so on that premise), that the inclusion of sodomy in Schedule 1 of the CPA and in the Security Officers Act was likewise constitutionally invalid.
The Constitutional Validity of the Common Law Offence of Sodomy
[14]I shall for the moment deal only with sodomy which takes place in private between consenting males. The long history relating to the ways in which the South African criminal common law differentiated in its treatment of gays as opposed to its treatment of heterosexuals and lesbians, prior to the passing of the interim Constitution, has already been dealt with in at least three judgments of the High Court.[1] The conclusions can be briefly stated. The offence of sodomy, prior to the coming into force of the interim Constitution, was defined as “unlawful and intentional sexual intercourse per anum between human males”, consent not depriving the act of unlawfulness, “and thus both parties commit the crime”.[2] Neither anal nor oral sex in private between a consenting adult male and a consenting adult female was punishable by the criminal law. Nor was
- ↑ Namely, in S v H 1995 (1) SA 120 (C); S v K above n 7, in which a very helpful historical analysis is conducted, and in the High Court judgment in the present case.
- ↑ Burchell and Milton Principles of Criminal Law 1ed (Juta Cape Town 1991) at 571 and 572. Snyman Criminal Law 2ed (Butterworths, Durban 1989) at 378–9 is to the same effect. The qualification “prior to the coming into force of the interim Constitution” is added because of the fact that certain academic writers have argued that, notwithstanding the fact that sodomy in private between consenting adult males did not survive as an offence in the face of the interim Constitution, there are instances of sodomy, for example the cases of “male” anal rape which occurs without the consent of the victim or where the victim is incapable of giving consent, which survive as sodomy. See, for example, Milton South African Law of Criminal Law and Procedure vol II 3ed (Juta, Cape Town 1996) at 250 and Snyman Criminal Law 3ed (Butterworths, Durban 1995) at 341.
