"COMBATTING OF RAPE BILL,"1999 FROM MULTIMEDIA CENTRE, WINDHOEK NAMIBIA:

AGE OF CONSENT: Under the existing law on rape, girls are considered = able to give meaningful consent to sexual intercourse at age 12.  For = purposes of similar crimes such as forced sodomy and indecent assault, = boys are considered able to give meaningful consent at age 7. These  = rules are supplemented by the Combating of Immoral Practices Act which = makes it a lesser crime to have contact with a girl under the age of 16, = but this statute provides no additional protection for boys.

The Combating of Rape Bill would raise the age of consent for the crime = of rape to 13, for boys and girls (section 2(2)(d)). The old law on = rape applied only to female victims, so the male perpetrator was automatically the guilty party. But since the new crime is gender = neutral, an age gap of 3 years has been added so that the perpetrator can be identified as the older person who has probably exploited the younger.  

For example, if two 12-year-olds have sex, neither could be charged with rape under the new law. The law would assume that because they were of similar ages, neither was clearly taking unfair advantage of the other. But if a 16-year-old had sex with a 12-year-old, the 16-year-old could be charged with rape even if the 12-year-old did not object to the sexual act.

A companion piece of legislation will amend the Combating of Immoral Practices Act to give additional protection to boys and girls under the age of 16, where there is sexual contact with someone more than three years older. This would be a lesser offence with no minimum sentences attached. The maximum penalty under this companion piece of legislation would be N$40 000 or 10 years in prison or both.

Age is not a substitute for experience and maturity, but this is the approach taken in many countries in laws on sexual assault. The age gaps in countries with similar legislation is usually 2 or 3 years.  

RAPE WITHIN MARRIAGE: Section 2(3) states that "no marriage or other relationship shall constitute a defence to a charge of rape". This applies to relationships under customary law as well as civil marriage. This would not apply to normal sexual relations within marriage. It would only mean that where an incident would qualify as rape outside marriage - because of the use of force, or threats of force or harm - then it would also qualify as rape inside marriage. The new law states that rape is rape in whatever context it occurs.

Countries with laws recognising the existence of rape in marriage include Australia, Austria, Canada, Denmark, England, Finland, France, Germany, Ireland, Israel, Mexico, New Zealand, Norway, Poland, South Africa, Spain, Sweden, Trinidad/Tobago, and some states in the USA.

MINIMUM SENTENCES: There would be three categories of minimum sentences = (section 3(1)(a)):
(1)        For a first offence, the minimum sentence would be 15 years where any of the following circumstances are present:
(a)        the complainant suffered grievous bodily or mental harm from the rape
(b)        the complainant is under the age of 13 or "exceptionally vulnerable" because of age (such as an elderly person)
(c)        the rapist was knowingly HIV positive at the time of the rape
(d)        there were 2 or more rapists ie gang rape)
(e)        the rapist used a fire-arm or another weapon.

(2)        The minimum sentence would be 10 years if none of the above circumstances were present but the rape was committed by means of physical force, threats of physical force or unlawfully detaining the complainant.

(3)        In all other circumstances, the minimum sentence would be 5 years. For a second or subsequent offence, the minimum sentences follow the same pattern but are 45, 20 and 10 years respectively (section 3(1)(b)).

The court has the authority to depart from the minimum sentences if it finds "substantial and compelling circumstances" which would make the usual minimum sentence inappropriate(section 3(2)). This exception will help to ensure that the minimum sentences are not found to be unconstitutional, because there are often strange factual situations which cannot be anticipated when drafting legislation.

The minimum sentences will not apply to persons under the age of 18 (section 3(3)). The theory here is that with young people it is important to consider the possibility of rehabilitation.

A sentence which is imposed for rape cannot be suspended in whole or in part in such a way that the time spent in prison will actually be less than the prescribed minimum sentence (section 3(4)). For example, if the applicable minimum sentence is 15 years, the court could impose a 20-year sentence with 5 years suspended - but it could not impose a 20-year sentence with 10 years suspended.  

PRESUMPTION CONCERNING BOYS UNDER AGE 14: The existing law presumes that boys under the age of 14 are not physically capable of having sexual intercourse. This is not necessarily true, since different children achieve sexual maturity at different ages. The new law would discard the presumption so that the court would merely consider the facts of the case (section 4(1)).

In all criminal cases, children under the age of 7 are considered = incapable of committing crimes because they lack sufficient understanding of right and wrong. For children between the ages of 7 and 14, the prosecutor must show that they understood that what they did was wrong before they can be convicted of a crime. These rules will apply in rape cases the same as they do for all other crimes (section 4(2)).

CAUTIONARY RULE: In the past, a special "cautionary rule" has required that evidence of a victim in a rape case must be considered with special care if there is no other evidence to corroborate her story -- a special degree of caution over and above that which the courts are obligated to apply in any case where there is only a single witness to a crime. The rule has its roots in the idea that women are particularly likely to lay false charges of rape.

Namibia's High Court has already ruled that this "cautionary rule" is irrational and possibly unconstitutionally discriminatory against women, since it is not supported by any actual evidence that false charges of rape are more common than false charges in any other crime. The guilt of an accused person must be proved beyond a reasonable doubt in all criminal cases, and the High Court concluded that there is no basis for treating the evidence of rape victims more cautiously than the evidence of victims of any other crime.

Section 5 would remove the special cautionary rule so that the evidence = in rape cases would be treated in the same way as the evidence in any = other crime.  

EVIDENCE OF PREVIOUS CONSISTENT STATEMENTS: Normally a court will not = listen to evidence that a witness told the same story to other people = before coming to court. The reason is that repeating a story to many = people does not make it more true  -- a lie can be repeated just as well = as the truth.

There has been an exception to this rule in rape cases. The reason is = that because of the shame and embarrassment which is attached to rape, = it would be unlikely that a person would falsely tell other people that = he or she has been raped. Rape cases generally have a low conviction = rate, and the exception was supposed to help rape victims by making it = less difficult to prove rapes in court.

But in practice the rule was turned upon its head because of the myth = that false charges of rape are common. Courts began to doubt the word of = rape victims if they could not show that they had told someone else = about the rape shortly after it happened. This makes no sense, because = rape victims may keep the rape secret at first because of shock or shame = or fear that they will not be believed. It is not logical to assume that = any genuine rape victim will tell someone else about the rape right = away.  

Section 6 states that the court may not draw any conclusions solely from = the fact that the rape victim did not tell anyone else about the rape.

DELAY: Similarly, if there was a delay between the incident and the = laying of a charge, courts in the past have often interpreted this to = mean that the allegation of rape must be false. Again, this makes no sense. There can be many reasons for such a delay - = such as shock, shame, embarrassment, fear of having to discuss sexual = matters with the police or fear of having to testify in court. It is not = logical to assume that a delay means that the victim was probably lying. =

Section 7 says that a court cannot make any assumptions based only on = the fact that the rape victim failed to lay a charge immediately.

EVIDENCE OF PSYCHOLOGICAL EFFECTS OF RAPE: Section 8 makes it easier to = introduce expert evidence about the psychological effects of rape for = several purposes: to show that it is likely that the sexual act took place, or that it = took place under coercive circumstances to show the degree of mental harm suffered by the victim for the = purposes of deciding on the appropriate sentence. For example, this provision could make it easier for the prosecution to = bring in a psychologist to explain that certain symptoms - such as a = sudden loss of appetite, sleeplessness, and inability to concentrate - = are consistent with the occurrence of a rape.

There are a set of responses to rape that some psychologists have = labelled Rape Trauma Syndrome. The bill does not refer to this condition = by name, because it is variable. Not all individuals respond to rape or = any other trauma in the same way. But section 8 would make it easier for = the court to hear expert evidence on the trauma suffered by the = individual rape victim n the case at hand.

The court would weigh up the evidence of the expert witness in the same = way that expert evidence is treated in other criminal cases.

SPECIAL DUTIES OF PROSECUTOR: The rape victim is not a party to the = criminal case. The prosecutor represents the state, while the rapist is = on the other side and may have a lawyer to defend himself or herself. = The rape victim is only a witness. Because of this, overworked = prosecutors may not have any contact with the rape victim until the day = of the actual trial. The victim may be unaware that the accused rapist = has applied for bail, or worried and accused about what is going to = happen in court. Section 9 addresses this problem by giving prosecutors a special duty -
(a)        to ensure that all relevant information has been obtained from the = rape victim, including information about any reasons why the accused = should not be granted bail (such as threats made to the victim)
(b)        to provide information to the rape victim which can help to reduce = the trauma of the trial (such as an explanation of how the trial will = proceed and what questions are likely to be asked).

BAIL: Section 11 sets forth a procedure which will ensure that the = victim has an opportunity to inform the court of any threats from the = accused before bail is considered. The victim has the right to be = notified of the date and time of the bail application. If the bail = application is postponed, the victim must notified of the new date and = time.  

The victim can attend court personally, or request the prosecutor to = present relevant information on his or her behalf. A victim might prefer = the second option, to avoid the trauma of an extra appearance in court.

The court will not consider the bail application unless the police can = show that the victim has been notified - unless the delay involved would = be so long that it would be unfair to the accused. This exception is = necessary to protect the constitutional rights of the accused. Otherwise = a rape victim could "hide" with the result that the accused sat in = custody for long periods of time without the right to apply for bail.

If the rape victim is not present at the bail application, he or she = must also be notified if bail is granted, and about the bail conditions = which have been imposed. 

Section 12 provides that no accused rapist who is released on bail is = allowed to have any contact with the complainant. This will be an = automatic bail condition in every rape case.

CLOSED COURT: Section 13 provides that the court will be closed to the = public during the entire rape trial, unless the rape victim requests = that it be open. (If the victim is a minor, the request must be made by = the parent or guardian.) This provision will also apply to any criminal = case relating to sexual or indecent acts.

There are two constitutional provisions which are relevant here. Article = 12(1)(a) states that all persons with criminal charges against them are = entitled to "a fair and public hearing', provided that the court may = exclude the press and/or the public from all or any part of the trial = "for reasons of morals, the public order or national security, as is = necessary in a democratic society". Article 12(1)(c) provides that = "judgments in criminal cases shall be given n public, except where the = interests of juvenile persons or morals otherwise require".

Because these constitutional provisions may be interpreted to require = that certain portions of the rape trial be open to the public, there is = a separate provision in section 13 which requires automatic closure of = the court during the testimony of the victim.

RESTRICTIONS ON PUBLICATION OF IDENTITY OF RAPE VICTIM: Section 14 makes = it illegal to "publish in any manner whatever any information which = might reveal the identity of any complainant in the proceedings". This = would include the complainant's name, address, and photographs which = reveal physical features or clothing that might identify the = complainant. The protection would apply from the moment that the offence = is committed, even before the accused has appeared n court. This is = important for the protection of the victim's privacy, since the media = often gets information from police dockets before there have been any = court appearances.

Information about the identity of the complainant in a rape case can be = published if the court has authorised the publication, or if a = complainant who is over the age of 18 has authorised it. The parent or = guardian of a child under the age of 18 does not have the power to = consent to the publication of the identity of a rape victim under 18.

Article 12(1)(a) of the Constitution protects freedom of speech and the = press, but Article 12(2) allows for "reasonable restrictions" on this = freedom "which are necessary in a democratic society and are required in = the interests of the sovereignty and integrity of Namibia, national = security, public order, decency or morality"  Because of this = Constitutional requirement, the prohibitions on publication at different = stages of the trial are contained in different provisions. If any of the = limitations should be found unconstitutional at some future stage, then = the others could remain in place. The penalty for publishing information in violation of this section is a = fine of N$10 000 or imprisonment for up to 1 year, or both.

CHILD WITNESSES: Under the present law, children who are too young to = take the oath (to swear or affirm that they will tell the truth in = court) can give evidence only after they have been questioned to see if = they understand what it means to tell the truth. But in practice, such = questioning can be so confusing that children are disqualified from giving evidence even though they might have had useful information to offer. Section 15 provides that the court can hear evidence from children whenever it appears to the court that they are capable of giving "intelligible testimony". This rule will apply in all cases, not just rape cases. Section 16 is also designed to make it easier to get accurate = information from child witnesses. Children can easily be confused by = legalistic terminology or questions which are worded in complicated ways. A lawyer who is defending the accused may have an interest in trying to confuse a child in order to discredit the child's testimony. Section 16 says that the cross-examination of any child under the age of 13 can take place only through the magistrate or judge, who can simplify or rephrase the question if necessary. This will help to protect children against being bullied or confused. like section 15, it will apply in all cases, not just rape cases.

EVIDENCE ABOUT CHARACTER OF VICTIM: In the past, the court could hear = evidence about the character of a victim of rape or any other sexual = offence. This was because of stereotyped ideas that certain types of = women  -- particularly promiscuous women - were more likely to lie abut rape. There is no basis in fact for this myth, and there is no similar rule for the victims of other crimes. Section 17 says that no evidence about the character of a woman who has suffered rape or another sexual offence will be admissible. Section 18(2) similarly states that no evidence about the "sexual reputation" of the complainant will be admissible.  

SEXUAL HISTORY EVIDENCE: Rape victims are often subjected to = embarrassing questions about their previous sexual history in court. = Because rape has historically depended on the absence of the victim's = consent, the defence had an interest in trying to show that the victim = was a woman of loose morals who would say "yes" to anyone. The Combating = of Rape Bill switches the emphasis away from "absence of consent" to the = presence of "coercive circumstances". This makes it more clear than ever = that the court should be focussing on what happened in the case at hand, = and not on the previous sexual history of the victim. A prostitute can be raped just as well as a virgin.  Brutal rapes can = and do occur within relationships, between people who have had consensual sexual relations in the past, because of anger or jealousy or other factors.  The fact is that the previous sexual activity of the victim cannot possibly tell the court whether or not there was force or coercion in the incident at hand.  Perhaps she said "yes" to him before, and perhaps she said "yes" to other men, but how is that relevant if this man was holding a knife at her throat or threatening to kill her children? Section 18 attempts to limit the circumstances in which the rape victim's previous sexual history can be introduced. The party who wants to introduce this evidence would first have to ask the court's permission to present the evidence, and the court could give permission only if the evidence fits within the listed categories.

Subsection 1(a) gives two categories: The evidence can be admitted if it will rebut evidence that has already = been introduced by the prosecution. For example, if the prosecutor has = tried to prove the rape by showing that a young girl was a virgin prior = to the rape and is no longer, the accused would have the right to show = that she had consensual sex with someone else previously. The evidence can also be admitted to explain the presence of semen, pregnancy, disease or injury which is relevant to the question of whether or not there was a rape. For example, if the prosecution alleges that the alleged rape was the source of a sexual disease contracted by the victim, the accused would have the right to show that the victim actually got the disease from another sexual encounter.

Subsection (1)(b) gives two more categories: The evidence can be admitted if it is "directly related to a fact or matter in issue". This is very similar to the current broad concept of "relevance". The evidence can be admitted if it "tends to prove bias or motive to = fabricate on the part of the complainant". This provision is controversial, as it seems to reinforce the stereotype that the number of sexual partners a woman has had relates to whether or not she is a truthful person. For both of these categories, the court can allow the evidence only if it has "significant probative value" which is not "substantially outweighed by its potential prejudice to the complainant's personal dignity and right of privacy".

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