2 S. Afr. J. Crim. Just. 79 (1989)
Law Reform: Marital Rape

handle is hein.journals/soafcrimj2 and id is 87 raw text is: Law Reform: marital rape
JRL Milton
Universitj of Natal, Pietermaritmburg
In its Report Wlomen and Sexual Offenes in South Afica (1985) the South
African Law Commission recommended (para 2.43) that the rule that a
husband could not be convicted of the rape of his wife should be abolished.
The Commission proposed a form of words to give effect to this
recommendation (see Report 178). A draft bill (the Criminal Law and
the Criminal Procedure Act Amendment Bill [B106-87 (GA)] using
somewhat different language but retaining the gist of the Commission's
recommendation was tabled in Parliament on 9 September 1987 (and
published in Notice 758 of 1987 appearing in GG 10986 of 9 October
1987). The relevant clause read:
'1(1) Notwithstanding anything to the contrary contained in the common
law, a man may be held criminally responsible for raping his lawful wife.'
The bill was referred to a Joint Committee for inquiry and report and
was reported on 7 February 1989 with amendments.
The report of the Joint Committee will come as a profound disap-
pointment to those who had anticipated that there might be a reform
of this contentious feature of our law. The short effect of the report is
that the Committee rejects the clause proposed in the draft bill and
recommends its replacement with a clause to the effect that if on a charge
of assault, it appears that the accused had raped his wife, the rape must
be regarded as an aggravating circumstances for purpose of sentence (this
recommendation is given substance in the form of a draft bill (the Crim-
inal Law and the Criminal Procedure Act Amendment Bill [B106b-87
(GA)]-[B 36-89 (GA)]) presently before Parliament.)
The reasons given by the Committee for not favoring the excision of
the marital rape exemption from our law are the following.

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