Today’s Constitutional Court ruling which stated that forced anal penetration of a male should not be defined as rape has been met with outrage.

The majority judgment concerned the case of Fanuel Sitakeni Masiya. Masiya was accused of penetrating a nine year old girl anally which, according to South African law, only constituted indecent assault.

The Magistrate in the case, however, changed the common law definition of rape to include non-consensual penetration of the anus and made the definition gender-neutral. On that basis Masiya was convicted of rape.

Masiya then took the case to the Constitutional Court, which agreed that the definition of rape must be extended to include non-consensual anal penetration of females. It found however that the extended definition cannot be applied retrospectively to Masiya and set aside his conviction of rape, replacing it with indecent assault.

Yet, while acknowledging that “non-consensual anal penetration of males is no less humiliating, degrading, or traumatic in nature”, the court ruled that the definition of rape should not include non-consensual anal sex between men. The court said that extending the definition to include male rape would, in this case, encroach onto the terrain of legislators.

Cape Town-based gay rights group Triangle Project said that it was “dismayed” by the ruling. “This ruling is not congruent with other criminal laws in the country. There is no gender distinction on murder, for instance, so why should we have one on rape,” argued Vista Kalipa, Media Coordinator for the organisation.

Kalipa said that, “Calling rape indecent assault is only masking its malevolent sting. It should be seen for the evil that it is, regardless of whether it happens to males or females.”

There was one dissention, by Justice CJ Langa, in the Constitutional Court ruling. He argued that, once it was accepted that rape was about the infringement of dignity and that anal rape was as severe an infringement of a victim’s dignity as vaginal rape, it made no sense to distinguish between men and women.

OUT LGBT Well-Being also released a statement reacting to the judgment, saying that the ruling “falls horribly short by failing to develop the law to include men who are raped.”

Melanie Judge, Advocacy Manager for OUT said that that, “This gender bias amounts to unfair discrimination and serves to perpetuate gender stereotypes about male sexuality and keeps male-on-male rape invisible.”

OUT affirmed its position that all acts of forced sex should be treated equally in the eyes of the law and called for the urgent passing of the new Sexual Offences Bill.

The pending Criminal Law (Sexual Offences) Amendment Bill 2003 is set to change the definition of rape to include non-consensual anal penetration of males. However the Minister of Justice and Constitutional Development was unable to tell the court when the bill is likely to be finalised.

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