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1 edition of Substantial and compelling circumstances in rape cases found in the catalog.

Substantial and compelling circumstances in rape cases

Allison de Smet

Substantial and compelling circumstances in rape cases

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  • 17 Currently reading

Published by Gender Research & Advocacy Project, Legal Assistance Centre in [Windhoek] .
Written in English


Edition Notes

Includes bibliographical references.

StatementAllison de Smet & Dianne Hubbard
ContributionsHubbard, Dianne, Legal Assistance Centre (Namibia). Gender Research & Advocacy Project
Classifications
LC ClassificationsKSY4202 .S+
The Physical Object
Pagination16 leaves ;
Number of Pages16
ID Numbers
Open LibraryOL24463598M
LC Control Number2009319267

  To ensure that judges do not treat such cases with leniency, it further passed a legislation stating that such a relationship should not act as “substantial and compelling circumstance” to deviate from the required minimum sentences for rape. The Indian Penal Code, however, gives primacy to marital status over consent. according to this rule, the amount of resistance depends on the totality of circumstances in each case- the rule followed in almost all states today. Elements of mondern rape law define rape as intentional sexual penetration by force without consent. 3 elements- (1) Actus reus-sexual penetration by force or threat of force, (2) Mens rea.   Minnesota man gets no prison time, then prison time in rape case from most others and truly presents the ‘substantial and compelling circumstances’ that are . Aggravated raped involves at least one of the following circumstances: (1) the victim suffers serious bodily injury. (2) a stranger commits the rape. (3) the rape occurs in connection with another crime. (4) the rapist is armed. (5) the rapist has accomplices. (6) the .

Likewise, the legislature and the courts have considered the relative immaturity of an offender in providing for mitigation in K.S.A. Supp. (c)(1)(C). Any other reliance upon the relative ages of a victim and a defendant is improper and does not form a substantial and compelling basis to depart from a presumptive sentence. 3.


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Substantial and compelling circumstances in rape cases by Allison de Smet Download PDF EPUB FB2

They cumulatively constitute substantial and compelling circumstances (Limbare). Commentators have warned about the dangers of misinterpretation of “substantial and compelling circumstances” in rape cases. Namibian courts should similarly avoid relying on discredited stereotypes about rape in the context of sentencing.

circumstances. Substantial and compelling circumstances in rape cases. Substantial and compelling circumstances in murder and robbery cases. The problem with considering rehabilitation as a substantial and compelling circumstance.

Recommendations 8. Conclusions BIBLIOGRAPHY There is nothing in his personal circumstances which constitute substantial and compelling circumstances warranting a deviation from the prescribed minimum sentence of 10 years’ imprisonment in this case.

In Dyakophu [2] it was emphasised that: “. However, unless the regional magistrate was satisfied that substantial and compelling circumstances existed, which justified the imposition of a lesser sentence, he was statutorily obliged to impose the prescribed minimum sentence of imprisonment for life for the appellant’s conviction of rape, which is one contemplated in s 3 of the SO Act and committed in circumstances where the victim was raped.

The judge doubted that these factors “can be said to amount to substantial and compelling circumstances as envisaged by Act of ,” however, the judge felt bound by the decisions of the Supreme Court of Appeal (including Mahomotsa, Abrahams, and Rammoko) in which life sentences for rape were not imposed for the reason, inter alia, that “the complainants were not seriously physically.

[8] The presence of substantial and compelling circumstances is not dependant on counsel's submission that they are there or not.

The court has a duty to analyse the submitted circumstances of the appellant, circumstances of the case, surrounding circumstances as well as aggravating factors; and then make a finding if indeed there are no substantial and compelling circumstances. Summary: Accused convicted of murder, rape, defeating or obstructing the course of justice and assault with intent to do grievous bodily harm – Offences committed in the context of a domestic relationship – Absence of substantial and compelling circumstances – To ameliorate the cumulative effect of the sentence to run concurrently, to the.

[11] The trial court in this instance sentenced the accused to a term of 18 months’ imprisonment without any regard being had to the penalty provision in the Combating of Rape Act, compelling the court to impose a minimum of ten years’ imprisonment if no substantial and compelling circumstances are found to exist.

Accepting that by the epithet 'compelling' he meant 'substantial and compelling' that is a correct identification of the issue. He answered that question as follows: 'As I have stated, in my mind, the court should not impose the prescribed minimum sentence in [this] case, in view of the accused's.

In S v JB (1) NR (SC) Shivute CJ (Strydom AJA and Mtambanengwe AJA concurring), at pagepara 11 & 12, stressed that: ‘It is necessary nevertheless to emphasise that in an attempt to make a value judgment as to whether there are substantial and compelling circumstances present in a given case, a court is required to take.

imprisonment inter alia in cases of rape involving children and are therefore no longer required, after conviction, to refer such a case to the High Court for sentencing purposes.7 Regional courts are thus themselves required to perform the determination of substantial and compelling circumstances and subsequent grading of these offences.

The learned judge said that, having regard thereto i.e. that the complainant was under the age of sixteen and that she was mentally disabled as contemplated in s 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Actthe minimum sentence of life would be applicable unless the court was of the opinion that ‘ substantial and compelling circumstances exist, which justify the.

[33] Injury or no injury, rape strikes at the very core of the victim’s femininity. This is true in all rape cases. This case is no exception to the rule. There is no doubt that this rape case remains a despicable misdeed even though the appellant used minimal violence to achieve his criminal objective.

CHAPTER FIFTEEN SENTENCING OF ADULT SEXUAL OFFENDERS principles within the Act (i.e. substantial and compelling circumstances) has offence was a serious case of rape.

Accordingly, it is quite evident that the term File Size: KB. Many courts interpreted substantial and compelling circumstances in many different, and at times confusing, ways. The Supreme Court of Appeal clarified the meaning of substantial and compelling circumstance in the well-known Malgas case in which it held, inter alia, that courts should not lightly depart from imposing severe sentences, since the.

In this regard, because the victim was 7 years old at the time of the rape, I am compelled to impose a life sentence on the Accused unless I find substantial and compelling circumstances which justify the imposition of a lesser sentence.

That it has refrained from giving such guidance as was done in Minnesota from whence the concept of “substantial and compelling circumstances” was derived is significant. It signals that it has deliberately and advisedly left it to the courts to decide in the final analysis whether the circumstances of any particular case call for a departure from the prescribed sentence.

Psychologic symptoms of rape are potentially the most prominent. In the short term, most patients experience fear, nightmares, sleep problems, anger, embarrassment, shame, guilt, or a combination.

Immediately after an assault, patient behavior can range from talkativeness, tenseness, crying, and trembling to shock and disbelief with dispassion.

minimum sentencing guidelines for rape has been offered along with a prohibition for reasons justifying a lesser sentence. Section 3(Aa) states that when imposing a sentence in respect of the offence of rape, the following shall not constitute substantial and compelling circumstances.

Far too many so-called date rape cases collapse at the last moment because the alleged victim has not been entirely candid about the true nature of the circumstances.

Rape is a crime in which sexual intercourse is committed without consent, through force, threats, or fearful intimidation. In most jurisdictions, the actual crime of rape requires actual sexual penetration.

Some states however, have included non-consensual penetration by objects in their rape laws. To explore this concept, consider the.

Rape and Sexual Assault Dean G. Kilpatrick, Ph.D. National Violence Against Women Prevention Research Center Medical University of South Carolina Rape is the most underreported crime in America. Significant changes to improve the treatment of sexual assault.

Procedure for nvest gat on of rape cases B. Transport C. F rearms Judicial interpretation of “substantial and compelling circumstances” Examining sentences for rape on appeal Minimum sentences for second and subsequent.

Combating of Rape Act 8 of (GG ) brought into force on 15 June by GN / (GG ) ACT. in the case of a first conviction - (i) where the rape is committed under circumstances other than the circumstances If a court is satisfied that substantial and exist which compelling circumstances.

GR&AP has also prepared a training DVD on rape aimed at prosecutors and persons who seek to support rape survivors through their court experience. GR&AP also wrote a short memo on how courts have interpreted the substantial and compelling circumstances in rape cases.

In one study, 13 percent of the surveyed American women of ages 18 and older reported having been the victim of at least one completed rape—rape having been defined as "an event that occurred without the woman's consent, involved the use of force or threat of force, and involved sexual penetration of the victim's vagina, mouth or rectum.

In this matter, the court found there were substantial and compelling circumstances to order a reduced sentence. These circumstances include that the family of the complainant (which was also the family of the accused) felt that a longer sentence would prevent the accused from attending school (S v Matsepane, ).Author: Sheena Swemmer.

Redefining Rape. Article in Criminalization should be limited to circumstances in which a defendant exposed her partner to a substantial degree of unassumed risk and did so with a culpable. ‘Substantial and compelling circumstances’ In a case, State vs Mathule, also in the Bophuthatswana High Court, Mogoeng reduced the sentence of.

[17] Mr Apollus comprehensively summarised the principles applicable to the two counts of rape, and more specifically what the court’s approach should be towards the often difficult concept of ‘substantial and compelling circumstances’ as it developed and crystallised over time in our case law.

I would do injustice to counsel to try and. Review the example with Brandy and Alex in Example of Rape Act. In this example, after an initial protest, Brandy lies down, takes off her pants, and allows Alex to put his penis in her vagina when he pulls out a knife.

It is likely that the trier of fact will find the rape attendant circumstance in this case. Circumstantial evidence is evidence that relies on an inference to connect it to a conclusion of fact—such as a fingerprint at the scene of a crime.

By contrast, direct evidence supports the truth of an assertion directly—i.e., without need for any additional evidence or inference. On its own, circumstantial evidence allows for more than one explanation. Book Reviews; Books; Five Await Sentencing in Teen Gang-Rape Case.

there were substantial and compelling circumstances in their case that entitles the court to deviate from the sentences. If there are no substantial and compelling circumstances, the Court is under a statutory obligation to impose the minimum sentence of 15 years.

The accused bears the evidential burden on the existence of substantial and compelling circumstances. [3] The prisoner testified on his own behalf both on conviction and in mitigation of sentence.

Rape is considered one of the most heinous crimes towards the individual and its individuality. It has been observed in the studies that there is a huge gap between the actual rape cases occurring. Why rape convictions are so hard to get Our writer, reflecting on her experience on a rape jury a few years ago, says that regardless of avoidable police mistakes getting a guilty verdict is Author: Fran Yeoman.

The rate of sexual violence in South Africa is among the highest in the world. Sexual violence is the use of force or manipulation to get someone to engage in unwanted sexual activity without their consent.

During /16, there w crimes of a sexual nature reported to. Sentence, Prescribed sentence, Minimum sentence, Charge-sheet, Substantial and compelling circumstances, Untoxication, Murder, Attempted murder, Personal circumstances, Misdirection, Deterrence S v Vika, [1] [2] an important case in South African criminal law, was heard on Court: Eastern Cape High Court, Grahamstown.

The marital status and children of the accused is irrelevant to the case of rape; In a prosecution for rape, the birth of a child is conclusively a prior act of unlawful intercourse; The character of the prosecutrix is not a defense.

Impotency can be considered a good defense in a criminal prosecution for rape. In most cases their experiences were so devastating to their character, their ethnic bonds and often to their health that the logic of how mass rape can destroy a substantial part of a group and.

Such a comparison cannot form a substantial and compelling reason to depart from the presumptive sentence established for statutory rape. Similarly, the lack of evidence of physical force or trauma in the commission of the rape does not support a finding that the harm or loss in this case was less significant than typically occasioned by this.

Rape case is generally presumed to be the case in which bail can not be granted at all. Matter gets worse when Courts make general observations about conditions and plight of women and proceed to refuse bail without referring to the facts of the case.

Conduct of complainant: In one such case FIR was recorded.Case Did He Rape Her?. Garnett v. State. Md.A.2d () Raymond Leonard Garnett, the defendant, was convicted in the Circuit Court, Montgomery County, of second-degree rape under the statute proscribing sexual intercourse between persons .