sentences (3) reduce one minimum sentence to comply with a 2018 Supreme Court ruling

6. Motivation for heaviest sentences for rape of persons with disabilities: persons with mental or physical disabilities are often targeted for sexual abusevulnerabilities relating to some disabilities less capability for physical self-defencegreater dependence on others for careless likely to report (eg mental disability)possible inability to provide full evidence (eg visual or developmental impairment)

7. In 2018, the Supreme Court found that “informal life sentences” with no realistic prospect of release are unconstitutional. They are cruel, inhuman or degrading punishment and a violation of the right to dignity.A sentence of life imprisonment results in possible release on parole after 25 years. Parole for very serious crimes is generally possible after two-thirds of any sentence is served. This means that any term of imprisonment longer than 37 and a half years (where two-thirds = 25 years) is HARSHER than life imprisonment and not allowed.Gaingob v The StateCorrectional Service Act 9 of 2012, s. 117 & regulation 281Motivation for changes to sentences:INCREASES respond to community opinion – but why one DECREASE? MINIMUM SENTENCESCURRENTAMENDEDFirst offence 51015101520Subsequent offence 102045202530

8. 3. SENTENCES: “SUBSTANTIAL AND COMPELLING CIRCUMSTANCES”Goal of amendment is to provide more detail on the standard for departing from the minimum sentence – to achieve consistency, eliminate confusion and prevent misuse.Courts must have some discretion to depart from minimum sentences. Otherwise, minimum sentences might be unconstitutional.

9. Increased guidance to court Amendment says that these things may NOT be “substantial and compelling circumstances” that justify a sentence LESS than the minimum:complainant’s previous sexual historyapparent lack of physical injury to the complainant (aside from the rape itself)perpetrator’s cultural or religious beliefs about rape, consent or sex any relationship between perpetrator and complainant before the rape took place

10. Motivation: Courts have different understandings of “substantial and compelling circumstances” and some courts still apply gender stereotypes in applying this test.EXAMPLES“Raping a virgin is worse than raping a prostitute“ – but the crime is about what the perpetrator did, the complainant’s character is not on trial“There was no serious injury” – but rape in itself is a serious injury“The rape was a cultural rite for sexual readiness” – but this is no defence in law.“It is not so bad to be raped by your own husband or boyfriend as to be raped by a stranger” – some women think it is worse to be raped by someone who was loved and trusted.

11. 4. SENTENCES: JURISDICTIONA regional magistrate’s court can ordinarily NOT sentence someone to MORE than 20 years in prison.(Magistrates’ Courts Act 32 of 1944, section 92)Amendment will empower Regional Magistrates’ Courts to impose ANY minimum sentence in the Act.

12. Motivation: follows Stock Theft Act 15 of 1990 and Motor Vehicle Theft Act 12 of 1999avoids over-burdening High Courtavoids requiring separate proceedings in different courts for trial and sentencing similar to other countriesEXAMPLE: SA limits regional court to minimum sentence plus 5 years

13. ATTEMPTS etcSpecify that –attemptscommon-law rapeincitement to commit rapeconspiracy to commit rapewill result in the same minimum penalties as rape.

14. Motivation: Current law has caused confusion for prosecutors in practice.A last-minute “change of heart” on the part of a perpetrator can be addressed on a case-by-case basis, through “substantial and compelling circumstances” for departing from the minimum sentences. Many attempted rapes are not completed for reasons unrelated to the perpetrator’s conduct – eg because a young child’s size makes penetration impossible, because help came or because the victim resisted.

15. 6. CONCURRENT SENTENCES Require consecutive sentences for multiple counts of rape, unless this would result in cruel, inhuman or degrading punishment“concurrent” means running at the same time (two x 10-year sentences = prison time of 10 years)“consecutive” means one after the other(two x 10-year sentences = prison time of 20 years)

16. Motivation: follows model of Stock Theft Act 15 of 1990 and Motor Vehicle Theft Act 12 of 1999minimum sentences for crimes against the person should be at least as stringently applied as those for property crimes

17. 7. EVIDENCE Amend the Act to provide that the court may not draw any negative conclusions ONLY from these points (without other evidence): (1) NO semen or other fluids were found on any part of the complainant’s body (2) the complainant’s hymen was NOT ruptured.The hymen is a membrane that partially closes the opening of the vagina; its presence has traditionally been viewed as a mark of virginity, but this is not sensible in medical terms.

18. Motivation:This amendment takes note of the fact that the “sexual acts” as defined in the Act do not always involve sexual intercourse.Even when sexual intercourse does take place, it is a little-known fact that rapists often do not ejaculate.Virgins can rupture the hymen in many ways, such as during exercise. Also, hymens can stretch so that intercourse can take place without rupture. Many non-medical personnel do not know these facts. This can cause people to doubt the honesty of rape victims in some circumstances.

19. 8. PROSECUTOR DUTIESRequire prosecutors to make sure that the complainant receives proper orientation to the court and court procedures before the trial – and particularly an explanation of the special provisions for vulnerable witnesses.

20. Motivation:Current law is not clear on this point and is seldom followed in practice.Improved wording would allow prosecutors to make use of social workers or volunteers, while remaining responsible for ensuring that orientation takes place.Good orientation of complainants is likely to help increase conviction rates.This is a good way to alert complainant to vulnerable witness provisions (like one-way screens) and find out what they prefer. Now, they are often explained only AFTER the complainant is traumatized.

21. 9. REGULATIONSProvide for regulations to help make sure that duties are followed.

22. Regulations can be used to issue official forms and/or detailed procedures for – notice to the complainant of the bail hearingoutcome of the bail hearing and any bail conditionscourt orientationduties of officials who examine or question complainantsetc

23. Motivation: Regulations and official forms can improve implementation.They also provide mechanisms for monitoring the law’s implementation.

24. 10. BAIL NOTIFICATIONMake it possible for the prosecutor to instruct the investigating officer to inform the complainant of the outcome of the bail hearing if the complainant is not present (Criminal Procedure Act, section 60A(8))

25. Motivation: fits usual practiceinvestigating officer more likely to have ongoing contact with complainant at this stage makes responsibility clear – prosecutor has the duty to make sure that it happens, but can delegate

26. 11. BAIL: MANDATORY NO-CONTACT PROVISIONAllow the court in unusual instances to impose conditions other than a no-contact provision which could protect the complainant, if this is in accordance with the complainant’s wishes. (Criminal Procedure Act, section 62(2))

27. Motivation: current requirement of complete no-contact not being observed in practicewhere complainant and accused are family members or have children together, a complete prohibition on contact may be impractical or simply unenforceable

28. 12. MARRIAGE DEFENCE TO STATUTORY RAPERemove this defence as the minimum age for civil and customary marriage is now age 18 (in terms of the Child Care and Protection Act).(Combating of Immoral Practices Act, section 14)

29. Motivation: “Statutory rape” applies to children under age 18, so the defence of marriage is no longer relevant.If someone has “married” a child below age 18, they have already done something illegal.

30. 13. PAROLEAn amendment limiting eligibility for parole for rapists was considered, but in the meantime, the Correctional Service Act 9 of 2012 was enacted. It provides that no one can be considered for parole for certain crimes – including rape – before they have served at least 2/3 of the sentence. (Correctional Service Act 9 of 2012, sections 114-115)So the original proposal for amendment is no longer necessary, since the goal has already been achieved. But the amendment bill would clarify that the crime referred to as “rape” in the provisions about parole includes both common-law rape and rape under the Combating of Rape Act.

31. 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.