Prisoner Rape is Illegal — Magistrate Badenhorst Must Be Held Accountable

Johannesburg, July 23, 2013. Sonke Gender Justice and Just Detention International condemn Magistrate Herman Badenhorst’s statement: “In prison, you can rape prisoners if you feel like it — at least you won’t be around little children.” According to an IOL news report on Monday 15 July, the magistrate uttered these words while sentencing Neo Molaudzi for raping and robbing a 13 year old boy.

Badenhorst’s words are deeply alarming: they amount not only to an acceptance of prisoner rape, but an endorsement of it.  As a Magistrate, Badenhorst is tasked with upholding the Constitution and executing justice with fairness, objectivity and integrity. The fact that Badenhorst made this statement in his capacity as a judicial officer makes it particularly concerning.

Rape in prison is a serious violation of inmates’ constitutional rights to dignity and to be free from violence. It has also been recognised as torture by the United Nations Committee Against Torture.

Although prisoner rape is a common occurrence, it is not inevitable. Political will, proactive policies, shifts in discriminatory attitudes, and strong and accountable leadership can prevent the majority of rapes in prison. Today it remains an abuse that tears apart the lives of many prisoners and perpetuates cycles of violence in communitites upon the release of inmates. Because of the toxic mix of violent threats, societal hostility, and a dire lack of support, prisoners subjected to rape mostly suffer in silence, some even choosing to end their lives.

Magistrate Badenhorst’s statement is unfortunately part of a wider, systemic problem where many magistrates (and other officials) show scant regard for the fundamental right of prisoners not to be harmed while incarcerated. Survivors of prisoner rape have told us how, in their desperate attempts to get help, they were dismissed by a string of authority figures — including magistrates — with retorts like “that’s just what happens in prison”.

Sonke Gender Justice and Just Detention International firmly believe that Magistrate Badenhorst must be held accountable for his statement, and raise a grave concern over his ability to apply the law objectively and without prejudice against prisoners. We are currently exploring options for recourse. In the meantime, we call for Chief Magistrate Jacoba Visagie to take action by investigating the matter. Beyond this individual case, both organisations assert the need for magistrates — and others tasked with applying the law — to be sensitised on prisoner rape and held accountable when they fail to fulfil their duties to protect and promote inmates’ constitutional rights, and to objectively apply the law in all cases.