Sometimes a court hands down a judgment that is so wrongheaded, employing arguments that are so nonsensical, that one has to ask: what were these people smoking? The majority judgment of the
In the majority judgment, authored by Justice Bess Nkabinde (pictured), the Court declined to develop the common law on rape to include un-consensual male on male sexual penetration. Our common law always treated non-consensual anal penetration as a lesser crime of “indecent assault” (women) or "sodomy" (men).
In this case the state had charged a 44 year old man – Mr. Fanuel Masiya – with the sexual assault on a nine year old girl. Mr. Masiya had allegedly sodomised the girl and could therefore only be convicted of “indecent assault” and not of rape. Rape carries a minimum sentence of 15 years, while "indecent assault" does not.
Because the child was female, the Court argued that the facts of the case did not require it to consider the question of whether un-consensual male on male penetrative sex would constitute rape. This was a task for Parliament to deal with and not for the Court. And then, in one of the most peculiar passages ever penned by a
It can hardly be said that non-consensual anal penetration of males is less degrading, humiliating and traumatic and, to borrow the phrase by Brownmiller, “a lesser violation of the personal private inner space, a lesser injury to mind, spirit and sense of self.” That this is so does not mean that it is unconstitutional to have a definition of rape which is gender-specific…. Extending the definition to include non-consensual penetration of the anus of the male by a penis may need to be done in a case where the facts require such a development.
This is a textbook example of arguing in a circle. First, the court agrees that men suffer just as much as women when they are raped. Second, it argues that this does not mean that it is unconstitutional to treat their ordeal differently in terms of the criminal law. Most bizarrely, third, it admits that if a case with the right facts comes to the Court, the different treatment that is now condoned might actually be found to be unconstitutional.
At the same time the majority confirmed that where the existing law is not in line with the Constitution, the Court would have no choice but to develop the common law, stating that “where there is a deviation from the spirit, purport and objects of the Bill of Rights, courts are obliged to develop the common law by removing the deviation”.
This is, with (a little bit of) respect, the “halfway pregnant” approach to legal reasoning. Really, even as a mere matter of logic the argument does not stand up to scrutiny. Either the present gender and orifice specific definition of rape flies in the face of the constitutional values like dignity, equality and bodily integrity and requires a development of the common law, or it does not (in which case no development would be required). What the majority does here is to say, yes, the common law may well deviate fundamentally from deeply important constitutional values, but no, because the alleged survivor in this case was a girl and not a boy, we are not going to get our hands dirty.
The majority judgment is not only illogical and self-contradictory, it is also, with respect, irresponsible. It represents a sad abdication by the Court of its ethical and legal responsibility to uphold the Constitution and champion the interests of the marginalised and the vulnerable in our society - without providing any logical and coherent basis for such an abdication..
As Justice Pius Langa argues in his minority judgment (signed by Sachs, bless his soul), this case is not about males and females, it is about altering our understanding of why rape is prohibited. Rape is about dignity and power, which means that anal rape is equal to vaginal rape regardless of the sex of the survivor. The fact that the majority chooses to turn a blind eye to this injustice ,reflects sadly on them and reminds us that blind justice is no justice at all.