Abstract

A vast body of work exists regarding the development of rape law. Historically, it used to be a crime perpetrated only on women. Despite this, for a long time, the law never placed women at the centre of this crime, and even, to some extent, further victimised the complainants during the prosecution of this crime by relying on gender stereotypical views. The rise of feminist theory has impacted on the development of rape law over the past few decades, and South African law is no exception. This contribution aims to give a broad overview of the historical legal development of the prosecution of rape in South Africa. It outlines the history of rape law by describing the development of the common law in this regard, and also studies the impact of the Transkei Penal Code Act 24 of 1886. This study also gives examples from old case law on how the courts viewed this crime, and specifically how the judicial system treated the women complainants in cases of rape. It further traces the impact of a gender-sensitive jurisprudence post 1994. An exploration of this nature stems from an understanding that even though there has been a substantial increase in the scholarship on rape law since 1994, a feminist historical account is lacking. This study seeks to fill this gap by putting women at the centre as both survivors and victims of this offence.