DEAR Editor,-
It would be remiss of me not to respond to the report ‘No sentence for rapist’ (Herald, July 4) and the subsequent letter by a reader, who chose to hide behind the anonymity of ‘Incredulous’ in last week’s paper when excoriating the magistrate who had dealt with the matter.
Professional protocol prohibits magistrates and judges from responding to reports and letters of this kind, even if they are factually incorrect and the criticism unwarranted. It is only fair though that I, as an officer of the court, speak out in defence.
Of course magistrates and judges are not above criticism in a democratic order such as ours, but the very least one can expect of responsible reporters is to establish the facts of a court case before reporting on them. Had your reporter done so, he or she would not have branded a man convicted of having indecently touched two young girls, a rapist.
There is a vast difference between rape and indecent assault. Rapists are almost invariably sentenced to substantial terms of imprisonment and when a child is raped, to imprisonment for life.
It is furthermore not correct that the indecent assaults of the two girls had continued unabatedly for seven years. Due to the fact that the girls were younger than five years old at the time that the incidents occurred, they were unable to remember the incidents and the matter was reported by them more than a decade later. Consequently the prosecution had to aver in the charge sheet that the incidents had occurred on diverse occasions during the period 2000 to 2007.
The effective suspended term of the imprisonment was also ten years for the two complainants and not five years as reported.
The innuendo carried by the headline was that the punishment meted out to a child rapist was so ineffectual that it did not amount to a sentence at all. This no doubt served as a catalyst to the censorious letter of reader, Incredulous, who, by his or her own admission, did not know the facts of the matter or the reasons why the sentences concerned were imposed.
Sentencing an offender is one of the most difficult tasks of any judicial officer and involves a very careful balancing of the interests of society and that of the offender in the light of the facts of the crime. It is not just about retribution. This approach is of course something that your correspondent might not understand because he or she regards the death sentence, a savage punishment which even in the past history of our country was reserved for the most horrendous and brutal crimes, as appropriate for the indecent touching of a child, regardless of other considerations.
Had the reasons for the sentences in question been ascertained, the reporter and correspondent would have learnt that the offender was an elderly, suicidal and very sick man, who wanted to acknowledge his guilt of having indecently touched the two complainants without having to put them through the trauma of trying to recollect an incident which took place nearly 14 years ago. Had the accused elected to invoke his constitutional rights to remain silent (which he and every other South African citizen are lawfully entitled to do in terms of our constitution) he would have pleaded not guilty and would in all probability have been acquitted of the charges.
What he had done was no doubt atrocious, but it would have served no purpose other than vengeful retribution to have sent a sickly and suicidal pensioner to prison when, by keeping him out of prison, it was possible for the court to order him to pay for the costs of counselling and therapy for the two complainants. Nobody else was going to pay for that and the sentence provided for restorative justice.
The suggestion that justice might not be done in a forthcoming trial in that same court, amounts to criminal contempt of court and I shall not be surprised if he or she finds him or herself in the dock to experience criminal justice first-hand.
In conclusion, it is not possible within the space provided for in this column to explain to ‘Incredulous’ that the adage that ‘apples and oranges’ cannot be compared also applies in the criminal justice system.
LARRY SEETHAL
Seethal Attorneys
