A criminal trial against a South African man accused of raping a South African woman during a cruise ended when the trial court ruled that the alleged rape did not occur in the territorial waters of South Africa.

A newspaper in South Africa published a disturbing story about the defense raised by the lawyers for a passenger who is accused of raping a woman after allegedly spiking her drink 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 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 had been dancing at a disco on the cruise ship when she went alone to an outside deck to smoke a cigarette. Bhogal was there and they spoke.  She left to go to the toilet, leaving her drink and cigarettes on the deck next to Bhogal.

After she returned, she smoked a cigarette Bhogal offered her and drank a drink he offered her.  Marks thereafter "lost control of her head and body" and then remembered walking down stairs with Bhogal behind.  The next thing she remembered was Bhogal on top of her, with her dress up and underwear off, and him raping her.

After two years of legal wrangling, defendant Bhogal’s lawyers asserted a new defense – the South African state courts cannot try him for the cruise ship rape because the incident happened in   Mozambican waters.

Mr. Bhogal’s lawyer cited a provision in the South African Criminal Procedures Act that if the alleged crime occurs in international waters or another country’s territorial waters, the South African state courts have no jurisdiction.

Because the MSC cruise ship is operated by an Italian cruise line and is flagged in Panama, technically only the country of Panama can prosecute crimes against a South African woman which occur outside of the territorial waters of South Africa.

I have never heard of Panama ever investigating or prosecuting crimes on Panamanian flagged cruise ships.  After all, cruise lines flag their ships in places like Panama to avoid oversight. That’s where Carnival, for example, flags its vessels.  If you are a woman sexually assaulted on a Panamanian flagged cruise ship and your country does not permit criminal prosecutions of rapists in international waters, don’t expect anyone from Panama to arrest the assailant.  You are in an international no-man’s land. 

Photo credit:  INSLA