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 their 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
• More than one man was 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 their 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: rape or assault and going to court. See Bringing a civil claim for rape; See Problem 3: Getting a Protection Order)

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:

• They agreed to a sexual act with somebody because they were afraid of what the other person would do if they did not agree to the sexual act. For example, the person threatens to hurt or harm children or kill the person if they do not engage in the sexual act.
• They agreed to a sexual act but did not know that they were agreeing to a sexual act. For example, Mary agrees to allow a medical doctor to touch her breasts and vagina not knowing that he doesn’t need to touch her to find out whether she has a heart problem.
• They are under the influence of drugs or alcohol.
• They were unconscious or sleeping.

WHO CAN CONSENT TO A SEXUAL ACT?

• 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 amounts to rape or sexual assault even if the partner is a minor. For example, if Nomphelo is 10 years of age and Sipho, who is older than 18 years, engages in a sexual act with her, he has committed a sexual offence.
• Committing a sexual act with a child of 12 years of age or between the age of 12 and 16 years, with the child’s consent, amounts to the offence of ‘statutory rape’ if the partner is older than 18 years. For example, if Grace is 14 years of age and agrees to have sex with Vuyo, who is older than 18 years, Vuyo has committed a sexual offence. The Sexual Offences Act (2007) and the Sexual Offences Amendment Act (2015) have provided for a change in the approach to consensual, underage sex between adolescents as follows:
  • Previously, in terms of the Sexual Offences Act (2007), 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. These Amendments to the 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.
• Committing a sexual act with a child of 12 years of age or between 12 and 16 years of age, without the child’s consent, amounts to rape or sexual assault. For example, if Tania is 13 years of age and Benjamin forces her to have sex with him, Benjamin has committed a sexual offence.
• Non-penetrative sexual acts (sexual violation) of a child of 12 years of age or between 12 and 16 years of age with the consent of the child amounts to the offence of having committed an act of consensual sexual violation of a child if the partner is older than 18 years. For example, if Anne is 15 years of age and agrees to John, who is older than 18 years, touching her genital organs John has committed a sexual offence.
• The sexual violation of a child of 12 years of age or between the age of 12 and 16 years without the consent of the child amounts to rape or sexual assault. For example, if Farieda is 13 years of age and Abdul, who is older than 18 years, forcefully fondles her breasts, Abdul has committed a sexual offence.
• Children who are 16 years of age and older can consent to sexual acts. For example, if Zinzi is 16 years of age and agrees to have sex with Shadrack who is 32 years of age, no sexual offence has been committed. Therefore, any person who is 16 years of age or older can consent to a sexual act.