OPINIONISTA: Attempted rape is not treated as a serious offence in SA law By Sheena Swemmer
On 21 February, more than three years after sexually violating a fellow learner at Hyde Park High School,
It is now commonly accepted in our law that the trauma resulting from any sexual violation, not only rape, is serious and those sexual offences must be treated equally seriously in law. The Constitutional Court acknowledged this in its recent judgment, stating “sexual offences may differ in form, but the psychological harm they all produce may be similar”. The court declared unconstitutional a part of our criminal law which imposed time limits for prosecuting most sexual offences, but not rape.
Again, if the consequences for sexual offences are similar, why does only rape fall under the scope of minimum mandatory sentencing? The failure to include all sexual offences may speak to the view that some sexual offences are not as harmful to survivors as others, as well as the idea that there needs to be some physical harm for an offence to be judged as “serious”.
Yet, in the same Medical Research Council study outlined above, life sentences were handed down for rape in 11.7% of convictions, while sentences of five to 10 years were handed down in the remaining cases. That means, in about 88.3% of rapes, judges and magistrates found that there were substantial and compelling reasons to deviate from prescribed sentencing.
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