n South African Journal of Criminal Justice - The Constitutional Court gets anal about rape - gender neutrality and the principle of legality in

Volume 20, Issue 3
  • ISSN : 1011-8527
  • E-ISSN: 1996-2118



In the Constitutional Court missed the opportunity to address the patently inadequate and unjust common law definition of the crime of rape. The Court had an opportunity to embrace its mandate as guardian of constitutional rights and, in adopting a conservative stance towards the development of the common law, failed to do so. Two points of particular interest that arise from the judgment are considered in this article: the Court's unwillingness to extend the definition of rape along gender-neutral lines; and the impact of the principle of legality on the Courts' ability to develop the common law definitions of crimes. There is no reason in logic or justice for why the definition of rape should be gender- specific. Furthermore, in line with the minority judgment in , there is no rule of law that prohibits the Court from executing such an extension.

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