If a child has been raped or otherwise sexually assaulted, the criminal law can be used to lay a charge against the person who assaulted the child. During the criminal trial it is sometimes difficult to prove ‘beyond a reasonable doubt’ that a child was sexually abused in order to convict the accused. If it is clear that the child needs protection, the case goes to a Children’s Court enquiry to decide the best way of protecting the child. But the Children’s Court may not try or convict a person in respect of a criminal charge and thus cannot prosecute the child abuser. (See Rape, incest and indecent assault; See Problem 1: Reporting rape or assault and going to court)

If the person who sexually abused the child, lives or recently lived with the child, is a member of the child’s family by blood or adoption or is or was a partner/spouse of the child’s parent, you can use the Domestic Violence Act to protect the child. (See Problem 3: Getting a Protection Order)

THE SEXUAL OFFENCES ACT

The Criminal Law (Sexual Offences and Related Matters) Act (No 32 of 2007) – also referred to as the Sexual Offences Act – defines a number of sexual offences in relation to children. Some of the most important provisions are as follows:

• Sexual exploitation of children (under the age of 18 years). The Act says that the following actions are offences in terms of sexual exploitation:
  • If a person uses a child to engage in sexual activities for money, even if the child consents to this
  • If a person offers the sexual services of a child to another person, with or without the consent of the child, for money or any kind of reward
  • If a person (who is a primary caregiver) allows another person to commit a sexual act with a child, even if the child consents;
  • If a person allows another person to commit a sexual act with a child, with or without the child’s consent and is paid for this.
• Displaying child pornography – If a person displays child pornography or pornography to a child, with or without the consent of the child they are guilty of the offence of exposing or displaying or causing the exposure or display of child pornography or pornography to a child.
• Using children for child pornography – If a person uses a child, with or without the child’s consent, for the purposes of creating, making or producing any image, publication, depiction or description of child pornography or assists in any manner in this regard is guilty of an offence of using a child for child pornography.
• Committing a sexual act with a child between 12 and 16 years
• The age of consent to sex or sexual activity is 16 years
• 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 is statutory rape or sexual assault, even if the partner is a minor.
• A person (over 18 years) committing a sexual act with a child that is 12 years or older but under the age of 16 is statutory rape even with the child’s consent. This amounts to a sexual offence and the adult will face statutory rape charges.

The Sexual Offences Act (2007) and the Sexual Offences Amendment Act (2015) provide the following approach to consensual, underage sex between adolescents:

In terms of the Sexual Offences Act, consensual sex or sexual activity with children between the ages of 12 and 16 years was a crime and had to be reported to the police. This was challenged in court in the Teddy Bear case, which held that it was unconstitutional and caused more harm than good for children of these ages.

The Constitutional Court held that adolescents have a right to engage in healthy sexual behaviour, and that criminalising consensual sex or sexual activity between adolescents of 12 and 16 years violated their rights to privacy, bodily integrity and dignity. In response to this, the Criminal Law (Sexual Offences and Related Matters) Amendment Act 5 of 2015 was passed. The amendments to the Sexual Offences Act mean that it is no longer a criminal offence for adolescents to engage in consensual sex with other adolescents if they are 12 years or older and under the age of 16 years. It will also not be a criminal offence if one adolescent is between the ages of 12 and 16 and the other is 16 or 17, provided there is not more than a 2-year gap between the two people. For example, a 13-year-old and a 15-year-old can legally have sex if it is agreed to by both partners and not forced in any way. However, if anyone older than 16 years has sexual contact with someone younger than 16 years and the age gap is bigger than 2 years, they are committing statutory rape.

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 mostly the same as for rape. But the people involved are usually an adult and a child in the same family where the adult forces the child to have sex. According to the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2021, incest includes the act of sexual penetration or sexual violation where one of the parties is a child, and the action of the adult was so bad that even if there was mutual consent, the adult would be guilty of incest.