Rapist’s plea of con­sent by girl, 10, rejected

Sunday Times - - NEWS - PHILANI NOMBEMBE

AS if rap­ing his 10-year-old step­daugh­ter was not de­spi­ca­ble enough, a Lim­popo man per­suaded a judge to spare him a harsh sen­tence, claim­ing the child con­sented to sex.

The High Court in Pre­to­ria bought his story and re­duced a life sen­tence im­posed by the Louis Trichardt Re­gional Court to 10 years.

But this week the Supreme Court of Ap­peal dashed the rapist’s hopes for an early re­lease, agree­ing with the state’s ar­gu­ment that a 10-year-old’s con­sent to a sex­ual act could not be a mit­i­gat­ing fac­tor in sen­tenc­ing.

The man was mar­ried to the vic­tim’s mother in 2009 when he re­peat­edly raped the girl.

The mother stum­bled on pho­tos of the sex­ual acts on the fam­ily com­puter, lead­ing to his ar­rest.

The man ap­pealed against his con­vic­tion and sen­tence to the high court, which found it odd that, based on the tes­ti­mony of the mother, there was no “in­di­ca­tion of dis­tress or trauma about the in­ci­dents on the part of the vic­tim when she asked her about what the [man] had done to her”.

The court said: “In her ev­i­dence the com­plainant stated that she par­tic­i­pated in these ac­tiv­i­ties with the [man] be­cause he had told her there would be trou­ble if she did not do as he told her. It is not clear on her ev­i­dence that she acted out of fear or that the threat was re­peated on any sub­se­quent oc­ca­sion.

“It is in any event not her ver­sion that there was any form of com­pul­sion on ev­ery oc­ca­sion. Apart from the al­leged threat there is no in­di­ca­tion in her ev­i­dence of how she felt about the in­ci­dents — no ex­pres­sion of fear, dis­gust, em­bar­rass­ment or any other neg­a­tive emo­tion.”

The high court sen­tenced the man to 10 years, five of which were sus­pended. It took into con­sid­er­a­tion that he was a first of­fender and had spent 18 months in cus­tody await­ing trial.

The SCA ruled that con­sent to sex­ual ac­tiv­ity by a child un­der 12 could not be a mit­i­gat­ing fac­tor in sen­tenc­ing. It set aside the sen­tence and re­ferred the case back to the high court for re­con­sid­er­a­tion.

“The [man] gra­tu­itously vi­o­lated the com­plainant’s right to dig­nity, pri­vacy and phys­i­cal in­tegrity in a most hu­mil­i­at­ing and de­mean­ing man­ner,” said Judge Xola Petse.

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