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''S v Masiya'' is an important case in South African criminal law, decided by the Constitutional Court. == Facts == The accused was charged in a regional court with rape, in that, on a certain day in 2004, he had sexual intercourse with the complainant, then a nine-year-old girl. On the day the act was committed, the legislation creating a new statutory crime of rape〔Act 32 of 2007.〕 had not yet existed. The accused was charged with common-law rape. The evidence brought to light that the accused had not inserted his penis into the complainant's vagina, but into her anus. The state argued that the accused had to be convicted of the common-law crime of indecent assault, because, in terms of the rules of common law then applicable, such conduct did not qualify as rape, but only as indecent assault. At that time the common-law crime of rape could be committed only if an accused had sexually penetrated the complainant's vagina. In a surprising move, however, the regional court magistrate held that the common-law definition of rape was unconstitutional, inasmuch as sexual penetration of the complainant's anus was not punishable as rape, but only as indecent assault. The magistrate argued that indecent assault was a less serious crime than rape, and that a conviction of a less serious crime discriminated against the complainant, since there were no rational grounds upon which non-consensual penetration of a woman's anus, instead of her vagina, should be regarded, not as rape, but only as indecent assault. The magistrate also held that a magistrate's court has the power to consider the constitutionality of a rule of the common law and, if necessary, to change it. The magistrate accordingly convicted the accused of rape. The Criminal Law Amendment Act 105 of 1997 provides that the magistrate does not have the power to impose punishment in such a serious matter as the present. The case had to be referred to the High Court for the purpose of the imposition of punishment. This was done. The High court confirmed the decision of the magistrate's court, but the imposition of punishment was postponed until the Constitutional Court had confirmed the change in the definition of the common- law crime of rape.〔The judgment of the High Court has been reported as ''S v Masiya (Minister of Justüe and Constitutional Developomet Intervening)'' 2006 (2) SACR 357 (T).〕 The Constitutional Court therefore had to decide whether the magistrate's court and the High Court had acted correctly in broadening the definition of the common-law crime of rape on the ground that the old definition had been unconstitutional. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「S v Masiya」の詳細全文を読む スポンサード リンク
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