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Sexual Offences

An entire statute is devoted to sexual offences. As the preamble to the Sexual Offences Act 20071 records, ‘the commission of sexual offices in the Republic is of grave concern…’

The Act deals with these offences in categories: rape and sexual assault; exposure and compelling others to witness sexual acts; involving children; mentally disabled people; HIV issues; sex offenders. The penalties for these offences are severe.

There is also a National Register for Sex Offenders in which the names of all persons who have committed sex crimes involving children or mentally disabled people are recorded.

In all cases, the deed must have been without the consent of the victim.2

A. Rape

  1. Rape is any act which, to any extent, causes penetration:3
    • by the genital organs of one person into the anus, mouth or genital organs of another;
    • by any object, part of the body, or part of an animal into the anus or genital organs of another person;
    • of the genital organs of an animal into the mouth of another person.4
  2. Compelled rape is where one person forces another person (i.e. without his consent) to commit any act of sexual penetration with another person without his/her consent.5

B. Sexual assault

If you violate someone in a sexual way without her consent, this is sexual assault. This is different from rape, and there is a broad range of deeds which constitute this crime.

  1. Sexual assault is any act which causes contact (even indirectly) between the genital organs, or anus, of one person, and:6
    • any part of the body of any other person, including his mouth; or
    • any part of the body of any animal; or
    • any object.
  2. Sexual assault is also any act which causes contact, between:7
    • the breasts of a female and any part of the body of any other person (including his mouth) or animal, or any object;
    • the mouth of one person and the mouth of another;8
    • the mouth of one person and any other part of another person’s body which could cause or result in sexual arousal or stimulation, or be used in sexual penetration;
    • the mouth of one person and any object resembling the genital organs, or anus, of a person, or of an animal, or a female’s breasts; and
    • the mouth of the complainant and the genital organs, or anus, of an animal.
  3. Sexual assault is also:9
    • any masturbation of one person by another;
    • the insertion of any object resembling the genital organs of a person, or animal, into the mouth of another person.
  4. It is also a crime:
    • if you inspire the belief in another person, by whatever means, that he will be violated in any of the ways described above;10
    • to force another person to violate someone else in any of the ways described above;11
    • to force another person to:12
      • engage in self-masturbation;
      • engage in any form of stimulation of her breasts;
      • engage in any act which is sexually suggestive, arousing, or degrading;
      • penetrate, in any manner, her own genital organs or anus.

C. Forced witnessing, flashing, prostitutes

  1. Forcing an adult to watch a sexual offence, or just to be present, is a crime in itself.13

  2. Forcing an adult to watch another person in a sexual act, or just to be present, is a crime, whether that sexual act is with another person or is self-masturbation.14

  3. It is a crime to expose (or cause it) the genital organs, female breasts or anus of someone to another person without that other person’s consent.15

  4. Anyone who displays child pornography, or causes it to be displayed, is guilty of an offence.16

  5. It is a crime to engage the services of someone else, for any kind of compensation (for that person or someone else, and including a favour) for the purposes of a sexual act whether the act takes place or not.17

D. Incest and bestiality

  1. Incest is sexual penetration, committed by:18
    • direct ascendants and descendants;
    • siblings;
    • adoptive parents and their children,

    and it is a criminal offence.

  2. Bestiality is when a person penetrates his genital organs into the mouth, anus or genital organs of an animal; or causes an animal to penetrate its genital organs into the person’s mouth, anus or genital organs.19

  3. It is also the offence of bestiality to masturbate an animal (unless it is for genuine scientific or breeding purposes) or to use an animal for self-masturbation.20

  4. Committing any sexual act with a dead human is a criminal offence.21

E. Statutory rape

  1. Statutory rape is any act of sexual penetration22 with a person aged 12–15 years (inclusive) even if there is consent.23

  2. Statutory sexual assault is the violation24 of a person aged 12–15 years (inclusive) in a sexual way even if there is consent.25

F. Child exploitation

Sexually exploiting someone under the age of 18 (‘a child’) has several facets. Each of the following deeds is a criminal offence.

  1. For any kind of compensation (whether to that child or anyone else, and including even a ‘favour’) you:
    • engage the services of a child for the purposes of a sexual act, whether the act takes place or not;26
    • offer the services of, make available, or engage a child for purposes of a sexual act;27
    • invite or persuade a child to commit a sexual act with someone else;28
    • participate, be involved, promote, encourage or facilitate the commission by someone else of a sexual act with a child; and29
    • to detain a child, by any means, for purposes of a sexual act with someone else.30
  2. It is a crime, also to:
    • allow a sexual act between a child and someone else if you are the child’s parent, guardian or primary caregiver;31 32
    • allow any property (movable or immovable) you own or occupy, or which is under your control, to be used for a sexual act between someone else and a child;33
    • receive, or live off, financial or other reward from the commission of a sexual act with a child;34
    • make any travel arrangements for someone else in order to facilitate the commission of a sexual act with a child, whether the act takes place or not;35
    • print, or publish any information intended to promote or facilitate any sexual act with a child.36

G. Sexual grooming of children, pornography and trafficking

  1. Grooming a child sexually is a criminal offence. It includes the following deeds:
    • manufacturing, processing or distributing any article, publication or film intended to facilitate or promote the commission of a sexual act by a child, or with a child;37
    • facilitating any such manufacture, possession or distribution;38
    • suppling, or exposing, to anyone any article, pornography, publication or film in order to enable, instruct or encourage him to perform a sexual act with a child;39
    • arranging a meeting or communication, of any sort, anywhere in the world, in order for someone to perform a sexual act with a child.40
  2. It is a crime for any person to:
    • supply or expose to a child any article, pornography, publication or film in order to enable, instruct, or encourage the child to perform a sexual act;41
    • commit with or describe any act to a child, or do so in its presence, in order to encourage him or reduce his resistance to:42
      • performing a sexual act;
      • masturbating while anyone is present or watching;
      • himself being present or watching anyone else masturbate or perform a sexual act;
      • being exposed to pornography ;
      • being used for the purposes of creating pornography;
      • expose any part of his body so as to violate his sexual integrity or his dignity.
    • arrange or facilitate a meeting or communication with (including travelling to meet with) a child with the intention to commit a sexual act.43
  3. It is a criminal offence, in any meeting or communication with a child, to invite, persuade, or coerce the child to:44
    • travel, to anywhere in the world, to meet with the intention of committing a sexual act with the child;
    • commit a sexual act with the person;
    • discuss, explain or describe the commission of a sexual act; or
    • provide the person with any image, film, description (etc.) of himself or any other person.
  4. It is a criminal offence intentionally to travel to meet with a child with the intention of committing a sexual act with the child.45

  5. It is a criminal offence to:46
    • expose a child (even with her consent) to:
      • any pornography;
      • any visual or other description about a child, of a sexual nature, or any visual or other description about an adult, of an explicit sexual nature, in either case which may be disturbing harmful or age inappropriate.
    • use a child, in any way, in the creation of pornography;47
    • benefit, in any way, from the use of a child in the creation of pornography;
    • force a child to be in the presence of, or watch, any person(s) commit a sexual act;
    • expose the genital organs, anus, or female breasts to a child.

H. Mentally Disabled Victims

For the purposes of the Sexual Offences Act, a ‘mentally disabled person’ is someone who, because of any disorder or disability of the mind, is:

unable to appreciate the nature and consequences of a sexual act; or able to appreciate the nature and consequences but is unable to act in accordance with that appreciation; or unable to resist the commission of any sexual act; or unable to communicate her unwillingness to participate in a sexual act.

  1. It is a criminal offence to:48
    • commit a sexual act with a mentally disabled person, for any reward, favour or compensation to him or anyone else;
    • engage the services of a mentally disabled person for purposes of a sexual act;
    • offer the services of a mentally disabled person, for any favour or compensation to him or anyone else
      • for purposes of a sexual act;
      • by inviting or persuading that person to allow someone to commit a sexual act with him;
      • to participate, be involved, promote, encourage or facilitate a sexual act with him;
      • to detain him, by any means, for purposes of a sexual act with someone else.
  2. It is also a crime to:49
    • allow a sexual act between a mentally disabled person and someone else if you are the child’s parent, guardian or primary caregiver;50
    • allow any property (movable or immovable) you own or occupy, or which is under your control, to be used for a sexual act between someone else and a mentally disabled person;
    • receive or live off financial or other reward from the commission of a sexual act with a mentally disabled person;51
    • make any travel arrangements for someone else in order to facilitate the commission of a sexual act with a mentally disabled person, whether the act takes place or not;52
    • print or publish any information intended to promote or facilitate any sexual act with a mentally disabled person.53

I. Sexual grooming involving mentally disabled

  1. No one may supply or expose to anyone any article, pornography, publication or film in order to encourage, enable or instruct the commission of a sexual act with a mentally disabled person.54

  2. No one may arrange any sort of meeting or communication between another person and a mentally disabled person with the intention of them committing a sexual act.55

  3. It is a crime for any person to:56

    • supply or expose to a mentally disabled person any article, pornography, publication or film in order to enable, instruct, or encourage the deed to perform a sexual act;
    • commit or describe any act with or to a mentally disabled person, or do so in the presence, in order to encourage him or reduce his resistance to:57
      • performing a sexual act;
      • masturbating while anyone is present or watching;
      • himself being present or watching anyone else masturbate or perform a sexual act;
      • being exposed to pornography;
      • being used for the purposes of creating pornography;
    • expose any part of his body so as to violate his sexual integrity or his dignity.
    • arrange or facilitate a meeting or communication with (including travelling to meet with) a mentally disabled person with the intention to commit a sexual act;58
    • in any meeting or communication with a mentally disabled person, invite, persuade, or coerce the mentally disabled person:59
      • to travel, to anywhere in the world, to meet with the intention of committing a sexual act with the mentally disabled person;
      • to commit a sexual act with the mentally disabled person;
      • to discuss, explain or describe the commission of a sexual act; or
      • to provide the mentally disabled person with any image, film, description (etc.) of himself or any other person.
    • expose a mentally disabled person (even with her consent) to any pornography.60
    • use a mentally disabled person, in any way, in the creation of pornography;61 and
    • benefit, in any way, from the use of a mentally disabled person in the creation of pornography.62

J. Compulsory HIV Testing

The Act makes provision for the compulsory testing of alleged sexual offenders in order to ascertain their HIV status. The procedures are, obviously, very strictly controlled. This enables victims of sexual offences to receive appropriate treatment, in time.

  1. No one may disclose the fact that an order has been given by a magistrate for HIV testing. Only the following people may know:63
    • the victim, or the person who has a real and valid interest in her well-being;
    • the alleged offender;
    • the investigating officer, prosecutor and anyone else who needs to know for purposes of criminal or other legal proceedings;
    • the doctor or nurse who has been ordered to take the specimens.
  2. The results of such a HIV test may be communicated only to:64
    • the victim or interested person;
    • alleged offender;
    • the investigating officer, prosecutor, etc.
  3. It is a criminal offence to disclose the results of an HIV test to anyone else.65

  4. It is a criminal offence to lay a charge in respect of an alleged sexual offence, and make an application for compulsory testing, just to find out someone’s HIV status.66

  5. It is an offence to fail to comply with an order for compulsory testing, or to frustrate the process in any way.67

K. Register of Sex Offenders

There is a register, kept by an official designated by the Minister of Justice, which records a lot of details about people who are convicted of sexual offences involving children or mentally disabled people.

The purpose of having the register is to protect children and mentally disabled people. Employers are entitled to apply for a certificate from the Registrar as to whether an employee is in the Register as being a sex offender.

A person who has been convicted of a sexual offence against a child or a mentally disabled person, may not be employed to work with a child or mentally disabled person, in any circumstances; or hold any position of supervision, care or authority; manage or operate any place where they are present; or become a foster or adoptive parent, curator, or caregiver for a child or mentally disabled person.

The same applies to someone who has been accused of such a crime, but has not yet been tried due to mental illness or disability, and is detained in a psychiatric hospital or prison. It also applies to someone found to have committed the deed in question but is held not guilty, due to mental illness or disability, and is in a psychiatric institution.

  1. Accordingly, it is a criminal offence if you own, manage or operate (etc.) any entity relating to the supervision or care of either a child or a mentally disabled person, and you:68
    • fail to apply for clearance certificates in respect of each existing employee and prospective employee;
    • allow an existing employee whose name is on the register access to children and/or mentally disabled people;
    • employ a prospective employee whose name is on the register;
    • do not immediately terminate the employment of someone who failed to disclose the conviction of a sexual offence in respect of a child or mentally disabled person, or who it is established has been recorded in the register.69
  2. Any existing employee, or job applicant who has been convicted of a sexual offence involving a child or mentally disabled person must immediately disclose it to the employer, and commits a criminal offence if he fails to do so.70

  3. The licencing authority may not issue a licence to a person to operate a school or institution for the care of children or mentally disabled people without first checking the Register.71

  4. Anyone who applies for such a licence must disclose if he has been convicted of a sexual offence against a child or mentally disabled person.72

  5. Both situations also apply to applications for foster or adoptive parenting, caregivers and curators.73

  6. Any person whose name has been submitted for entry in the register must notify the Registrar of the National Register within two weeks, of any change.74

  7. If the Registrar, or any person who assists the Registrar, discloses any information learnt in their duties, he commits a criminal offence unless it is for the purposes of the Sexual Offences Act or he has been ordered by the court.75

L. General

  1. If any person knows that a sexual offence has been committed against a child, and fails to report it to the SAPS, he commits a criminal offence himself.76

  2. If any person even suspects that a sexual offence has been committed against a mentally disabled person, he commits a criminal offence if he does not report his knowledge, belief or suspicion to the SAPS.77

  1. Actually titled: The Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007, as amended. The Act was last amended by way of Act 24 of 2015. 

  2. ‘Consent’ means voluntary and un-coerced agreement. 

  3. Section 3. 

  4. Read about ‘bestiality’ further in D. 

  5. Section 4. 

  6. Section 5(1). 

  7. Section 5(1). 

  8. That is don’t kiss someone on the lips without his consent! 

  9. Section 5(1). 

  10. Section 5(2). 

  11. Section 6. 

  12. Section 7. 

  13. Section 8(1). 

  14. Section 8(2) and (3). 

  15. Section 9. 

  16. Section 10. 

  17. Section 11. 

  18. Section 12. 

  19. Section 13(a). 

  20. Section 13(b). 

  21. Section 14. 

  22. See above for this meaning. 

  23. Section 15(1). 

  24. See above for this meaning. 

  25. Section 16(1). 

  26. Section 17(1). 

  27. Section 17(2)(a) and (d). 

  28. Section 17(2)(b). 

  29. Section 17(2)(c). 

  30. Section 17(2)(e). 

  31. Defined in the Social Assistance Act 2004 to mean a person older than 16 years, whether or not related to a child, who takes primary responsibility for meeting the daily care needs of that child. 

  32. Section 17(3)(a). 

  33. Section 17(3)(b). 

  34. Section 17(4) and (5). 

  35. Section 17(6)(a). 

  36. Section 17(6)(b). 

  37. Section 18(1)(a). 

  38. Section 18(1)(b). 

  39. Section 18(1)(c). 

  40. Section 18(1)(d). 

  41. Section 18(2)(a). 

  42. Section 18(2)(b). 

  43. Section 18(2)(c). 

  44. Section 18(2)(d). 

  45. Section 18(2)(e). 

  46. Section 19. 

  47. Section 20. 

  48. Section 23. 

  49. Section 23(2). 

  50. Defined in the Social Assistance Act 2004 to mean a person older than 16 years, whether or not related to a child, who takes primary responsibility for meeting the daily care needs of that child. 

  51. Section 23(4) and (5). 

  52. Section 23(6)(a). 

  53. Section 23(6)(b). 

  54. Section 24(1)(a). 

  55. Section 24(1)(b). 

  56. Section 24(2)(a). 

  57. Section 24(2)(b). 

  58. Section 24(2)(c). 

  59. Section 24(2)(d). 

  60. Section 25. 

  61. Section 26(1). 

  62. Section 26(2). 

  63. Section 36. 

  64. Section 37. 

  65. Section 38(b). 

  66. Section 38(1). 

  67. Section 38(2). 

  68. Section 45(3). 

  69. Section 45(2)(b). 

  70. Section 46(1) and (2). 

  71. Section 47(1). 

  72. Section 47(2). 

  73. Section 48. 

  74. Section 50(8). 

  75. Section 52. 

  76. Section 54(1)(b). 

  77. Section 54(2)(b).