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An Opportunity Missed+ for Male Rape Survivors in South Africa: Masiya v Director of Public Prosecutions and Another

  • Ntombizozuko Dyani

Abstract

The Constitutional Court of South Africa recently handed down a judgment on the extension of the common law definition of rape to include anal penetration of women, but not of men. The court argued that women form part of the most vulnerable group in society. This article analyses the court's judgment and argues that the court should have included anal penetration of men in the light of South African lower courts' decisions, international law and the fact that there is currently a law before parliament which pertains to the anal penetration of men. The article also argues that the court should have taken into consideration that this case involved a child, who is also from the most vulnerable group in society.

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+ This is borrowed from K Bojosi “An opportunity missed for gay rights in Botswana: Utjiwa Kanane v The State” (2004) 63(20) South African Journal on Human Rights 466.

* LLB, LLM (Western Cape); law lecturer, University of the Witwatersrand, South Africa; former clerk to justice Ngcobo, Constitutional Court of South Africa. I would like to thank my colleague, Professor Elsje Bonthuys for her insightful comments on the earlier draft of this article. Special acknowledgment also goes to Mtendeweka Mhango and Zanele Majola for their useful comments.

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An Opportunity Missed+ for Male Rape Survivors in South Africa: Masiya v Director of Public Prosecutions and Another

  • Ntombizozuko Dyani

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