Rape changes head to CabinetBy: WERNER MENGES
THE heavy prison terms which the Combating of Rape Act of 2000 prescribes for people convicted of rape should be made even more severe, the Law Reform and Development Commission has recommended to the Minister of Justice.
A report on the Combating of Rape Act and recommendations on changes to be made to the law has been handed over to the Minister of Justice, the Chairperson of the Law Reform and Development Commission (LRDC), Sacky Shanghala, has confirmed to The Namibian.
The Minister of Justice, Pendukeni Iivula-Ithana, said on enquiry on Thursday last week that the recommendations would now be channeled through the Cabinet, which has to give its authorisation for the proposed amendments to the Act to go to Parliament.
If the Cabinet authorises the suggested changes to the law, the amendments should be tabled in Parliament before the end of this year, Iivula-Ithana said.
The Combating of Rape Act, which came into operation in June 2000, made far-reaching changes to Namibia’s criminal law regarding the offence of rape.
Not only were prescribed minimum sentences for convicted rapists introduced by the Act, but the definition of the crime itself was also changed, several coercive circumstances under which a sexual act would be considered to be rape were set out, a rule that evidence given by a complainant in a rape case had to be treated with special caution was abolished, and complainants in rape cases were given the right to be informed when someone accused of rape applies to be granted bail and to have her or his views regarding the granting of bail presented to the court. In the LRDC’s proposals, it is suggested that the Act should be clarified to make it clear that a sentence to be imposed on someone convicted of attempted rape should be the same as the sentence which the person would have received if the attempt to commit the crime had succeeded.
The LRDC also proposed that the Act should be amended to increase the portion of a sentence which someone convicted of rape should serve before he or she becomes eligible for parole.
Currently, someone serving a jail term for rape is required, in terms of the Prison Act, to serve at least a third of his or her sentence before becoming eligible for parole.
Under the proposed change to the law, the sentenced offender would have to serve at least two thirds of the sentence before becoming eligible for parole or remission of the sentence.
The Combating of Rape Act currently directs courts to impose minimum sentences ranging from five years’ imprisonment for certain types of rape committed by a first offender, to a minimum sentence of as much as 45 years’ imprisonment for a repeat rapist for certain types of rape, such as the rape of a child or gang rape.
Courts can only deviate from these prescribed sentences if “substantial and compelling circumstances” exist which justify a lesser sentence to be imposed, the Act states.
The LRDC is proposing that all of the these prescribed sentences, except for the highest one of 45 years’ imprisonment, should be increased.
Currently, someone convicted of rape where none of the coercive circumstances or special aggravating circumstances set out in the Act were present, is liable to be sentenced to at least five years’ imprisonment if the person is a first-time offender. That should be increased to ten years, it is suggested. For a repeat rapist committing the crime under these circumstances, the current minimum prescribed sentence of ten years in prison should be changed to 20 years, it is proposed.
The coercive circumstances set out in the Act include the use of physical force or threats of physical force, and circumstances where a complainant was unlawfully detained.
Someone convicted of rape where these coercive circumstances were present, is currently at risk of being sentenced to at least ten years’ imprisonment if the person is a first-time offender, and not less than 20 years in jail if the person is a repeat rapist.
Those prescribed sentences should be hiked, to not less than 15 years in jail for a first-time offender and at least 30 years’ imprisonment for repeat rapists, the LRDC has suggested.
When the complainant has suffered grievous bodily or mental harm, a gang rape had been committed, a perpetrator used a firearm or other weapon to commit the crime, the complainant was younger than 13 or by reason of age exceptionally vulnerable, the perpetrator was aware that he or she was infected with a serious sexually-transmitted disease, or the complainant was younger than 18 and the perpetrator was his or her parent, guardian or caretaker, or otherwise in a position of trust or authority over the complainant, the Act currently prescribes a minimum sentence of 15 years in prison for a first-time offender, and 45 years for a repeat offender.
That prescribed sentence for a first-time offender should be increased to 20 years, it is proposed.
In their current form the proposed changes would still leave courts with the discretion to deviate from the prescribed sentences if “substantial and compelling circumstances” are found to be present.
The prescribed sentences do not apply to offenders who were under the age of 18 when they committed the crime.