Writing on the very controversial subject of the appropriate sentence that should be im- posed on a person convicted of rape takes me back to the year 1992, when I wrote a column for this newspaper called "What's the point." I had recently been called to practise at the Bar and was an associate with a civil law firm, although I anxiously awaited the fulfilment of my dream to be a State Counsel with the Office of the Director of Public Prosecutions. I never hid my desire to work in this noble department and my love for the practice of criminal law, in the role of prosecutor, was a public admission. Back then I was just as passionate about justice and it should come as no surprise, just as vocal about matters of national importance.
Lapse in decision
One matter which engaged my attention was a decision of the Court of Appeal dealing with a conviction of rape. In delivering the decision, one of the presiding judges criticised the heavy sentences imposed on first-time rapists and suggested that the appellant ought not to be so severely punished for a "lapse" in his conduct. I was incensed by the learned judge's comments and especially outraged by the use of the word "lapse" in the context of an offence as heinous as rape and so I decided to make his statement and the entire matter of the offence of rape the subject of my next article. So said, so done and my only regret is that at the time of writing I do not have at hand a copy of that article written almost 20 years ago by an idealistic thinker who was prepared to positively change the world at whatever the cost. I am sure that upon review of that work I would easily identify the places in which my expressions could have been more tempered and my position more elo- quently submitted, but although I may have mellowed and hopefully wised with age, I still firmly believe that the offence of rape is equivalent to, in the words of a close friend, mental murder.
One of the unforeseen results of my article was its mention in a book whose author is an accomplished senior criminal law practitioner who dedicated several pages of his work to dismantling my comments and challenging my opinion. But upon reflection, I am indeed grateful for his remarks because the publication, in making reference to my article, has ensured that it is part of an important written record. It was also suggested that I was quite brave to be so forthright in criticising a senior judicial officer whose professional pathway I would likely encounter in the future. That too did come to pass and I have never regretted standing firmly to my principle that there should be severe penalties and tough sentences imposed on those who commit the offence of rape. The fact that a man has raped only once is not a "lapse" for which he should be lightly sentenced or shown unjustified leniency.
The issue has once again arisen as to whether a life sentence ought to be imposed on those convicted of rape. Some people have suggested a more drastic penalty of death or castration of the offender. While it is unclear if either of these two extreme forms of punishment would find favour with the vast majority, the point must be made that under the current law, a person who commits the offence of rape is liable on conviction to imprisonment for life. The relevant section of the law is as follows: s.4(2) A person who commits the offence of rape is liable on conviction to imprisonment for life and any other punishment which may be imposed by law, except that if- (a) the complainant is under the age of 12 years; (b) the offence is committed by two or more persons acting in concert or with the assistance or in the presence of a third person; (c) the offence is committed in particularly heinous circumstances; (d) the complainant was pregnant at the time of the offence and the accused knew that the complainant was pregnant; or
(e) the accused has previously been convicted of the offence of rape, he shall be liable to imprisonment for the remainder of his natural life.
The term "imprisonment for life" based on the application of the Prison Rules is taken to mean 20 years and, as the law states, in matters where the rape has occurred in aggravating circumstances, as outlined in paragraphs (a)-(e) above, the maximum sentence, if imposed, would mean that the offender would spend the rest of his life in jail. It would be helpful to examine the Act in its entirety to determine if there is need for amendment because there is a flaw in s. 34 of the Act which provides for notification requirements for sex offenders. And this exercise should be conducted within a reasonable time before the issue, like so many others such as the dangerous dogs legislation, goes cold.
In light of the existing law, it is presumed that those who have made the call for the sentence of life for those who are convicted of rape, are either suggesting that there should be a mandatory life sentence or expressing a concern that the sentencing policy for convictions of rape has to be revisited. With respect to the mandatory sentence of life for rape, there will be many legal challenges that will have to be overcome as such an approach involves interfering with the discretion of the court and the constitutionality of such a sentence. The role of the judiciary in ensuring that there is no undermining of public confidence in this sacred institution places a heavy burden on those who administer justice. Earlier this year, the Judicial Education Institute (JEI) published a Sentencing Handbook which is a helpful tool in ensuring consistency and reasonableness in the imposition of sentences. Perhaps there ought to be specific guidelines sentences in sexual offences and I am confident that there will be further publications by the JEI on subjects such as sentencing policies. The fact is that the offence of rape is a heinous crime and all must be done to ensure there is zero tolerance for this and other kinds of criminal activity.