A newspaper in South Africa published a disturbing story today about the defense raised by the lawyers for a passenger who is accused of raping a woman during a cruise aboard the MSC Sinfonia cruise ship.
The case involves South African national Anika Marks who sailed on the MSC Cruises ship in November 2009. Ms. Marks was on what is described as a three-day business trip with 40 work colleagues when another South African passenger, Sindhu Ramanandh Bhogal, allegedly drugged and raped her.
The cruise ship regularly sails between Durban and Mozambique. On the cruise in question, Ms. Marks says that she awoke two hours after the alleged rape. She accompanied her colleagues to the Portuguese islands (see map), one of the ship’s stops on the cruise. She reported the rape during the cruise the day before the cruise ship was due to return to Durban.
Rather than using a Jane Doe pseudonym, Ms. Marks is using her own name because she believes that this will encourage other rape victims to take action.
After two years of legal wrangling, defendant Bhogal’s lawyers have a new defense – the South African state courts cannot try him for the cruise ship rape because the incident happened in international waters. The defense lawyer even obtained a statement from the cruise ship’s captain (how interesting) that the incident did not occur in South African waters. At a hearing last week, Mr. Bhogal’s lawyer cited a provision in the South African Criminal Procedures Act that if the alleged crime occurs in international waters, the South African state courts have no jurisdiction.
Ms. Marks, on the other hand, alleges that the alleged rape took place the same night the ship left Durban such that the vessel was still in territorial waters.
If the court concludes that the alleged rape occurred on the high seas, then Mr. Bhogal may walk free. The prosecution would then have to obtain authority from the National Prosecuting Authority to try and prosecute Mr. Bhogal.
Cases like this reveal the dilemna which many women face after they have been raped on cruise ships around the world. Sometimes they find themselves in a no man’s land.
In the U.S., only the state of Florida has a law which permits the prosecution of rapists on the high seas. The Florida law is unique because it permits the state to exercise jurisdiction over crimes which occur on cruise ships even if the rape occur in international waters, provided the ship leaves from a U.S. port and the majority of the passengers are residents of Florida.
Regarding rapes which occur on cruises in international water which leave from ports in other states, only the U.S. Department of Justice may prosecute such crimes provided that the FBI is interested in investigating the incident.
But if the rape does not involve a U.S. victim or assailant and is against a citizen of another country and occurs on a foreign flag vessel on the high seas, the FBI has no jurisdiction. This means that the criminal can avoid prosecution on technical terms, citing a lack of jurisdiction.
Photo credit: Photos nos 1 and 3 – International Newspapers via Saturday Star