New sex offences laws

2003-08-01 08:49

Philip de Bruin

Johannesburg - The current legal framework for sexual offences in South Africa has been revolutionised in the newly released draft Criminal Justice Bill (Sexual Offences).

The bill recognises men can be raped and the male age of consent has been lowered from 19 to 16.

Also historic is Section 2 (6) of the bill, which expressly states a married man can be prosecuted for raping his lawful wife. Marital status no longer counts as a defence against a rape charge.

The bill is the result of years of research by the Justice Commission. A memorandum distributed with the bill to various organisations, says it is "aimed at creating a much broader definition of rape, creating a number of new sexual offences, addressing problems with witnesses in sexual offence trials, and making provision for a national policy framework in relation to sexual offences".

Rape, which for the first time in South Africa will be regarded as a statutory and not common law offence, is defined in Section 2 as "any unauthorised penetration by one person of the anus or sexual organs of another person".

The wording is non-gender specific, which means a man could rape a woman, a man (or woman) another man (or woman) and that a woman can rape a man.

Apart from rape, two specific and related sexual offences were created in Sections 3 and 4. Section 3 makes provision for the offence of "sexual assault" and Section 4 for "oral genital sexual assault", which means it will be considered a crime if a person's sexual organs are put in someone else's mouth without their permission. Again, the offender and victim can be of either gender.

It will also be a crime to "force, induce or persuade? anyone - a minor or adult - to watch pornography (Section 6) or to commit legal sexual acts in the presence of anyone younger than 16 (Section 8).

Section 13 brings a far-reaching change in relation to incest, in that a mother penetrating her son or daughter or a father penetrating his son is also classed as incest.

A large portion of the bill amends existing legislation in connection with witnesses in sexaul offence trials. For example, the decades old cautionary principle - which the courts were required to apply when a sexual offence victim was the only witness or a minor - is specifically prohibited by Section 19.

In a related development, a draft Criminal Procedure Bill has also just been released, which determines two of the new offences in the sexual offences legislation - sexual assault and oral genital sexual assault - never superannuate. Previously they did so after 20 years.

- Beeld