Handling of rape victims 'lax', appeal judges say

Durban - Appeal judges have lashed out at what they have labelled the lackadaisical manner in which the State deals with victims of violent crime, and in particular rape victims, by "wantonly disregarding without fear of any repercussions" the need to obtain victim impact statements for sentencing purposes.

"There will soon come a time when the State will be held accountable for this failure of its duty," said Supreme Court of Appeal Judge Connie Mocumie, with four judges concurring.

"This court has, in several judgments, pointed out the substantial importance of the statement and that it must form part of sentencing - and model instruments must be drafted by the National Director of Public Prosecutions to achieve this.

"It is essential for the court arriving at a decision that is fair to the offender, victim and the public at large. It gives the sentencing court a balanced view of all aspects in order to impose an appropriate sentence. It accommodates the victim, giving her or him a voice and an opportunity to say in her or his own words how the crime has affected them," Judge Mocumie said.

The matter on appeal before them was that of Vusumuzi Mhlongo, charged with abducting a young woman and repeatedly raping her throughout the night.

Evidence was that she had contracted HIV and had subsequently died of Aids. The judges noted that there had been no attempt by the prosecution to link this to the crime.

Mhlongo was convicted in the regional court and sentenced to life imprisonment. But he took the matter on appeal to the KwaZulu-Natal provincial division.

There two judges found that "it was not the worst kind of rape one can imagine" and converted his sentence to 18 years, ordering that he not be eligible for parole until he had served 12 years.

Mhlongo appealed to the Supreme Court of Appeal, arguing that it was not fair because he had not been given notice that the non-parole section was to be invoked.

While the appeal judges agreed with this and referred the matter back to the KZN judges to relook at it, they took strong issue with the fact that the judges had interfered with the sentence in the first place, and that the State had not launched a cross-appeal on the sentence issue, asking that it be increased.

"The salient facts are that the 27-year-old victim was lured by him to get a lift home as it was raining and there was a bus strike. He drove her to his house and demanded to have sex with her. When she refused, he assaulted her and threatened to kill her. He overpowered her and raped her repeatedly during the night. The next day she went directly to a clinic and made a report to a nurse.

"She testified that she was a virgin. When the trial ended the State placed on record, without any demur from the defence, that she had subsequently succumbed to Aids," Judge Mocumie said.

The KZN judges, while acknowledging that Mhlongo showed no remorse, said the sentence of life imprisonment was "disproportionate to the nature of the crime".

Judge Mocumie said: "This court harboured considerable disquiet about this. They (the KZN judges) found there was significant callousness in the crime but then, unconvincingly, came to the conclusion that it was not the worst kind of rape imagined. But in the light of there being no cross-appeal, this court can do nothing about it."

She said it was a travesty of justice that the State had failed to lead expert evidence on the impact of the rapes on the victim and the possible link to her death from Aids.

"The wave of rape cases is increasing at an alarming rate. There are an estimated 1.7 million rapes a year and yet two out of three go unreported. Despite these distressing statistics, the State chose not to cross-appeal the sentence."

The Mercury