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Chapter 8 - Family Law and Violence against Women

Rape, incest and sexual assault

The Sexual Offences Act

The Criminal law (Sexual Offences and related Matters) Amendment Act (No 32 of 2007) – usually referred to as the Sexual Offences Act - has changed the definition of rape and various other offences linked to sexual violence.

The objects of the Act are to give victims of sexual offences the maximum and least traumatising protection that the law can provide and to introduce measures which will allow the state to give full effect to the provisions of this Act. The Act aims to do this by:

• Bringing together all matters and/or offences relating to sexual offences in a single Act;
• Making all forms of sexual abuse or exploitation a criminal offence;
• Replacing some common law sexual offences such as incest, with new offences that will apply to both men and women;
• Protecting complainants of sexual offences and their families from secondary victimisation;
• Promoting the spirit of batho pele ('the people first') in respect of service delivery in the criminal justice system dealing with sexual offences;
• Providing certain services to victims of sexual offences, including affording victims of sexual offences the right to receive Post Exposure Prophylaxis in certain circumstances;
• Establishing a National Register for Sex Offenders.

Rape

The Sexual Offences Act changed the definition of rape so that it now includes penetration of the mouth, anus and genital organs of one person with the genital organs of another person, penetration of the anus and genital organs of one person withany other body part of another person, or any object including any part of the body of an animal, or penetration of the mouth with the genital organs of an animal. In other words, if a man puts his penis into the mouth or anus of another person, male or female, without their consent, this will constitute rape under the law. This means men and boys may now file complaints of rape with the police. Under the old act, rape was defined only as vaginal penetration and excluded anal and oral penetration. Perpetrators accused of anal or oral penetration were charged with indecent assault, seen as a lesser offence than rape.

The main issue that needs to be determined  in a rape trial is whether the person gave his/her consent. If the person said 'yes' to sex, then the court will find that  it was not rape. So the person has to prove to the court that she/he said 'no'. Often it is the complainant’s word against the perpetrator‘s word, because no-one else saw the crime.

In terms of the Criminal Law Amendment Act minimum sentence of life imprisonment is prescribed in the following situations (NOTE: Minimum sentences in terms of the Act are not mandatory but the court will have to show that substantial and compelling circumstances existed and that is why the minimum sentence was not applied)

• the offender injured the victim and grievous bodily harm was inflicted
• there was more than one man raping (multiple offenders)
• the victim was raped several times by the same man (multiple rapes)
• the offender has more than two prior convictions for rape
• the offender has knowledge of positive HIV/Aids status
• victim is vulnerable as she is under 16 years old, physically disabled or mentally ill

Problem 6: Reporting rape or assault and going to court.
Bringing a civil claim for rape.

Getting a Protection Order.

When does a person consent to a sexual act?

A person consents to a sexual act when they willingly and without force or pressure engage in a sexual act with another person. A person can indicate that they do not want to engage in a sexual act verbally, through body language or in another way that tells the other person that they do not want to engage in the sexual act.

A person has not consented to a sexual act if:

• they agreed to a sexual act with somebody because they were afraid of what the other person would do if they did not agree to the sexual act. For example, the person threatens to hurt or harm children or kill the person if they do not engage in the sexual act.
• they agreed to a sexual act but did not know that they were agreeing to a sexual act. For example, Mary agrees to allow a medical doctor to touch her breasts and vagina not knowing that it is not necessary for him to touch her  in order to find out whether she has a heart problem.
• the other person commits a sexual act while they were under the influence of drugs or alcohol.
• the other person  commits a sexual act ywhile they were  unconscious or sleeping.
• the other person commits a sexual act on a person who is mentally disabled.

Who can consent to a sexual act?

• Children under the age of 12 are unable to consent to any sexual acts. Committing a sexual act with a child under the age of 12 years amounts to statutory rape or sexual assault. For example, if Nomphelo is 10 years of age and Sipho, who is older than 18 years, engages in a sexual act with her, he has committed a sexual offence.
• Committing a sexual act with a child of 12 years of age or between the age of 12 and 16 years, with the child’s consent, amounts to the offence of consensual sexual penetration with a child. For example, if Grace is14 years of age and agrees to have sex with Vuyo, who is older than 18 years, Vuyo has committed a sexual offence.
• Committing a sexual act with a child of 12 years of age or between 12 and 16 years of age, without the child’s consent, amounts to statutory rape or sexual assault. For example, if Tania is 13 years of age and Benjamin, who is older than 18 years, forces her to have sex with him, Benjamin has committed a sexual offence.
• Non-penetrative sexual acts (sexual violation) of a child of 12 years of age or between 12 and 16 years of age with the consent of the child amounts to the offence of having committed an act of consensual sexual violation of a child. For example, If Anne is 15 years of age and agrees to John, who is older than 18 years, touching her genital organs John has committed a sexual offence.
• The sexual violation of a child of 12 years of age or between the age of 12 and 16 years of age without the consent of the child amounts to statutory sexual assault. For example, if Farieda is 13 years of age and Abdul, who is older than 18 years, forcefully fondles her breasts, Abdul has committed a sexual offence.
• Children who are 16 years of age and older can consent to sexual acts. For example, I if Zinzi is 16 years of age and agrees to have sex with Shuaib, who is also 16 years of age, no sexual offence has been committed.

Therefore, any person who is older than 16 years of age can consent to a sexual act.

Incest

The law says that people who may not get married to each other because they have a blood relationship or an adoptive relationship with one another also may not engage in acts of sexual penetration with each other. If they do, then they are guilty of the crime of incest. The rules about incest are generally the same as the rules for rape, except with regard to incest the law states thatmutual consent will not absolve you of the offence of incest whereas consent is used as a defence in rapes. In cases of adult/child incest only the adult is charged with the crime. Like rape, there must be sexual penetration as defined in the Sexual Offences Act.

See Rape, incest and indecent assault.

Sexual assault

The Sexual Offences Act repealed the common law definition of Indecent Assault and replaced it with Sexual Assault. Sexual assault is when a person unlawfully and intentionally sexually violates another person without their consent. This includes, amongst other things, direct or indirect contact of the genital organs, the anus or in the case of a female the breasts, the mouth of one person with the genital organs, anus or breasts of another person or masturbation of one person by another person but it does not include the act of sexual penetration.

Problem 6: Reporting rape or assault and going to court.

Sexual violence and HIV testing 

A victim of sexual violence can apply to court for an order to have person who committed the sexual violence have an HIV test and for the results of the test to be given to the victim. This application can also be brought by any person that has an interest in the victim’s well-being or the investigating officer investigating the case. The application must be brought within 90 days after the act of sexual violence was committed.

If the person is successful with the application, the investigating officer must take the person who committed the act of sexual violence for an HIV test. The HIV test results must then be given to the victim in writing. The HIV test results are private and confidential and should not be disclosed to others.

Problems with compulsory HIV testing

The provision for HIV testing was introduced to protect victims  of sexual violence. There are however some problems with this. If the person who committed an act of sexual violence was tested for HIV during the window period his body will not indicate that he has contracted HIV yet. This means that the test results can indicate that he is HIV negative even though he is HIV positive. The negative result could therefore be false. The false test results can lead to the victim to believe that she did not contract HIV and therefore does not need to practice safe sex or use anti-retrovirals. The window period can last for up 4 to 6 weeks.

Post Exposure Prophylaxis (PEP)

PEP is an antiretroviral treatment that is used to prevent a person from contracting HIV after having possibly been exposed to the virus.

PEP is however not effective in all instances. It must be taken within 72 hours after having contracted the virus and can have better results if taken before 48 hours have passed after possible contraction of the virus.

It is very important to ask forthe PEP as soon as possible but within 72 hours of the sexual assault or rape.

What does the law allow in terms of PEP?

A victim is entitled to:

• receive PEP free of charge at a designated public health establishment.
• free medical advice on PEP before using it
• the list with the names, addresses and contact details of designated public health establishments providing PEP

if the victim (or a person who has an interest in the victim’s well-being) laid a charge with the police regarding a sexual offence or reported the sexual offence to a designated public health establishment within 72 hours after the sexual offence took place.

The police member, medical practitioner or nurse to whom the sexual offence was reported must inform the victim of:

• the importance of getting PEP within 72 hours of having been exposed to HIV
• the fact that a victim can obtain PEP free of charge from a designated public health establishment
• the need to obtain medical advice and assistance on the possibility of having contracted a sexually transmitted infection.

Note: A person will not be entitled to receive PEP if they  do not report the sexual offence, and they can only receive PEP from designated health establishments.