ladies and gentlemen

the best of luck for your test on the 2nd September 2014:-0
areas to study

• high treason
• all sexual crimes
• perjury
• murder (including attempted and culpable homicide)

WE WILL MEET AT THE CHAPEL AT 08:30

1.Crimes against public welfare

ØCorruption

ØExtortion

ØDrug offences

üUse or possession

üDealing

ØUnlawful possession of firearms or ammunition

Ø

2.Sexual crimes:

ØRape

ØSexual offences involving young people

 (contravention of S14 of the Sexual Offences Act 23 of 1957)

ØIncest

3.Bigamy & abduction

•S6 provides that: a person (A) who unlawfully and intentionally compels a third person (C), without the consent of C, to commit an act of sexual violation with s complainant B without the consent of B is guilty of the offence of compelled sexual assault.

•ELEMENTS: unlawfulness, intent, compelling a third person, sexual violation, the complainant.

•Compelling a third person: refers to a person other than the accused or complainant. The conduct of the third person must meet the requirements for justification of necessity as proof that the third person was acting out of compulsion. Thus the accused must have been threatening a worthy legal interest (life, bodily interest and property).further the conduct of the third person must have been necessary and reasonable under the circumstances.

•Read S7 (a), (b) and (c) for the definition!

Elements

•Unlawfulness

•Intent

•The complainant

•Compelling the complainant

•Engaging in conduct set out in Section 7

This  basically involves 2 parties X the perpetrator and Y the victim. X compels Y to do or perform the ‘indecent’ act upon Y herself or himself.

•Unlawfulness:  this crime can be committed by male or female. As S7 provides that any natural person can be a perpetrator of the crime.  consent  is defined by the provisions of section 1(2). Consent for the statutory crime of compelled sexual assault, is absent in the context of the circumstances identified in section 1(3) of the Act. The contents of  subsection S(2) and(3) of section 1 have already been discussed under the elements of unlawfulness in the crime of Rape.

•Intent:  the intention of the accused must be to unlawfully compel the complainant to engage in a conduct set out in S7 of Act 32 of 2007. the state bears the onus of proving that the accused had actual or legal intention to perpetrate the conduct. The state must actually prove that accused intended to compel the complainant to perform an act listed in S7, knowing or foreseeing that the complainant had not legitimately consented and  yet carried out regulations.

•Complainant: already discussed under the corresponding elements of rape

•Compelling the compainant: the conduct of the complainant must meet the requirements for the justification of the necessity as proof that the complainant was acting out of compulsion. The accused must have been threatening a worthy legal interest, posing a threat that had either commenced or was imminent or posing a threat that was not due to the complicit conduct of the complainant. Further note that the conduct of the complainant must have been necessary and reasonable under the circumstances. 

 •Engaging in a conduct set out in S7: Section 7 prescribes conduct in three categories. The categories are not mutually exclusive. The prohibited conduct includes conduct that involves penetration of the genital organs or the anus of the person, but the prohibited extends beyond acts of penetration. 1st category of prohibited conduct relates to cases where the complainant is compelled to engage in conduct including sexual suggestive acts, self masturbation or any sexual arousal/stimulation of a females breasts. 2nd  category is a general prohibition against any conduct that compels a complainant to engage in conduct that has the effect of sexually arousing or degrading the complainant. The 3rd category that compels the complainant to penetrate their own genital organs or anus. There is no limitation to what the complainant may be forcer to use to complete the penetration

Section 8 provides that:

1)A person (A) who unlawfully and intentionally, whether for the sexual gratification of A or of the third person (C) or not, compels or causes the complainant 18 years or older (B) without the consent of B, to be in the presence of or watch A or C while he, she or they commit a sexual offence, is guilty of the offence of compelling or causing a person 18yrs or older to witness a sexual offence.

2)A person (A) who unlawfully and intentionally, whether for the sexual gratification of A or of a third person (C) or not, compels or causes a complainant 18yrs or older (B) without the consent of B, to be in the presence of watch-

– A while he or she engages in a sexual act with C or another person D or

–C while he or she engages in a sexual act with D is guilty of the offence of compelling or causing a person 18 years or older to witness a sexual act.

•

 

3) A person (A) who unlawfully and intentionally, whether for the sexual gratification of A or of a third person (C) or not, compels or causes a complainant 18yrs or older (B), without the consent of B, to be in the presence of A or C while he or She engages in an act of self masturbation, is guilty of the offence of compelling or causing a person 18yrs or older to witness self-masturbation.

Elements

•Unlawfulness

•Intent

•The complainant

•Compelling a complainant 18yrs of age or older

•Being in the presence of, or watching self masturbation or sexual offence/act

•S9 provides that: A person (A) who unlawfully and intentionally, whether for the sexual gratification of A or of a third person (C) or not, exposes or displays or causes the exposure or display of the genital organs, anus or female breasts of A or C to a complainant 18yrs or older (B) without the consent of B, is guilty of the offence of exposing or displaying or causing the exposure or display of genital organs, anus or female breasts to a person 18yrs or older.

Elements

•Unlawfulness

•Intent

•The complainant

•Exposure or displaying of a designated body part

•Unlawfulness: the conduct of the accused must have been necessary and reasonable under the circumstances. The accused would escape liability if the complainant consented to the conduct of the accused. further the location of the exposure may also exclude the unlawfulness of the display. E.g. topless sunbathing may be lawful at the beach. Also it may not be unlawful to witness at functions such as a traditional Zulu ‘reed dance’ to be exposed to the bare breasts of the maidens.

•Intent:  must be to unlawfully expose a designated body part to the complainant. The state bears the onus of proving that the accused had actual or legal intention to perpetrate the conduct. The state must prove that the accused intended to expose a designated body part to the complainant knowingly or foreseeing that the complainant had not legitimately consented and yet carried on regardless

•Complainant: as explained in the rape element only that here complainant must be 18yrs or older

•Exposure or display of a designated body part: the conduct of the accused may only be punished for violating the provisions of S9 where he was responsible for exposing or displaying the genital organs, anus or female breasts of a person other than the complainant, to the complainant.

General comment: there is a overlap between a crime of crimen iniuria and S9 of Act 32 of 2007. please note crimen iniuria also punishes acts of indecent exposure

•

•S10 provides that: A person (A) who unlawfully and intentionally, whether for the sexual gratification of a third person (C) or not, exposes or displays or causes the exposure or display of a child pornography to a complainant 18yrs or older (B), with or without the consent of B, is guilty of the offence of exposing or displaying or causing the exposure or display of child pornography to a person 18 years or older.

Elements: unlawfulness, intent, the complainant, exposure or display of child pornography

Snyman:  X commits a crime if he or she unlawfully and intentionally exposes or displays child pornography to Y. Y must be 18years or older. If Y is younger than 18, a different section of the Act will apply namely S19 is contravened.

•X commits a crime not only if he or she plays pornography himself  or herself, but also if he or she causes another person to perform the displaying. The crime is committed irrespective of whether Y consents to the displaying or not.

•General comments: this crime criminalises the non-consensual exposure or display of child pornography. It does not criminalise the conduct where a person is a consenting viewer. This does not make sense, because the accused would be guilty of being in possession of the offensive material and liable in terms of S27 of the Films and Publications Act 65 of 1996. perhaps the consenting viewer should be charged as an accomplice to the crime.

•It may be called ‘sex for reward’

•Both parties consent to the act.

•Prostitution is mankind’s oldest profession.

Section 11 provides that: A person ‘A’ who unlawfully and intentionally engages the services of a person 18yrs or older ‘B’ for financial or other reward, favour or compensation to B or to a third person ‘C’-

a)For the purpose of engaging in a sexual act with B irrespective of whether the sexual act is committed or not

b)By committing a sexual act with B is guilty of the offence of engaging the sexual services of a person 18 years or older

•Unlawfulness

•Intention

•Engaging the services of a person 18years or older

•A benefit to any person

•The purpose of engaging in a sexual act or committing a sexual act with the person whose services were engaged

General comments: the accused would be liable for violating the prohibition in S11 regardless whether the sexual act occurs or not. It seems redundant to criminalise the conduct of the accused again if the act does not actually occur. That fact might be relevant for sentencing.

The fact that any benefit in any form may be sufficient to justify liability should be cause for concern. The constitutional court has already declared that the crime can only be justified in the context of commercial sex work

•S15 provides as follows: A person ‘A’ who commits an act of sexual penetration with a child ‘B’ is, despite the consent of B to the commission of such an act is guilty of the offence of having committed an act of consensual sexual penetration with a child.

•Elements: unlawfulness, fault, sexual penetration, the child

•The child…. A person under the age of 18 years; or

•With reference to S15 and 16 a person 12 years or older but under the age of 16years

A person ‘A’ who commits an act of sexual violation with a child ‘B’, despite the consent of B to the commission of such an act of the offence of having committed an act of consensual sexual violation with a child

Elements: unlawfulness, fault, sexual violation, the child

Further, the act defines the term ‘genital organs’ as including the whole or part of the male of female genital organs, as well as surgically constructed or reconstructed genital organs.

People who may not marry: the new statutory crime of incest is a codification of the common-law crime of incest. The general principles that relate to the prohibited degrees of relation are congruent between the previous common-law crime and the new statutory crime.

•S12 (2) provides that for the purpose of the statutory crime of incest:

a)The prohibited degrees of consanguinity (blood relationship)  are the following:

i.Ascendants and descendants in the direct line or

ii.Collaterals, if either of them is related to their common ancestor in their first degree of descent

b) The prohibited degrees of affinity are relations by marriage in the ascending and descending line; and

c) An adoptive relationship is the relationship of adoption as provided for in any other law.

Brief history: Roman dutch law punished all unnatural sexual conduct (including homosexuality and bestiality) under the title venus monstra. Venus monstra constituted ‘gratification of sexual lust in a manner contrary to the order of nature. Under English law the crimes of sodomy and bestiality were collectively called buggery.

South African law eventually separated the crimes of Sodomy, bestiality and unnatural offences. Bestiality (zoophilia) was defined as unlawful and intentional sexual relations by a person with an animal. Proof of penetration was required but not proof of semen emission. The provisions of the common-law crime of bestiality hsve been repealed and replaced by the provisions of Section 68 (1)(b) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

S 13 provides that: A person ‘A’ who unlawfully and intentionally commits an act

1)Which causes penetration to any extent whatsoever by the genital organs of

a)A into or beyond the mouth, genital organs or anus of an animal, or

b)An animal into or beyond the mouth, genital organs or anus of A, or

  2) of masturbation of an animal, unless such act is committed for scientific reasons of breeding purposes, or of masturbation with an animal, is guilty of the offence of bestiality.

●

•Unlawfulness

•Intent

•An act the causes penetration by genital organs or masturbation of an animal

•An act by a person with an animal

•

Please note: X may be either a male or a female, and the animal may likewise be either male or female. The crime is commited not only if X performs the act himself, when he inserts his own penis into the vagina or anus of an animal, but also where he causes another person Y to do so, as where he coerces Y to do so.

 Section 3 of the Criminal Law(sexual offences and related matters) Amendment Act 32 of 2007 provides that any person (A) who unlawfully and intentionally commits an act of sexual penetration with a complainant (B), without the consent of B, is guilty of the offence of rape.

ELEMENTS

•Unlawfulness

•Intent

•Sexual penetration

•Of the complainant/without the consent of the latter person

Unlawfulness: the crime can be committed by male or female as S3 provides that any natural person may be the perpetrator of the crime. Proof of compulsion may exclude the unlawfulness of the conduct. The only other defence that will exclude unlawfulness is consent. The term ‘consent’ means voluntary or uncoerced agreement.

S1(3) relate to circumstances in which the complainant submits as a result of the use of force, intimidation, or threats of harm against the complainant, another person, the property of the complainant or another person. The provisions of this section reflect the ratio from the case of R v Swiggerlaar. However the statutory approach goes well beyond the scope of common law.

 •S1(3)(a) recognises any harm waged against any other person or property.

•S1(3)(b)relates to cases where the legitimacy of the consent is vitiated by the abuse of power or authority.

•S1(3)(c) refers to cases, including misrepresentation by the accused, false pretences.

•S1(3)(d) refers to circumstances in which the complainant lacks the capacity to appreciate the nature of the sexual act at the time it took place. E.g complainant was asleep, unconscious , intoxicated, child below 12yrs, mentally disabled.

•Intent: the intention of the accused must be to unlawfully cause sexual penetration. The accused would lack intention if there was a legitimate mistake in causing sexual penetration. Mistake being…. Legitimate consent to sexual penetration.

•Sexual penetration: Section 1of the act defines ‘sexual penetration’ as including any act that causes penetration to any extent whatsoever by:

a)The genital organs of one person into or beyond the genital organs, anus or mouth of another person;

b)Any other part of body of one person or any object including any part of the body of an animal, into or beyond the genital organs or anus of another person; or

c)The genital organs of an animal, into or beyond the mouth of another person.

A significant feature of the definition of sexual penetration is that it relates to an act that ‘causes penetration’. This is significant because it does not restrict the gender of the accused. This means that a woman may be held liable for rape if she causes the penetration of her genital organs by the genital organs of a male victim.

Similarly, a woman may be held liable for rape if she causes the penetrating of another woman’s genital organs by using any other part of her body or any object.

(page 358-362 snyman)

•Complainant: meaning the alleged victim (any person) of the sexual offence. This is in terms of S1.

Please note: it is not a valid defence for that accused person to contend that a marital or other relationship exists or existed between him or her and the complainant. It is therefore, perfectly possible for a husband to rape his own wife.

•After the constitutional court in Makwanyane 1995 2 SACR 1 (CC) the death sentence was no longer a competent sentence to be imposed upon a conviction of rape.

•Page368… imprisonment for life must sometimes be imposed

•Page 369 other minimum sentences to be applied

S4 definition: any person (‘A’) who unlawfully and intentionally compels a third person (‘C’) without the consent of C, to commit an act of sexual penetration with the complainant (B), is guilty of the offence of compelled rape.

ELEMENTS: Unlawfulness, intent, compelling a third person, sexual penetration, the complainant

(refer to prescribed text for more info on the elements)

S5 provides that:

1.A person (A) who unlawfully and intentionally sexually violates a complainant (B), without the consent of B, is guilty of the offence of sexual assault.

2.A person (A) who unlawfully and intentionally inspires the belief in a complainant (B) that B will be sexually violated, is guilty of the offence of sexual assault.

ELEMENTS AS DEFINED IN S5(1) unlawfulness, intent, an act of sexual violation, the complainant

ELEMENTS S5(2) unlawfulness, intent, inspiring a belief, an act of sexual violation, the complainant

What is sexual violation?

•It refers to cases that do not involve penetration. The statutory definition of sexual violation includes (in-) direct contact between the genital organs (or anus of another person or female breasts) and any other object or part of the body of another person.

•Essentially ‘sexual violation’ refers to prohibited forms of sexual conduct that do not amount to ‘sexual penetration’.

•It also includes (in-) direct contact between the mouth of a person and:

1)The mouth of another person

2)Any object resembling the genital organs(or anus of another person or a female’s breasts)

3)Any part of another person’s body that can be used for sexual penetration, stimulation or arousal

4)The mouth of the complainant and the genital organs (or anus) of an animal without causing sexual penetration

•Sexual violation also includes the masturbation of one person by another person, or the insertion of any object resembling or representing the genital organs of a person or animal into or beyond the mouth of another.

SEXUAL CRIMES

Brief history: SA criminal law has punished participants in sexual relations where they offended the direct victim by a conduct or a family life. Further, the common law also criminalised certain types of sexual relation because the impugned conduct was considered to offend morality. Not all crimes of morality were concerned with sexual relations.

Criminal punishment for immoral sexual behaviour existed under Roman Law. The most serious which we call rape did not have a name of its own. Please not note that even then sexual intercourse with under-age girls was punishable, even if it did not involve any violence. Sexual intercourse between unmarried persons was punishable as a crime of fornication. Even adultery was punishable.

Gradually the focus on criminal law deviated from fornication and adultery. Now we are going to look at or zoom into THE CRIMINAL LAW(SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT ACT 32 OF 2007

•

DEFINITION

S 12(1) of the sexual offences amendment Act 32 of 2007 provides that: persons who may not lawfully marry each other on account of consanguinity, affinity of an adoptive relationship and who unlawfully and intentionally engage in an act of sexual penetration with each other, are, despite their mutual consent to engage in such act, are guilty of incest.

ELEMENTS

•Unlawfulness

•Intent

•An act of sexual penetration

•An act of sexual penetration between two people who may not lawfully marry each other on account of consanguinity, affinity or adoptive relationship

•

Unlawfulness: S12(1) makes it abundantly clear that the mutual consent of the parties plays no role in absolving them of their liability. However proof of compulsion has been accepted under the common law as excluding unlawfulness (R v Bourne 1952)

S56 (4) excludes the liability of the accused if two requirements are met.

1.An accused may escape liability if, at the time of the act of sexual penetration was committed, the accused was below the age of 18years.

2.The other participant to the incestuous sexual penetration, at the time that the act of sexual penetration was first committed, exercised power and authority over the accused (who was younger than 18) or a relationship of trust existed between the accused and the other person

Intent: the parties must intend to participate in conduct that involves sexual penetration together with the knowledge that they are prohibited from inter-marrying or participating in sexual penetration as a result of their relationship. (R V Pieterse 1923). If there is reasonable doubt resulting from a mistake of fact about the prohibitive nature of the relationship the accused lacks mens rea

Sexual penetration: the prohibited act consist of sexual penetration by any person with another person without his/her consent. S1 of the act defines ‘sexual penetration as including any act that causes penetration to any extent whatsoever by

a)The genital organs of one person into or beyond the genital organs, anus or mouth of another person;

b)Any other part of the body of one person or any object, including any part of the body of an animal, into or beyond the genital organs or anus of another person or;

c)The genital organs of an animal, into or beyond the mouth of another person.

Further, the act defines the term ‘genital organs’ as including the whole or part of the male of female genital organs, as well as surgically constructed or reconstructed genital organs.

People who may not marry: the new statutory crime of incest is a codification of the common-law crime of incest. The general principles that relate to the prohibited degrees of relation are congruent between the previous common-law crime and the new statutory crime.

•S12 (2) provides that for the purpose of the statutory crime of incest:

a)The prohibited degrees of consanguinity (blood relationship)  are the following:

i.Ascendants and descendants in the direct line or

ii.Collaterals, if either of them is related to their common ancestor in their first degree of descent

b) The prohibited degrees of affinity are relations by marriage in the ascending and descending line; and

c) An adoptive relationship is the relationship of adoption as provided for in any other law.

Brief history: Roman dutch law punished all unnatural sexual conduct (including homosexuality and bestiality) under the title venus monstra. Venus monstra constituted ‘gratification of sexual lust in a manner contrary to the order of nature. Under English law the crimes of sodomy and bestiality were collectively called buggery.

South African law eventually separated the crimes of Sodomy, bestiality and unnatural offences. Bestiality (zoophilia) was defined as unlawful and intentional sexual relations by a person with an animal. Proof of penetration was required but not proof of semen emission. The provisions of the common-law crime of bestiality hsve been repealed and replaced by the provisions of Section 68 (1)(b) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

S 13 provides that: A person ‘A’ who unlawfully and intentionally commits an act

1)Which causes penetration to any extent whatsoever by the genital organs of

a)A into or beyond the mouth, genital organs or anus of an animal, or

b)An animal into or beyond the mouth, genital organs or anus of A, or

  2) of masturbation of an animal, unless such act is committed for scientific reasons of breeding purposes, or of masturbation with an animal, is guilty of the offence of bestiality.

●

•Unlawfulness

•Intent

•An act the causes penetration by genital organs or masturbation of an animal

•An act by a person with an animal

•

Please note: X may be either a male or a female, and the animal may likewise be either male or female. The crime is commited not only if X performs the act himself, when he inserts his own penis into the vagina or anus of an animal, but also where he causes another person Y to do so, as where he coerces Y to do so. 

Section 3 of the Criminal Law(sexual offences and related matters) Amendment Act 32 of 2007 provides that any person (A) who unlawfully and intentionally commits an act of sexual penetration with a complainant (B), without the consent of B, is guilty of the offence of rape.

ELEMENTS

•Unlawfulness

•Intent

•Sexual penetration

•Of the complainant/without the consent of the latter person.

Unlawfulness: the crime can be committed by male or female as S3 provides that any natural person may be the perpetrator of the crime. Proof of compulsion may exclude the unlawfulness of the conduct. The only other defence that will exclude unlawfulness is consent. The term ‘consent’ means voluntary or uncoerced agreement.

S1(3) relate to circumstances in which the complainant submits as a result of the use of force, intimidation, or threats of harm against the complainant, another person, the property of the complainant or another person. The provisions of this section reflect the ratio from the case of R v Swiggerlaar. However the statutory approach goes well beyond the scope of common law.

 •S1(3)(a) recognises any harm waged against any other person or property.

•S1(3)(b)relates to cases where the legitimacy of the consent is vitiated by the abuse of power or authority.

•S1(3)(c) refers to cases, including misrepresentation by the accused, false pretences.

•S1(3)(d) refers to circumstances in which the complainant lacks the capacity to appreciate the nature of the sexual act at the time it took place. E.g complainant was asleep, unconscious , intoxicated, child below 12yrs, mentally disabled.

•Intent: the intention of the accused must be to unlawfully cause sexual penetration. The accused would lack intention if there was a legitimate mistake in causing sexual penetration. Mistake being…. Legitimate consent to sexual penetration.

•Sexual penetration: Section 1of the act defines ‘sexual penetration’ as including any act that causes penetration to any extent whatsoever by:

a)The genital organs of one person into or beyond the genital organs, anus or mouth of another person;

b)Any other part of body of one person or any object including any part of the body of an animal, into or beyond the genital organs or anus of another person; or

c)The genital organs of an animal, into or beyond the mouth of another person.

A significant feature of the definition of sexual penetration is that it relates to an act that ‘causes penetration’. This is significant because it does not restrict the gender of the accused. This means that a woman may be held liable for rape if she causes the penetration of her genital organs by the genital organs of a male victim.

Similarly, a woman may be held liable for rape if she causes the penetrating of another woman’s genital organs by using any other part of her body or any object.

(page 358-362 snyman)

•Complainant: meaning the alleged victim (any person) of the sexual offence. This is in terms of S1.

Please note: it is not a valid defence for that accused person to contend that a marital or other relationship exists or existed between him or her and the complainant. It is therefore, perfectly possible for a husband to rape his own wife.