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Proposed change to rape law shifts court focus from victim

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JUDY DAMON in the Cape Times, Monday 17th June 2002

THE snaking line outside the Khayelitsha police station is a familiar sight on Monday mornings after a weekend of crime.

On average, there are 30 people in the queue and most are women and children who have been victims of sex crimes and have come to make statements against their attackers.

But the nightmare of rape victims having to prove in court that they did not say "yes" to the rapist will soon be over if the proposed definition of rape, which excludes the element of consent, is adopted in the Sexual Offences Bill. The bill is expected to be debated in parliament before the end of the year.

Lillian Artz, a criminologist at the University of Cape Town, said the amendment represented a "radical departure" from the old definition of rape.

"The woman will no longer need to prove she did not give her consent," Artz said.

"The accused will have to prove there was sex, but no force was used and she had given her consent.

"There will be some burden on the woman to prove the rapist used force should the defence raise it in court."

The current definition under the common law reads that rape is "intentional, unlawful intercourse with a woman without her consent".

Under the proposed Sexual

Offences Bill, the definition focuses on "unlawful sexual penetration under coercive circumstances with another".

The proposed definition recognises male rape and states that sex acts include intercourse, oral, anal and simulated sex.

Artz said this wider definition of rape was based on the experiences of rape victims and would open the floodgates for "zillions" of different types of sexual offences being reported, offences that men may not even be aware they had committed.

Nicro (National Institute for Crime Prevention and Rehabilitation of Offenders) social worker Gwen Mandindi, who runs the counseling room at the

Khayelitsha police station, said she was pleased with the broader definition of rape.

She said her experience of. rape victims indicated that victims feared the "aggressive questioning" of state prosecutors in court.

"During counseling we warn the victims that physical evidence left behind is all they have to prove that they did not consent.

"But, many cases don't even get that far. Victims are reluctant to make a case because they feel they are the ones who will be put on trial. Under the proposed law women will be more comfortable and confident with the court system and more women will speak out."

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