The Constitutional Court will be hearing the case of S v Masiya (which concerns the extension of the definition of rape to include anal penetration) on Thursday 9 November at 10h00.

 The case concerns the anal rape of a 9 year old girl. The Magistrate convicted the perpetrator of rape and the High Court confirmed the conviction. Currently rape does not include anal penetration and the perpetrator should have been convicted of indecent assault. The application is now being heard by the Constitutional Court.

 Tshwaranang and CALS have applied and have been accepted as Amici in the case and will be making arguments to the Court on why the current definition of rape is unconstitutional.  Our arguments state the correct understanding of rape involves an understanding of unequal power and that the crime aims to degrade and humiliate. We deal with the need for the definition of rape to reflect the experiences of women and the exclusion of non-consensual anal penetration is artificial as it is as degrading and humiliating as other forms of penetration, including vaginal penetration.

The importance of this case lies not so much in the potential to change the definition of rape, as this will happen anyway when the new Sexual Offences Bill is passed, but in the opportunity to make arguments in the courts that reflect the experiences of women. 

 Although we are not making arguments about children, the case also has important implications for boys who are raped – we support the reasoning of the High Court and the magistrate who found the current definition of rape unconstitutional on this ground (that is discriminates against boys and men).

 Finally, we have also asked the Constitutional Court to refer the matter to the Supreme Court of Appeals – although this may delay the final decision, we believe the SCA has the jurisdiction to develop the common law and that it is important, as a matter of principle, that all courts take their constitutional duties seriously and do not leave these matters solely to the Constitutional Court.

For more supporting information on the Case, go our Litigation link under our Resources Section.