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.
