8.

South African legislation on child sexual abuse

8.1 Introduction

Clinicians working with child sexual abuse, need to have a working knowledge of relevant
legislation pertaining to children including the Criminal Law (Sexual Offences and Related
Matters) Amendment. Act, no 32 of 2007.The Centre for Applied Legal Studies and Tshwaranang
Legal Advocacy Centre have made an open source summary of this law available, which is
described below.

8.2 Key concepts

There are two key concepts in this piece of legislation, namely intention and consent. Intention
refers to the perpetrator’s intent to engage a child in a sexual act and consent refers to whether
or not the complainant (child) gave or is able to give permission.

Under South African law, any child under the age of 12 is too young to give consent to any sexual
act. A sexual act with a child under 12 is automatically a crime and is defined as rape or sexual
assault. Sexual acts with children between 12 and 16 who do not give consent, are also defined
as rape or sexual assault. Cases where sexual acts were committed with children older than age
twelve where consent has been given, are treated in a number of ways, which will be explored
later in the document.

8.3 Reporting

According to the Optimus Study 2016 children were unlikely to report incidents of sexual abuse
to the authorities. For instance, in cases where they reported sexual abuse by an adult they
knew, only 31.0% of girls and no boys reported this to the police. Young males especially
declined to report, across all categories of abuse.

Clinicians working with child sexual abuse often experience confusion around mandatory
reporting of sexual abuse. This confusion may stem from the fact that two key pieces of
legislation in South African law appear to contradict each other. The Sexual Offences Act
mandates every adult who believes a child is being sexual abused to report immediately to the
South African Police Services (SAPS). A failure to report is a crime. The Children’s Act of 2005
obliges any person who believes a child may being abused physically, sexually or deliberately
neglected, to report to the provincial department of social development, a designated child
protection organisation or a police official.

What may also lead to confusion in reporting, is that members of the SAPS often refuse to open
a case when child-on-child sexual abuse has taken place, even though a minimum age for
reporting is not specified in the sexual offences act.

It is thus required to report child sexual abuse to the SAPS as well as a designated child
protection organisation. The sexual offences act focusses on the crime that has been committed,
whereas the Children’s Act is pivotal in the safety and wellbeing of the child.

It is important to be aware that where reporting has been “in good faith” but there is no
successful outcome of a prosecution, the person who has reported cannot be sued.
8.4 The different acts of sexual violation:

Sexual assault occurs when one person intentionally sexually violates another without their
consent or threatens to do so and in the instance of children under the age of 12, it is important
to remember that they cannot give consent.

‘Sexual assault’ includes any act which causes:

Direct or indirect contact between the

 Genital organs, anus or female breasts of one person, and any part of the body of
another person, an animal or an object;
 Mouth of one person and genital organs, anus or breasts of another;
 Mouth of one person and any other part of the body of another person which causes
sexual arousal
 Mouth of one person and any object resembling genital organs, an anus or breasts
 Mouth of one person and the genital organs / anus of an animal;
 Masturbation of one person by another;
 Insertion of any object similar to the genital organs of a person or animal into the mouth.

(Genital organs include the whole / part of the male and female genital organs as well as
surgically created genital organs)

Thus, sexual assault is an umbrella term under which various specific acts are described.

Rape is: 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. It is important to note that
males and females can be raped (vaginal, anal or oral rape). Further, vaginal penetration would be
anatomically considered anything beyond the labia majora.

Compelled rape or compelled sexual assault is when any person forces two non-consenting people
to commit an act of sexual penetration or sexual assault. In this situation one would have 2 victims.

Compelled self-sexual assault occurs when a person forces a second person to masturbate or

to commit an act that is sexually arousing or degrading, or to penetrate his or her own genital
organs or anus with fingers or an object. Children are often requested to masturbate by
offenders who may then watch for their own enjoyment, or take photographs for the purpose of
making child pornography.

8.5 Sexual grooming of children

This is a new crime in South African criminal law and aims to protect children under 18 years
from sexual exploitation. Sexual grooming refers to the process of preparing a child to engage in
a sexual act.

Two crimes are identified in this section, namely sexual grooming of a child and the promotion
of sexual grooming.

It is a crime for any person to

  manufacture, distribute or facilitate such, supply an article that promotes or is intended
for the commission of a sexual act with a child, inclusive of child pornography; An
example of such an article is a blow up child sex doll, or a vibrator;
 intentionally arrange a meeting, communicate with or travel to meet with the intention of
committing a sexual act with a child;
 supply, expose or display to a child an article intended to be used in a sexual act,
pornography, publication or film with the intention of encouraging, enabling, instructing
or persuading a child to commit a sexual act;
 commit an act in the presence of the child with the intention of encouraging persuading
or reducing the resistance of a child to participate in a sexual act;
 travel to meet or persuades the child to travel to meet with the intention to commit a
sexual act;
 Expose the child’s body in a way that offends the child’s dignity.

Promoting the sexual grooming of a child:

It is a crime for a person to promote sexual acts with children, such as hosting a website where
adults can meet children with a view to engaging children in sexual acts.

8.6 Related sections of the act

It is a crime to intentionally let a child (or an adult) watch a sexual act without the child’s consent.
This is an offence even if the act was not committed for the sexual pleasure of the person
involved. It is also a crime to expose genital organs, anus or breasts to children with the
exception of where exposure of the breasts is considered culturally acceptable.

8.7 Consensual sexual penetration and sexual violation (sexual penetration or sexual violation with a
minor)

The age of consent is 16 years for both girls and boys. This means that a child who is 16 years or
older, can give consent to a sexual act. (Remember, where a child between 12 and 16 did not
give consent, it is still rape or sexual assault and dealt with as such.)

In the case of children between the ages of 12 and 16, where “consent” is given by the child to an
adult, the adult party can be charged with consensual sexual penetration of a child or the
consensual sexual assault of a child.

Where both parties are children between the ages of 12 and 17 (within a two year age gap), and
both gave consent to a sexual act, this is not considered a crime. If one of the children did not
consent then this would be dealt with as rape and / or sexual assault.

8.8 Sexual exploitation of children:

Sexual exploitation of a child occurs when a person intentionally engages the services of a child  in
exchange for financial or other reward, favour or compensation.

Involvement in the sexual exploitation of a child occurs when a person intentionally offers the
services of a child for sexual exploitation to another person for a reward, or detains a child
through the use of threats, force, coercion, lies, abuse of power so that the child can be
exploited. This section points out that this is a crime regardless of whether the reward is given to
the procurer, the child, the caregiver of the child, or any other person.

Furthering the sexual exploitation of a child: A person (primary care-giver, parent or guardian)
intentionally allows sexual exploitation of a child. A person who owns, leases or occupies
property and intentionally allows the property to be used in exploiting a child can also be
charged with sexual exploitation of a child. For example, a mother is unemployed, her boyfriend
provides finances for her basic needs, she knows that her boyfriend is sexually abusing her child
but she does not do anything to stop him.

Any person who lives off the earnings of child prostitution is committing a crime unless that
person is themselves a child.

Promoting child sex tours: A person or company who makes travel arrangements for persons with
the intention of making it easier for those persons to commit sexual acts with children or prints /
publishes any information that promotes sexual acts with children is committing a crime.

Commercial sexual exploitation of children is described as one of the worst forms of child
labour.

The Prevention and Combatting of Trafficking in Persons Act places a duty on immigration
officials, police, social workers or health professionals who come into contact with a victim of
human trafficking to refer the child to a social worker for further investigation.

8.9 Services available to sexually abused children as defined by the SORMA:

The SORMA defines the services that victims of sexual crimes are entitled to. These include only

 Post Exposure Prophylaxis (PEP)

 Free medical advice re PEP
 Request the testing of the offender for HIV/AIDS
 Information regarding accessible health facilities if

o they lay a charge
o Report an incident of an alleged sexual assault to the South African Police
Service.

However, the Department of Health, in their National Directives to medical professionals who
provide forensic services to victims of sexual assault instruct that services go beyond those
specified in the SORMA. According to the National Directives, victims may receive medication to
prevent sexually transmitted infections other than HIV, and prevent pregnancy if the child has
entered puberty. There is also provision for the child to be referred for therapy if this is
indicated.

The medical professional attending to the child must also conduct a sexual assault / rape
examination using a rape examination kit, which must be provided, sealed, by the South African
Police Services. The rape kit must be used in a defined way, and sealed once the child has been
examined and evidence has been collected. The medical professional must also complete a form
detailing the results of the forensic examination, known as the J88. The sealed rape kit and J88
must be handed directly to the officer investigating the crime against the child and never to the
child or family. It must be noted that only approximately 38% of children who have been raped
or sexually assaulted will have identifiable injuries to the genitalia. This however does not mean
that penetration did not occur.