Chapter 8 - Family Law and Violence against Women
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:
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)
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:
Who can consent to a sexual act?
Therefore, any person who is older than 16 years of age can consent to a sexual act.
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.
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.
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:
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:
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.
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