Hearing that the girl who was allegedly drugged, then gang raped, while being filmed by her peers had now been charged with statutory rape alongside her alleged rapists, I almost gave up hope. But then I realised that the sheer scale of this injustice is important because it will hopefully rally us to demand justice. And if not, it indicates how low the National Prosecuting Authority can stoop to “make examples out of people”.
Let’s start at the beginning with “what is a sexual offence?” There are two key elements: 1) The intention of the perpetrator to commit the offence, and 2) The absence of consent from the complainant. When considered in this light it cannot be said that the young woman was involved in committing a sexual offence.
Why? First of all consent means a voluntary and unforced agreement. According to the Sexual Offences Act you cannot give consent if you are:
- Intimidated, threatened or forced;
- When your perpetrator abuses her/his power or authority;
- When you are deceived into agreeing to a sexual act;
- When you cannot think properly or understand the nature of the sexual act because you are asleep, unconscious, unable to think properly because of drugs and alcohol;
- A child below 12; or
- A person with a mental disability.
Even if you agreed to the sexual act or if any of the above bullet points are applicable, you cannot have given free and unforced consent. Some reports suggest that the young woman involved in the Jules rape case could not consent to sexual activity because she was drugged. She was thus not the perpetrator of a sexual offence, she was the victim of a sexual offence. So what about intention? Did she intend to commit a sexual offence. As far as the reports go, it sounds like she was gang raped to me.
So let’s try understand why they chose statutory rape. Section 15 of the Sexual Offences Act states that consensual sexual penetration with a child between 12 and 16 is considered statutory rape. Only when you are 16 years old can you give consent for sex. So if the young woman involved had asked those two boys to have sex with her on video tape, she could be charged with statutory rape.
The reason why the NPA is less likely to prosecute incidents where child x aged 15 asks child y aged 15 to have sex with them, is because it is natural for children to experiment sexually. If the courts were to prosecute every case of teenage sex, there would be little time to proceed with other cases. Where both parties are children, they can only be charged if this is authorised by the National Directorate of Public Prosecutions.
This seems to be where the genius at the head of the NPA got his idea. It’s not clear to me though, that she asked them to gang rape her on film. That fact, I’m afraid, is not evident.
So let’s go back to the Act here. The Act says that in cases of children between the ages of 12 and 16, if the child willingly gave consent to the sexual act, then the other child can be charged with “consensual sexual penetration of a child” or “consensual sexual assault of a child”. But, if the child did not consent to the sexual act, the perpetrator must be charged with rape or sexual assault.
It is not clear, from any of the reports, that this young woman consented to this encounter. Some reports suggest that one boy held her up while the other raped her. The Sunday Times editorial puts it succinctly:
The entire incident in all its tragic ramifications is a sad indictment of this country, and a microcosm of a society that throws up its hands in despair and defeat as things continue to fall apart on all fronts.
But let us not be complacent with throwing our hands up in despair. Let us get off our butts and complain, find out more, and question this sad delivery of injustice to a young woman who has allegedly already been violated.
Call: The NPA head office Tel: 012 845 6000
Email: Their communication office: [email protected]
Send them a letter to let them know what you think:
Or take a walk on over to their building and find out more:
VGM Building (Corner Westlake & Hartley)
123 Westlake Avenue
Weavind Park, Silverton
If we do lose hope, the system will continue to fail as a result of our inaction.