daniel chigunwe
Rape is a very serious crime, with the criminals desiring to both hurt and dominate those they attack rather than just seek sexual gratification, so sentencing needs to be in the range of other premeditated crimes of serious assault.
This means it needs when sentencing is considered, in general, to right be up there with premeditated attempted murder or the most serious examples of premeditate assault with intent to do grievous bodily harm.
This contrasts with those assaults that happen when an argument gets out of hand and develops into assault. The element of premeditation is important and is always an aggravating factor.
A second aggravating factor is that the victim of a rape is always in a weaker position that the rapist, either because the rapist is much stronger or because he has a weapon or because he has rendered the victim unconscious.
Rapists do not attack people bigger and stronger than they are: they want and need a major advantage throughout the criminal act. Rape is not an instant crime like shooting or knifing someone. The ultimate in the attacks is when the victim is a child or someone living with disabilities, so someone considerably weaker than the rapist. Sexual perversions also play a role in all rapes, but especially those of children, but generally psychologists see the crime as arising largely from a desire to hurt and dominate, for the rapist to impose their will with maximum suffering.
A third factor is that this particular crime can lead to serious infection, or pregnancy or both, along with the other physical injuries.
It does not really matter at the sentencing stage whether it does, but rather that the potential exists for long-term damage as well as immediate injury. So the recommendation of the Parliamentary portfolio committee for Women’s Affairs, Community and Small and Medium Enterprise Development for a severe mandatory minimum sentence is understandable, but also as with all mandatory sentences probably wrong, since it removes the key element of judicial discretion when it comes to sentencing.
All judges and magistrates will tell you that the really difficult part of their function in a criminal trial is not so much deciding whether guilt is proved, since there are laid down tests for that and in many countries even a jury of lay people with zero judicial training can be trusted to produce the right answer almost all the time.
The hard job is deciding the appropriate sentence, and even in countries with lay juries and in Zimbabwe where a judge in a criminal case sits with two assessors who might well be lay people, this is reserved for the qualified, trained and experienced judicial officer.
Every case, every convicted person, is different and it needs very careful thought to decide something what is appropriate, including the need to deter as well as to punish and reform. And the general view of the society, and the frequency of the crime, are important factors.
So the second recommendation of the committee, for enhanced debate on sentencing guidelines and for this debate to filter up to the judicial officers who have to pass the sentences, and who have to review the sentences passed in a lower court.
This was done very effectively in the 1980s, with then Chief Justice Telford Georges playing a leading role.
He was horrified when he first came to Africa, to serve in Tanzania, at the low sentences for rape when he considered his Caribbean experiences where rape was considered a very serious crime.
And being told that all women needed a bit of pressure and a rapist had simply overdone it did not impress him. As a result the “standard” sentence, to be adjusted up for aggravating circumstances, tripled or quadrupled overnight and attacks on children were pushed into the high end.
It helped that at that particular time the sentencing guidelines for car theft had been increased to seven years at the same time a teacher who raped three young girls was sentenced to three years.
The outcry, and The Herald played its part, drove the process of reform and Parliament gave regional magistrates, the most senior and experienced magistrates, considerably extra jurisdiction when it came to sentencing rapists. But we are still where Justice Georges left us.
One particular problem with rape is that even in the third decade of the 21st century a lot of victims are reluctant to report the crime. There is still a holdover of the past that somehow a woman was partly to blame and that a women is “spoiled” if assaulted.
No one has ever blamed a man, or for that matter a woman, for being shot, knifed or assaulted with an iron bar. Some progress has been made, and more rapes are reported, but statistics tend to show that a majority, in many countries, go unreported or are reported so late that the investigating police officers and the prosecutors have an almost impossible task to get enough evidence for conviction.
So many rapists reckon they can get away with their crime, and regardless of how high a sentence is, if only a modest percentage of rapists are jailed then the deterrent value of high sentences is diminished.
Among the progress made is the training of police officers to handle rape complaints, and the fact that the police themselves have pushed gender equality hard means that suitable women officers, and this is about the one crime investigation where being a woman is helpful, are at all stations and usually on all shifts. The training needs to be extended, but we are on the right path.
The victim friendly courts introduced by the judiciary have been a major factor, but as the Parliamentary committee noted they are not universal.
Even in the smallest court complex it should be possible to reserve the room needed and have the technical equipment and a trained magistrate so a victim does not have to stand in front of the rapist when giving evidence.
The standard defence that the victim consented is an additional complication, and the victim friendly court and victim anonymity can help again for a victim to give their evidence clearly.
We regrettably need to guard against false reports, as we have seen recently, as well as requiring the required evidence for what is often a crime committed without witnesses.
So some of the increase in reported rapes noted by the committee arise from a greater readiness of women and guardians of girls to report the crime, but the figures are appallingly high.
While reviewing sentencing guidelines is necessary and urgent, and must be pushed, it is not enough.
The other major requirement to hammer this appalling crime is to ensure that all rapes are reported, and reported as soon as is practically possible after the assault, just as victims of other assaults report promptly.
The initial medical examination, done properly, can be vital in a successful prosecution and can minimise the longer-term health risks so every effort is needed to have early reports.
And that needs change in society attitudes and more support for the women who have to go through the reporting and examination stages, as well as giving evidence.
We need both approaches simultaneously: appropriate sentences, but getting the crime reported in the first place and evidence gathered.
Online Reporter