South Africa is a country plagued by sexual abuse, and particularly sexual violence. In every local newspaper, everyday, there are numerous articles detailing the egregious humiliation suffered by victims of sexual violence at the hands of their attackers. Whilst the social causes of such ills remain an illusive hypothesis buried deep within the reams of academic literature, the unresponsive and patriarchal laws criminalising such conduct have not. On 16 December 2007, the President signed into law the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. The Act sought to provide an enabling environment that reconciled the criminal justice system with the experiences of the victims by introducing a plethora of devices to prevent secondary victimisation and to acknowledge and appropriately criminalise various forms of sexual violence. Unfortunately the transition to this modernised sexual offences system has not proved to be a smooth one, with the Act having to overcome many an obstacle in achieving its aims and objects. The study undertaken focused on two particular aspects of import in the Act, namely whether the Act had abolished the formal nature of the offence of rape and the scope and application of the new statutory offence of compelled rape. The latter was particularly relevant in order to ascertain whether the legislature had provided a panacea for scenarios where the perpetrator procured an unwilling and innocent agent to commit the rape. In order to provide a palpable understanding of what the legislature envisaged through the enactment of these two independent offences the study mapped the development of the interests sought to be protected through the introduction of criminal sanctions for sexual offences. This mapping culminated in an understanding, from which the study of the statutory offences departs, that sexual offences must be balanced and weighed against the precepts of rights. Moreover that any interpretation of such statutory offences must promote and uphold the rights violated in order for the Act to meet its aims. The focus of the study was thereafter shifted to a deconstructive analysis of the statutory offence of rape and compelled rape. Through such focused analysis, the study sought to ascertain whether the formal nature of rape - which existed at common law - had been abolished by the legislature. It proposed that should such interpretation prove to be correct, that the offence of compelled rape had been inserted by the legislature either superfluously alternatively ex major cautela. The study thereafter turned to the offence of compelled rape, with particular attention being paid to whether the offence effectively criminalises the conduct identified throughout the study as the ‘innocent perpetrator’ to rape, and whether the offence effectively upholds the rights of the victims. Through such exercise the study concludes in constitutionally compliant interpretations which provide solutions for much of the intellectual discomfort that has plagued the creation of the two independent statutory offences. / Dissertation (LLM)--University of Pretoria, 2013. / Public Law / unrestricted

The phrase “sweet sixteen and never been kissed” refers to the innocence of childhood and the coming of age of children. It also relates to the increased need for autonomy by adolescents. However, it is highly improbable that the average child in South Africa, when reaching the age of sixteen years, has never been kissed. Children’s rights are categorised as rights of protection (the state and parents have a duty to protect children from sexual abuse and exploitation) and rights of autonomy. The Choice on Termination of Pregnancy Act 92 of 1996 provides for the right of female children of any age to consent to the termination of a pregnancy if all the requirements are met. In terms of the Children’s Act 38 of 2005, persons who are responsible for the care of a child must guide, advise and assist such child. A child must have access to information regarding sexuality and reproduction, and has clear rights from a young age with regard to consenting to medical treatment and HIV testing, as well as to access to contraceptives. Sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 deal with consensual sexual acts with adolescents - a person who commits a sexual act with an adolescent is, despite the consent of such adolescent, guilty of an offence. Adolescents and children between the ages of sixteen and eighteen years can also be offenders. There is an obligation on a person with knowledge of a sexual offence that has been committed to report same to the South African Police Service. The particulars of a convicted person must be inserted in the National Register for Sex Offenders. These reporting obligations limit the child’s rights to consent to the termination of a pregnancy, to access contraceptives and confidential contraceptive advice and to consent to HIV testing. It also limits the ability of adults to provide children with sex education, advice and guidance. The court in the The Teddy Bear Clinic for Abused Children and RAPCAN v Minister of Justice and Constitutional Development and National Director of Public Prosecutions (73300/2010) [2013] ZAGPPHC 1 (4 January 2013) found that certain sections of the Sexual Offences Act are unconstitutional. However, three main issues remain unaddressed. Firstly, the above-mentioned provisions in the Choice on Termination of Pregnancy Act and the Children’s Act still send out contradictory messages, leading to legal uncertainty. Secondly, the diversion provisions of the Child Justice Act 75 of 2008 are not, in totality, relevant to consensual sexual acts between children, and expose children to the criminal justice system. Thirdly, the reporting provisions of the Sexual Offences Act pose serious challenges. To address the above, it is recommended that the state should embark on a nation-wide information campaign, the national statutory and institutional framework should be reviewed, rationalised and aligned, information relating to the appropriate education of children should be disseminated, and the reporting requirement in the Sexual Offences Act be amended. / Dissertation (LLM)--University of Pretoria, 2013. / gm2014 / Private Law / UPonly