Zorena Jantze
THE Namibian police reported 690 rape cases in the first eight months of 2021, illustrating the staggering rate the crimes are committed across the country.
To combat this social ill on the rise, Namibian Minister of Justice Yvonne Dausab tabled the Combating of Rape Amendment Bill with longer sentences for offenders.
“Statistics show that harsh and lengthy imprisonment sentences do not necessarily serve as deterrence for would-be offenders but it mitigates the impact. We should ensure as lawmakers that where an accused is convicted of rape, especially under coercive circumstances, he or she faces the full wrath of the law,” Dausab said.
The Bill will also increase rape sentences from a minimum of 15 to 20 years in respect of perpetrators who are found guilty of rape where the complainant has suffered grievous bodily or mental harm and is under the age of 13 and is by reason of age exceptionally vulnerable.
The sentence for a first conviction of rape is increased from a minimum of five to ten years, and where the rape is committed under coercive circumstances, the sentence is now increased from a minimum of ten to 15 years.
Further amendments to section 3 relate to the revision of minimum sentences for second or subsequent convictions under the aforementioned circumstances from 10 to 20 years, 20 to 25 years and 45 to 30 years.
A sexual act and coercive circumstances need to be present in order for any person to be convicted of the crime of rape under section 2(1) of the Combating of Rape Act, 2000.
There are currently nine grounds that make up coercive circumstances. In addition to these grounds such as the application of physical force, threats, unlawful detainment and age of the complainant, as listed in section 2(2) of the Combating of Rape Act, 2000, the Bill provides an additional ground for coercive circumstance for rape.
It states that coercive circumstance includes, but is not limited to the abuse of power or authority where the person in respect of whom the sexual act is committed is inhibited from indicating his or her resistance to that act or their unwillingness to participate in that act.
Furthermore, the bill prohibits courts to draw any inference only from the absence of semen, other bodily fluids on or within the complainant, or from the absence of evidence of rupture of the hymen.
Therefore, the court is tasked with holistically evaluating the evidence before making its ruling.
Dausab said the burden of proof in criminal cases rests upon the State and requires that a case be proved beyond any reasonable doubt.
“This is a very onerous burden of proof, which has led to the State being unable to prove many rape cases simply by virtue of that inference. In light of this burden of proof, it is necessary to move away from inferences to be drawn from evidence, which can easily be lost, misinterpreted or tampered with.”
Furthermore, the bill empowers a court for a regional division to impose all penalties for rape, as well as conditions upon bail relating to contact necessary to protect the complainant.
“The victim-centred approach adopted in rape cases should be enhanced and we endeavour to do so through this Amendment Bill. Victim support and victim and witness friendly courts are high on the priority list of the Ministry of Justice and the Judiciary, and we believe that this approach will enable our courts to be presented with the best possible evidence from which to make a judgment,” Dausab stressed.
In an effort to respond to the efficacy of the system, courts such as the Katutura Magistrate’s Court have been identified as Gender-based Violence Courts.
“As a nation, we should continue to find ways to prevent the increasing occurrence of rape and focus on rehabilitation of convicted offenders,” Dausab said.
