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Saturday, July 26, 2025

A matter of Life or Death

by

20110929

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.

Cur­rent de­bate

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.

Sen­tenc­ing pol­i­cy

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.


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