{"title":"Notes: Progressive, yet problematic: Unpacking the therapy order and sentence in S v SN","authors":"Delano Cole van der Linde","doi":"10.47348/salj/v140/i4a2","DOIUrl":null,"url":null,"abstract":"The judgment in S v SN [2022] ZAECGHC 35 is dichotomous as it is both progressive and problematic. The judgment is progressive as, for the first time, a South African criminal court imposed a therapy order for a victim of rape. The minor victim in this case was raped multiple times by her uncle in a familial home. The court was further enjoined to impose a minimum life sentence under the Criminal Law Amendment Act 105 of 1997, as the victim was under the age of 16 and had been raped on multiple occasions. However, the court in SN was entitled to deviate from the minimum sentence when ‘substantial and compelling circumstances exist’ to do so. In considering the mitigating and aggravating factors present in the case, the court deviated from the minimum life sentence based on the remorse of the accused and the lack of force used during the rape. The judgment is problematic because considering these factors unearthed problematic narratives surrounding the nature of rape. This note critically analyses the judgment in SN and submits that although the therapy order is a welcome development, the court erred in considering a lack of force employed during the rape as a mitigating factor.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0000,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"South African law journal","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.47348/salj/v140/i4a2","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q3","JCRName":"Social Sciences","Score":null,"Total":0}
引用次数: 0
Abstract
The judgment in S v SN [2022] ZAECGHC 35 is dichotomous as it is both progressive and problematic. The judgment is progressive as, for the first time, a South African criminal court imposed a therapy order for a victim of rape. The minor victim in this case was raped multiple times by her uncle in a familial home. The court was further enjoined to impose a minimum life sentence under the Criminal Law Amendment Act 105 of 1997, as the victim was under the age of 16 and had been raped on multiple occasions. However, the court in SN was entitled to deviate from the minimum sentence when ‘substantial and compelling circumstances exist’ to do so. In considering the mitigating and aggravating factors present in the case, the court deviated from the minimum life sentence based on the remorse of the accused and the lack of force used during the rape. The judgment is problematic because considering these factors unearthed problematic narratives surrounding the nature of rape. This note critically analyses the judgment in SN and submits that although the therapy order is a welcome development, the court erred in considering a lack of force employed during the rape as a mitigating factor.
S v SN [2022] ZAECGHC 35的判决是二分的,因为它既是进步的又是问题的。这一判决是进步的,因为南非刑事法院首次对强奸受害者下达了治疗令。本案中的未成年受害者在家里被她的叔叔强奸了多次。法院还被要求根据1997年第105号《刑法修正案》判处最低无期徒刑,因为受害人未满16岁,并多次遭到强奸。然而,当“存在实质性和令人信服的情况”时,法院有权偏离最低刑罚。在考虑案件中存在的减轻和加重因素时,法院偏离了根据被告的忏悔和强奸期间没有使用武力而判处的最低无期徒刑。这个判决是有问题的,因为考虑到这些因素,就会发现围绕强奸本质的有问题的叙述。本说明批判性地分析了SN案的判决,并提出,尽管治疗令是一个受欢迎的发展,但法院错误地认为强奸期间没有使用武力作为减轻因素。