RAPE – COMPLAINANTS RELUCTANCE TO PERSUE CHARGE NOT MITIGATING FACTOR; ABUSIVE RELATIONSHIP AGGRAVATING FACTOR

S v AMERIKA 2017 (1) SACR 532 (WCC)

Rape — Sentence — Rape of partner in situation of spousal abuse — Fact that complainant did not wish to pursue prosecution not constituting substantive and compelling circumstance or mitigation justifying sentence less than prescribed minimum sentence — Should be considered aggravating factor.

 

The 23-year-old accused was convicted in the High Court of two counts of kidnapping, four counts of rape, and one count of murder. The complainant on the first set of counts (one count of kidnapping and two counts of rape) was the accused’s occasional partner in what appeared to be a highly abusive relationship. The accused was also convicted of kidnapping the deceased, the first complainant’s young stepsister, who was under the age of16. Before killing her, he raped her twice.

In considering whether the complainant’s reluctance to pursue the criminal charges against the accused (because of their relationship) could be regarded as a mitigatory factor or a substantial and compelling circumstance justifying deviation from the prescribed minimum sentence, the court held that it could not. This would send out the wrong message and be contrary to the values of the Constitution. It would furthermore undermine the dignity and humanity of abused women and send out a message that men who raped their partners might escape the full might of the law. Rape committed in the context of an abusive relationship should be regarded as an aggravating factor in the consideration of an appropriate sentence. (Paragraph [22] at 539h–j.)

As to the murder of the deceased, it appeared that the accused had inflicted serious and grievous injuries on her, especially to her private parts. He had smothered her and strangled her so that she could not scream for assistance. He hid her body so that it would not be found by anyone searching the premises. He had done this knowing full well that her family were in anguish and trying to find her. His conduct was nothing other than inhumane and barbaric.

The court held that there were no substantive and compelling circumstances and that the prescribed sentence of life imprisonment had to be imposed. In respect of each of the four rape offences, as well as the conviction on the count of murder, the court imposed sentences of life imprisonment, and each of the kidnapping charges attracted a sentence of three years’ imprisonment. The sentences in respect of each complainant were ordered to run concurrently. (Paragraph [24] at 540c–e.)

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