Constitutional Court Case on Age of Consent

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Questions and Answers

What is the main focus of the Integrated Victim Empowerment Policy?

The main focus of the Integrated Victim Empowerment Policy is service delivery to victims of crime.

What does the Domestic Violence Act of 1998 aim to prevent?

The Domestic Violence Act of 1998 aims to prevent domestic violence.

What does the Domestic Violence Act require members of the SAPS to do?

The Domestic Violence Act requires members of the SAPS to render assistance to the victim, including help in finding suitable shelter, providing information about the victim's rights, and assisting with obtaining medical attention.

Has the Domestic Violence Act been effective in reducing domestic violence?

No, the Domestic Violence Act has not had the desired effect of reducing domestic violence. Signup and view all the answers

What was the outcome of the Carmichele v Minister of Safety and Security and Another case?

Alix Carmichele won the case after 12 years and was awarded compensation for damages. Signup and view all the answers

What were the two important international instruments mentioned in the text that protect the rights of victims?

<ol> <li>The UN Declaration (1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power) and the 2006 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. 2. SA’s ratification of international declarations and conventions (conventions and declarations that we are signatories to) places the state under a duty to act in fulfillment of obligations placed on it by those instruments.</li> </ol> Signup and view all the answers

What was the basis of Carmichele's argument in the Constitutional court?

Carmichele argued that the South African constitution was not abided by and the Constitutional court agreed with her. Signup and view all the answers

What sections of the SORMA were deemed unconstitutional in the Constitutional Court case?

Sections criminalizing sexual interactions without penetration between children with an age gap of more than two years Signup and view all the answers

What factors must be considered by the court before allowing evidence of the complainant's previous sexual history?

Interest of justice, accused's right to a fair trial, societies interest in reporting sexual offenses, complainant's personal dignity and right to privacy Signup and view all the answers

Why should courts be careful in drawing conclusions based on the delay in reporting a sexual offense?

Many victims only report the offense after some time due to various reasons, and the delay does not make the victim less credible Signup and view all the answers

What criminal acts are defined by the SORMA other than rape?

Showing pornography to a child, benefiting from child pornography, exhibitionism, necrophilia, incest, engaging in sexual activities in the presence of a child, grooming of a child via the Internet, sexual exploitation of children, child trafficking Signup and view all the answers

What is the purpose of the Protection from Harassment Act 17 of 2011?

To deal with all types of harassment including stalking which occurs outside the domestic sphere. Signup and view all the answers

Who can apply for a protection order under the Protection from Harassment Act 17 of 2011?

Victims and children, or someone on behalf of a child. Signup and view all the answers

What are the two main categories of offending defined by the Criminal Law (Sexual offences and related matters) Amendment Act (32 of 2007)?

Rape and sexual assault. Signup and view all the answers

Under what circumstances is a sexual act considered unlawful according to the Sexual offences and related matters amendment act?

When the complainant did not consent, or when there is force, intimidation, abuse of power, false pretences, inability to consent, or consensual sexual violation involving minors. Signup and view all the answers

Explain the purpose of Thuthuzela Rape Care Centres (TCCs) in South Africa.

Thuthuzela Rape Care Centres (TCCs) were established in South Africa as a response to the urgent need for an integrated strategy for prevention, response, and support for rape victims. The TCCs aim to reduce secondary victimization, improve conviction rates, and reduce the time for finalizing cases. Signup and view all the answers

Describe the Thuthuzela rape care centres' approach towards victim empowerment.

The Thuthuzela rape care centres' approach towards victim empowerment is focused on respect, comfort, restoring dignity, and ensuring justice for children, women, and men who are victims of sexual violence. They provide a victim-friendly environment, crisis counseling, medical examinations, information on procedures, medication, and follow-up care. Signup and view all the answers

What services are provided to rape victims at Thuthuzela Rape Care Centres (TCCs)?

At Thuthuzela Rape Care Centres (TCCs), rape victims receive a range of services, including being removed from intimidating environments, comfort and crisis counseling during transportation, medical examinations conducted by doctors, information on procedures, the opportunity to take a bath or shower and change into clean clothes, the opportunity to provide a statement to an investigating officer, medication, and follow-up dates or further medical treatment. Signup and view all the answers

What is the significance of the Thuthuzela Rape Care Centres' integrated approach to rape care?

The Thuthuzela Rape Care Centres' integrated approach to rape care ensures that service providers are available to a rape survivor in one location, rather than her being shuttled around throughout the criminal justice system. This approach facilitates a more streamlined and victim-centered process for rape survivors. Signup and view all the answers

Explain the impact of rape myths on the judgment in the case of S v Mahamotsa and why it is important to train magistrates and judges on victimization.

The impact of rape myths on the judgment in the case of S v Mahamotsa includes the belief that rape is only traumatic if there are physical injuries, that previous sexual activity lessens the negative impact of rape, and that rape is often a matter of misunderstanding male virility. It is important to train magistrates and judges on victimization to ensure they have a proper understanding of the impact of rape and to prevent the perpetuation of these rape myths. Signup and view all the answers

What aspects are specifically excluded as a justification for imposing a lesser sentence than the prescribed minimum sentence according to the Criminal Law (Sentencing) Amendment Act 38 of 2007?

<ol> <li>The complainant’s previous sexual history. 2. An apparent lack of physical injury to the complainant. 3. An accused person’s cultural or religious beliefs about rape. 4. Any relationship between the accused person and the complainant prior to the offense being committed.</li> </ol> Signup and view all the answers

What are the different needs of victims?

The different needs of victims include emotional needs (defusing, debriefing, and trauma therapy), acknowledgement needs (acknowledgment of their loss and trauma), practical needs (such as changing locks and transportation), information needs (about the criminal justice system and community resources), and the need for understanding and not being blamed or questioned for their involvement. Signup and view all the answers

Outline the objectives of victim empowerment.

The objectives of victim empowerment include reducing psychological shock and trauma, identifying symptoms of PTSD and referring victims to counseling, preventing or reducing secondary victimization by providing information about the investigation and court systems, preventing repeat victimization by promoting a preventative lifestyle, and creating awareness among the public about the risks of crime. Signup and view all the answers

Distinguish between victim support and victim empowerment.

Victim support focuses on the immediate needs of the victim, while victim empowerment aims to give victims a meaningful role in the criminal justice system. Victim support provides care, while victim empowerment involves active participation in the criminal justice process and aims to prevent repeat victimization. Signup and view all the answers

Study Notes

The Carmichele Case and the Constitution's Protection of Victims' Rights

The Carmichele case highlights the importance of the Constitution in protecting the rights of victims of crime.
The case involved Alix Carmichele, who was attacked and seriously injured by a man who was out on bail for previous crimes.
The court initially ruled that the police were not responsible for protecting Carmichele, but the Constitutional Court ultimately ruled in her favor, stating that the South African Constitution requires the state to protect its citizens from harm.

International Instruments and the South African Constitution

The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) and the 2006 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law are important international instruments that influence South African law.
The South African Constitution (1996) guarantees the right to freedom from violence and ensures that the state must respect, promote, and fulfill the rights in the Bill of Rights.
The Constitution also protects the rights to dignity, equality, and equal protection and benefit of the law.

Laws and Policies Aimed at Reducing Violence and Supporting Victims

The Domestic Violence Act (116 of 1998) aims to protect victims of domestic violence and provide them with services and support.
The Protection from Harassment Act (17 of 2011) deals with harassment and stalking, including cyberbullying, and provides victims with a protection order.
The Criminal Law (Sexual Offences and Related Matters) Amendment Act (32 of 2007) provides a comprehensive state response to sexual offences, including rape, sexual assault, and other forms of sexual violation.

The Domestic Violence Act (116 of 1998)

The Act defines domestic violence as any form of physical, sexual, emotional, or psychological abuse, including stalking, damage to property, and entry into a residence without consent.
The Act provides a protection order, which prevents the respondent from committing certain acts of violence.
The Act places positive duties on members of the South African Police Service (SAPS) to assist victims, including providing information about their rights and helping them to obtain medical attention.

Problems with the Implementation of the Domestic Violence Act

Some police officials are reluctant to arrest offenders who have breached a protection order, unless there is clear evidence of physical violence.
Police members may not inform victims of their rights, including the right to lay criminal charges.
Corruption and myths about domestic violence, such as the idea that women apply for protection orders to "get back" at their partners, can hinder the implementation of the Act.

The Protection from Harassment Act (17 of 2011)

The Act provides a protection order for victims of harassment, including stalking, and allows them to apply for a protection order or lay criminal charges.
The Act applies to a range of circumstances, including harassment by strangers, co-workers, and in educational settings.
The Act provides for the seizure of weapons and allows for imprisonment of up to 5 years for breaching a protection order.

The Act defines rape and sexual assault, including the absence of consent and coercive circumstances.
The Act criminalizes other sexual offences, including the showing of pornography to a child, benefiting from child pornography, and exhibitionism.
The Act provides for the protection of rape victims, including the provision of post-exposure prophylaxis (PEP) to prevent HIV infection and the requirement for alleged sex offenders to take an HIV test.

Mandatory Minimum Sentences and the SORMA

The SORMA provides for mandatory minimum sentences for certain crimes, including murder, rape, and other serious crimes.
The legislation states that the presiding officer may deviate from the minimum sentence if there are substantial and compelling reasons to do so.
The legislation excludes certain aspects as justification for imposing a more lenient sentence, including the complainant's previous sexual history, an apparent lack of physical injury, and the accused person's cultural or religious beliefs.

Victim Empowerment and Support

Victim empowerment is essential in South Africa, given the high crime rate and the negative impact of victimization on physical, financial, and emotional levels.
Victims need attention, support, and empowerment, including emotional support, practical assistance, information, and understanding.
The objectives of victim empowerment include reducing psychological shock and trauma, preventing secondary victimization, and providing a meaningful role for victims in the criminal justice system.

The Thuthuzela Rape Care Centres

The Thuthuzela Rape Care Centres were established in 2000 to provide an integrated strategy for prevention, response, and support for rape victims.
The centres provide a comprehensive approach to victim support, including medical care, counseling, and legal assistance.
The centers aim to empower victims and reduce the chances of repeat victimization.### Thuthuzela Centers
Thuthuzela is a Xhosa word meaning "comfort", and the centers are named so to evoke feelings of warmth, freedom from concerns, safety, security, care, dignity, hope, and positive expectations.

Purpose and Location

Thuthuzela centers are one-stop facilities introduced as part of South Africa's anti-rape strategy to reduce secondary victimization, improve conviction rates, and reduce case finalization time.
Most centers are situated in public hospitals, particularly in communities with high rape incidence rates.

Linked Services

Thuthuzela centers are linked to sexual offenses courts, staffed by prosecutors, social workers, investigating officers, magistrates, health professionals, NGOs, and police members.

Integrated Approach to Rape Care

The approach focuses on respect, comfort, restoring dignity, and ensuring justice for victims of sexual violence (children, women, and men).

Reporting and Support Process

Victims are removed from intimidating environments at police stations and taken to a victim-friendly environment before being transported to the Thuthuzela center.
En route, victims receive comfort and crisis counseling from trained ambulance volunteers.
Upon arrival, victims are ushered to a quiet, private space, and welcomed by the site-coordinator.
A doctor conducts a medical examination, and the victim signs a consent form.
Victims may take a bath or shower and change into clean clothes if the medical examination occurs within 24 hours of the rape.
The investigating officer takes the victim's statement, and medication is provided with a follow-up date for further medical treatment.

Benefits of Thuthuzela Centers

Service providers are available to rape survivors in one location, reducing the need for victims to be shuttled around the criminal justice system.

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Quiz: Understanding the Constitutional Court Case on Age of Consent Laws Test your knowledge on the recent Constitutional Court case that deemed certain age of consent laws unconstitutional. Discover the details surrounding the case and its impact on sexual interactions between children.