<--- Back to contents

Chapter 8 - Family Law and Violence against Women

Rape, incest and indecent 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 aw 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 changes the definition of rape so that it now includes penetration of the mouth, anus and genital organs of one person with the genital organs or another body part of another person, or an object, or part of the body 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 thing in a rape trial is whether the person gave his/her consent. If the person said 'yes' to sex, then the court says 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 man's, because no-one else saw the crime.

The court is more likely to find the rapist guilty, or give a heavier sentence if:

• he injured the person
  
• he was a stranger to him/her
  
• he broke into his/her home and committed some other crime like robbery at the same time
  
• there was more than one man raping
  
• the person fights back
  
• the woman is pregnant, a virgin or a mother

The courts and the law see rape as an act of lust. But rape is really an act of violence. Sex is just the weapon the man uses to get power, to control someone weaker than himself.

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

See Bringing a civil claim for rape.

See Getting a Protection Order.

Incest

The law says that people who may not get married to each other because they are in the same family also can't have sex with each other. If they do, then one or both of them might be charged with the crime of incest. The rules about incest are mostly the same as for rape, except that the law does not allow consent to incest so consent is not an issue in a trial. In cases of adult/child incest only the adult is charged with the crime. Like rape, there must be sexual intercourse as defined in the Sexual Offences Act.

See Rape, incest and indecent assault.

Indecent assault

Indecent assault law says that it is a crime for anyone (man or woman) to hurt someone else (man, woman or child) in a sexual or indecent way. With indecent assault it is enough to prove that the act was committed to make it a crime. You don't have to prove that the victim did not consent. So it is easier to prove the person guilty.

See Problem 6: Reporting rape or asssault and going to court.