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 with any 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 prosecutor has to prove to the court that the person 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 a minimum sentence of life imprisonment is prescribed in the following situations:

• 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
• The victim is under 16 years old, physically disabled or mentally ill

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.

Rape carries a minimum sentence of 10, 15 and 20 years for first, second and subsequent offenders, as per the Criminal Law Amendment Act.

(See: Problem 1: Reporting rape or assault and going to court)
(See: Bringing a Civil Claim for Rape)

(See: Problem 3: Getting a Protection Order)