Access over 20 million homework & study documents

search

20CR Rape

Content type
User Generated
Rating
Showing Page:
1/5
1
Rape
COMMON LAW POSITION
Definition: Rape is the unlawful, intentional sexual intercourse with a woman by a man, without her
consent
Rape as a crime existed at common law and could also be defined as there being a “carnal connection”
without a woman’s consent
ELEMENTS
1. Unlawfulness
2. Intention
3. Sexual intercourse with a woman [by a man]
4. No consent
It was a circumstance crime and causation was not required
Unlawfulness
The most common defence for an accused would be consent, so if consent by the woman could be
shown then the accused was not guilty
Compulsion was also a possible argument towards a ground of justification in rape cases
Pre-1993 a husband could not be guilty of raping his wife as he could raise a “marital defence”,
however this was abolished with s5 of the Prevention of Family Violence Act.
S1 of Law of Evidence and Criminal Amendment Act 103 of 1987: A boy could be guilty of rape from the
age of 7 upwards. There is a rebuttable presumption the child is innocent.
Intention
The mens rea required is intention; if the accused subjectively believed that a woman consented, he
may escape liability.
The accused must have intention to have sexual intercourse, knowing or foreseeing that the woman did
not consent (dolus eventualis is sufficient)
Sexual Intercourse with a Woman
Rape could only be committed by penetration of the vagina by the penis, hence a woman could never
be guilty of raping another woman, or even of raping a man
Slightest penetration was sufficient (still valid today); there did not need to be any semen or rupturing
of the hymen
Penetration with anything other than a penis was not rape
Penetration of any other orifice was not considered rape
CASE: Masiya v Director of Public Prosecutions 2007, CC
Facts: A 9-year old girl was penetrated anally and according to the common law definition this did not
constitute rape but only indecent assault
Court held: Common law definition of rape is unconstitutional and should be extended to include anal
penetration
Comments: Snyman criticizes this on procedural grounds, claiming it is a court’s role to interpret the
law and not to make it.
If a man persisted in having sex with a woman who originally consented but changed her mind
during the act (withdrew consent):
CASE: R v Handcock
Facts: A woman commenced having sexual intercourse with the accused but during the act she heard
her employer and sought to withdraw consent but the accused continued
Court held: Accused was not guilty of rape as the withdrawal of consent related to her employer
finding out and not the sexual intercourse.
If a woman (A) assisted a man in raping another woman (B), the A would be guilty only as an
accomplice (R v M)

Sign up to view the full document!

lock_open Sign Up
Showing Page:
2/5
2
No consent
Positive resistance indicated lack of consent, but mere submission did not amount to consent either (S
v S).
Consent is vitiated by threats of violence or duress:
CASE: R v Swiggelaar
Official capacity submission threats
Facts: Accused was a policeman who came to the complainant’s home late at night and ordered here to
accompany him to the police station. She went unwillingly and on the way he pushed her against a wall
and told her would have sexual intercourse with her. She protested but did not prevent him from having
sexual intercourse. He was convicted of rape. On appeal:
Court held: Appellant’s conduct had reduced the complainant to a frightened and tearful subjection
at a time and place where a young woman might well suffer some nervous fear for her own safety, and
in his official position and overwhelming physical superiority and possession of a revolver, she
submitted to the intercourse
CASE: S v Volschenk
Duress
Facts: Accused was a detective constable and made a raid on a room in which the complainant was
sleeping. He drove her to an isolated spot where he threatened her with prosecution of a criminal
charge if she did not have sexual intercourse with him. He was convicted of rape. On appeal:
Court held: There was a threat of imprisonment so the intercourse that followed was not obtained by
consent
R v M: “It is essential that the victim’s resistance be overcome by fear, force or fraud”
A girl under the age of 12 was irrebuttably presumed to be incapable of consenting to sexual
intercourse (R v Z)
A man who had intercourse with a woman who was “so devoid of reason that she cannot exercise
judgement at all” was guilty of rape (R v Ryperd Boesman, SWA)
A man who had sexual intercourse with a woman who was already dead would be guilty of
attempted rape only. However:
CASE: S v Brobeck (Tennessee)
Facts: Accused was convicted of murder and rape but medical evidence showed the woman was already
dead at the time of the sexual intercourse. On the issue of whether a victim had to be alive at the time
of rape:
Court held: There is nothing in the definition to indicate the woman must be alive or dead. If consent
is lacking because the woman is asleep or unconscious, then there is no reason why this should not
extend to the victim being permanently unconscious in death. Reading the “live only” requirement into
the definition only encourages rapists to kill their victims.
Fraud vitiates consent if it is either error in persona (mistake as to identity) or error in negotio
(mistake as to the fact)
CASE: R v C
Error in persona
Facts: The complainant was a woman sleeping in her bedroom at night and in the course of the evening
she awoke and someone was having sexual intercourse with her. Since it was at night and no lights were
on she assumed it was her husband so continued with the intercourse but realized a short while later
that it was not him. In fact, the accused, a stranger to the complainant, had entered through the
bedroom window and started having sexual intercourse with her.
Court held: A woman cannot be said to have consented unless there is consent not only to the act but
to the man concerned. The consent of a woman, which prevents carnal intercourse from being rape,
does not only require a state of mind of being amenable to the act but also requires the willingness to
CASE: The Queen v Flattery
Error in negotio
Facts: The accused professed to give medical and surgical advice for money. The complainant was a 19-
year old girl who consulted him with respect to an illness from which she was suffering, and he advised

Sign up to view the full document!

lock_open Sign Up
Showing Page:
3/5

Sign up to view the full document!

lock_open Sign Up
End of Preview - Want to read all 5 pages?
Access Now
Unformatted Attachment Preview
Rape COMMON LAW POSITION ❖ • Definition: Rape is the unlawful, intentional sexual intercourse with a woman by a man, without her consent Rape as a crime existed at common law and could also be defined as there being a “carnal connection” without a woman’s consent ELEMENTS 1. Unlawfulness 2. Intention 3. Sexual intercourse with a woman [by a man] 4. No consent ✓ It was a circumstance crime and causation was not required Unlawfulness • The most common defence for an accused would be consent, so if consent by the woman could be shown then the accused was not guilty • Compulsion was also a possible argument towards a ground of justification in rape cases • Pre-1993 a husband could not be guilty of raping his wife as he could raise a “marital defence”, however this was abolished with s5 of the Prevention of Family Violence Act. • S1 of Law of Evidence and Criminal Amendment Act 103 of 1987: A boy could be guilty of rape from the age of 7 upwards. There is a rebuttable presumption the child is innocent. Intention • The mens rea required is intention; if the accused subjectively believed that a woman consented, he may escape liability. • The accused must have intention to have sexual intercourse, knowing or foreseeing that the woman did not consent (dolus eventualis is sufficient) Sexual Intercourse with a Woman • Rape could only be committed by penetration of the vagina by the penis, hence a woman could never be guilty of raping another woman, or eve ...
Purchase document to see full attachment
User generated content is uploaded by users for the purposes of learning and should be used following Studypool's honor code & terms of service.

Anonymous
Great content here. Definitely a returning customer.

Studypool
4.7
Trustpilot
4.5
Sitejabber
4.4