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Sexual Offences Amendment ActSexual offences against childrenA child under the age of 12 is too young to give permission to any sexual act(section 57). A sexual act with a child under 12 is automatically a crime and isdefined as rape or sexual assault.The age of consent over which individuals can give permission to a sexualact is 16 years for both girls and boys. This means that a child who is 16 yearsor older, can actually give consent to a sexual act. Where they did not giveconsent, a case of rape or sexual assault should be opened.In the case of children between the ages of 12 and 16, there are two ways toaddress this:1. If the child willingly gave consent to the sexual act, the other party can becharged with consensual sexual penetration of a child or the consensualsexual assault of a child.2. If the child did not consent to the sexual act, the perpetrator must becharged with rape or sexual assault.Consensual sexual penetration with a child between 12 and16 (section 15) (also defined as the crime of Statutory rape)This crime is committed when Lee commits an act of sexual penetration witha child between the ages of 12 and 16 (Mpho), where the child has given‘consent’ but is too young to engage in consensual sex.This section of the Act replaces section 14(1) of the old Sexual Offences Act,includes males and females and removes the different ages of consent forboys and girls.Where both parties are children, both could be charged with a crime –such a charge must be authorised by the National Directorate of PublicProsecutions. Where both parties are children, they should not be arrestedand should instead be summoned to appear in court after the case is properlyinvestigated and the National Director has said the case must proceed.A possible explanation or defence to the crime is that Mpho deceived Leeand that he reasonably believed Mpho was over 16.8a summary

Sexual Offences Amendment ActNote:Even though Mpho might have agreed to the sexual act, consent may beabsent because of the extended definition of giving permission (consent) forthe sexual act (see page 3). In such cases, Lee should be charged with rapeand not the crime of consensual sex with a child between 12 and 16.Consensual sexual violation with a child between 12 and 16(section 16)This is a new crime. This crime is committed when Lee commits an act of sexualviolation with a child (Mpho) with that child’s ‘consent’.Because of the wide definition of sexual violation (see page 5), this particularprovision has been referred to as the “kissing law”. In theory, two childrenunder 16 who kiss with mutual consent could be charged under this section.Where both parties are children, they can be charged but only if this isauthorised by the National Directorate of Public Prosecutions, guided byNational Directives.A possible explanation or defence to this crime is:}} That Mpho deceived Lee and that he reasonably believed Mpho wasover 16 or}} That both parties are children and their age difference is less than 2years.Note:The Department of Justice has stated that sections 15 and 16 are mainlyaimed at criminalising sexual acts that adults commit with children. TheDepartment states that these sections are aimed at identifying sexual abuse,and not intended to criminalise normal teenage sexual experimentation.Sexual exploitation of children (section 17)This is a new crime and applies to all children under 18 years. It does not matterif the child (Mpho) consented to the sexual act or not.a summary9

Sexual Offences Amendment Act‘exploitation’ - the misuse or abuse of someone for personal gain.“for financial or other reward, favour or compensation” – to do something inexchange for money, gifts or some benefitThis crime is committed under various circumstances:1. Sexual exploitation of a child: If Lee intentionally engages the services ofa child (Mpho) for financial or other reward, favour or compensation toMpho or Jabu to commit a sexual act with Mpho.Example: Lee wants to have sex with a child (Mpho) and pays Mpho or hiscaregiver (Jabu) money for this.2. Involvement in the sexual exploitation of a child: Lee intentionally offers theservices of a child (Mpho) for sexual exploitation to another person (Jabu)for financial or other reward, favour or compensation to Lee, Mpho oranother person:}} For the purposes of buying sex with Mpho, Jabu pays money to Lee:}} By Lee inviting or persuading Mpho to allow Jabu to commit a sexualact with Mpho;}} By Lee participating in, encouraging or promoting a sexual act withMpho by Jabu;}} By Lee making available, offering or engaging Mpho for the purpose ofthe commission of a sexual act with Mpho by Jabu or}} By detaining, through the use of threats, force, coercion, lies, abuse ofpower, Mpho so that Jabu can commit a sexual act with Mpho.Example: Lee is drinking in a bar. He says that anyone can have sex with hischild (Mpho) for money. Lee then orders Mpho to have sex with Jabu.3. Furthering the sexual exploitation of a child: A person who –}} Intentionally allows a sexual act by Jabu with Mpho while being Mpho’sprimary care-giver, parent or guardian;}} Owns, leases or occupies property and intentionally allows the propertyto be used for Jabu to commit a sexual offence with Mpho.Example: Lee is unemployed and receives money from her boyfriend for herbasic needs. She knows that her boyfriend is having sex with her child but shedoes not do anything to stop him.4. Benefiting from the sexual exploitation of a child: Lee intentionally receives10a summary

Sexual Offences Amendment Actfinancial reward, favour or compensation when Jabu commits a sexual actwith Mpho.Example: Lee knows that her child is having sex with Jabu in exchange formoney. Lee encourages this because she gets some of the money from herchild.5. Promoting child sex tours: A person or company who –}} Makes travel arrangements for Jabu with the intention of making iteasier for Jabu to commit a sexual act with Mpho or}} Prints or publishes any information that promotes sexual acts with Mpho.Sexual grooming of children (section 18)This is a new crime and aims to protect children under 18 years from sexualexploitation. Sexual grooming refers to the process of preparing or making achild ready to engage in a sexual act. Grooming usually takes place over aperiod of time. Often, the perpetrator first tries to be the child’s friend and playssecret games with the child to see if the child will disclose the crime or not. Thefriendship can then become more affectionate, progressing to sexual acts.Sometimes grooming includes showing the child pornography and buying thechild gifts.1. Promoting the sexual grooming of a child: Where Lee }} Manufactures, produces, possesses or distributes an article, publicationor film which aims to promote a sexual act with Mpho;}} Supplies or displays child pornography or a film or publication to Jabuwith the aim of helping Jabu to perform a sexual act with Mpho; or}} Arranges a meeting or communication between Jabu and Mpho byany means with the aim that Jabu will perform a sexual act with Mpho.Example: Lee hosts an internet website where adults can meet children andprepare them for sexual relationships.2. Sexual grooming of a child: Where Lee }} Supplies or displays to a child (Mpho) –yyAn article intended to be used in the sexual act;yyChild pornography or pornography;yyA publication or film with the intention to encourage Mpho toperform a sexual act.}} Commits or describes an act with or in the presence of Mpho with theintention to encourage or persuade Mpho to –yyPerform a sexual act with Lee or Jabu;a summary11

Sexual Offences Amendment ActyyPerform an act of self-masturbation in presence of Lee or Jabu;yyBe in Lee or Jabu’s presence while they perform a sexual act or selfmasturbation;yyBe exposed to child pornography or pornography;yyBe used for pornographic purposes;yyExpose his or her body to Lee or Jabu in a manner that offendsMpho’s dignity.}} Arranges a meeting or communication with Mpho, by any means,anywhere in the world, with the intention that Lee will commit a sexualact with Mpho.}} Invites, seduces or coerces Mpho to travel to meet Lee with theintention to commit a sexual act with Mpho.Compelling or causing children to witness sexual acts (section21)It is a crime to intentionally let a child watch a sexual act without the child’sconsent. This is an offence even if the act was not committed for Lee’s sexualpleasure.Exposure of genital organs, anus or breasts to children(section 22)It is a crime for Lee to intentionally expose or display the genital organs, anusor female breasts of Lee or Jabu to a child (Mpho). This is a crime even if theact was not committed for Lee or Jabu’s sexual pleasure. It is a defence to thecrime or a possible explanation if such an act was committed to carry out alegitimate cultural practice.12a summary

Sexual Offences Amendment ActSexual offences against personswho are mentally disabledThe Act tries to protect the interests of people with mental disabilities as agroup which is particularly vulnerable to sexual exploitation.In terms of the Act, a person who is mentally disabled means a personaffected by any mental disability, including any disorder or disability of themind, to the extent that she, at the time of crime, was –}} Not able to understand the nature and outcomes of the sexual act;}} Able to understand the sexual act but unable to make a properdecision based on this understanding;}} Unable to resist the sexual act; or}} Unable to show that she does not want to take part in the sexual act.In terms of the Act, persons who are mentally disabled are not able to consentto sexual acts (section 57). This section only applies to persons who arementally disabled as defined in the Act. Many people might have a mentalillness or disability but can still understand the nature and outcomes of asexual act and can therefore still decide to consent to sexual acts. It must berespected that persons with mental disabilities may and do consent to sexualactivity – it will only be a sexual offence if the person does not voluntarily andwithout coercion agree to the sexual act.The following crimes that apply to persons with a mental disability are the sameas those applying to children:}} Sexual exploitation of persons who are mentally disabled (section 23)}} Sexual grooming of persons who are mentally disabled (section 24)It will have to be proved that the complainant is mentally disabled for theseoffences to apply. This means that a report must be obtained from an expert(a social worker, psychologist or psychiatrist) and must explain the natureand extent of the mental disability and whether the complainant could giveconsent.a summary13

Sexual Offences Amendment ActPornography‘Pornography’ is any sexually explicit image or written description of an act orperson that is intended to sexually arouse.‘Child pornography’ is any sexually explicit image or written description ofan act or person where the person is under 18 years. It does not matter if theimage is intended to sexually stimulate.Pornography includes any image or description of a person –}} Engaged in a sexual crime;}} Engaged in an act of sexual penetration or sexual violation;}} Engaged in an act of self-masturbation;}} Displaying the genital organs or female breasts of such person in a stateof arousal or stimulation;}} Unduly displaying the genital organs or anus of such person;}} Engaged in sexually suggestive or lewd acts;}} Engaged in or as the subject of sadistic (deliberately inflicting pain onanother individual) or masochistic (deliberately having pain inflicted onyourself) acts of a sexual nature;}} Showing or describing the body of that person in a manner which, inthat context, violates or offends the sexual integrity or dignity of thatperson or another person.‘Sadistic’ - deriving pleasure or sexual gratification from inflicting pain onanother‘Masochistic’ - deriving pleasure or sexual gratification from being abused ordominatedThe Act creates various pornography-related crimes:}} Exposure or display of child pornography to an adult with or withoutconsent (section 10)}} Exposure or display of pornography to children, with or without consent(section 19)}} Using children for or benefiting from child pornography (section 20)}} Engaging or displaying of pornography to persons who are mentallydisabled (section 25)}} Using persons who are mentally disabled for pornographic purposes orbenefiting from their use (section 26).14a summary

Sexual Offences Amendment ActThe Films and Publications Act (no. 65 of 1996) defines ‘child pornography’ toinclude any image or any description of a person who is under the age of 18years 1. Engaged in sexual conduct;2. Participating in, or assisting another person to participate in, sexualconduct; or3. Showing or describing the body, or parts of the body, of such a person ina manner or in circumstances which, within context, amounts to sexualexploitation.It is a crime to possess, create, import, obtain or distribute a film or publicationwhich contains child pornography or advertises child pornography or thesexual exploitation of children. There is a responsibility on anyone who is awareof, or suspects this crime to report it to the police (section 27 of the Films andPublications Act).Note:You can report child pornography online at:http://www.fpbprochild.org.za/ReportAbuse.aspxa summary15

Sexual Offences Amendment ActAdult sex workMost of the laws relating to adult sex work are contained in the outdatedSexual Offences Act 23 of 1957 which criminalizes brothels, procurementand the act of having sex for financial gain. The police also usually arrest sexworkers on the basis of municipal by-laws, e.g loitering.The new Criminal Law (Sexual Offences) Amendment Act now also criminalizesthe clients who pay for sex. It includes the following crimes:}} Keeping a brothel (section 2) and related activities}} Procurement (section 10)yyLee gets Mpho to have sex with any other person, or he gets her tobecome a sex worker or inmate of a brothel.}} Detention for purposes of unlawful carnal intercourse (section 12)yyLee holds Mpho against her will in a brothel or a place so that aman can have sex with her.}} Assisting sex work (section 12A)yyA person who, for reward, helps a person to communicate withanother person so that they can have sex or perform an act ofindecency for reward.}} Enticing to commission of immoral acts (section 19)yyA person who entices or solicits in a public place for immoralpurposes.yyA person who poses in an indecent dress or manner in any door orwindow or within view of any public place or place to which thepublic have access.}} Persons living on the earnings of sex work (prostitution) or assisting inselling indecent acts (section 20)yyAny person who knowingly lives on the earnings of prostitution.yyAny person who in any way assists or receives a reward for thecommission by any person of any act of indecency with anotherperson.yyAny person 18 years or older who has sex or commits an act ofindecency with another person for reward.yyAny person 18 years or older who in public commits any act ofindecency with another person.The above provisions apply to both men and women.16a summary

Sexual Offences Amendment ActEngaging the sexual services of adults (section 11)In terms of the Criminal Law (Sexual Offences) Amendment Act, it is nowconsidered a crime for a person to engage the services of a person 18 yearsor older for financial or other reward, favour or compensation to an individualor to a third person for the purpose of engaging in a sexual act with thatindividual.Note:The South African Law Reform Commission is reviewing the current law onsex work. For more information go to their website athttp://salawreform.justice.gov.za.a summary17

Sexual Offences Amendment ActTraffickingSouth Africa has signed the United Nations Protocol to Prevent Trafficking inPersons and the provisions of this international protocol are legally binding inSouth Africa.1 This means that South Africa has a responsibility to enforce theseinternational rules on trafficking (the sale of human beings between countries).Currently, the South African Law Reform Commission is looking at the optionsfor revising the law that addresses trafficking in persons. In the interim, theCriminal Law (Sexual offences) Amendment Act has temporary provisionsrelating specifically to trafficking for sexual purposes. Trafficking in children isdealt with in Chapter 18 of the Children’s Act (no. 38 of 2005).Trafficking for sexual purposesThis is a temporary section in the Criminal Law (Sexual offences) AmendmentAct which gives effect to the UN Protocol temporarily until the passing of morecomprehensive legislation for South Africa.‘trafficking’ in this section, includes the supply, recruitment, procurement,capture, removal, transportation, transfer, harbouring, sale, disposal orreceiving of a person, within or across the borders of the Republic, by meansof –1.The threat or use of force, intimidation or other forms of coercian;2. Abduction (kidnapping);3. Fraud;4. Deception or false pretences;5. The abuse of power or a position of vulnerability, to the extent that thecomplainant is inhibited from indicating her unwillingness or resistance tobeing trafficked;6. The giving or receiving of payments, compensation, rewards or advantagefor the purpose of any form of exploitation, grooming or abuse of a sexualnature of such person.The Act forbids }} Trafficking in persons for sexual purposes [section 71(1)]}} Involvement in trafficking in persons for sexual purposes [section 71(2)]118Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,Supplementing the United National Convention Against Transnational Organised Crime, GS res 55.25,annex II, 55 UN GAOR Supp. (No 49) at 60, UN Doc A/45/49 (Vol I) (2001)a summary

Sexual Offences Amendment ActA person who commits a crime because he or she is being trafficked will notbe charged [section 71(5)]. For example, if Mpho is trafficked across the borderinto South Africa and she does not have valid travel documents, she will not becharged with a migration-related crime.The section also deals with the prosecution of commercial carriers (airplanes,boats) involved in trafficking.Trafficking in childrenIn terms of the Children’s Act (no. 38 of 2005),}} ‘commercial sexual exploitation’, in relation to a child, meansyyProcuring or getting a child to perform sexual activities for financialor other reward, including acts of prostitution or pornography,regardless of whether that reward is given to the procurer, the child,the caregiver of the child, or any other person; oryytrafficking a child for use in sexual activities, including prostitution orpornography.}} ‘trafficking’, in relation to a childyymeans the recruitment, sale, supply, transportation, transfer,harbouring or receipt of children, within or across the borders of theRepublic-yyby any means, including the use of threat, forc

2 a summary Introduction The Criminal Law (Sexual Offences) Amendment Act (called 'the Act' in . needs to massage her genital area as part of a medical procedure. Mpho agrees but she does not know that Lee is actually massaging her for his own sexual pleasure.} Where Mpho is not able to think properly or understand the nature of .