The rape of children is an enormous problem in a number of African countries, with South Africa being one of the hot spots. But this week, a court in SA’s Eastern Cape province delivered a decision in such a case that stands out for several reasons.
For one, the accused pleaded guilty from the start and, unusually, gave detailed information about what had happened. He had earlier admitted to his brother, the raped child’s father, what he had done and the father had stabbed him below his left shoulder. Angry members of the local community then also attacked the perpetrator, leaving him badly injured and with serious damage to his jaw.
The accused fully understood the legal implications of what he had done and the likely prison sentence that would be imposed on him. Knowing this, he asked for a more lenient sentence than the minimal sentence of life that applies in cases of child rape, except where there are substantial and compelling circumstances that would permit a lesser penalty. And indeed, the judge imposed a lesser penalty than the usual life sentence, giving him 25 years.
But it’s the judge’s care for the 10-year-old child who was raped – she directed that the girl should have counselling with a suitable therapist for at least two years to help her deal with the attack – that marks this case as exceptional.
In a key section of her decision, the judge, Thandi Victoria Norman, noted that, in the well-known ‘triad’ of principles applicable when the court considers sentence, the interests of minor children did not feature as a separate consideration, ‘especially where the children affected are victims of crime or abuse.’ When children were involved, their interests were ‘more often than not, lumped together with those of society’.
As the judge saw it, the interests of children who had become victims of crime or abuse had to be addressed before the trial concluded, to ensure ‘that the well-being of an abused child is taken into account by the trial court.’
In her view, this would ‘pave the way for those children to grow and become emotionally, mentally and physically strong future members of society.’
‘Once sentence is imposed on an accused person, that is the end of the trial. If nothing is said about the child victim other than condemning the unlawful act itself, the child will go back home with no support from the justice system.’
Preparatory to the order she planned to make about the child being given counselling, the judge recalled a police officer, who is also a social worker, and whom the judge had asked to ‘investigate and prepare a proper schedule’ of therapy for the child. The police officer duly reported to the court that arrangements had been made for the girl to have therapy with a suitable social worker.
The judge left little to chance: she also called to the stand the woman who will be responsible for taking the girl to therapy sessions and made sure that it would be possible for her to do so and that she understood the significance of the undertaking.
The judge also called the girl’s father to make sure that he would make the transport costs available each month, from the village to the town where the counselling would take place.
In arranging the counselling sessions, the judge was partly responding to evidence given by some of the witnesses as to the psychological impact of the rapes on the child.
The court heard from the police officer, who specialises in forensic social work, that the girl had been greatly affected by the attacks and was not performing well at school. The police officer could not say whether the child would ever recover from the emotional trauma. The girl showed a lot of anger and fought with other children when they were playing. She was also angry with the accused ‘and wanted to beat him when she saw him.’
The police officer also interviewed the child’s mother, grandmother and cousin and heard that the girl had problems about eating, had problems of fighting at school and experienced nightmares.
In mitigation of sentence, counsel for the accused said he had acknowledged that he had raped the girl twice, with a day in between the two incidents, and said he had done so because of ‘sexual urges’. He had apologised to the child and took responsibility for his actions.
The prosecution, however, pointed out that the accused was in a position of trust and that he had abused it, exploiting family relationships.
Finding there were substantial and compelling circumstances that warranted deviation from life imprisonment, the judge said the accused had pleaded guilty and she was satisfied that he had given a ‘frank account’. He had apologised to the child, to his brother, his family and the community.
‘I observed him and I am satisfied that not only did he verbalise his remorse but he displayed it as he was testifying.’
The fact that he had apologised to the girl was important: in many cases victims of rape were confronted by perpetrators who make them feel that they brought the rape upon themselves. ‘I have no doubt that an apology from a perpetrator will positively contribute to the healing’ of the child.
The judge also criticised members of the community who took the law into their own hands and assaulted the accused. When people acted like this it became ‘a breeding ground for anarchy’, she said.
True, he was unemployed, but the judge said she could not accept that not being employed made someone not a useful member of society. On the other hand, she agreed with remarks by counsel that ‘these family rapes are prevalent and particularly insidious because of the general taboo attached to them.’
Given all the circumstances, said the judge, she was satisfied that the sentence of 25 years that she was about to impose would ‘send out a strong message … that the rape of minor children is a serious violation of the child’s body, mind and soul. It shall be treated by the courts in a manner that will demonstrate that this unlawful conduct should not be tolerated.’