Late one Sunday evening, Julia* was sleeping in her bed when suddenly she was woken by screams of “Police! Police!” outside. She heard a knock at the door and voices demanding entry. When she opened the door, a group of men stormed in. They demanded money and ransacked her home. They then pushed her onto her bed, put a blanket over her face and took turns raping her. When they finished and she got a chance to remove the blankets she caught a glimpse of one of the men. It was Pat, a fellow learner from her high school. She couldn’t identify any of the other men who raped her, but thought there may have been four or five of them.
This is based on the testimony of one of the persons harmed by a group of seven men who rampaged through a shack settlement in Tembisa late on a Sunday night in September 1998. The group raped eight women that evening and were subsequently arrested and convicted of a number of counts of robbery, assault and rape under the doctrine of common purpose. They have been serving time ever since.
In 2018, the Supreme Court of Appeal overturned the original High Court decision of one of the gang members and set aside his sentence and charges – but only for rape. In light of this, two other members of the gang, Annanius Ntuli and Jabulane Tshabalala, have approached the Constitutional Court to do the same. The question before the Constitutional Court is whether the doctrine of common purpose can be applied to common law rape and if so, whether Ntuli and Tshabalala can be held liable in terms of the doctrine. The Centre for Applied Legal Studies (CALS) recently argued before the Constitutional Court that the principle can and must apply to common law rape and all other sexual offences.
The doctrine of common purpose is a frequently used principle in our law that states that two or more people who have a common intention to commit a crime can have the acts of the other participants attributed to them. For example, if a group of individuals all share the intention to murder a person then not only the person who delivers the final blow will be charged with murder, but rather the entire group.
Julia’s violation is not an isolated incident, even if one considers that there were seven other persons harmed that evening. Yet, in order to show the gravity of the problem of rape and multiple perpetrators or “gang” rapes in our county, we can turn to the latest SAPS statistics on violent crimes. For the period 2017/2018 there were 40 035 cases of rape reported to the police. We can assume that this is well below the actual number of rapes that occurred since a Medical Research Council study found that between 1 in 9 and 1 in 25 rapes are reported. Research has shown that approximately one in six cases of rape reported to police in South Africa have multiple perpetrators. Yet another study shows that one out of five South African men have admitted to assisting in the rape of a woman or penetrating a woman unlawfully while part of a group.
With the high numbers of gang rapes occurring each year, we need some form of legal remedy for handling cases where there may be many perpetrators, who attempt to conceal their identities and inflict severe trauma on the persons harmed. This has historically been the doctrine of common purpose.
The doctrine has also historically been applied to cases of rape. Yet, this is being challenged based on Ntuli’s and Tshabalala’s assertion that rape is a crime that can only be committed by one person and the act cannot be attributed to others.
This literal interpretation of common law rape fails to grasp the true nature and effects of the crime. The harm of rape extends beyond mere penetration and can cause psychological damage to the person harmed. Instead, rape is a limitation of the rights of the harmed person, with the intent focused on dehumanising that person and rendering them powerless, limiting their rights to dignity, autonomy and security. Rape is based on male dominance and the exertion of power by the perpetrator over the person harmed.
If we see rape as an act of dominance and humiliation, and as an attack on dignity then it is untrue that this can only be committed by one individual. A group of people can collectively rape someone: some can hold a person down, some can watch and cheer, others can take videos of the rape, but ultimately they are collectively asserting power and dehumanising. They are collectively traumatising. Ultimately the group are all committing the acts associated with rape, even if only one individual penetrates the person harmed. They are all rapists. In light of this, the doctrine of common purpose must apply to cases of rape.
* Not her real name.