Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007/Unamended

by enacted by the Parliament of South Africa

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(English text signed by the President.)
(Assented to 13 December 2007.)

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Act

To comprehensively and extensively review and amend all aspects of the laws and the implementation of the laws relating to sexual offences, and to deal with all legal aspects of or 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;
• repealing the common law offence of indecent assault and replacing 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;
• 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;
• repealing the common law offences of incest, bestiality and violation of a corpse, as far as such violation is of a sexual nature, and enacting corresponding new statutory offences;
• enacting comprehensive provisions dealing with the creation of certain new, expanded or amended sexual offences against children and persons who are mentally disabled, including offences relating to sexual exploitation or grooming, exposure to or display of pornography and the creation of child pornography, 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 in respect of sexual abuse or exploitation;
• eliminating the differentiation drawn between the age of consent for different consensual sexual acts and providing for special provisions relating to the prosecution and adjudication of consensual sexual acts between children older than 12 years but younger than 16 years;
• criminalising any attempt, conspiracy or incitement to commit a sexual offence;
• creating a duty to report sexual offences committed with or against children or persons who are mentally disabled; * providing the South African Police Service with new investigative tools when investigating sexual offences or other offences involving the HIV status of the perpetrator;
• providing our courts with extra-territorial jurisdiction when hearing matters relating to sexual offences;
• providing certain services to certain victims of sexual offences, inter alia, to minimise or, as far as possible, eliminate secondary traumatisation, including affording a victim of certain sexual offences the right to require that the alleged perpetrator be tested for his or her HIV status and the right to receive Post Exposure Prophylaxis in certain circumstances;
• establishing and regulating a National Register for Sex Offenders;
• further regulating procedures, defences and other evidentiary matters in the prosecution and adjudication of sexual offences;
• making provision for the adoption of a national policy framework regulating all matters in this Act, including the manner in which sexual offences and related matters must be dealt with uniformly, in a co-ordinated and sensitive manner, by all Government departments and institutions and the issuing of national instructions and directives to be followed by the law enforcement agencies, the national prosecuting authority and health care practitioners to guide the implementation, enforcement and administration of this Act in order to achieve the objects of the Act;
• making interim provision relating to the trafficking in persons for sexual purposes; and
• to provide for matters connected therewith.

Preamble

Whereas the commission of sexual offences in the Republic is of grave concern, as it has a particularly disadvantageous impact on vulnerable persons, the society as a whole and the economy;

Whereas women and children, being particularly vulnerable, are more likely to become victims of sexual offences, including participating in adult prostitution and sexual exploitation of children;

Whereas the prevalence of the commission of sexual offences in our society is primarily a social phenomenon, which is reflective of deep-seated, systemic dysfunctionality in our society, and that legal mechanisms to address this social phenomenon are limited and are reactive in nature, but nonetheless necessary;

Whereas the South African common law and statutory law do not deal adequately, effectively and in a non-discriminatory manner with many aspects relating to or associated with the commission of sexual offences, and a uniform and co-ordinated approach to the implementation of and service delivery in terms of the laws relating to sexual offences is not consistently evident in Government; and thereby which, in too many instances, fails to provide adequate and effective protection to the victims of sexual offences thereby exacerbating their plight through secondary victimisation and traumatisation;

Whereas several international legal instruments, including the United Nations Convention on the Elimination of all Forms of Discrimination Against Women, 1979, and the United Nations Convention on the Rights of the Child, 1989, place obligations on the Republic towards the combating and, ultimately, eradicating of abuse and violence against women and children;

And whereas the Bill of Rights in the Constitution of the Republic of South Africa, 1996, enshrines the rights of all people in the Republic of South Africa, including the right to equality, the right to privacy, the right to dignity, the right to freedom and security of the person, which incorporates the right to be free from all forms of violence from either public or private sources, and the rights of children and other vulnerable persons to have their best interests considered to be of paramount importance,

Be it therefore enacted by the Parliament of the Republic of South Africa, as follows:—

Index

Chapter 1

Definitions and objects

1.	Definitions and interpretation of Act
2.	Objects

Chapter 2

Sexual offences

Part 1: Rape and compelled rape

3.	Rape
4.	Compelled rape

Part 2: Sexual assault, compelled sexual assault and compelled self-sexual assault

5.	Sexual assault
6.	Compelled sexual assault
7.	Compelled self-sexual assault

Part 3: Persons 18 years or older: Compelling or causing persons 18 years or older to witness sexual offences, sexual acts or self-masturbation, exposure or display of or causing exposure or display of genital organs, anus or female breasts (“flashing”), child pornography to persons 18 years or older or engaging sexual services of persons 18 years or older

8.	Compelling or causing persons 18 years or older to witness sexual offences, sexual acts or self-masturbation
9.	Exposure or display of or causing exposure or display of genital organs, anus or female breasts to persons 18 years or older (“flashing”)
10.	Exposure or display of or causing exposure or display of child pornography to persons 18 years or older
11.	Engaging sexual services of persons 18 years or older

Part 4: Incest, bestiality and sexual acts with corpse

12.	Incest
13.	Bestiality
14.	Sexual acts with corpse

Chapter 3

Sexual offences against children

Part 1: Consensual sexual acts with certain children

15.	Acts of consensual sexual penetration with certain children (statutory rape)
16.	Acts of consensual sexual violation with certain children (statutory sexual assault)

Part 2: Sexual exploitation and sexual grooming of children, exposure or display of or causing exposure or display of child pornography or pornography to children and using children for pornographic purposes or benefiting from child pornography

17.	Sexual exploitation of children
18.	Sexual grooming of children
19.	Exposure or display of or causing exposure or display of child pornography or pornography to children
20.	Using children for or benefiting from child pornography

Part 3: Compelling or causing children to witness sexual offences, sexual acts or self-masturbation and exposure or display of or causing exposure or display of genital organs, anus or female breasts (“flashing”) to children

21.	Compelling or causing children to witness sexual offences, sexual acts or self-masturbation
22.	Exposure or display of or causing of exposure or display of genital organs, anus or female breasts to children (“flashing”)

Chapter 4

Sexual offences against persons who are mentally disabled

Sexual exploitation and sexual grooming of, exposure or display of or causing exposure or display of child pornography or pornography to persons who are mentally disabled and using persons who are mentally disabled for pornographic purposes or benefiting therefrom

23.	Sexual exploitation of persons who are mentally disabled
24.	Sexual grooming of persons who are mentally disabled
25.	Exposure or display of or causing exposure or display of child pornography or pornography to persons who are mentally disabled
26.	Using persons who are mentally disabled for pornographic purposes or benefiting therefrom

Chapter 5

Services for victims of sexual offences and compulsory HIV testing of alleged sex offenders

Part 1: Definitions and services for victims of sexual offences

27.	Definitions
28.	Services for victims relating to Post Exposure Prophylaxis and compulsory HIV testing of alleged sex offenders
29.	Designation of public health establishments for purposes of providing Post Exposure Prophylaxis and carrying out compulsory HIV testing

Part 2: Application for compulsory HIV testing of alleged sex offender by victim

30.	Application by victim or interested person for HIV testing of alleged sex offender
31.	Consideration of application by magistrate and issuing of order

Part 3: Application for compulsory HIV testing of alleged offender by investigating officer

32.	Application by investigating officer for HIV testing of alleged offender

Part 4: Execution of orders for compulsory HIV testing and results of HIV tests

33.	Execution of order and issuing of warrant of arrest
34.	Use of results of HIV tests

Part 5: Miscellaneous

35.	Register of applications and orders
36.	Confidentiality of outcome of application
37.	Confidentiality of HIV test results obtained
38.	Offences and penalties
39.	Regulations

Chapter 6

National Register for Sex Offenders

40.	Definitions
41.	Prohibition on certain types of employment by certain persons who have committed sexual offences against children and persons who are mentally disabled
42.	Establishment of National Register for Sex Offenders and designation of Registrar of Register
43.	Objects of Register
44.	Persons entitled to apply for certificate
45.	Obligations of employers in respect of employees
46.	Obligations of employees
47.	Obligations in respect of licence applications
48.	Obligations in respect of applications for fostering, kinship care-giving, temporary safe care-giving, adoption of children or curatorship
49.	Contents of Register
50.	Persons whose names must be included in Register and related matters
51.	Removal of particulars from Register
52.	Confidentiality and disclosure of information
53.	Regulations pertaining to Register

Chapter 7

General provisions

Part 1: Miscellaneous offences: Obligation to report commission of sexual offences against children or persons who are mentally disabled and attempt, conspiracy, incitement or inducing another person to commit sexual offence

54.	Obligation to report commission of sexual offences against children or persons who are mentally disabled
55.	Attempt, conspiracy, incitement or inducing another person to commit sexual offence

Part 2: Defences and sentencing, inability of children under 12 years and persons who are mentally disabled to consent to sexual acts, other evidentiary matters and extra-territorial jurisdiction

56.	Defences and sentencing
57.	Inability of children under 12 years and persons who are mentally disabled to consent to sexual acts
58.	Evidence of previous consistent statements
59.	Evidence of delay in reporting
60.	Court may not treat evidence of complainant with caution on account of nature of offence
61.	Extra-territorial jurisdiction

Part 3: National policy framework

62.	National policy framework
63.	Establishment of Inter-sectoral Committee
64.	Meetings of Committee
65.	Responsibilities, functions and duties of Committee

Part 4: National instructions and directives, regulations and repeal and amendment of laws

66.	National instructions and directives
67.	Regulations
68.	Repeal and amendment of laws

Part 5: Transitional provisions

69.	Transitional provisions

Part 6: Transitional provisions relating to trafficking in persons for sexual purposes

70.	Application and interpretation
71.	Trafficking in persons for sexual purposes
72.	Short title and commencement

Schedule

Laws amended or repealed by section 68