Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007

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Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007
Coat of arms of South Africa (heraldic).svg
Parliament of South Africa
CitationAct No. 32 of 2007
Enacted by Parliament of South Africa
Enacted22 November 2007
Assented to13 December 2007
CommencedChapters 1–4 and 7: 16 December 2007
Chapter 5: 21 March 2008
Chapter 6: 16 June 2008
Status: Amended

The Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007; also referred to as the Sexual Offences Act) is an act of the Parliament of South Africa that reformed and codified the law relating to sex offences. It repealed various common law crimes (including rape and indecent assault) and replaced them with statutory crimes defined on a gender-neutral basis. [1] It expanded the definition of rape, previously limited to vaginal sex, to include all non-consensual penetration; and it equalised the age of consent for heterosexual and homosexual sex at 16. The act provides various services to the victims of sexual offences, including free post-exposure prophylaxis for HIV, and the ability to obtain a court order to compel HIV testing of the alleged offender. It also created the National Register for Sex Offenders, which records the details of those convicted of sexual offences against children or people who are mentally disabled.

Contents

List of offences

The following offences are prohibited by the act.

Constitutional challenges

In May 2012 the Western Cape High Court ruled that many of the sections of the act were not enforceable because they did not prescribe specific sentences for the crimes, which violated the principle of legality (" nulla poena sine lege "). [2] In July, the ruling was overturned by the Supreme Court of Appeal, which ruled that courts have the discretion to impose an appropriate sentence in each case. [3] In the same month, Parliament passed an amendment to close the potential loophole. [4]

In an October 2013 judgment, the Constitutional Court found the statutory rape and statutory sexual assault provisions to be unconstitutional to the extent that they made it a crime for children between 12 and 16 to engage in consensual sexual activities with other children in the same age range. [5] [6] In 2015, Parliament amended the law so that consensual sex between two children between 12 and 16, or between a child under 16 and one over 16 if the age difference is less than two years, is no longer a crime. [7]

In June 2018, the unanimous Constitutional Court found that the twenty-year statute of limitations on sexual offenses was unconstitutional. [8]

Related Research Articles

<span class="mw-page-title-main">Age of consent</span> Minimum age for sexual activities

The age of consent is the age at which a person is considered to be legally competent to consent to sexual acts. Consequently, an adult who engages in sexual activity with a person younger than the age of consent is unable to legally claim that the sexual activity was consensual, and such sexual activity may be considered child sexual abuse or statutory rape. The person below the minimum age is considered the victim, and their sex partner the offender, although some jurisdictions provide exceptions through "Romeo and Juliet laws" if one or both participants are underage, and are close in age.

<span class="mw-page-title-main">Consensual crime</span>

A consensual crime is a public-order crime that involves more than one participant, all of whom give their consent as willing participants in an activity that is unlawful. Legislative bodies and interest groups sometimes rationalize the criminalization of consensual activity because they feel it offends cultural norms, or because one of the parties to the activity is considered a "victim" despite their informed consent.

Sex and the law deals with the regulation by law of human sexual activity. Sex laws vary from one place or jurisdiction to another, and have varied over time. Unlawful sexual acts are called sex crimes.

Sexual assault is an act in which one intentionally sexually touches another person without that person's consent, or coerces or physically forces a person to engage in a sexual act against their will. It is a form of sexual violence that includes child sexual abuse, groping, rape, drug facilitated sexual assault, and the torture of the person in a sexual manner.

<span class="mw-page-title-main">Sexual Offences Act 2003</span> United Kingdom legislation

The Sexual Offences Act 2003 is an Act of the Parliament of the United Kingdom.

<span class="mw-page-title-main">Sexual grooming</span> Child sexual abuse compliance method

Sexual grooming refers to actions or behaviors used to establish an emotional connection with a minor, and sometimes the child's family, to lower the child's inhibitions with the objective of sexual abuse. It can occur in various settings, including online, in person, and through other means of communication. Children who are groomed may experience mental health issues, including "anxiety, depression, post-traumatic stress, and suicidal thoughts."

The precise definitions of and punishments for aggravated sexual assault and aggravated rape vary by country and by legislature within a country.

The legal age of consent for sexual activity varies by jurisdiction across Asia. The specific activity engaged in or the gender of participants can also be relevant factors. Below is a discussion of the various laws dealing with this subject. The highlighted age refers to an age at or above which an individual can engage in unfettered sexual relations with another who is also at or above that age. Other variables, such as homosexual relations or close in age exceptions, may exist, and are noted when relevant.

The ages of consent for sexual activity vary from age 15 to 18 across Australia, New Zealand and other parts of Oceania. The specific activity and the gender of its participants is also addressed by the law. The minimum age is the age at or above which an individual can engage in unfettered sexual relations with another person of minimum age. Close in age exceptions may exist and are noted where applicable. In Vanuatu the homosexual age of consent is set higher at 18, while the heterosexual age of consent is 15. Same sex sexual activity is illegal at any age for males in Papua New Guinea, Kiribati, Samoa, Niue, Tonga and Tuvalu; it is outlawed for both men and women in the Solomon Islands. In all other places the age of consent is independent of sexual orientation or gender.

<span class="mw-page-title-main">Ages of consent in North America</span> Age of consent for sexual activity in countries in North America

In North America, the legal age of consent relating to sexual activity varies by jurisdiction.

Rape is a type of sexual assault initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, under threat or manipulation, by impersonation, or with a person who is incapable of giving valid consent.

Laws against child sexual abuse vary by country based on the local definition of who a child is and what constitutes child sexual abuse. Most countries in the world employ some form of age of consent, with sexual contact with an underage person being criminally penalized. As the age of consent to sexual behaviour varies from country to country, so too do definitions of child sexual abuse. An adult's sexual intercourse with a minor below the legal age of consent may sometimes be referred to as statutory rape, based on the principle that any apparent consent by a minor could not be considered legal consent.

In common law jurisdictions, statutory rape is nonforcible sexual activity in which one of the individuals is below the age of consent. Although it usually refers to adults engaging in sexual contact with minors under the age of consent, it is a generic term, and very few jurisdictions use the actual term statutory rape in the language of statutes. In statutory rape, overt force or threat is usually not present. Statutory rape laws presume coercion because a minor or mentally disabled adult is legally incapable of giving consent to the act.

<span class="mw-page-title-main">Ages of consent in the United States</span> U.S. law on age of consent to sexual activity

In the United States, each state and territory sets the age of consent either by statute or the common law applies, and there are several federal statutes related to protecting minors from sexual predators. Depending on the jurisdiction, the legal age of consent is between 16 and 18. In some places, civil and criminal laws within the same state conflict with each other.

<span class="mw-page-title-main">Sexual offences in the United Kingdom</span>

There are a number of sexual offences under the law of England and Wales, the law of Scotland, and the law of Northern Ireland.

<span class="mw-page-title-main">Sexual Offences (Scotland) Act 2009</span> United Kingdom legislation

The Sexual Offences (Scotland) Act 2009 is an Act of the Scottish Parliament. It creates a code of sexual offences that is said to be intended to reform that area of the law. The corresponding legislation in England and Wales is the Sexual Offences Act 2003 and in Northern Ireland the Sexual Offences Order 2008.

Child sexual abuse laws in India have been enacted as part of the child protection policies of India. The Parliament of India passed the 'Protection of Children Against Sexual Offences Bill (POCSO), 2011' regarding child sexual abuse on 22 May 2012, making it an Act. A guideline was passed by the Ministry of Women and Child Development, India. The rules formulated by the government in accordance with the law had also been notified on the November 2012 and the law had become ready for implementation. There have been many calls for more stringent laws.

<span class="mw-page-title-main">Child sexual abuse in the United Kingdom</span> Overview about child sexual abuse in the United Kingdom

Child sexual abuse in the United Kingdom has been reported in the country throughout its history. In about 90% of cases the abuser is a person known to the child. However, cases during the second half of the twentieth century, involving religious institutions, schools, popular entertainers, politicians, military personnel, and other officials, have been revealed and widely publicised since the beginning of the twenty-first century. Child sexual abuse rings in numerous towns and cities across the UK have also drawn considerable attention.

Rape laws vary across the United States jurisdictions. However, rape is federally defined for statistical purposes as:

Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.

There are a number of sexual offences under the law of England and Wales.

References

  1. Khumalo, Gabi (19 December 2007). "Sex crimes bill partly enacted". BuaNews. Archived from the original on 22 October 2011. Retrieved 28 June 2011.
  2. Rondganger, Lee; Cole, Barbara; de Lange, Deon (15 May 2012). "Sex offenders could walk free". Daily News. Retrieved 23 July 2012.
  3. "SCA ruling of Sexual Offences Act welcomed". Mail & Guardian. 15 June 2012. Retrieved 23 July 2012.
  4. de Lange, Deon (6 July 2012). "Loopholes in law on sexual predators shut". The Star. South Africa. Retrieved 23 July 2012.
  5. "ConCourt: Parts of child sex act unconstitutional". News24. South African Press Association. 10 October 2013. Retrieved 13 October 2013.
  6. Barbeau, Noelene (4 October 2013). "Sex between teens no longer a crime". Daily News. South African Press Association. Retrieved 13 October 2013.
  7. Bhamjee, Suhayfa (30 June 2015). "Towards healthy adolescent sexuality". The Mercury. Retrieved 13 July 2015.
  8. {{{first}}} Note, Recent Case: South Africa Removes Statute of Limitations Distinction Between Rape and Other Sexual Offenses , 132 Harv. L. Rev. 2394 (2019).