The scourge of rape, particularly child rape, continues unabated in spite of long terms of imprisonment laid down through minimum sentencing legislation. Policymakers should turn to socio-economic factors to find sustainable solutions to the problem.
This was the suggestion made by Judge Dhaya Pillay, with Judge Jacqui Henriques concurring, in upholding an appeal by an Empangeni panel beater against a conviction for the “oral rape” of a six-year-old boy – forcing the child to perform oral sex on him – and the life imprisonment sentence.
In considering the appeal by Donovan Currin, 37, Judge Pillay noted there were contradictions in the evidence of the boy and his seven-year-old friend, who witnessed the incident in July 2009.
But she said: “This case clearly calls for a common sense approach… trawling through the State’s case to nitpick contradictions in the evidence of two child witnesses is not the way the cautionary rule should apply.”
Judge Pillay found the trial court had correctly convicted Currin.
She said minimum sentence legislation had been introduced to control disparity in sentencing and to bring down the incidence of such crimes.
She said that, legislatively speaking, the end of the road had been reached because the law now imposed the highest possible sentence permissible under the constitution – that of life imprisonment for child rape.
“In speaking of strategy, the scope for intervening legislatively to toughen penal provisions is limited… even after finding substantial and compelling circumstances, the sentences imposed remain high.
“Yet notwithstanding the risks of long terms of imprisonment, there are no signs that the scourge is abating. Prison populations continue to grow… the number of rape cases passing through the courts has not decreased and, in most cases, offenders offer no explanation for committing rape, not even when they plead guilty.
“Unless the strategy for eliminating rape uncovers the reason why rape occurs and addresses those reasons, legislative and judicial interventions will continue to treat the symptoms, not the cause.”
In many of these cases, the only mitigating factors placed before the court were “everyday factors” and did not constitute reasons to deviate from the legislated sentence.
However, one still had to look at whether a sentence of life imprisonment was proportionate to the crime.
“Oral rape” was one of the vilest and most revolting forms of rape. In this case it had been compounded by ejaculating in the child’s mouth, Judge Pillay said.
“Nothing can undo the horror of this indelible imprint upon the minds of the complainant and his companion who witnessed his humiliation,” she said.
“(Currin) violated the children’s rights to bodily integrity. At ages six and seven the children were especially vulnerable. Children are absolute no-go zones for sexual activity of any kind.”
Judge Pillay said the children had also had to endure the secondary trauma of testifying about what had happened.
“No child should have to recount as one of their childhood experiences the misfortune of having to testify in a court of law.”
Judge Pillay ruled that the sentence of life imprisonment was justified.
