19 December 2007
Certain sections of the long-awaited Sexual Offences Act finally came into operation this week. They deal mainly with statutory sexual offences relating to assault, exploitation, trafficking and child pornography.
The Department of Justice and Constitutional Development said in a statement that the operationalisation of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007, or the Sexual Offences Act, would “help intensify South Africa’s efforts to fight crimes against women, children, the elderly and the vulnerable.”
The Act comprehensively reviews and amends all aspects of the laws and the implementation of the laws relating to sexual offences.
It deals with all legal aspects relating to sexual offences in a single statute by repealing the common law offence of rape and replacing it with a new expanded statutory offence of rape, applicable to all forms of sexual penetration without consent, irrespective of gender.
The Act repeals the common law offence of indecent assault and replaces it with a new statutory offence of sexual assault, applicable to all forms of sexual violation without consent, creating new statutory offences relating to certain compelled acts of penetration or violation.
It also looks at creating new statutory offences for adults by criminalising the compelling or causing the witnessing of certain sexual conduct and certain parts of the human anatomy, the exposure or display of child pornography and the engaging of sexual services of an adult.
It further repeals the common law offences of incest, bestiality and violation of a corpse, as far as such violation is of a sexual nature, and enacts corresponding new statutory offences and comprehensive provisions dealing with the creation of certain new, expanded or amended sexual offences against children and persons who are mentally disabled.
These include offences relating to sexual exploitation or grooming, exposure to or display of child pornography or pornography to children, and the creation of child pornography.
This is despite some of the offences being similar to offences created in respect of adults, as the creation of these offences aims to address the particular vulnerability of children and persons who are mentally disabled to sexual abuse or exploitation.
Chapter 5 of the Act takes effect on 21 March 2008, or an earlier date fixed by the President by proclamation in the Gazette. This chapter deals with services for victims of sexual offences and compulsory HIV testing of alleged sex offenders.
Chapter 6 of the Act takes effect on 16 June 2008, or an earlier date fixed by the President by proclamation in the Gazette. This chapter deals with the National Register for Sex Offenders.
The Department said it trusted “that communities and all stakeholders involved will use the Act to fight the scourge of sexual offences head on, and that its implementation will go a long way in placing victims at the centre of the criminal justice system.”
Some of the dramatic changes contained in the bill are that according to the definition of the law, the definition of rape will include a man being raped by another man, for a woman to be raped by another woman and for a man to be raped by a woman.