Examining the Impact of  Serious Physical Injury  on Sentencing in South African Rape Cases

Gihwala, Harsha Zoë

Examining the Impact of Serious Physical Injury on Sentencing in South African Rape Cases

Thesis / Dissertation

2024

Publisher

University of Cape Town

Department

Department of Public Law

Faculty

Faculty of Law

Abstract

The Criminal Law Amendment Act 105 of 1997 introduced prescribed minimum sentences for certain offences. Rape is included in this list of offences. The purpose of the enactment of the legislation was the enforcement of a severe and uniform sentencing response to the crimes listed in a Schedule to the legislation. This was seen as particularly necessary for cases of rape. At the time, rape statistics had become untenably high, and both government and our courts were seen as not being harsh or consistent enough with their response to this serious, violent, and rampant crime. Despite the aims of the legislation however, the response to it, both in the literature and from the judiciary, was overwhelmingly negative. While the legislation provides for instances where the prescribed minimum need not be imposed due to ‘substantial and compelling circumstances', it has not provided much guidance on what this term should mean in practice. As such, the implementation of the Act has seen judicial officers interpreting this phrase so as to allow them to continue to rely on many of the factors that were taken into account before the enactment of the legislation. One of these factors, physical injury, it is argued, relies on myths and stereotypes about rape and the expected nature of it, including the severity of the injuries a complainant should sustain from the commission of such a crime. In 2007 the Criminal Law (Sentencing) Amendment Act 38 of 2007 attempted to limit the use of physical injury suffered by the complainant as a substantial and compelling circumstance. This dissertation analyses judgments both pre- and post the amendment in order to ascertain whether there has been a change in the way in which physical injury is considered in rape sentencing judgments. It will point to the language being used in judgments when courts do consider physical injury as a substantial and compelling circumstance when departing from the prescribed minimum sentences, and will discuss whether this is in line with the purpose of the legislative framework that has been created for the adjudication of sexual offences cases. Lastly, it will present a number of recommendations that seek to argue for further clarity to be provided with respect to factors that should or should not be considered during sentencing, in order to seek to improve the experiences of complainants during the sentencing process.

Keywords

criminal law

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