Let’s get the conversation going on rape and sexual assault. The topics are heartbreaking. We do, however, need to talk about it. Often
News clips such as ‘Girl, 12, given chocolate after rape’ reported by News24
is the type of story that hits right in the stomach and leaves you gasping for air. The sad truth is that most of us know a victim or have personally been the victim of rape or sexual abuse. It is time that we all take action, have the difficult discussions and educate ourselves on the topic of rape.
A few 101 legal terms to start with:
- The ‘cautionary rule.’ In S v D 1992 (1) SA 513 (Nm), a Namibian High Court ruled that the ‘cautionary rule’ in rape cases discriminated and discouraged female complainants. The ‘cautionary rule’ stems from an argument that too many false charges are laid and therefore all rape charges should be treated with ‘caution.’ According to the Namibian High Court, the only rule a Court should follow is whether or not the accused had been proved guilty beyond reasonable doubt.
- A wife of a husband must still give consent to sex. If she does not, it constitutes rape. Many years ago, there used to be an old English Law rule that a husband cannot be convicted for raping his wife.
- Criminal. Rape is a crime and the option to lay a criminal charge against someone does not prescribe/ expire, you can lay a charge no matter the amount of years that have passed. Sexual assault on the other hand has a limitation of 20 years. This limitation of 20 years is currently being challenged in Court. Should the Court rule in favour, and the Constitutional Court confirm this, there will be no limitation on the amount of years that can lapse after sexual assault before you lay a charge.
- Definition of rape. The Criminal Law Amendment Act of 2007 changed the definition of rape. The previous definition of rape was limited to vaginal penetration without consent. The new statutory definition is gender neutral and includes all forms of sexual penetration without consent.