Non-consensual, penile penetration of a woman whether it be anal
or vaginal, constitutes rape, the Constitutional Court ruled on
Thursday.
However it refused to find that non-consensual anal penetration
of a man was rape, holding that this was the function of the
legislators and not the court.
"It can hardly be said that non-consensual, anal penetration of
males is less degrading, humiliating and traumatic (than that of
females)..." Justice Bess Nkabinde found in a majority judgment.
"That this is so does not mean that it is unconstitutional to
have a definition which is gender-specific.
"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 challenge was brought by Fanuel Sitakeni Masiya, 44, who was
charged with raping a nine-year-old girl on March 16 2004.
He pleaded not guilty. The evidence found that the child had
been anally, but not vaginally, penetrated.
At the time, the common law definition of rape was
non-consensual vaginal sexual intercourse. However, the Graskop
Regional Court decided that this definition 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".
Nkabinde found that the High Court had erred and set aside its
order in its entirety.
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.
The facts did not require the court to consider whether the
definition be extended to include non-consensual penetration of the
male anus.
She ordered Masiya'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 Masiya -- but effective from May
10, the date of judgment.
