Attitudes, Rape and Law Reform in South Africa
| DOI | 10.1350/jcla.2009.73.5.591 |
| Date | 01 October 2009 |
| Author | Charnelle van der Bijl,Philip N. S. Rumney |
| Published date | 01 October 2009 |
| Subject Matter | Article |
Attitudes, Rape and Law Reform
in South Africa
Charnelle van der Bijl and Philip N. S. Rumney*
Abstract In the last decade South Africa has undergone an extensive
process of sexual offence law reform. This process has attempted, amongst
other things, to address deficiencies in the criminal justice response to rape
and has also recognised some of the limits to the impact of legal reform.
These limits are partly defined by rape supportive attitudes and myths that
appear to influence decision-making at all points in the criminal justice
process. In South Africa, and many other jurisdictions, evidence suggests
that police, prosecutorial and judicial decision-making is influenced, in
part, by a range of social attitudes that misconstrue sexual violence, as well
as serve to undermine the credibility of complainants. This article exam-
ines the impact of myths, social definitions of rape on rape law reform in
South Africa and the points at which these reforms are likely to be
undermined by social attitudes and what potentially might be done to
address this problem.
Keywords Rape; Police; Law reform; Social attitudes; Legislation
In the last decade, South Africa has embarked on substantial reform of
its sexual offence laws. In many respects these reforms are similar to
those adopted in other jurisdictions, in that they address issues of
definition, evidence and procedure. However, these reforms also exist
within a particular social context. This context includes the large num-
ber of South Africans suffering from HIV and AIDS,1the phenomenon of
child and baby rape2and the high rate of reported sexual victimisation
which has been described as ‘one manifestation of a very violent society’
in which there is a ‘general climate of tolerance towards rape’.3This
article will seek to examine several issues, but unlike other recent work
in this area, will pay particular attention to the relationship between
social attitudes and rape law reform. First, it will consider the extent of
the problem of rape and sexual assault in South Africa. Secondly, it will
examine the approach of the South African Law Reform Commission
(hereinafter ‘the Commission’) to the question of legal reform of South
African rape law, along with subsequent legislative interventions.
* University of South Africa, e-mail: Vdbijc@unisa.ac.za; University of the West of
England, e-mail: phil.rumney@uwe.ac.uk. This article is based on a joint paper
presented at a conference entitled ‘Sexual Offences and Criminal Justice:
Challenging Myths, Supporting Victims’ held at the University of the West of
England (9 September 2008).
1 For discussion, see below nn. 50–67 and accompanying text.
2 For discussion of the emergence of sexual violence and baby rape as a public and
political issue in South Africa, see D. Posel, ‘The Scandal of Manhood: “Baby Rape”
and the Politicization of Sexual Violence in Post-Apartheid South Africa’ (2005) 7
Culture, Health & Sexuality 239.
3 R. Jewkes and N. Abrahams, ‘The Epidemiology of Rape and Sexual Coercion in
South Africa: An Overview’ (2002) 55 Social Sciences and Medicine 1231, 1238.
414 The Journal of Criminal Law (2009) 73 JCL 414–429
doi:10.1350/jcla.2009.73.5.591
Thirdly, the article will consider an issue that was explicitly acknowl-
edged by the Commission, that is, the impact of ‘social factors’,4such as
social attitudes that contribute to the prevalence of rape within South
African society and its impact on the enforcement of the criminal law.
Finally, the article will conclude by considering the prospect of the
effective enforcement of the sexual offence reforms in South Africa.
1. The extent of rape and sexual assault in South Africa
South Africa has a high rate of reported rape and sexual assault. In
2002/03 the number of rapes recorded by the police was 52,425, in
2003/04, 52,733, and 55,114, in 2004/05, 54,926 in 2005/06, and
in 2006/07, 52,617.5Given the population of South Africa is 47 million6
these reporting rates per head of population are high. In England and
Wales, with a higher population that South Africa,7the number of
recorded rapes is significantly lower. For example, in 2006/07 there
were 13,774 offences of rape recorded by the police.8As in other
jurisdictions, a large proportion of rapes in South Africa are not reported
to the police. Jewkes and Abrahams report that in a South African
Demographic and Health Survey report from 1999, that only 15.2 per
cent of women who had ever been physically forced to have sex re-
ported their experience to the police.9More encouraging are statistics
from the International Crime Victim Survey in Thirteen African Coun-
tries 2006, which reveals a reporting rate of 39.7 per cent.10
Victimisation surveys find a range of prevalence and incidence estim-
ates for rape and sexual assault. These estimates vary between studies,
resulting from differing sample sizes, methodologies and definitions of
sexual violence. Jewkes and Abrahams cite three studies that found 6.3
per cent of women admitting to being a victim of rape across three
provinces;11 with two other studies suggesting between 1.7 and 7 per
cent of female participants reporting a rape in the previous five years.12
A recent study examined the sexual abuse of boys and found that
victimisation rates were very high. Of 13,915 males aged 10–19 years it
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’.
Attitudes, Rape and Law Reform in South Africa
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