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van der Bijl, C.; Rumney, P. (2010)
Publisher: Vathek Publishing
Languages: English
Types: Article
  • The results below are discovered through our pilot algorithms. Let us know how we are doing!

    • 4 See below n. 34 and accompanying text.
    • 5 See also http://www.saps.gov.za/statistics/reports/crimestats/2007/crime_stats.htm, accessed 3 August 2009.
    • 6 See http://www.southafrica.info/about/people/population.htm, accessed 3 August 2009.
    • 7 The 2001 national census gave a figure of more than 52 million people resident in England and Wales: http://www.statistics.gov.uk/census2001/pyramids/pages/727.asp, accessed 3 August 2009.
    • 8 S. Nicholas, C. Kershaw and A. Walker, Crime in England and Wales 2006/07 (Home Office: 2007) 36.
    • 9 Above n. 3 at 1236. Jewkes and Abrahams note: '25% of women raped in the previous year had reported it to the police and 11% of women who experienced an attempted rape'.
    • 10 C. M. B. Naudé, J. H. Prinsloo and A. Ladikos, Experiences of Crime in Thirteen African Countries: Results from the International Crime Victim Survey. Electronic Publication, Turin, UNICRI-UNODC, 2006, 49.
    • 11 This figure is an average of the three province rates.
    • 12 Above n. 3 at 1237. Some of the variations in estimates may be explained by the adoption of narrow definitions of rape that explicitly refer to force, threats or being 'held down or hurt'.
    • 13 A question that arises in this study is how 'forced sex' is to be interpreted by the research participants. The researchers state: 'The pilot questionnaire used “rape” or its equivalent in three languages, and a variety of phrases in other languages, intended to communicate the same meaning'.
    • 14 N. Anderson and A. Ho-Foster, '13,915 Reasons for Equity in Sexual Offences Legislation: A National School-Based Survey in South Africa' (2008) 20 International Journal for Equity in Health. This article can be accessed online at http://www.equity healthj.com/content/7/1/20.
    • 15 R Jewkes, K. L. Dunkle and M. Nduna, 'Rape Perpetration by Young, Rural South African Men: Prevalence, Patterns and Risk Factors,' (2006) 63 Social Sciences and Medicine 2949.
    • 16 Ibid. at 2952-3.
    • 17 CIETafrica Executive Summary: 1997-2000, Surveys on Sexual Violence, 'Beyond Victims and Villains: South Johannesburg, 1997-2000' 5, http://www.ciet.org, accessed 3 August 2009.
    • 18 L. Artz and D. Smythe, 'Case Attrition in Rape Cases: A Comparative Analysis' (2007) 20 SAJCJ 158, 170. See also L. Artz and D. Smythe, 'Losing ground? Making Sense of Attrition in Rape Cases' SA Crime Quarterly No. 22, December 2007, 13.
    • 19 South Africa Law Commission, Discussion Paper 85 of 1999.
    • 20 C. R. Snyman, Criminal Law, 5th edn (LexisNexis: Durban, 2008) 355-6. The definition of rape was narrow and only incorporated the penetration of a penis into a vagina.
    • 21 W. A. Joubert (2004) LAWSA 253. See J. M. T. Labuschagne. 'Regterlike Misdaadskepping: Is die Engelsregterlike Benadering Versoenbaar met die Sekerheidseis van die Strafreg?' (1994) 15 Obiter 124, 128. See also S v Von Mollendorff 1987 1 SA 135 (T) where it is evident that South African law does not follow English law blindly.
    • 22 See R v K 1958 3 SA 420 (A) on 423 B-C. See further R v C 1952 4 SA 117 (O). In the Roman-European Law, sexual intercourse was not a requirement for rape. The focus was rather on the act of violence used by the accused to have sexual intercourse with the victim. See discussion in J. M. T. Labuschagne, 'NieKonsensuele Geslagsmisdade: 'n Misdaadsistematiese Herwaardering' (1981) 44 THRHR 18, 21 et seq.; see further Joubert, above n. 21 at 253; J. Burchell and J. Milton, Principles of Criminal Law, 3rd edn (Juta: Durban, 2005 revised 2008) at 702-3; J. M. T. Labuschagne, 'Die Penetrasie Vereiste by Verkragting Heroorweeg' (1991) 108 South African Law Journal 148 and J. M. T. Labuschagne, 'Verkragting in die Inheemse Reg' (1994) 15 Obiter 85-8ff. for discussion of a different approach followed in South African customary law.
    • 23 S v Ncanywa 1992 1 SACR 209 (Ck) on 212 A-E; Labuschagne (1991), above n. 22 at 148-50; Snyman, above n. 20 at 355; Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, ss 1, 3 and 5.
    • 24 SALC Discussion Paper 85 of 1999.
    • 25 Clause 2 of the Sexual Offences Bill of 1999 was the first attempt to move away from the consent criterion in the definitional elements and the issue of consent was replaced with the concept of coercive circumstances. See S. E. van der Merwe, 'Redefining Rape: Does the Law Commission Really Wish to Introduce a Reverse Onus?' (2001) 14 SACJ 60 on 61. See also S v Steenberg 1979 3 SA 513 (B) 517H518A.
    • 26 SALC Discussion Paper 85 of 1999, 114.
    • 27 See also, in general, J. Milton, 'Re-defining the Crime of Rape: The Law Commission's Proposals' (1999) 12 SACJ 364, 368.
    • 28 For example, see the examination of rape law reform in England and the limits of 'black-letter' reform proposals: P. Rumney, 'The Review of Sex Offences and Rape Law Reform: Another False Dawn?' [2001] 64 MLR 890; J. Temkin and B. Kraché, Sexual Assault and the Justice Gap: A Question of Attitude (Hart: Oxford, 2007).
    • 29 S. J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of the Law (Harvard University Press: 2000).
    • 30 K. Bumiller, 'Rape as a Legal Symbol: An Essay on Sexual Violence and Racism' (1987) 42 University of Miami Law Review 75, 84.
    • 36 M. R. Burt, 'Rape Myths' in M. E. Odem and J. Clay-Warner, Confronting Rape and Sexual Assault (Rowman & Littlefield: 1997) 129, 131.
    • 37 CIETafrica, Executive Summary: 1997-2000 Surveys on Sexual Violence, Beyond Victims and Villains: South Johannesburg, 1997-2000, 2-3, http://www.ciet.org, accessed 3 August 2009.
    • 38 R. Jewkes, 'Non-consensual Sex among South African Youth: Presence of Coerced Sex and Discourses of Control and Desire' in S. J. Jejeebhoy, I. Shah and S. Thapa (eds), Sex without Consent: Young People in Developing Countries (Macmillan: 2005) 93.
    • 39 Ibid.
    • 40 K. Wood, H. Lambert and R. Jewkes, '“Showing Roughness in a Beautiful Way”: Talk about Love, Coercion, and Rape in South African Youth Sexual Culture' (2007) 21 Medical Anthropology Quarterly 277.
    • 41 Ibid.
    • 42 Ibid. at 297.
    • 43 Ibid. at 296.
    • 44 Above n. 41 at 295. See also J. Wojcicki, '“She Drank His Money”: Survival Sex and the Problem of Violence in Taverns in Gauteng Province, South Africa' (2002) 16 Medical Anthropology Quarterly 267, 295.
    • 45 C. A. Ward, Attitudes toward Rape: Feminist and Psychological Perspectives (Sage Publications: London, 1995) 76.
    • 46 G. LaFree et al., 'Jurors' Responses to Victims' Behavior and Legal Issues in Sexual Assault Trials' (1985) 32 Social Problems 389, 397. See also H. Kalven and H. Zeisel, The American Jury (Little Brown: Boston, 1966) ch. 17.
    • 47 LaFree et al., above n. 46. For a more detailed analysis of juror decision-making in rape cases, see G. D. LaFree, Rape and Criminal Justice: The Social Construction of Sexual Assault (Wadsworth: Belmont, 1989).
    • 48 E. Finch and V. E. Munro, 'Breaking Boundaries? Sexual Consent in the Jury Room' (2006) 26 Legal Studies 303.
    • 49 Ibid. at 318.
    • 50 South African Law Commission, Fourth Interim Report on Aspects of the Law Relating to AIDS (2000) 13-14.
    • 51 See 'Myths and Misconceptions about Aids', available at http://www.journaids.org/ myths.php, accessed 3 August 2009. Some myths include: Having sex with a virgin will cure one of HIV/AIDS; taking vitamins or immune boosters is a cure for AIDS; HIV/AIDS is bad in Africa because Africans are hypersexual and HIV does not cause AIDS.
    • 52 M. Pieterse, 'Beyond the Reach of Law? HIV, African Culture and the Customary Law' (2000) 3 TSAR 428. South African Law Commission, Fourth Interim Report on Aspects of the Law Relating to AIDS (2000) 10. See further S. Leclerc-Madlala, Crime in an Epidemic: The Case of Rape and AIDS (1996) 9(2) Acta Criminologica 35-6.
    • 53 Pieterse, above n. 52 at 428, 436.
    • 54 Leclerc-Madlala, above n. 52 at 31 et seq.
    • 55 Ibid. at 32. See further ibid. at 35 where the myth relating to child virgins and the HIV virus is discussed. This myth propagates that by having sexual intercourse with a child virgin one will rid oneself of the HIV virus by providing an infusion of clean blood.
    • 56 South African Law Commission, Fourth Interim Report on Aspects of the Law Relating to AIDS (2000) 6 and 9. See further Pieterse, above n. 52 at 436.
    • 57 This means that the perpetrator would escape the provisions of s. 51 of the Criminal Law Amendment Act 105 of 1997 which provides for life imprisonment where the perpetrator knows of his HIV-infected status and commits a rape.
    • 58 Pieterse, above n. 52 at 435.
    • 59 Ibid. at 437.
    • 60 Above n. 59 at 431.
    • 61 Clause 5. See also cl. 6(1) which provides for an offence where there is criminal non-disclosure of a sexually transmissible infection other than HIV.
    • 62 S. Chisala, 'Rape and HIV/AIDS: Who's Protecting Whom?' in L. Artz and D. Smythe, Should We Consent? Rape Law Reform in South Africa (Juta: Cape Town, 2008) 59-61.
    • 63 See comments by Judge Cameron in the SALC Report on Sexual Offences Project 107 of 2002 at 34. See further Burchell and Milton, above n. 22 at 725.
    • 64 In November 2005, the Actuarial Society of South Africa (ASSA) released the ASSA2003 model projects AIDS infection, mortality and a range of other indicators. See 'HIV/ AIDS statistics', available at http://www.journaids.org/statistics, accessed 3 August 2009. Another notion attached to this myth is the physical resistance factor. If it was considered that insufficient resistance was applied, the belief was that she must have 'wanted' it. The myth that 'she deserved it' entails that the victim must have been responsible for the incident. The blame is thus placed on the victim for causing her demise.
    • 72 For example, see S. Burton, J. Kitzinger, L. Kelly and L. Regan, Young People's Attitudes Towards Violence, Sex and Relationships: A Survey and Focus Group Study (Zero Tolerance Charitable Trust: Edinburgh, 1998).
    • 73 Temkin and Kraché, above n. 28.
    • 74 Ibid. at 209.
    • 75 J. C. Marsh, A. Geist and Nathan Caplan, Rape and the Limits of Law Reform (Auburn House Publishing: Boston, 1982) 85.
    • 76 C. Spohn and J. Horney, Rape Law Reform: A Grassroots Revolution and Its Impact (Plenum Press: New York, 1992) 173 and see ch. 7 generally.
    • 77 Home Office, Sexual Offences Act 2003: A Stocktake of the Effectiveness of the Act since Its Implementation (2006) para. 45.
    • 78 I. Seidman and S. Vickers, 'The Second Wave: An Agenda for the Next Thirty Years of Rape Law Reform' (2005) Suffolk University Law Review 467. These suggested second wave reforms focus inter alia on complainant support and advice, monitoring the performance of law enforcement in their handling of rape cases and the availability of civil remedies.
    • 79 Human Rights Watch, Violence Against Women in South Africa: State Responses to Domestic Violence and Rape (London, 1995) 91.
    • 80 D. Smythe and S. Waterhouse, 'Policing Sexual Offences: Policies, Practices and Potential Pitfalls' in L. Artz and D. Smythe, Should We Consent? Rape Law Reform in South Africa (Juta: Cape Town, 2008) 211.
    • 81 Above n. 79 at 98 and 103.
    • 82 Ibid. at 104. Such views are widely held, but are also factually incorrect. See, e.g., L. Ellison and V. E. Munro, 'Reacting to Rape: Exploring Mock Jurors' Assessments of Complainant Credibility' (2009) 49 Brit J Criminology 202; P. Rumney, 'Progress at a Price: The Construction of Non-Stranger Rape in the Millberry Sentencing Guidelines' (2003) 66 MLR 880.
    • 83 Jewkes and Abrahams, above n. 3, referring to S. Stanton, A Qualitative and Quantitative Analysis of Empirical Data on Violence Against Women in Greater Cape Town from 1989 to 1991, Institute of Criminology, University of Cape Town.
    • 84 P. Rumney, 'False Allegations of Rape' (2006) 65 CLJ 128.
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