[Home] [Databases] [WorldLII] [Search] [Feedback] South African Law Commission

You are here:  SAFLII >> Databases >> South African Law Commission >> Issue Paper >> 10 >> CHAPTER 4

[Database Search] [Name Search] [Previous] [Next] [Download] [Help]

• Issues For Reform Of The Substantive Law
• 4.1 Introduction
• 4.2 The Criminal Law
• 4.3 Common Law Sexual Offences
• 4.4 Rape
• 4.5 Rules Of Evidence In Rape Cases
• ° Complaints In Rape Cases
• ° Corroboration
• ° Character
• ° Evidence Of Sexual History
• 4.6 Incest
• 4.7 Indecent Assault
• 4.8 Unnatural Sexual Offences
• ° Sodomy
• ° Bestiality
• ° Unnatural Sexual Offences (Other Than Sodomy And Bestiality)
• 4.9 Crimen Injuria
• 4.10 Statutory Sexual Offences
• 4.11 The Sexual Offences Act, 1957
• ° Section 14 Of The Sexual Offences Act, 1957
• ° Prostitution
• ° Procuring Of Child Or Ward By Parent Or Guardian For Prostitution
• 4.13 The Films And Publications Act, 1996
• 4.14 Customary Law
• 4.15 Conclusion

CHAPTER 4

ISSUES FOR REFORM OF THE SUBSTANTIVE LAW

4.1 Introduction

4.1.1 Against the background of the problems discussed in the previous chapter it is now necessary to consider possible issues for reform of the substantive law.

4.2 The criminal law

4.2.1 There has been considerable debate about the role which the criminal law should play in responding to child sexual abuse. The specific criticisms of the criminal justice system in this regard are that it pays no attention to the needs of the victim and his or her family, and that it focuses on punishment rather than the treatment of the offender. Another criticism of the present system is that government tends to rely on the criminal law as a response to sexual abuse of children, but that the law is of limited preventative or remedial value. It fails to address basic causes such as the attitudes of males to females and entrenches gender inequalities.

4.2.2 The criticism made of the criminal justice system has not led us to believe that the criminal law has no proper role to play, or that its only real purpose is to punish the small proportion of offenders who are detected and successfully prosecuted. Whatever its present drawbacks and inherent limitations, the criminal justice system must continue to be a central element in the community’s response to child sexual abuse.

4.2.3 A child may be the victim of various general sexual offences which can be committed on both adults and children. We start our discussion with an overview of the common law offences, and then deal with the statutory offences.

4.3 Common law sexual offences

4.3.1 The common law recognises various offences of a sexual nature. Each of these has its own requirements necessary to secure a conviction and consequently each has its own problems in practice. Two important questions must be addressed in this regard:

4.4 Rape

4.4.1 Rape is defined as the intentional unlawful sexual intercourse with a woman without her consent.^[43] Sexual intercourse presupposes penetration of the female sexual organ by the male’s penis. The offence is gender specific^[44] in that it can only be committed by a man.^[45] There is an irrebuttable presumption that a girl under the age of 12 years is incapable of consenting to sexual intercourse.

4.4.2 In Australia, section 2A(1) of the Crimes Act, 1958 defines rape as including the introduction of the penis of a person into another person’s vagina, anus, or mouth, or the introduction of any object other than part of the body into another person’s vagina or anus.

4.4.3 It is not necessary to deal with the presumption that a boy under the age of 14 years is incapable of sexual intercourse as the Law of Evidence and the Criminal Procedure Act Amendment Act, 1987 now provides that evidence of sexual intercourse by a boy under the age of 14 years may be adduced.

4.5 Rules of evidence in rape cases

4.5.1 As for the rules of evidence, the following three issues are germane to the crime of rape: the laying of a complaint, the corroboration of the rape victim’s evidence; and evidence of the moral character of the rape victim.

° Complaints in rape cases^[46]

4.5.2 The complaint must have been made “without undue delay but at the earliest opportunity which, under all the circumstances, could reasonably be expected, to the first person to whom the complainant could reasonably be expected to make it”.^[47] A great deal depends on the victim’s age and understanding.^[48]

4.5.3 Complaints in rape cases are admitted to show consistency and to negate a defence of consent,^[49] but not as proof of their contents nor to corroborate the complainant.^[50] But it is not essential that consent should be in issue; the complainant may, for instance, be a girl of under 12 years of age.^[51]

° Corroboration

4.5.4 In rape cases, a cautionary rule “not materially different from that ... applicable in the case of accomplices” applies. Corroboration is not mandatory, but “the trier of fact should have clearly in mind that ... cases of sexual assaults require special treatment, that charges of the kind are generally difficult to disprove, and that various considerations may lead to their being falsely laid”.^[52]

4.5.5 If corroboration^[53] is relied upon as the necessary guarantee of trustworthiness it must be evidence which confirms the complainant on a point tending to show the guilt of the accused. Thus it must tend to show the commission of the act charged,^[54] or the identity of the offender, or the absence of consent,^[55] according to which of these facts is in dispute. Evidence that a complaint was made immediately after the alleged offence is not corroboration of the complainant’s evidence,^[56] nor is it regarded as one of the residual features which may be used to confirm the truth of his or her story.^[57] It must be realised, however, that the cautionary rule merely lays down how a court should approach evidence and that it should never be applied in a rigid and formalistic manner.^[58]

° Character

4.5.6 The complainant’s reputation for chastity is relevant to the issue of consent, and evidence of particular instances of unchastity as well as of her general reputation in that regard may be given.^[59] There appear to be two grounds for the existence of this rule:

(a) that the essence of the offence is the protection of chastity; and

(b) that a person who has previously engaged in sexual activity does not need or deserve protection from rape.^[60]

° Evidence of sexual history

4.5.7 The common law relating to the admissibility of evidence of the sexual history of a complainant is not entirely clear. Fortunately, since the enactment of section 227(2) of the Criminal Procedure Act, 1977 evidence relating to the sexual experience of the complainant (outside the act complained of) will be inadmissible, and cross-examination of the complainant on such matters impermissible, without the leave of the court, which leave will not be granted “unless the court is satisfied that such evidence or questioning is relevant.” The court’s notion of what is relevant, then becomes the sole criterion in determining admissibility, and any eccentricities that there may have been in the common law may be jettisoned.^[61]

4.6 Incest

4.6.1 Incest is the unlawful and intentional sexual intercourse between two persons who on account of consanguinity, affinity or adoptive relationship may not marry one another.^[62] As the offence can also be committed by persons who are not blood relatives, it would seem that the offence is not founded upon biological reasons (such as the prevention of in-breeding), but rather in the protection of certain moral considerations with regard to sexual intercourse between members of a family.

4.6.2 The relationships of consanguinity, affinity and adoption which determine whether incest is committed are co-extensive with those accepted by the private law as determining legal capacity to intermarry. Should the legislature enlarge or decrease the category of affines or consanguines or persons related by adoption who may not intermarry, the category of persons between whom incest is possible is corresponding enlarged or decreased.^[63] In the Australian Capital Territory, for example, the offence of incest can be committed by a person who is in loco parentis in relation to a child, that is, a person “who assumes the liability for providing for a minor in the way a parent would do”.

4.6.3 Consent is no justification: where both parties have consented, both are guilty of committing the offence. A child below the age of 7 years has absolutely no capacity to act, nor is such a child criminally liable or responsible in delict for his or her acts. Such a child can obviously not consent, and therefore cannot be convicted of the offence. From 7 to 14 years there exists a rebuttable presumption that a child is not criminally liable or responsible in delict and such a child has limited capacity to act. If the presumption is rebutted, the child will be guilty of committing the offence. At the age of 14 years a rebuttable presumption arises that the child is criminally liable or responsible in delict.

4.7 Indecent assault

4.7.1 Milton^[64] defines indecent assault as an assault^[65] which is itself of an indecent character. Snyman,^[66] on the other hand, defines indecent assault^[67] as the unlawful and intentional assault of another with the intent to commit an indecent act. What appears from these two definitions is that indecent assault is one of the three species of assault with intent.

4.8 Unnatural sexual offences

4.8.1 South African practice at an early stage subdivided the unnatural offences into three separate categories: first, sodomy, consisting in anal intercourse between males; secondly, bestiality, consisting in intercourse between a male or female human and an animal; and thirdly, a residual group of proscribed ‘unnatural’ sexual acts referred to generally as “unnatural offences”.

° Sodomy

4.8.2 Verschoor^[68] defines sodomy as the unlawful and intentional sexual relation per anum between two men. The crime presupposes two parties, an active and a passive party. The act consists of the penetration by the penis of the active party into the anus of the passive party. Without penetration the crime is no more than attempted sodomy or else one of the miscellaneous unnatural offences. It follows that sodomy is restricted to males.^[69]

° Bestiality

4.8.3 Bestiality consists of unlawful and intentional sexual intercourse by a person with an animal.^[70]

4.8.4 Although we are not aware of any reported cases, it is not inconceivable that an adult may force a child to submit to sexual intercourse^[71] with an animal.^[72] Plainly, coercion will deprive the conduct of the child of unlawfulness, and bestiality is not committed by the child. The adult person can, however, in such circumstances be convicted of bestiality as an accomplice.

° Unnatural sexual offences (other than sodomy and bestiality)

4.8.5 It is impossible to define the limits of unnatural sexual offences. Plainly, however, the modern conception of what are “unnatural” sexual acts is considerably narrower^[73] than that held in Roman-Dutch times.^[74] Faced with the common and widespread Black metsha custom, our courts have accepted that acts whereby a male obtains sexual gratification by friction of the penis between a female’s thighs or against some other part of her body or by insertion into her mouth or anus is not a crime.^[75] Similarly it now seems clear that self-masturbation is not criminal.^[76] There are no reported cases dealing with unnatural acts between consenting females.

4.9 Crimen injuria

4.9.1 Crimen injuria consists in unlawfully, intentionally and seriously impairing the dignitas of another.^[77]

4.9.2 It is very difficult to lay down a general definition of what acts, what exact form of conduct, or what amount of repetition of objectionable conduct would constitute crimen injuria.^[78] The criminal or innocent character of the acts would depend upon very many circumstances, such as the place where the acts are committed, the time of the commission, the relation between the parties, their sex,^[79] age^[80] and social standing, etc. Conduct which impairs dignitas and which contains an element of “sexual impropriety” is usually seriously regarded. It is not, of course, suggested that an element of “sexual impropriety” is always essential: In many reported cases seriously insulting or degrading treatment without any suggestion of “sexual impropriety” has been regarded as criminal.^[81]

4.9.3 Crimen injuria and assault overlap,^[82] for an act which impairs bodily integrity may also seriously impair dignitas. Indecent assault will invariably also constitute crimen injuria, but of course the converse does not hold true.

4.10 Statutory sexual offences

4.10.1 The scope of the traditional common-law prohibitions has been supplemented by legislative provisions aimed particularly at the regulation of sexual activity involving children and other vulnerable persons, homosexuality and the various manifestations of prostitution. These statutory prohibitions upon sexual activity are essentially contained in the Sexual Offences Act, 1957. The Act prohibits “unlawful sexual intercourse” which is defined as carnal intercourse otherwise than between husband and wife.^[83] Other very important pieces of domestic legislation for the protection of children are the Child Care Act, 1983 and the Prevention of Family Violence Act, 1993. We will also briefly deal with child pornography.

4.10.2 In this regard, the following important questions must be addressed:

4.11 The Sexual Offences Act, 1957

4.11.1 According to its long title, the Sexual Offences Act, 1957 consolidates and amends the “laws relating to brothels and unlawful carnal intercourse and other acts in relation thereto.” As such the Act does not specifically focus on sexual offences by and against children. Some of the provisions of the Act do, however, proscribe certain sexual conduct with youths.

4.11.2 In most legal systems sexual intercourse with young persons is subject to strict prohibition controls.^[84] Sexual intercourse with prepubescent children is regarded as the serious common law crime of rape and punished as such. Sexual intercourse with pubescent youths is regulated by fixing a so-called ‘age of consent’ which determines the age at which consensual intercourse with youths is permitted. Sexual intercourse with a youth who has not yet arrived at the age of consent is penalised by statute. This is also the case in South Africa.

° Section 14 of the Sexual Offences Act, 1957

4.11.3 Section 14(1) of the Sexual Offences Act, 1957, for instance, reads as follows:

Any male person who -

(a) has or attempts to have unlawful carnal intercourse with a girl under the age of 16 years; or

(b) commits or attempts to commit with such girl or with a boy under the age of 19 years an immoral or indecent act; or

(c) solicits or entices such a girl or boy to the commission of an immoral or indecent act,

shall be guilty of an offence.

4.11.4 Subsections 14(3) and (4) of the Sexual Offences Act, 1957 deals with precisely the same conduct as that dealt with under subsections 14(1) and (2) of the same Act, the only difference now the reversal in sexes. The result is that there is no discrimination in section 14 between males and females: what is prohibited for the one sex, is also prohibited for the other sex.

4.11.5 The offences created by section 14 are important. It means that if the accused is charged with rape, but the evidence shows that the complainant, who is not yet 16 years old, consented to sexual intercourse, then the accused is guilty of contravening either section 14(1)(a) or 14(3)(a) of the Sexual Offences Act, 1957.^[85] If the accused has “carnal intercourse” with a girl under the age of 12 years, he commits, in addition to rape, also a contravention of section 14(1)(a). Carnal intercourse, which is not defined in the Sexual Offences Act, 1957, is generally understood as a legislative euphemism for copulation between a man and a woman by penetration of the vagina by the penis.^[86]

4.11.6 The offences created in sections 14(1)(b) and 14(3)(b) can only be committed with youths. In other words it is not sufficient for an immoral or indecent act to be committed in the presence of the young person.^[87] An immoral or indecent act is associated with sexual behaviour. In relation to sexual matters the concept of immorality normally denotes extra-marital sexual intercourse. The term “indecent” would, on the other hand, seem to comprehend acts ranging from “external” sexual intercourse,^[88] masturbation,^[89] and oral-genital intercourse,^[90] to the baring of the body for purposes of inciting sexual desire^[91] or facilitating sexual activity, to kissing and fondling or touching of erogenous parts of the body in a way that incites lust,^[92] but falls short of or not involving actual sexual intercourse.

4.11.7 Sections 14(1)(c) and 14(3)(c) penalize also an inchoate form of corruption of young persons by prohibiting under penalty the “solicitation” or “enticement” of boys or girls to commit immoral or indecent acts. Solicitation involves asking or earnestly inviting and thus connotes beguiling, alluring or petitioning.^[93] The notion of enticement involves the alluring or attracting of persons by hope of pleasure or profit. The term connotes particularly a petitioning. Any offer or proposal made involves an enticing.^[94]

4.11.8 The offences in section 14 are not committed if:^[95]

(a) the parties are married;^[96]

(b) the accused was deceived as to the girl or the boy’s age;^[97]

(c) the girl or the boy at the time of the commission of the offence was a prostitute, the accused was at the said time under the age of 21 years^[98] and it was the first occasion on which the accused has been charged^[99] with this offence.

4.11.9 Snyman^[100] criticises the formulation of the offences created by section 14(1) and the defences set out in section 14(2). He shows that the Act used to provide that it was a sufficient defence to a charge under this section that the accused at the time of the commission of the offence was under the age of 16 years.^[101] The defence was abolished in 1988.^[102] This leads to the unsatisfactory situation that a boy of say, twelve, thirteen years who has sexual intercourse with a girl nearly sixteen is guilty of committing this offence, even if the girl took the initiative.^[103]

4.11.10 According to the interpretation given by the courts to section 14(2) the accused cannot rely on his error in regard to the girl’s age. If, for example, the girl was nearly 16 years old, physically more developed than her peers, and the accused simply bona fide believed that she was 16 years old, then his lack of knowledge - and accordingly his lack of intent - cannot save him harmless from conviction. According to our courts, the legislature specifically created the defences in section 14(2) and thereby excluded other defences, such as error in regard to the girl’s age by implication. Section 14(1) is then one of the so-called strict-liability offences where culpability is not required.^[104] For Snyman this is a pity as he believes there is no reason why the general fault principle should not also apply in this instance.^[105]

4.11.11 Insofar as the prohibition pertains to immoral and indecent acts with girls under the age of 19 years, its effect is to proscribe certain lesbian forms of sexual activity. It is not clear to Snyman^[106] whether this offence^[107] is committed by both females or whether it is committed only by the “active” party (i.e. the female older than 19 years of age). He then submits that it was the intention of the legislature to protect women under the age of 19 years from such immoral or indecent acts and that the girl under the age of 19 years should be regarded as the victim and should not be guilty of committing the offence.^[108] Snyman^[109] further shows that it is not clear whether this section is contravened when both females are under the age of 19 years. He submits that it appears that the section does not preclude such a possibility. What is clear, however, is that the offence cannot be committed if both females are older than 19 years.

° Prostitution

4.11.12 The law (and society) has adopted an ambivalent attitude towards prostitution. On the one hand prostitution^[110] is universally condemned as a social evil and the prostitute is condemned and penalized for the manner in which he or she carries on their profession. On the other hand, prostitution is tolerated to the extent that it is not forbidden to be a prostitute and the prostitute’s customers are allowed to enjoy the prostitute’s services with impunity.^[111]

4.11.13 In South Africa, the child prostitute can be prosecuted in terms of the Sexual Offences Act, 1957 for a variety of offences relating to the practise of his or her trade^[112] while the client walks away scot-free.^[113] These provisions are not dealt with in this issue paper as the Commission condemns child prostitution in all forms.^[114]

° Procuring of child or ward by parent or guardian for prostitution

4.11.14 It is an offence in terms of section 9 of the Sexual Offence Act, 1957 for any parent or guardian of any child under the age of 18 years to permit, procure or attempt to procure such child to have unlawful carnal intercourse or to commit any immoral or indecent act with any person other than the procurer. It is also an offence for any parent or guardian of any child under the age of 18 years to permit such child to reside in or to frequent a brothel.^[115] It is further an offence for any parent or guardian of any child under the age of 18 years to order, permit, or in any way assist in bringing about, or receiving any consideration for, the defilement, seduction or prostitution of such child.^[116] In terms of this section the term “guardian” includes any person who has in law or in fact the custody or control of the child.^[117]

4.11.15 Unlike the other offences of procuration, these offences are committed in respect of both female and male children. The offences are, however, committed only if the child is under the age of 18 years.

° Child sex tourism

4.11.16 The widespread development of child sex tourism is a relatively recent phenomenon, which is not addressed at all by any of our current legislation. Initially concentrated in South East Asia, child sex tourism has now spread to many countries in Asia itself, South America, the Caribbean and Africa.^[118] In foreign jurisdictions, laws are being enacted which provide for example for sanctions against child molesters for offences and crimes committed abroad.^[119] Several countries have taken^[120] or are^[121] in the course of taking this line. The key elements in combatting child sex tourism would be the possibility of giving national courts extra-territorial jurisdiction for offences and crimes committed against children abroad, even where the presumed offence or crime is not provided for under the laws of the country in which it was committed.

4.12 The Child Care Act, 1983

4.12.1 In broad terms the Child Care Act, 1983 provides for the establishment of children’s courts and the appointment of commissioners of child welfare, the protection and welfare of children in need, for the adoption of children, for the establishment of institutions and places of safety for the reception of children and for the treatment of children after such reception, and for contribution by certain persons towards the maintenance of certain children.^[122] The Act does not focus on sexual offences by and against children.^[123]

4.12.2 Children’s courts are closely linked to the present magistrate’s court system. Every magistrate’s court doubles as a children’s court^[124] and every magistrate is a commissioner of child welfare.^[125] However, a children’s court sits in a room other than an ordinary court room, unless no such room is available or suitable.^[126] The procedure adopted in children’s court inquiries closely follows that of a criminal trial of a juvenile offender and allows for in camera proceedings, cross-examination of witnesses^[127] and even legal representation of the child at state expense.^[128]

4.12.3 When a child^[129] is brought before the children’s court an inquiry is held to determine whether “the child is a child in need of care”.^[130] At such inquiry the children’s court must determine whether the child is a child in need of care in that

(a) the child has no parent or guardian; or

(aA) the child has a parent or guardian who cannot be traced; or

(aB) the child -

(i) has been abandoned or is without visible means of support;

(ii) displays behaviour which cannot be controlled by his or her parents or the person in whose custody he or she is;

(iii) lives in circumstances likely to cause or conduce to his or her seduction, abduction or sexual exploitation;

(iv) lives in or is exposed to circumstances which may seriously harm the physical, mental or social wellbeing of the child;

(v) is in a state of physical or mental neglect;

(vi) has been physically, emotionally or sexually abused or ill-treated by his or her parents or guardian or the person in whose custody he or she is; or

(vii) is being maintained in contravention of section 10.^[131]

4.12.4 A children’s court which, after holding an inquiry, is satisfied that the child concerned is "a child in need of care" may order that the child be returned or remain in the custody of his or her parents. Alternatively the court may order that the child be placed in the custody of a suitable foster parent, or the court may order that the child be sent to a children’s home or a school of industries.^[132]

4.12.5 Chapter 8 of the Act creates a number of offences to prevent the ill-treatment of children and prohibits the employment of children below the age of 15 years.

4.13 The Films and Publications Act, 1996

4.13.1 The Films and Publications Act, 1996 attempts to protect children under the age of 18 years from being used or depicted in a pornographic manner in publications or films. In terms of section 27(1) of the Films and Publications Act, 1996 it is an offense for any person to knowingly produce, import or to possess^[133] a publication^[134] or a “XX-classified” film^[135] which contains a visual presentation or scene(s), simulated or real of a person who is, or is depicted as being, under that age of 18 years, participating in, engaging in or assisting another person to engage in sexual conduct or a lewd display of nudity, explicit violent sexual conduct, bestiality, etc. No prosecutions shall, however, be instituted and no search warrant issued in terms of the Criminal Procedure Act, 1977 in respect of a publication or film which may be involved in such a contravention, without the written authority of the attorney-general.^[136] Not only will it be difficult for the members of the Police Service to obtain the necessary evidence (even with a warrant) but it can be expected that the possession of child pornography will in many instances be justified in the name of art and science.^[137]

4.13.2 Section 28 of the Films and Publications Act, 1996 makes it an offence for any person who knowingly distributes a publication which contains a visual presentation or a description, simulated or real, of a person who is, or is being depicted as being, under the age of 18 years, participating in, engaging in or assisting another person to engage in sexual conduct or a lewd display of nudity, explicit violent sexual conduct, bestiality, etc.

4.13.3 Schedule 11 of the Act defines “sexual conduct” as genitals in a state of stimulation or arousal; the lewd display of genitals; masturbation; sexual intercourse, which includes anal sexual intercourse; the fondling, or touching with any object, of genitals; the penetration of a vagina or anus with any object; oral genital contact; or oral anal contact.

4.14 Customary law

4.14.1 Child abuse must be examined in its cultural context.^[139] For example, the practices of scarification^[140] and male and female circumcision are accepted in many cultures, but would be considered abuse in many others. In contrast, the practice of forcing a child to undergo extensive, often painful, orthodontic treatment might be considered abusive by some cultures, but is again extensively practised and condoned in other cultures.

4.14.2 Section 8 of the Uganda Children Statute, 1996, for example, reads as follows:

It shall be unlawful to subject a child to social or customary practices that are harmful to the child’s health.^[141]

The Act does not state what these practices are.

4.14.3 In economically developed, industrialised societies, while self-sufficient individualism is the ideal, children enjoy a privileged position. Biological parents are expected to bear full responsibility for rearing children. While still a minor, the child’s interests are always preferred to its parents. When the child is old enough to leave home and make its own way in the world, most familial obligations for all practical purposes cease.

4.14.4 The African tradition is quite different. Here the welfare of the extended family predominates. Children have no especially favoured position in relation to their parents or other relatives; to the contrary, a child’s interests might well be subordinated to those of the family.^[142] Likewise certain customary practices^[143] followed in relation to children might, if seen from another perspective, amount to assault^[144] or even sexual abuse.^[145]

4.14.5 Generally, however, children are not neglected in customary law to the extent that legal action is necessary. When a child is being insufficiently maintained, this means, as a rule, that his or her mother’s house is being neglected; usually the mother will simply return to her own people with her children, and will be maintained there until her husband phuthuma’s^[146] her, upon which the wife’s guardian will be entitled to claim isondlo^[147] for each child.^[148]

4.15 Conclusion

4.15.1 From the above overview of the existing legal position it is clear that a multitude of legislative provisions find application in this investigation. What is also clear is that most of the provisions dealing with sexual offences against children need revision.

[43] Milton South African Criminal Law and Procedure (Volume II) 435.

[44] See also Louise Fryer “Law versus prejudice: Views on rape through the centuries” 1994 (7) SACJ 60; J I Welch “Verkragting, met verwysing na die transseksueel wat ‘n geslagsverandering ondergaan het” 1991 (4) SACJ 164.

[45] A woman who acts as the accomplice of a man who commits rape can on that basis be convicted of rape. See R v M 1950 4 SA 101 (T) and R v Jackelson 1920 AD 486. Likewise X is guilty of rape if he or she forces Y to submit to intercourse with Z, even if Z honestly thinks Y has freely consented: R v D 1969 2 SA 591 (RAD).

4[6] R v Osborne [1905] 1 KB 551 at 559 per Ridley J: “ ... in early times it was incumbent on the woman who brought an appeal of rape to prove that while the offence was recent she raised “hue and cry” in the neighbouring towns, and shewed her injuries and clothing to men, and that the appellee might raise as a defence the denial that she raised the hue and cry”. For a detailed treatment of the present law, see Labuschagne “Die klagte by seksmisdade” 1978 (11) De Jure 18 at 19 -20.

[47] R v C 1955 4 SA 40 (N).

[48] In R v Gannon 1906 TS 114 the time elapsed was ten days, in R v T 1937 TPD 389, six weeks, and in R v P 1967 2 SA 497 (R), several years had elapsed since the first act of intercourse. But everything depends on the circumstances and in an appropriate case two days might be too long.

[49] R v M 1959 1 SA 352 (A).

[50] De Beer v R 1933 NPD 30.

[51] R v C 1955 4 SA 40 (N).

[52] R v W 1949 3 SA 772 (A) at 780 per Watermeyer CJ.

[53] By corroboration is meant evidence other than that of the complainant which tends to show the accused’s guilt. See also Milton South African Criminal Law and Procedure (Volume 1) 449.

[54] R v W 1949 3 SA 772 (A).

[55] R v D 1951 4 SA 450 (A).

[56] R v De Beer 1933 NPD 30.

[57] Hoffmann and Zeffertt South African Law of Evidence (fourth edition) 580.

[58] R v J 1966 1 SA 88 (RAD).

[59] Milton South African Criminal Law and Procedure (Volume 1) 450. See also sections 197 and 227 of the Criminal Procedure Act, 1977 for the circumstances in which evidence of the accused’s or complainant’s character is admissible.

[60] See also New Zealand Law Commission Preliminary Paper 27: Evidence Law - Character & Credibility February 1997.

[61] Du Toit et al Commentary on the Criminal Procedure Act 24-100B.

[62] Milton South African Criminal Law and Procedure (Volume 1) 257; Snyman Strafreg (third edition) 383.

[63] Section 238(1) of the Criminal Procedure Act, 1977 creates a statutory presumption in incest cases. It provides that at criminal proceedings at which the accused is charged with incest it shall be sufficient to prove that the women or girl on whom and by whom the offence is alleged to have been committed is reputed to be the linear ascendant or descendant or the sister, stepmother or stepdaughter of the other party to the incest.

[64] South African Criminal Law and Procedure (Volume 1) 494.

[65] The author defines assault as the unlawful and intentional applying of force to the person of another, or inspiring a belief in that other that force is immediately to be applied to him.

[66] Strafreg (third edition) 458.

[67] This author defines assault as follows:

“Aanranding is die wederregtelike en opsetlike (a) regstreekse of onregstreekse toevoeging van geweld aan die liggaam van ‘n ander persoon, of (b) dreigemente van onmiddellike persoonlike geweld aan ‘n ander onder omstandighede waarin die bedreigde beweeg word om te glo dat die persoon wat dreig die opset en die vermoë het om sy dreigement uit te voer.”

[68] Misdaad, Verweer en Straf 166.

[69] This is one of the prime examples of gender bias in our law.

[70] See also Milton South African Criminal Law and Procedure (Volume II) 274.

[71] Penetration is required.

[72] It does not matter what kind of animal is involved, provided penetration is possible.

[73] Although it still exists. In R v Mateba 1950 2 PH H130 (G) a conviction of sodomy was substituted for a conviction of the commitment of an unnatural act. In R v L 1951 4 SA 614 (A) at 622 B - C the Appeal Court talks of “an unnatural sexual crime such as sodomy”. In S v Matsemela 1988 2 SA 254 (T) two males voluntarily committed certain sexual acts with each other without committing sodomy. The court held obiter that they may have committed an unnatural act.

[74] All Roman-Dutch writers regarded unnatural acts between human males, and between human beings and animals involving penetration as qualifying. There seems to be no doubt that the crime included unnatural acts between males which occurred without penetration of the anus. Differences of opinion are to be found regarding self-masturbation. An interesting indication of the concept is the fact that some jurists regarded ordinary sexual relations between Jews and Christians as sodomy.

[75] R v N 1961 3 SA 147 (T).

[76] R v Curtis 1926 CPD 385 at 386.

[77] Milton South African Criminal Law and Procedure (Volume 1) 525. See also Snyman Strafreg (third edition) 465.

[78] See the comments of De Villiers JP in R v Van Meer 1923 OPD 77 at 81.

[79] The law would naturally be always more studious to protect girls and women against insults from men than it would be in the case of insult offered by one man to another or by one woman to another: R v Van Meer 1929 OPD 77 at 80.

[80] An act may be aggravated by the fact that it is committed in respect of a young person. In R v S 1955 3 SA 313 (SWA) at 316, for instance, the court emphasised that the complainant was a young girl, who had been accosted in her home by a strange man.

[81] Milton South African Criminal Law and Procedure (Volume 1) 531.

[82] As does crimen injuria and defamation. See also Milton South African Criminal Law and Procedure (Volume 1) 524 - 525.

[83] Section 1 of the Sexual Offences Act, 1957.

[84] See generally R Card “Sexual relations with minors” 1975 ( ) Criminal Law Review 370.

[85] Contravening section 14(1)(a) is a competent verdict on a charge of rape. See section 261(1)(e) of the Criminal Procedure Act, 1977.

[86] Milton South African Criminal Law and Procedure (Volume 3) E 3 - 11. See, however, the definition of “unlawful carnal intercourse” in section 1 of the Sexual Offences Act, 1957.

[87] R v H 1959 1 SA 343 (C); S v M 1970 4 SA 647 (N); S v A 1990 2 SACR 266 (ZS) at 268 G.

[88] Coitus inter femora. Cf. R v D 1956 4 SA 277 (N) at 278.

[89] Provided it is performed “with” the child. Self-masturbation, at common law at least, is no crime: R v Curtis 1926 CPD 385 at 386.

[90] Although such intercourse is not a crime at common law, it has been held to amount to an indecent act for these purposes: R v Abrahams 1947 3 SA 181 (C).

[91] Cf. R v H 1959 1 SA 803 (T).

[92] Cf. R v E 1960 4 SA 445 (C) at 448 C.

[93] R v F 1958 4 SA 300 (T).

[94] Milton South African Criminal Law and Procedure (Volume 3) E 3 - 63.

[95] The defences are set out in sections 14(2) and 14(4) of the Sexual Offences Act, 1957 respectively.

[96] Carnal intercourse is unlawful if it is intercourse otherwise than between husband and wife. See section 1 of the Sexual offences Act, 1957 quoted above.

[97] Section 14(2)(c) of the Sexual Offences Act, 1957. See also R v T 1960 4 SA 685 (T) at 686; S v F 1976 4 SA 639 (W) at 642, 644 - 5.

[98] See also J R L Milton “The young man’s defence” 1991 (4) SACJ 172.

[99] All that is required is a charge; the fact that there was no conviction on the charge is not relevant.

[100] Strafreg (third edition) 397.

[101] For the origin and history of this defence, see J L R Milton “The young man’s defence” 1991 (4) SACJ 172.

[102] By section 5 of the Immorality Amendment Act, 1988. In S v M 1992 1 SACR 124 (N) the court expressed its surprise that this should have been done.

[103] Snyman Strafreg (third edition) 397.

[104] R v V 1957 2 SA 10 (O); R v V 1957 3 SA 633 (O); R v V 1960 1 SA 117 (T).

[105] Strafreg (third edition) 398.

[106] Strafreg (third edition) 399.

[107] The commitment or the attempt to commit an immoral or indecent act with a girl under the age of 19 years by a female in terms of section 14(3)(b) of the Sexual Offences Act, 1957.

[108] Snyman Strafreg (third edition) 399. See also the discussion by Milton “The Sexual Offences Act” 1988 (1) SACJ 269.

[109] Strafreg (third edition) 399.

[110] A prostitute is a person who engages indiscriminately in sexual relations for pecuniary reward: R v Kam Cham 1921 ELD 327 at 329.

[111] Snyman Strafreg (third edition) 401. See also Milton “The young man’s defence” 1988 (1) SACJ 269 at 271 - 273.

[112] Various sections of the Sexual Offences Act, 1957 may find application. See, e.g. section 19 (soliciting); section 20(1)(a) (living of the earnings of prostitution); etc.

[113] For a discussion of prostitution, see Snyman Strafreg (third edition) 401 - 402; Milton South African Criminal Law and Procedure (Volume 3) paras E3-77 et seq.

[114] According to newspaper reports, in hotels in central Johannesburg and on the streets of Cape Town children as young as four years old are being sold for sexual services. See Mail & Guardian 20 - 26 March 1997, p. 1, 5.

[115] Section 9(1)(a) of the Sexual Offences Act, 1957.

[116] Section 9(1)(b) of the Sexual Offences Act, 1957.

[117] Section 9(3) of the Sexual Offences Act, 1957.

[118] Communication from the Commission of European Communities on combatting child sex tourism, Brussels 27 November 1996.

[119] An overall view is given in the document The International Legal Framework and Current National Legislative and Enforcement Responses, submitted by ECPAT for the World Congress against Commercial Sexual Exploitation of Children (Stockholm, August 1996).

[120] Sweden, Germany (1993), France (1994), and Belgium (1995).

[121] Italy, Ireland, and the United Kingdom.

[122] See also the comprehensive Australian Law Reform Commission Report No. 18: Child Welfare 1981.

[123] See paragraph 5.3 below for a discussion of mandatory reporting in terms of the Child Care Act, 1993.

[124] Section 5(1) of the Child Care Act, 1983.

[125] Section 6(1) of the Child Care Act, 1983.

[126] Section 8(1) of the Child Care Act, 1983.

[127] Section 8(7) of the Child Care Act, 1983.

[128] Section 8A(4) of the Child Care Act, 1983. This provision still has to be put into operation by proclamation.

[129] The Child Care Act, 1983 defines a “child” as any person under the age of 18 years.

[130] Section 13(3) of the Child Care Act, 1983. This provision still has to be put into operation by proclamation.

[131] Section 10 of the Child Care Act, 1983 provides for the maintenance of children apart from their parents.

[132] Section 15(1) of the Child Care Act, 1983.

[133] In Case v Minister of Safety and Security 1996 3 SA 617 (CC) the Constitutional Court held that any ban imposed on the possession of erotic material kept within the privacy of one’s home invaded the right to personal privacy guaranteed by section 13 of the interim Constitution, 1993. See also Batista v Commanding Officer, SANAB, South African Police, Port Elizabeth 1995 (8) BCLR 1006 (SE).

[134] “Publication” is defined in very terms in section 1 of the Films and Publications Act, 1996. It inter alia includes computer software which is not film, the cover or packaging of a film, and any figure, carving, statute or model.

[135] “Film” is also defined in very broad terms in the Act. It includes “any picture intended for exhibition through the medium of any mechanical, electronic or other devise.

[136] Section 27(3) of the Films and Publications Act, 1996.

[137] See Schedules 5 and 9 for the art and science exemption for publications and films respectively.