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