LU 4 Part 1 PDF - Sexual Crimes

Learning unit 4 Sexual crimes Learningunit4 Contents 4.1 INTRODUCTION 77 4.2 RAPE 78 4.2.1 General...

Learning unit 4 Sexual crimes Learningunit4 Contents 4.1 INTRODUCTION 77 4.2 RAPE 78 4.2.1 General 78 4.2.2 Rape 79 4.2.2.1 Definition 79 4.2.2.2 The act 79 4.2.2.3 Unlawfulness 82 4.2.2.4 Intention 82 4.2.3 Compelled rape 84 4.2.3.1 Definition 84 4.2.3.2 The act 84 4.2.3.3 Unlawfulness 84 4.2.3.4 Intention 85 4.3 SEXUAL ASSAULT, COMPELLED SEXUAL ASSAULT AND COMPELLED SELF-SEXUAL ASSAULT 85 4.3.1 General 85 4.3.2 Sexual assault 86 4.3.2.1 Definition 86 4.3.2.2 The act 86 4.3.2.3 Unlawfulness 88 4.3.2.4 Intention 88 4.3.3 Compelled sexual assault 88 4.3.3.1 Definition 88 4.3.3.2 The act 88 4.3.3.3 Unlawfulness 89 4.3.3.4 Intention 89 4.3.4 Compelled self-sexual assault 89 4.3.4.1 Definition 89 4.3.4.2 The act 89 75 PART B: CRIMES AGAINST THE COMMUNITY 4.3.4.3 Unlawfulness 90 4.3.4.4 Intention 90 4.4 SEXUAL OFFENCES AGAINST PERSONS 18 YEARS OR OLDER 90 4.4.1 General 90 4.5 INCEST 92 4.5.1 Definition 92 4.5.2 The act 92 4.5.3 Unlawfulness 92 4.5.4 Intention 93 4.6 BESTIALITY 93 4.6.1 Definition 93 4.7 SEXUAL OFFENCES AGAINST CHILDREN 93 4.7.1 General 93 4.7.2 Consensual sexual penetration of children 93 4.7.2.1 Definition 93 4.7.2.2 The act 95 4.7.2.3 Unlawfulness 96 4.7.2.4 Negligence a sufficient form of culpability 96 4.7.3 Consensual sexual violation of children 97 4.7.4 Sexual exploitation of children under the age of 18 years 98 4.7.4.1 Definition 98 4.7.5 Sexual grooming of children under the age of 18 years 99 4.7.6 Displaying of pornography to children, the use of children for child pornography and the benefiting from child pornography 99 4.7.7 Compelling children to witness sexual crimes, sexual acts or self- masturbation 100 4.7.8 Exposing or display of genital organs, anus or female breasts to children ("flashing") 100 4.8 SEXUAL OFFENCES AGAINST MENTALLY DISABLED PERSONS 101 4.8.1 General 101 4.8.2 Definition 101 4.9 FAILURE TO REPORT SEXUAL OFFENCES AGAINST CHILDREN AND MENTALLY DISABLED PERSONS 101 4.10 TRAFFICKING IN PERSONS FOR SEXUAL PURPOSES 101 4.11 ATTEMPT, CONSPIRACY AND INCITEMENT 102 76 LEARNING UNIT 4: Sexual crimes LEARNING OUTCOMES When you have finished this learning unit, you should be able to: demonstrate your understanding of the requirements for liability for the sexual crimes created in the Criminal Law (Sexual Offences and Related Matters) Amend- ment Act 32 of 2007, by considering the possible liability of an accused for – rape – compelled rape (including the sentence that may be imposed for rape) – sexual assault, compelled sexual assault and compelled self-sexual assault – exposing genital organs, the anus or female breasts ("flashing") to persons 18 years or older, displaying child pornography to persons 18 years or older, and engaging sexual services for reward of persons 18 years or older – incest – bestiality – the various sexual offences against children, namely: consensual sexual penetration of children; consensual sexual violation of children; sexual ex- ploitation of children; sexual grooming of children; displaying pornography to children; and compelling children to witness sexual crimes, sexual acts or self-masturbation – sexual offences against mentally disabled persons – failure to report sexual offences against children and mentally disabled persons – trafficking in persons – attempt, conspiracy and incitement to any of the sexual offences in the Act 4.1 INTRODUCTION (Criminal Law 341–343) The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 was introduced because of the prevalence of sexual offences in the Republic of South Africa. It was felt that the South African common law and statutory law did not deal adequately and effectively in a nondiscriminatory manner with many aspects relating to the commission of sexual offences. For instance, children were not adequately protected against sexual exploitation and the common- law crime of rape was gender-specific. The Act amends all aspects of the laws relating to sexual offences and deals with all legal aspects relating to sexual offences in a single statute by, inter alia, repealing the common-law offence of rape and replacing it with a new, expanded statutory of- fence of rape applicable to all forms of sexual penetration without consent, irrespective of gender ― "sexual penetration" is widely defined to include various acts of a sexual nature which were previously not criminalised 77 PART B: CRIMES AGAINST THE COMMUNITY repealing the common-law offence of indecent assault and replacing it with a new statutory offence of sexual assault, applicable to all forms of sexual violation without consent creating new statutory offences relating to certain compelled acts of penetration or violation creating new statutory offences for adults, by criminalising the compelling or causing the witnessing of certain sexual conduct and of certain parts of the human anatomy, the exposure or display of child pornography, and the engaging of the sexual services of an adult repealing the common-law offences of incest, bestiality and the violation of a corpse, as far as such violation is of a sexual nature, and enacting corresponding new statutory offences creating new, comprehensive sexual offences against children and persons who are mentally disabled, including offences relating to sexual exploitation or grooming, exposure to or display of pornography, and the creation of child pornography. (Some of these offences are similar to offences created in respect of adults. However, these offences aim to address the vulnerability to sexual abuse and exploitation of children and persons who are mentally disabled.) The Act also eliminates the differentiation drawn between the age of consent for different consensual sexual acts and provides for special provisions relating to the prosecution of consensual sexual acts between children older than 12 years, but younger than 16 years. Finally, the Act creates a duty to report sexual offences committed with or against children or persons who are mentally disabled. Failure to report knowledge of the commission of sexual offences amounts to an offence. 4.2 RAPE 4.2.1 General (Criminal Law 343–358) The Sexual Offences Act 2007 repeals the common-law offence of rape. The common-law offence of rape consisted in unlawful, intentional sexual intercourse by a male with a female without her consent. The offence could only be committed by a male, and the unlawful and intentional sexual penetration of the female genital organ (the vagina) by the male genital organ (the penis) without the female's consent was required for a conviction of the offence. Other forms of sexual penetration without consent did not amount to rape. Chapter 2 of the Sexual Offences Act 2007 expanded the definition of rape by creating two new statutory offences of rape. The object of the provisions which introduced these offences is to punish all forms of sexual penetration without consent, irrespective of gender. This means that a male can also commit the offence in respect of another male person, and a female may commit the offence in respect of a male or a female. The Act distinguishes between two specific offences of rape, that is, rape and compelled rape. For the crime of rape, an "act of sexual penetration" is required by X before he/she can be convicted of the offence. For the crime of compelled rape, however, X need not perform an "act of sexual penetration". In order to be convicted as a perpetrator of this offence, it is sufficient if X merely compelled another person unlawfully and intentionally to commit "an act of sexual penetration", provided that the person so compelled, as well as the complainant, did not consent to the act. There is no age prescription for the crime of rape. This means that the crime may be committed by a person of any age in respect of a person of any age. 78 LEARNING UNIT 4: Sexual crimes Read the following judgment: S v MD and NM (Eastern Cape Local Division, Bhisho) Case No: CC55/2016. The case of S v MD and NM (Eastern Cape Local Division, Bhisho) Case No: CC55/2016 exemplifies the terrible scourge of rape in South African society. X, the father of a nine-year-old girl, Z, expressed his wish to have sexual intercourse with this daughter to his wife, Y. Although his wife maintained that she had objected at first, she had assisted her husband with the rape of their daughter by placing a cloth in her mouth “to prevent her from screaming and being noisy” ([para 30]). It was alleged that X raped his daughter on more than 50 occasions with the aid of his wife, Y. Y’s uncle caught the father in the act of having sexual intercourse with the daughter and reported this to the police. X was sentenced to life imprisonment for rape in contravention of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (Sexual Offences Act) and Y to 10 years’ imprisonment for aiding or abetting another person to commit a sexual offence in contravention of section 55(c) of Act 32 of 2007. 4.2.2 Rape 4.2.2.1 Definition Section 3 of the Act provides that: Any person (X) who unlawfully and intentionally commits an act of sexual penetration with a complainant (Y) without his/her consent is guilty of the offence of rape. The elements of the crime are the following: (a) sexual penetration of another person (b) without the consent of the latter person (c) unlawfulness (d) intention 4.2.2.2 The act (a) The prohibited act consists in the act of sexual penetration by any person with another per- son without his/her consent. "Sexual penetration" is defined as including any act which causes penetration to any extent whatsoever by (i) the genital organs of one person into or beyond the genital organs, anus, or mouth of another person (ii) any other part of the body of one person into or beyond the genital organs or anus of another person (iii) any object (including any part of the body of an animal) into or beyond the genital or- gans or anus of another person (iv) the genital organs of an animal, into or beyond the mouth of another person "Genital organs" is defined as including the whole or part of the male or female genital organs, as well as surgically constructed or reconstructed genital organs. Examples of prohibited conduct in terms of (i)―(iv) above are the following: (i) X inserts his penis into the anus or mouth of a woman, or X (a female) places her geni- tal organ into the mouth of Y (a male or a female). (ii) X (a male or a female) puts his/her finger into the anus of Y (a male or a female). (iii) X puts the tail of an animal into the vagina of Y or X puts a sex toy into the anus of Y. (iv) X inserts the genital organ of a dog into the mouth of Y. (This act also amounts to the new statutory crime of bestiality – discussed below in 7.6). 79 PART B: CRIMES AGAINST THE COMMUNITY (b) The use of the words "including any act which causes penetration" in the first line of the def- inition means that the crime of rape created in the Act is no longer, as used to be the case in common law, a formally defined crime, that is, a crime consisting merely in the commission of a certain type of act. It is now a materially defined crime, that is, a crime consisting in the causing of a certain situation, namely sexual penetration. The use of the word "causes" means, inter alia, that an act of "sexual penetration" is performed also where X causes another person or an object to perform the act of penetration. (The word "causes" should be read together with the word "includes" in the beginning of the definition.) Read thus, and also considering the wide meaning of the word "causes", it is clear that sexual penetration includes all the situations in which X performs the penetration of Y himself or herself, that is, with his or her own body, or causes another person or some object to perform the penetration. (c) The act must be performed without the consent of Y (the complainant). The absence of consent is a definitional element of the offence. Consent means voluntary or uncoerced agreement (s 1 (2)). Section 1 (3) contains a provision dealing with the interpretation of the words "voluntary or uncoerced". Circumstances in respect of which Y does not voluntarily or without coercion agree to an act of sexual penetration include, but are not limited to, the following: Where Y submits or is subjected to such a sexual act as a result of (1) the use of force or intimidation by X against Y or Z (a third person) or W (another per- son) or against the property of Y, Z or W or a threat of harm by X against Y, Z or W or against the property of Y, Z or W (s 1(3)(a)); (2) where there is an abuse of power or authority by X to the extent that Y is inhibited from indicating his or her unwillingness or resistance to the sexual act, or unwillingness to participate in such a sexual act (s 1(3)(b)); (3) where the sexual act is committed under false pretences or by fraudulent means, including where Y is led to believe by X that (i) Y is committing such a sexual act with a particular person who is in fact a different person; or (ii) such a sexual act is something other than that act (s 1(3)(c)); or (4) where Y is incapable in law of appreciating the nature of the sexual act, including where Y is, at the time of the commission of such sexual act (i) asleep; (ii) unconscious; (iii) in an altered state of consciousness, including under the influence of any medicine, drug, alcohol or other substance, to the extent that Y's consciousness or judgment is adversely affected; (iv) a child under the age of 12 years; or (v) a person who is mentally disabled (s 1(3)(d)). The provisions relating to consent in section 1(2) and (3) may all be summarised as follows: For consent to succeed as a defence, it must have been given consciously and voluntarily, either expressly or tacitly, by a person who has the mental ability to understand what he or she is consenting to, and the consent must be based on a true knowledge of the material facts relating to the act. There are various factors that result in the law not deeming consent to be valid, despite the fact that, at first glance, one may perhaps think there had indeed been consent. These factors are all set out in section 1(3). 80 LEARNING UNIT 4: Sexual crimes (1) Submission as a result of force, intimidation or threats (s 1(3)(a)) The first factor which leads the law not to recognise ostensible consent by Y as valid consent for the purposes of rape is the existence of force, intimidation or threats of harm emanating from X in respect of Y. Thus, if Y ostensibly "consents" to sexual penetration, but such "consent" is in fact the result of force, intimidation or threats of harm emanating from X in respect of Y, the law does not regard such consent as valid consent. The provisions of section 1 (3) (a) go further and stipulate that even force, intimidation or threats of harm not against Y, but against some third party, may render the ostensible consent invalid. It matters not whether the third party is a close family member of Y, such as his or her child or spouse, or a close friend. In fact, the subsection is so widely worded that it may even include threats against somebody whom Y has never even met. Furthermore, the subsection makes it clear that force or threat of harm not against some person, but against property belonging to a person, may result in the ostensible consent being regarded as invalid. It matters not whether the property belongs to Y personally, to some family member or friend of his or hers, or to some other person whom Y has never even met. The word "harm" in section 1 (3) (a) is not qualified, and is accordingly not restricted to physical harm or harm to physical objects. It is wide enough to cover monetary loss of whatever nature or even harm to reputation or dignity. If X tells Y that an earlier act of infidelity by her against her husband will be revealed to her husband if she does not submit to an act of sexual penetration with him (X), and Y, not wanting her husband to know about the infidelity, submits, her submission cannot be construed as valid consent. This is a case of intimidation of Y by X. (2) Abuse by X of power of authority (s 1(3)(b)) Section 1(3)(b) speaks of cases "where there is an abuse of power or authority by (X) to the extent that (Y) is inhibited from indicating his or her unwillingness or resistance to the sexual act...". This provision refers to cases where Y is not threatened by physical violence, but X expressly or tacitly uses the position of power which he or she exercises over Y to influence Y to consent. It has been held that if X, a policeman, threatens to lay a charge against Y of having committed a crime if she does not consent to intercourse, and as a result of the threat Y then does "consent", such consent is invalid (Botha 1982 2 PH H112 (E)). In S 1971 (1) SA 591 (A), it was even held that X, a policeman, committed rape when he had intercourse with Y in circumstances in which he had not threatened Y with some or other form of harm, but Y believed that X had the power to harm her and X had been aware of this fear. It is therefore clear that if X is somebody like a policeman who is in a position of power over Y, Y's "consent" will not be regarded as valid if the evidence reveals that she apprehended some form of harm other than physical assault inflicted upon her. (3) Consent obtained by fraud (s 1(3)(c)) Section 1(3)(c) refers to cases in which "consent" is obtained by fraud. In the common-law crime of rape, in which X was always a male and Y always a female, fraud which vitiated consent was either fraud in respect of the identity of the man (error personae), as where the woman was led to believe that the man was her husband, or fraud in respect of the nature of the act to which she "agreed" (error in negotio), as when she was persuaded that the act was not an act of sexual penetration, but some medical operation. These principles still apply under the new Act, although X and Y may now be either male or female. 81 PART B: CRIMES AGAINST THE COMMUNITY Misrepresentation of any circumstance other than that mentioned above, such as X's wealth, his or her age or, where Y is a prostitute, X's ability to pay for Y's "services", does not vitiate consent. Thus, if X falsely represents to Y that he/she is a multimillionaire and Y believes X's story and, on the strength of such a misrepresentation, he/she agrees to sexual penetration by X, his/her consent is valid, and rape is not committed. In particular, consent is deemed to be valid where the person is misled not about the nature of the act of sexual intercourse but about the results which will follow on such intercourse, for instance, if X convinced Y that intercourse with him would cure her of her infertility problem. What is the position if X is HIV-infected, but Y is not HIV-infected and would never give consent to intercourse with a man who is HIV-infected, yet X acquires Y's consent by misrepresenting to her that he is not HIV-infected? It is submitted that, in the light of the severe consequences of such a misrepresentation, Y's consent should not be regarded as valid consent because even if it relates to the results of the act, one cannot consent to one’s own death as it is contra bonos mores. (4) Inability by Y to appreciate the nature of the sexual act (s 1(3)(d)) Section 1(3)(d) deals with cases in which Y is "incapable in law of appreciating the nature of the sexual act". There is no valid consent if X performs an act of sexual penetration in respect of Y if Y is asleep, unless, of course, Y has previously, whilst awake, given consent (C 1952 (4) SA 117 (O) 120). The same applies to a situation where Y is unconscious. Paragraph (iii) of subsection (3) (d) provides, further, that consent is not valid if Y is "in an altered state of consciousness, including under the influence of any medicine, drug, alcohol or other substance, to the extent that Y's consciousness or judgement is adversely affected". Paragraph (iv) of subsection (3)(d) contains a provision which is very important in practice: If at the time of the commission of the sexual penetration Y is a child under the age of 12 years, any ostensible "consent" by him or her is in law invalid. Such a child is irrebuttably presumed to be incapable of consenting to the act of sexual penetration. Paragraph (v) of subsection (3)(d) provides that the consent is not valid if Y is "a person who is mentally disabled". The expression "person who is mentally disabled" is discussed in 4.8.2. (d) Marital relationship no defence Section 56(1) provides that, whenever an accused person is charged with rape, "it is not a valid defence for that accused person to contend that a marital or other relationship exists or existed between him or her and the complainant". It is therefore perfectly possible for a husband to rape his own wife. 4.2.2.3 Unlawfulness Absence of consent by Y is not a ground of justification, but a definitional element of the crime. If it were merely a ground of justification, the definitional elements of this crime would simply have consisted in sexual penetration between two persons. This, however, is not recognisable as a crime. However, this does not mean that unlawfulness is therefore not an element of the crime. Unlawfulness may be excluded if X acted under compulsion. Therefore, if Z forces X to rape Y, or threatens X with harm if he or she does not rape Y and X in actual fact rapes Y, X may rely on the ground of justification of necessity. 4.2.2.4 Intention Intention is specifically mentioned in the definition of the crime in section 3 as a requirement for a conviction. X must know that Y had not consented to the sexual penetration. Dolus eventualis suffices, so that it is sufficient to prove that X foresaw the possibility that Y's free and conscious 82 LEARNING UNIT 4: Sexual crimes consent, as described above, might be lacking, but nevertheless continued with the act of sexual penetration. Where, as proof of the absence of consent, reliance is placed on the fact that the girl is under 12 years of age at the time of the commission of the act, X must be aware of the fact that the girl is not yet 12 years old, or at least foresee the possibility that she may be under 12. Similarly, where, in order to establish the absence of consent, reliance is placed upon the woman's intoxication or her mental defect, or the fact that she was sleeping or was defrauded, it must be established that X was aware of such a factor vitiating consent. Does failing to disclose your HIV/AIDS status in a consensual relationship constitute rape? Can a person who has HIV/AIDS and who does not inform his sexual partner of his condition, be convicted of rape? As consent is one of the elements of the crime of rape, is true consent really given if the one partner is not informed about the life- threatening disease? If the partner is not informed, there is obviously no informed consent. But there is also no valid consent, even if the victim consented to unpro- tected sex knowing the accused had HIV/AIDS. This is because our law does not allow us to consent to serious injury or being killed. What do you say – is it rape? Should new criminal laws be written to deal with harmful HIV/AIDS-related behav- iour, for example, deliberately exposing another person to HIV/AIDS? ACTIVITY Y is an administrative assistant at a law firm that is owned by X. She has been employed on a temporary basis, but may be appointed in a permanent position if she performs to X's satisfaction. Unfortunately, X has given her two written warnings as a result of failing to meet important internal deadlines. Just before the close of business one Thursday afternoon, X gives Y typing responsibilities which forces Y to work overtime. During that evening, when nobody else is around, X tells Y that he is prepared to excuse Y for her previous transgressions if she agrees to have sexual intercourse with him. He also tells Y that he recently became aware of a transgression she had committed that was serious enough to warrant her dismissal, and that, if she refused to have sex with him, he would have no choice but to dismiss her in the light of her previous transgressions. Realising that her job is at risk, Y consents and has sexual intercourse with X. A week later, Y becomes aware of news that a former employee of the firm had experienced the same treatment from X and, after meeting with her, she decides to lay a charge of rape against him. At the trial, X's lawyer argues that the act of sexual penetration between X and Y was consensual. As the state prosecutor, what would you argue in response to this submission? FEEDBACK You would argue that section 1 of the Sexual Offences Act 2007 defines "consent" as "voluntary or uncoerced agreement". One of the circumstances in respect of which Y does not agree voluntarily or without coercion to an act of sexual penetration is where there is an abuse of power or authority by X to the extent that Y is inhibited from indicating her unwillingness or resistance to the sexual act, or unwillingness to participate in a sexual act. X abused his position of authority and took advantage of Y's vulnerable position to the extent that Y was inhibited from indicating her unwillingness to participate in the sexual act. The ostensible "consent" was therefore not uncoerced within the meaning of section 1. 83 PART B: CRIMES AGAINST THE COMMUNITY 4.2.3 Compelled rape (Criminal Law 358–360) 4.2.3.1 Definition Section 4 of the Act provides that Any person (X) who unlawfully and intentionally compels a third person (Z) without his/her (Z's) consent to commit an act of sexual penetration with a complainant (Y) without Y's consent; is guilty of the offence of compelled rape. The elements of this crime are the following: (a) compelling a person (b) to commit an act of sexual penetration with another person (c) without the consent of such third person (d) without the consent of the complainant (e) unlawfulness (f) intention Please note that wherever the Act makes use of the word “compelled”, it refers to three persons: X, the perpetrator, who compels another person (Z) to rape or sexu- ally assault a third person (Y). Rape and compelled rape are thus two different crimes. 4.2.3.2 The act The act consists in the compelling of a third person without his/her consent to commit an act of sexual penetration with Y (the complainant) without Y's consent. Therefore, X may be convicted as a perpetrator of the crime even if he himself/she herself did not perform any actual act of sexual penetration with the complainant, for example if X unlawfully and intentionally compels Z to put his penis in Y's anus without Y (the complainant) and Z's consent, he/she (X) commits the crime of compelled rape. The new offence of compelled rape changed the common law in terms of which rape was regarded as a crime which could only be committed by X personally, namely with his own body. Under the common law, if X compelled Z to rape Y, X could only be liable as an accomplice to the crime of rape. It was even possible that X could be acquitted as an accomplice if Z (the perpetrator) could not be held liable for lack of criminal capacity or mens rea. (See the discussion of the principle of accessoriness in CRW2601.) By enacting a crime of "compelled rape", the unacceptable position has now been addressed. However, it is doubtful whether it was at all necessary to create this crime. Its provisions coincide with the wide formulation of the crime of rape in section 3. In particular, the words "any act which causes penetration" in the definition of "sexual penetration" in section 1 (1) are wide enough to include conduct by X whereby he or she compels a third party to perform the sexual penetration. Presumably, section 3 was inserted by the legislature to make sure that compelled sexual penetration is indeed criminalised. It is not a defence on a charge of compelled rape that there was a marital or any other relationship between the parties (s 56(1)). 4.2.3.3 Unlawfulness The unlawfulness of the act may conceivably be excluded if X is himself or herself compelled to compel Z to perform the act upon Y. 84 LEARNING UNIT 4: Sexual crimes 4.2.3.4 Intention X must have the intention that Z performs an act of sexual penetration with Y, knowing or foreseeing that the consent of Z as well as that of Y is absent; in other words, dolus eventualis is a sufficient form of intention for the crime. If X genuinely believed that Y (the complainant) consented, then he/she lacks intention. ACTIVITY As part of his initiation as a member of a gang, Z is instructed to have sexual intercourse with a young woman (Y), whom the gang had taken hostage. Realising that Z is unwilling to do so, the leader (X) points a pistol at him and threatens to kill him if he doesn't obey the instruction. Z proceeds to have intercourse with Y in the gang's presence. Two days later, Y manages to escape and reports her ordeal to the police. The police conduct a raid and successfully capture certain members of the gang, including X and Z. They are both charged with the rape of Y. Their trials are separated. Z successfully raises the defence of necessity and is acquitted on the rape charge. In his defence, X argues that he did not perform any act of sexual penetration with Y, and that, at most, he could only be liable as an accomplice. However, since there is no perpetrator (because Z had been acquitted), he cannot be an accomplice to the crime of rape and thus has to be acquitted. As a state prosecutor, what would your response be to these submissions? FEEDBACK You would argue that a person can be convicted as a perpetrator on a charge of compelled rape despite the fact that he/she did not perform any actual act of sexual penetration with the complainant. All that is required is evidence that he/ she unlawfully and intentionally compelled a third person, without his/her consent, to commit such act of penetration with the complainant, without his/her consent. X unlawfully and intentionally compelled Z, without his consent (any ostensible consent that existed was not "uncoerced" within the meaning of section 1 owing to the threat of harm to his life), to commit an act of sexual penetration with Y, without her consent (likewise, any ostensible consent that existed was not "uncoerced"). It is no defence for him to say that he did not commit the act of sexual penetration himself. Nor is it a defence for him to say that his liability depended on the liability of Z as a perpetrator. He satisfies the definitional elements of the crime himself. 4.3 SEXUAL ASSAULT, COMPELLED SEXUAL ASSAULT AND COMPELLED SELF-SEXUAL ASSAULT 4.3.1 General Apart from the two specific offences of rape, the Act repeals the common-law crime of indecent assault and replaces it with new statutory offences of sexual assault, compelled sexual assault as well as compelled self-sexual assault. These various offences relate to the nonconsensual sexual violation of another person either by the perpetrator himself or herself, or by another person who is compelled by the perpetrator to perform the prohibited act. The compelled person may also be the complainant himself or herself. 85 PART B: CRIMES AGAINST THE COMMUNITY 4.3.2 Sexual assault (Criminal Law 360–368) 4.3.2.1 Definition Section 5(1) of the Act provides that A person (X) who unlawfully and intentionally sexually violates a complainant (Y) without the consent of Y; is guilty of the offence of sexual assault. Section 5(2) furthermore provides that A person (X) who unlawfully and intentionally inspires the belief in a complainant (Y) that Y will be sexually violated; is guilty of the offence of sexual assault. The elements of the crime are the following: (a) an act of "sexual violation" of another person (b) without the consent of the latter person (c) unlawfulness (d) intention or (a) the inspiring of a belief in another person that he/she will be sexually violated (b) unlawfully (c) intentionally 4.3.2.2 The act The discussion that follows deals initially with the first way in which the crime can be committed, namely the actual sexual violation. (a) Definition of "sexual violation" The purpose of this crime is to criminalise sexual acts which fall short of actual penetration of Y. If there is actual penetration (as the word is defined in the Act), the crime of rape is committed. "Sexual violation" is broadly defined in section 1 as including any act which causes– (a) direct or indirect contact between the (i) genital organs or anus of one person or, in the case of a female, her breasts, and any part of the body of another person or an animal, or any object, including any object re- sembling or representing the genital organs or anus of a person or an animal; (ii) mouth of one person and (aa) the genital organs or anus of another person or, in the case of a female, her breasts; (bb) the mouth of another person; (cc) any other part of the body of another person, other than the genital organs or anus of that person or, in the case of a female, her breasts, which could (aaa) be used in an act of sexual penetration; (bbb) cause sexual arousal or stimulation; or (ccc) be sexually aroused or stimulated thereby; or (dd) any object resembling the genital organs or anus of a person, and in the case of a female, her breasts, or an animal; or (iii) the mouth of the complainant and the genital organs or anus of an animal; 86 LEARNING UNIT 4: Sexual crimes (b) the masturbation of one person by another person; or (c) the insertion of any object resembling or representing the genital organs of a person or ani- mal, into or beyond the mouth of another person, but does not include an act of sexual penetration, and "sexually violates" has a corresponding meaning. The word in the definition, namely "includes", is important. The implication of this word is that the punishable acts included in this crime are not limited to those expressly mentioned in the definition, but that it is possible that other acts, not expressly mentioned in the definition, may also amount to the commission of the crime. However, in the light of the extensive enumeration of acts in the definition, it is unlikely that a court will decide that other acts, not mentioned in the definition, also amount to the commission of the crime. You are not required to memorise the definition of "sexual violation" set out above. However, you must be able to identify an act which complies with the definition of sexual violation. When studying the definition of sexual assault, please remember that sexual viola- tion is a definitional element of sexual assault, and not a crime on its own. There is consequently no crime such as sexual violation. (b) Discussion of definition of "sexual violation" (i) "... any act which causes..." As in the statutory crime of rape, the present crime is defined widely so as to include not only the actual act of X whereby he or she for example makes contact with the body of another, but also any act whereby he or she causes such contact. (ii) The causing of contact instead of the causing of penetration At the outset it is important to note that whereas the expression "sexual penetration", which describes the act in the crime of rape is defined as "any act which causes penetration...", the expression "sexual violation", which describes the act in the crime of sexual assault is defined in terms of "any act which causes... contact between...". Sexual assault, in other words, does not deal with penetration, but with "contact" between two persons. (iii) Direct or indirect contact The definition speaks of "any act which causes... direct or indirect contact between...". "Contact" means the physical touching of two parts of the different bodies or of a body and an object. "Indirect contact" refers to such contact through the agency of another person or the use of an instrument, such as a stick. (c) Inspiring a belief that sexual violation will take place The second way in which the crime of sexual assault may be committed is by X inspiring a belief in Y that Y will be sexually violated (s 5(2)). The name of the present crime is "sexual assault", and from this one may deduce that the legislature intended this crime to be some species of the common-law crime of assault. As will be pointed out below in the discussion of that crime, assault can be committed in two ways, namely (i) by an act which infringes Y's bodily integrity – something which usually takes the form of the actual application of force to Y; and (ii) by the inspiring of a belief in Y that Y's bodily integrity is immediately to be infringed. The legislature obviously wanted a similar principle to apply to the crime of sexual assault. It is submitted that the same principles applying to the form of assault known as the inspiring of a belief that Y's bodily security is about to be infringed also apply to this way in which sexual assault may be committed (see the discussion in 4.2.2.2(1) above, and 6.1.7 below). 87 PART B: CRIMES AGAINST THE COMMUNITY X may be either a male or a female, and the same applies to Y. The act of sexual violation must take place without the consent of the complainant. See 4.2.2.2 (3) above for a discussion of the meaning of "absence of consent". Section 56(1) provides that, whenever an accused person is charged with sexual assault, "it is not a valid defence for that accused person to contend that a marital or other relationship exists or existed between him or her and the complainant". It is therefore perfectly possible for a husband to commit sexual assault in respect of his own wife. 4.3.2.3 Unlawfulness X may rely on compulsion as a ground of justification excluding unlawfulness. 4.3.2.4 Intention Intention is specifically mentioned in the definition of the crime in section 3 as a requirement for a conviction. X must know that Y had not consented to the sexual violation. The same principles as those set out above in the discussion of the corresponding element in the crime of rape also apply to the element of intention in this crime. 4.3.3 Compelled sexual assault (Criminal Law 368–369) 4.3.3.1 Definition Section 6 of the Act provides that: A person (X) who unlawfully and intentionally compels a third person (Z) to commit an act of sexual violation with a complainant (Y) without Z’s or Y’s consent is guilty of the offence of compelled sexual assault. The elements of the crime are the following: (a) compelling a third person (b) to commit an act of sexual violation with another person (the complainant) (c) without the consent of such third person (d) without the consent of the complainant (e) unlawfulness (f) intention 4.3.3.2 The act A typical example of the commission of this crime is where X tells Z that he will kill him if he does not commit some act of sexual violation in respect of Y, where it is impossible for Z to escape his dilemma and where Z ends up by yielding to the pressure and performs the deed. The definition of the expression "sexual violation" and "without the consent of either the third party or the complainant" has already been quoted and discussed in detail above in the discussion of the corresponding element in the crime of sexual assault. Section 56 (1) provides that, whenever an accused person is charged with this crime, "it is not a valid defence for that accused person to contend that a marital or other relationship exists or existed between him or her and the complainant". 88 LEARNING UNIT 4: Sexual crimes 4.3.3.3 Unlawfulness The unlawfulness of the act may conceivably be excluded if X is himself or herself compelled to compel Z to perform the act upon Y. 4.3.3.4 Intention The contents of this element have already been set out above in the discussion of the corresponding element in the crime of rape. 4.3.4 Compelled self-sexual assault (Criminal Law 369–371) 4.3.4.1 Definition Section 7 of the Act provides that: A person (X) who unlawfully and intentionally compels a complainant (Y) without Y's consent to – (a) engage in (i) masturbation; (ii) any form of arousal or stimulation of a sexual nature of the female breasts; or (iii) sexually suggestive or lewd acts with Y himself or herself; (b) engage in any act which has or may have the effect of sexually arousing or degrading Y; or (c) cause Y to penetrate in any manner whatsoever her own genital organs or his or her anus, is guilty of the offence of compelled self-sexual assault. You are not required to memorise this definition. However, you must know the elements of the offence set out below and be able to identify an act of com- pelled self-sexual assault. The elements of this crime are the following: (a) the compelling of somebody else (b) to engage in the conduct set out in the definition (c) without the consent of the other person (d) unlawfulness (e) intention Note that the crime created in section 7 deals with situations in which there are only two persons, namely the perpetrator (X) and the victim (Y). X compels Y to perform the "indecent" act upon Y himself or herself. 4.3.4.2 The act A typical example of conduct punishable under this section is where X tells Y that he will kill him or her if, for example, he or she does not self-masturbate, where it is impossible for Y to escape his or her dilemma and where Y ends up yielding to the pressure and performs the act. The act described in paragraph (c) refers to situations where Y is forced to penetrate himself or herself, such as to insert his or her finger into his or her own anus or her vagina. The requirement of "absence of consent" is the same as for the crime of rape. It has already been discussed in detail above in the discussion of the corresponding element of the crime of rape. Section 56 (1) provides that, whenever an accused person is charged with this crime, "it is not a 89 PART B: CRIMES AGAINST THE COMMUNITY valid defence for that accused person to contend that a marital or other relationship exists or existed between him or her and the complainant". 4.3.4.3 Unlawfulness The unlawfulness may conceivably be excluded if X is himself or herself compelled to compel Y to perform the act. 4.3.4.4 Intention The contents of this element have already been set out above in the discussion of the corresponding element in the crime of rape. 4.4 SEXUAL OFFENCES AGAINST PERSONS 18 YEARS OR OLDER 4.4.1 General (Criminal Law 371–377) The Act creates various offences which may be committed in respect of persons 18 years or older. These offences are not discussed in detail. A brief summary of the punishable acts follows: (i) The unlawful and intentional compelling of a person 18 years or older without his/her con- sent to witness sexual offences, sexual acts with another or self-masturbation (s 8(1)– (3)). It is irrelevant whether the act is performed for the sexual gratification of the perpetrator (X) or for a third person (Z). The word "sexual act" is defined as either sexual penetration or sexual violation (s 1 - (1)). In S v Pretorius 2013 1 SACR 261 (WCC), the accused performed an act of self-masturbation in the lounge of his house in front of the domestic servant. He then asked her if she would like to help him to masturbate and she replied that she would not. He continued to masturbate in front of her, finally moving to the bathroom but leaving the door open in full view of the complainant. He was charged with a contravention of s 8(3) in that he had unlawfully and intentionally compelled or caused the complainant to witness his act of self-masturbation. The accused argued that because the domestic servant had the opportunity not to witness it she must have effectively consented thereto. He was convicted of the offence and appealed against his conviction. The court of appeal confirmed the conviction on the basis that the accused had caused her to witness the act. The court pointed out that the ordinary meaning of the word "cause" is to "bring about" (at 265d). It was further found that the conduct of the accused was unlawful because the complainant had not consented to witnessing the act. The court found that the appellant had abused his position of power or authority in self- masturbating in the complainant's presence and in attempting to induce the complainant to participate in his act of self-masturbation. Because the complainant was dependent on the income from the job to support her children, she did not expressly indicate her objection to the appellant's conduct (at 266d). The court therefore rejected the argument that her failure to expressly object or indicate her unwillingness or resistance amounted to voluntary or uncoerced consent. (ii) The unlawful and intentional exposure or display (or causing of exposure or display) of the genital organs, the anus or female breasts of X or Z to Y, a person 18 years or older, with- out Y’s consent (s 9). It is irrelevant whether the act is performed for the sexual gratification 90