Judge not lest ye be...

Friday, 15 October 1999

"Usurpers always choose troubled times to enact, in the atmosphere of general panic, laws which the public would never adopt when passions were cool." Jean-Jacques Rousseau

RAPE touches a raw nerve among most of us, especially since we discovered we have the dubious honour of posting the worst rape statistics per capita in the world. Small wonder, then, that when High Court Judge John Foxcroft last week imposed a sentence of seven years imprisonment on a man found guilty of raping his 14-year-old daughter, most of us went ballistic.

It's the human thing to do. Many of us have known for a long time — and more of us are becoming aware of it every day — that rape is most frequently perpetrated by a person known to the victim and not by some faceless lowlife. And in many of those cases, the rapist is from the victim's own family. And the victim is frequently a minor.

Parliament, sensibly, had acted on this by passing legislation calling for mandatory minimum sentencing for rape of a minor. Confronted with the fact that Judge Foxcroft chose to not impose the minimum sentence required by law, public curiosity was raised. When we heard reports that the learned judge had suggested that the crime was of lesser importance because it had been perpetrated within the family, we blew our collective stacks.

And amidst the storm came a calm voice of reason that made me stop reacting emotionally and start asking questions. Kevin Rorke of Mowbray in Cape Town wrote in to my newspaper, the Cape Times:

I find it rather remarkable that people can see fit to pass comment on a High Court judgment on the strength of a newspaper report. The prevailing sentiment regarding the sentence ... seems to be: "A man raped his daughter. Seven years is too lenient." ... Have any of these armchair lawyers actually read the judgment or attended the case? I wonder. With the exception of one or two reporters, I suspect not.

Rorke touched another nerve. If there is a crime that I would hope never to be accused of, it's that of poor journalism. So I went in search of Foxcroft's judgment and have since spent several hours perusing it with a fine tooth comb.

And I'm forced to admit that Rorke is right.

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For example, my own newspaper, the Cape Times, reported as follows:

The judge also came under fire for his 'insensitive' remarks when he said the interests of the community played a much lesser role in determining the 54-year-old Elsie's River man's seven-year sentence as the victim was his daughter.

I find no place where he says anything of the sort. What he did say was:

I would also like to mention a case heard in this court where Mr Justice van Reenen gave judgement on sentencing with which I agreed. In the case, a father had raped his two young daughters over a period of seven years. That case was a much more serious rape case than the present sentencing with which I am dealing. ... In that case this court said the father's sexual deviancy was limited to his own family and there was no suggestion that the man's behaviour would surface outside the family unit. ... Because all the accused's daughters have left their parents' home the likelihood that these crimes will be repeated is almost zero. Taking this into account there seems to be no reason for the public to be protected from the accused or that a sentence be imposed which will act as a deterrent so that the accused does not commit a similar offence.

I am also forced to admit that while my gut instinctively twists and contorts at the enormity of the crime, Foxcroft's judgment makes sense. Justice needs to be even-handed in its application. The earlier case which the judge referred to imposed a sentence of eight years imprisonment of which two years were suspended. In the current case, Foxcroft's sentence of seven years is in addition to a year already spent in custody by the rapist. Relatively, Foxcroft has been more harsh in his sentencing than Judge van Reenen, but has also fulfilled the criteria for "material and compelling circumstances" that justify a lesser sentence than life imprisonment.

So, where to from here?

If there is a lesson I have learned from this entire debacle, it is that the battle against rape will not be won in the courts. In the time that I have taken to write these words, many more women among us will have been raped. Would a life sentence from Judge Foxcroft been of greater assistance to them than to have the rapist locked up for only eight years?