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.