CRIMINAL LAW: SPECIFIC CRIMES

Module Code: LCC202

Lecturer Details: Nombuso.Mashele@ump.ac.za
Office: Archive Building, Office 212
Consultation: TBC
Name : Ms Nombuso Mashele
LLB (UJ), LLM in Labour Law (UJ)
LLM in Human Rights Law (Ongoing – UNISA)

LECTURE 5
SEXUAL CRIMES/OFFENCES

HISTORICAL CONTEXT

• South African criminal law has punished participants in sexual relations where they offended the direct victim of the conduct or
family life.
• Common law also criminalised certain types of sexual relations because the impugned conduct was considered to offend morality
• The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Sexual Offences Act) consolidates all
offences relating to sexual matters
• The Sexual Offences Act 32 of 2007 repeals the common law crime of indecent assault and replaces it with a statutory offence of
sexual assault
• It is applicable to all forms of sexual violation without consent
• It repeals other common law crimes dealing with the commission of sexual acts, namely incest, bestiality and intercourse with a
corpse – and replaces these crimes with new statutory offences
• It repeals large portions of the Sexual Offences Act 23 of 1957
• It also creates a number of new sexual offences not formerly known in our law
Why was the common law not sufficient to regulate sexual offences
•A lot of the conduct was never criminalized in common law, e.g sexual grooming, an accused who has AIDS raping a person etc.
• There was a need to put all the sexual offences in one legislation to ensure legal certainty and to prevent a piece meal of criminalization
SEXUAL CRIMES/OFFENCES

What is the main aims/purpose of the Act?

•See section 2 of the Act; DPP v Prins (Minister of Justice and Constitutional Development & two amici curiae intervening)
(361/12) [2012] 106 ZASCA (15 June 2012)
•1. Include all sexual crimes in one act;
•2. Define all sexual crimes;
•3. Make all forms of sexual abuse or exploitation a crime;
•4. Make sure that both men and women can use the law with regard to sexual crimes (non-discriminatory);
•5. Make sure that government departments work together to protect complainants from unfair treatment or trauma;
•6. Improve the way the criminal justice system (the courts and police) works;
•7. Make the age when both men and women can give permission (consent) to have sex, 16 years;
•8. Make sure that rape survivors get post-exposure prophlaxis (PEP), which is medical treatment that can reduce their
chances of getting HIV from the rape;
•9. Allow rape survivors to find out if the person who raped them has HIV; (Do that in law of criminal procedure) and to
•10. Establish a National Register (a list of names) for Sex Offenders.

 Does this register not infringe the right of the accused to dignity, privacy?
RAPE – NB NB
RAPE

• Section 3 of the Act provides that any person who unlawfully and intentionally commits an act of
sexual penetration with another person without the latter’s consent is guilty of the offence of
rape
• S v Silo – attempted rape - accused had pushed the complainant onto a bed in her flat, then
slapped her in the face and instructed the complainant to remove her gown and underwear and
attempted to fetch a knife and further threaten the complainant
• “An assault on a victim before a rape takes place is considered an act of consummation and would
constitute attempted rape, if it is clear that the perpetrator inflicted such assault, with the
intention to rape, in order to restrain or overcome the resistance of a victim.”
• Thus, the court dismissed the appeal against the conviction of attempted rape in contravention of
section 55 of Sexual Offences Act.
RAPE
RAPE – NB NB

The broadening of the ambit of rape – before the coming into operation of the present Act, rape was a common-
law crime. It consisted in a male having unlawful and intentional sexual intercourse with a female without her
consent

Masiya v Director of Public Prosecutions, Pretoria and Another (Centre For Applied Legal Studies And Another,
Amici Curiae) 2007 SA 30 (CC).

Facts
The accused was prosecuted and convicted in the magistrate’s court of anally raping a 9 year-old girl in 2004. At the
time that the accused was prosecuted, the common law regarding rape was applicable as legislation governing rape
had not yet been implemented. The common law crime of rape provided for crime where a male person penetrated
the vagina of a female person with his penis.
Where a male penetrated the anus of a female, then it would constitute indecent assault in terms of the common
law. The prosecutor should have prosecuted the accused for indecent assault but decided to prosecute the accused
for rape and argued that the court should develop the common law crime of rape and extend the definition of
penetration to include anal penetration.
RAPE
RAPE

(Masiya case cont…)

Legal questions:
The constitutional court (CC) had to give judgement regarding the following 2 questions:
Does the magistrate’s (regional) court have the power to extend the definition of the common law definition
of the crime, rape to include anal rape?
May the accused be convicted for rape as a result of the extension of the definition by the magistrate?

Judgment:
Magistrate’s court (regional court):
The magistrate found that the common law crime of rape that provided for penile-vaginal intercourse was
unconstitutional since it was archaic, irrational and amounted to gender discrimination.
The magistrate extended the common law definition of rape to include anal penetration and as a result of
the extension of the definition, convicted the accused for the crime, rape (and not indecent assault).
 RAPE

Rape
(Masiya case cont…)
The accused appealed to the high court and argued:
1) The regional court did not have the power to extend the common law definition; and
2) Even if the regional court did have such power, the court could not convict the accused
since his conduct was not a crime at the time he committed the conduct. The conviction would be
an infringement of the legality principle.
The high court agreed with the regional court judgement and found that the common law crime of
rape was invalid in terms of the Constitution. The high court held that the principle of legality was
not applicable since no new crime had been created as the common law crime had merely been
extended.
RAPE
RAPE
(Masiya case cont…)
• The accused then appealed against the high court judgement and the CC had to decide the 2 legal questions. The
majority of the constitutional court (CC) found that the common law definition of rape had to be extended to include
anal penetration of a female.

• The court confirmed the change to the common law definition of rape and that the regional court had the power to
develop the common law.

• The CC however found that in terms of the application of the legality principle the accused could not be convicted of
anal rape, since this would mean applying the developed common law definition of rape retrospectively.

• The latter would be in contravention of the legality principle and unfair to the accused. The rape conviction was set
aside, and the accused was convicted for indecent assault and the case referred back to the magistrate’s court for
sentencing. However, all accused after this case could be convicted for rape regarding anal-penile penetration.
 RAPE

Give the elements for rape with reference to the elements for a crime a general.

Elements of crime in general (part 1) Elements for rape

Legality Prohibited in legislation, namely Sexual
Offences Act 32 of 2007.
Conduct Conduct is the sexual penetration of another
person
Unlawfulness Against legislation to penetrate another
without permission; it is against the boni
mores/legal convictions of society
Criminal capacity The accused must be able to distinguish
between right and wrong and act in
accordance with the distinction
Fault Intent to sexually penetrate a person
RAPE

Give the meaning of sexual penetration

Know the meaning of ‘Sexual penetration’ (See the definitions in the Act at s 1(1)) includes any act which causes
penetration by –
 The genital organs of the accused into the genital organs, anus or mouth of the victim;
 Any other part of the accused’s body or, any object, into the genital organs or anus of victim; or
 The genital organs of an animal into the mouth of the victim
Why is ‘consent’ in some instances a problematic requirement?
‘Consent’ means voluntary or unforced agreement. This means that victim must freely, willingly and deliberately agree
to the sexual act; and the victim must be able to understand what she is consenting to.

o Egglestone v the State, Supreme Court of Appeal, 2008 Egglestone offered N a job as a receptionist at his escort
agency. As part of the training, he touched her breasts and genitals and had sex with her. N first refused to have sex
but later gave in because she was told she cannot otherwise get a job as a receptionist at the escort agency. The court
stated that, because Egglestone was much older than N and in a position of power over her because she needed the
job, N was not able to give proper consent to the sexual acts.
COMPELLED RAPE

COMPELLED RAPE

The Act also creates a new offence called ‘Compelled rape’ (section 4).
•Meaning: This is when A unlawfully and intentionally compels/forces B (a third party) to sexually
penetrate the victim without the consent of either the victim or the consent of B.
•‘penetration’ – to insert something
•‘compel’ – force somebody to do something
SEXUAL ASSAULT

SEXUAL ASSAULT

Sexual Assault (section 5) replaces the common law crime of indecent assault.
Meaning; Sexual assault occurs when the accused intentionally and unlawfully sexually violates the victim
(complainant) without the consent OR inspires the belief in the victim that they will be sexually violated.
e.g. where A threatens to sexually violate B.
 DPP v Prins
SEXUAL ASSAULT

SEXUAL ASSAULT
Know the meaning ‘Sexual violation’ broadly/in broad terms Sexual violation (see act: definitions) includes any act which
causes –
•a. Direct or indirect contact
•(i) between the genital organs, anus or female breasts of one person, and any part of the body of another person, an animal, or
object;
•(ii) Mouth of one person and-
•(aa) Genital organs, anus or breasts of another;
•(bb) Mouth of another person;
• (cc) Any other part of the body of another person which causes sexual arousal;
• (dd) Any object resembling genital organs, an anus or breasts; victim’s mouth and the genital organs or anus of an
animal;
•b. Masturbation of one person by another; or
•c. The insertion of any object similar to the genital organs of a person animal into or beyond the victim’s mouth.
• ‘genital organs’ – includes the whole or part of the male and female genital organs and surgically created or recreated genital
organs.
COMPELLED SEXUAL ASSAULT

COMPELLED SEXAUL ASSAULT

Define compelled (forced) sexual assault (section 6)

Where the accused unlawfully and intentionally compels B, to commit an act of sexual violation with the
complainant without the consent of the complainant, is guilty of the offence of compelled sexual assault.

Compelled (forced) self-sexual assault (section 7).

•Meaning: Compelled self-sexual assault occurs when a the accused compels or forces the victim –
1. to engage in masturbation,
2. to commit an act that is sexually arousing or degrading, or
3. to penetrate his or her own genital organs or anus, without the victim’s consent.
Note:
The third party cannot use his marriage to the victim as an excuse to rape or sexually assault the victim (section
56).
OTHER SEXUAL OFFENCES AGAINST ADULTS

OTHER SEXUAL OFFENCES AGAINST ADULTS

1. Compelling/forcing/causing an adult to witness (watch) a sexual crime, sexual acts or self-masturbation without
consent (section 8)

2. Exposure or display of genital organs, anus or female breasts to adults (flashing) without consent (section 9).
•Legitimate cultural practice can be a defence to this crime.
•Similar crimes are created when such acts are committed against children or persons with a mental disability.

3. Engaging the sexual services of adults (section 11)

•In terms of the Sexual Offences Act, it is now considered a crime for a person to engage the services of a person 18 years
or older for financial or other reward, favour or compensation to an individual or to a third person for the purpose of
engaging in a sexual act with that individual.
•Note:
•The South African Law Reform Commission is reviewing the current law on sex work.
COMMON LAW CRIMES REPEALED BY
THE ACT
The Act repeals the common law crimes of incest (replaces with s 12), bestiality (replaces with s 13) and sexual
violation of a corpse (replaces with s 14) and these common law crimes have now been replaced with new
statutory provisions.

a. SEXUAL ACT WITH A CORPSE

A person who unlawfully and intentionally commits a sexual act with a human corpse is guilty of the offence of
committing a sexual act with a corpse.
INCEST
b. INCEST

• Section 12(1) of the Sexual Offences Act defines the offence of incest as follows:
Persons who may not lawfully marry each other on account of consanguinity, affinity or 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, guilty of the offence of incest

• People who may not intermarry: Section 12(2) of the Act:

(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 the 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 other law

Consanguinity consists of a blood relationship or descent from a common ancestor.

The term ascendants refers to parents and grandparents who may not marry their descendants – their children and
grandchildren – in the direct line
BESTIALITY
c. Bestiality

• Section 13 of the Sexual Offences Act defines bestiality as follows:

A person (“A”) who unlawfully and intentionally commits an act –
(a) Which causes penetration to any extent whatsoever by the genital organs of –
(i) A into or beyond the mouth, genital organs or anus of an animal; or
(ii) An animal into or beyond the mouth, genital organs or anus of A; or
(b) Or masturbation of an animal, unless such act is committed for scientific reasons or breeding purposes, or
of masturbation, or of masturbation with an animal, is guilty of the offence of bestiality

In S v M 2004 1 SACR 228 (O) – the Free State court held that the existence of this crime is not
unconstitutional, in that the offence is not contrary to section 9(3) of the Constitution, which prohibits
discrimination based on sexual orientation, section 12(1) which states that everyone has the right to freedom
and security of the person, or section 14 which provides the right to privacy.