March 1 2012 at 10:23

The woman who made legal history in SA when she was charged with raping an underage boy has been sent to jail for 15 years. 

The trial caused widespread interest, and now that the high court in Port Elizabeth has handed down sentence it’s clear that there are several important issues involved as well as the merely sensational.

Neither the court nor the lawyers appearing in the matter could find any SA case “dealing with the particular permutation of sexual penetration” involved here.

Thus Judge Judith Roberson was on her own when it came to deciding on a proper punishment.

The accused could have been given a life sentence: the law says that when the crime involves rape of a child or someone who is mentally handicapped, the rapist must be sent to jail for life unless there are substantial and compelling reasons not to do so. In this case the person raped was both under-age and handicapped.

Handing down sentence two weeks ago, the judge noted that the woman, aged 45, had pleaded not guilty and had not taken responsibility for what she had done. The boy who was raped was 15 but had a mental age of 10. He was also severely physically handicapped. According to Dr Thabisa Mabusela, the clinical psychologist who testified in the case, he was unable to walk and was confined to a wheelchair, needing help to eat, drink, wash and dress.

The accused shared a clan name and |was employed to care for the boy’s cousin, who was also physically and mentally handicapped.

One of the most significant features of the case was the evidence about the impact of the rape on the boy: you could just as well be reading about the impact of rape on a girl.

There was a “severe impact” on him; he was “very distressed and very angry”; he felt taken advantage of by an adult who he trusted. He became uncomfortable and anxious when he saw the accused and felt guilt and shame about the incident.

He suffered from mood disturbance as well as intrusive thoughts and flashbacks about the incident. He slept badly, didn’t want to eat and found it difficult to concentrate – all symptoms suggesting acute stress disorder.

Judge Roberson commented that the impact was similar to those often described in cases where a girl had been raped and quoted Mabusela as saying that the reaction of the boy in this case “was no different” from that of the girls she has assessed.

The judge described the rape as a “very serious” offence in which an adult took “gross advantage of an especially vulnerable and helpless child”.

“She violated his person and used him as an object, while he was aware of what was happening to him, and was unable to resist.  

“She breached a relationship of trust and damaged him severely. She has not expressed remorse and maintains her innocence.”

The judge also took into account the interests of society and the high incidence of child rape.

Society needed to be reassured that the courts shared its repulsion and outrage for such offences and that sentences would reflect the seriousness of the offence and “deep concern” for protecting the most vulnerable.

On the other hand, the accused was 45 and had a clean record. She was capable of rehabilitation; the rape was not planned and it was not the “so-called worst kind of rape”. 

She had been a loving and responsible parent to her children and was also active, within her means, in helping less fortunate people. It was unlikely that she would offend again and she was not a danger to society. All of these factors amounted to proper reasons not to impose life imprisonment. What about correctional supervision instead of jail?

The woman continued to deny responsibility for what happened, and a term of correctional supervision would not meet the severity of the offence, said the judge.

There was another factor that struck me as I read the judgment: the boy spoke of his deep shame particularly when he was with his peers “after the trial was reported in the media and a lot of people found out what had happened to him”.

Could his identity have been better protected, I wonder. Was there enough care for such issues when the trial was reported? There are serious challenges here for journalists and for the court.


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