CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT ACT 32 OF 2007

S. 2 Objects S. 55 S v Carolus 2008 (2) 207 (SCA)

RAPE
S. 3: 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. S. 1

ELEMENTS
1. SEXUAL PENETRATION OF ANOTHER PERSON 2. WITHOUT CONSENT 3. UNLAWFULNESS 4. INTENTION

1. SEXUAL PENETRATION
S. 1(1): includes any act which causes penetration to any extent whatsoever by: - Genital organs into or beyond genital organs/anus/mouth - Any other part of body/any object/any part of body of animal into or beyond genital organs/anus - Genital organs of animal into or beyond mouth

 Genital organs = whole or part of male/female genital organs includes surgically constructed/reconstructed genital organs

2. WITHOUT CONSENT
S. 1: Consent = voluntary/uncoerced agreement List not exhaustive, but includes: Force/intimidation (against B, the victim, or C or D or against their property) Threat of harm against B, C or D, or their property. Abuse of power/authority Error in negotio and error in persona Child below 12 Mentally disabled

 S. 56 (1) marital/other relationship does not = a defence.

3. UNLAWFULNESS
Official capacity

4. INTENTION
S. 3 requires intention dolus eventualis sufficient

 T. Illsey The defence of mistaken belief in consent (2008) 1 SACJ 63. S. 227 of CPA.

COMPELLED RAPE
S. 4: 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 a complainant (B), without the consent of B, is guilty of the offence of compelled rape.

ELEMENTS
1. COMPELLING A PERSON (C) 2. TO COMMIT AN ACT OF SEXUAL PENETRATION WITH ANOTHER (B) 3. WITHOUT THE CONSENT OF C 4. WITHOUT THE CONSENT OF B 5. UNLAWFULNESS 6. INTENTION

3. WITHOUT CONSENT OF B OR C
Double requirement regarding absence of consent

4. UNLAWFULNESS
Compelled to compel

SEXUAL ASSAULT
S. 5: (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
1. 2. 3. 4. ACT OF SEXUAL VIOLATION OF ANOTHER WITHOUT CONSENT UNLAWFULNESS INTENTION Replaces common law offence of indecent assault s. 68(1)(b).

1. SEXUAL VIOLATION
Actual sexual violation OR inspiring belief in complainant that he/she will be sexually violated Sexual violation includes any act which causes: s. 1(1)(a)(i): Direct/indirect contact between genital organs/anus/breasts (female); & any body part of person/animal or any object (incl. object which resembles/represents genital organs/anus of person/animal

s. 1(1)(a)(ii):
Direct/indirect contact between mouth of person & genital organs/anus/breasts (female) or mouth of another person; or any other body part which can be used (i) in act of sexual penetration, or (ii) cause sexual arousal/stimulation, or (iii) be sexually aroused/stimulated thereby or any object resembling genital organs/ anus/breasts (female) of a person/animal

 Direct/indirect contact between mouth of complainant & genital organs/anus of animal s. 1(1)(a)(iii) Masturbation of one person by another s.1(1)(b) Insertion of any object resembling or representing genital organs of person/animal into or beyond mouth of another person s. 1(1)(c) Does not include act of sexual penetration

Inspiring a Belief
Threat of immediate & personal violence Subjective belief - need not be reasonable Verbal threat sufficient

SEXUAL OFFENCES AGAINST CHILDREN

Chapter 3 sections 15-22 S. 15 refers to statutory rape S. 15(1): 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, guilty of the offence of having committed an act of consensual sexual penetration with a child.

 S. 1(1): child (in terms of sections 15 and 16) = person 12 years or older, but under age 16.

ELEMENTS
1. 2. 3. 4. ACT OF SEXUAL PENETRATION WITH PERSON BETWEEN AGES 12 & 16 UNLAWFULNESS INTENTION

DEFENCES
S. 56(2)(a): Deceived & reasonable belief S. 56(2)(b): Age difference not more than 2 years at time of offence

4. INTENTION

GENERAL
S. 54: failure to report an offence (children & mentally disabled) S. 56 (8):flashing (sections 9 & 22) not an offence if committed in compliance with & in interest of legitimate cultural practice. S. 58: inferences S. 60: cautionary rule

SENTENCE
Criminal Law Amendment Act 105 of 1997 as amended by Criminal Law (Sentencing) Amendment Act 38 of 2007 31 December 2007 S. 51(3)(aA)