# Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Act, 2015

The Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Act, 2015 (Act No. 5 of 2015) is an act of the Parliament of South Africa that amended the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 to add a close-in-age defence to the offenses of statutory rape and statutory sexual assault, and to provide that children convicted of sexual offences are not automatically added to the register of sex offenders. This law was passed in response to Constitutional Court rulings in Teddy Bear Clinic v Minister of Justice and J v National Director of Public Prosecutions that found parts of the statute unconstitutional as applied to child offenders.
(English text signed by the President.) (Assented to 3 July 2015.)
Act
To amend the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, so as to ensure that children of certain ages are not held criminally liable for engaging in consensual sexual acts with each other; to give presiding officers a discretion in order to decide in individual cases whether the particulars of children should be included in the National Register for Sex Offenders or not; to provide for a procedure in terms of which certain persons may apply for the removal of their particulars from the National Register for Sex Offenders; to provide for the removal of the particulars of children who were convicted for having engaged in consensual sexual acts with each other, from the National Register for Sex Offenders; to provide for the expungement of the criminal records of certain persons; and to provide for matters connected therewith.
Preamble
Bearing in mind that the Constitutional Court found, in the case of Teddy Bear Clinic for Abused Children and Others v the Minister of Justice and Constitutional Development and Others [2013] ZACC 35, that sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007), are unconstitutional insofar as they criminalise consensual sexual conduct between adolescents;
and bearing in mind that the primary objective of sections 15 and 16 of the Act, namely to protect children, who are 12 years or older but under the age of 16 years, from adult sexual predators remains unaffected by the Constitutional Court judgment and consequently also does not lower the age of consent in respect of sexual acts to 12 years;
and bearing in mind that the purposes of discouraging adolescents from prematurely engaging in consensual sexual conduct which may harm their development, and from engaging in sexual conduct in a manner that increases the likelihood of the risks associated with sexual conduct materialising, are legitimate and important;
and bearing in mind that the Constitutional Court, in the case of J v the National Director of Public Prosecutions and Others [2014] ZACC 13, found that the automatic inclusion of the particulars of persons, who were children at the time of the commission of sexual offences, in the National Register for Sex Offenders is contrary to the “best interest of the child” principle and therefore not justiﬁed in an open and democratic society,
​Parliament of the Republic of South Africa therefore enacts as follows:—
Amendment of section 1 of Act 32 of 2007
1. Section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007) (hereinafter referred to as the “principal Act”), is hereby amended by the substitution for the deﬁnition of “child” of the following deﬁnition:
“ ‘child’ means[—]
[(a)]
(b)
and ‘children’ has a corresponding meaning.”.
Substitution of section 15 of Act 32 of 2007
2. The following section is hereby substituted for section 15 of the principal Act:
“Acts of consensual sexual penetration with certain children (statutory rape)
15. (1) A person (‘A’) who commits an act of sexual penetration with a child (‘B’) who is 12 years of age or older but under the age of 16 years is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual penetration with a child, unless A, at the time of the alleged commission of such an act, was—
(a)
(b)
(2) (a) The institution of a prosecution for an offence referred to in subsection (1) must be authorised in writing by the [National] Director of Public Prosecutions if [both] A [and B were children] was either 16 or 17 years of age at the time of the alleged commission of the offence and the age difference between A and B was more than two years[: Provided that, in the event that the National Director of Public Prosecutions authorises the institution of a prosecution, both A and B must be charged with contravening subsection (1)].
(b) The [National] Director of Public Prosecutions concerned may [not] delegate his or her power to decide whether a prosecution in terms of this section should be instituted or not.”.
Substitution of section 16 of Act 32 of 2007
3. The following section is hereby substituted for section 16 of the principal Act:
“Acts of consensual sexual violation with certain children (statutory sexual assault)
16. (1) A person (‘A’) who commits an act of sexual violation with a child (‘B’) who is 12 years of age or older but under the age of 16 years is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual violation with a child, unless A, at the time of the alleged commission of such an act, was—
(a)
(b)
(2) (a) The institution of a prosecution for an offence referred to in subsection (1) must be authorised in writing by the relevant Director of Public Prosecutions if [both] A [and B were children] was either 16 or 17 years of age at the time of the alleged commission of the offence and the ​age difference between A and B was more than two years[: Provided that, in the event that the Director of Public Prosecutions authorises the institution of a prosecution, both A and B must be charged with contravening subsection (1)].
(b) The Director of Public Prosecutions concerned may [not] delegate his or her power to decide whether a prosecution in terms of this section should be instituted or not.”.
Amendment of section 46 of Act 32 of 2007
4. Section 46 of the principal Act is hereby amended—
(a)
“(1) An employee in the employ of an employer at the commencement of this Chapter, who is or was convicted of a sexual offence against a child or a person who is mentally disabled, or is alleged to have committed a sexual offence against a child or a person who is mentally disabled and who has been dealt with in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1977, irrespective of whether or not such offence was committed or allegedly committed during the course of his or her employment, and whose particulars are included or are to be included in the Register, must without delay disclose such conviction or finding to his or her employer.”; and
(b)
“(2) An employee who, after the commencement of this Chapter, applies for employment, must, if he or she has been convicted of a sexual offence against a child or a person who is mentally disabled or is alleged to have committed a sexual offence against a child or a person who is mentally disabled and who has been dealt with in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1977, and whose particulars are included or are to be included in the Register, disclose such conviction or finding when applying for employment.”.
Amendment of section 47 of Act 32 of 2007
5. Section 47 of the principal Act is hereby amended by the substitution for subsection (2) of the following subsection:
“(2) A person who, after the commencement of this Chapter, applies for a licence contemplated in subsection (1) to a licensing authority, and whose particulars are included or are to be included in the Register, must disclose that he or she has been convicted of a sexual offence against a child or a person who is mentally disabled or that he or she is alleged to have committed a sexual offence against a child or a person who is mentally disabled and has been dealt with in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1977.”.
Amendment of section 48 of Act 32 of 2007
6. Section 48 of the principal Act is hereby amended by the substitution for subsection (2) of the following subsection:
“(2) A person who, after the commencement of this Chapter, applies to become a foster parent, kinship care-giver, temporary safe care-giver, an adoptive parent or a curator, and whose particulars are included or are to be included in the Register, must disclose that he or she has been convicted of a sexual offence against a child or a person who is mentally disabled or that he or she is alleged to have committed a sexual offence against a child or a person who is mentally disabled and has been dealt with in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1977.”.
Amendment of section 50 of Act 32 of 2007
7. Section 50 of the principal Act is hereby amended—
(a)
“(a) A court that has in terms of this Act or any other law—
(i)
(ii)
must, subject to paragraph (c), make an order that the particulars of the person be included in the Register.”;
(b)
“(c) If a court has, in terms of this Act or any other law, convicted a person (‘A’) of a sexual offence referred to in paragraph (a)(i) and A was a child at the time of the commission of such offence, or if a court has made a ﬁnding and given a direction referred to in paragraph (a)(ii) in respect of A who was a child at the time of the alleged commission of the offence, the court may not make an order as contemplated in paragraph (a) unless—
(i)
(ii)
(iii)
(iv)
(d) In the event that a court ﬁnds that substantial and compelling circumstances exist which justify the making of an order as contemplated in paragraph (a), the court must enter such circumstances on the record of the proceedings.”; and
(c)
“(4) Where a court, for whatever reason, fails to make an order under subsection (2)(a), in respect of any person other than a person referred to in subsection (2)(c), the prosecuting authority or any person must immediately or at any other time bring this omission to the attention of the court and the court must make such order.”.
Amendment of section 51 of Act 32 of 2007
8. Section 51 of the principal Act is hereby amended—
(a)
“(1) Subject to subsections (2), (2A) and (3), the particulars of a person—”; and
(b)
“(2A) A person falling into the categories contemplated in subsection (1), who was a child at the time of the commission of the offence concerned and who was convicted of such offence or a person who was a child at the time of the alleged commission of the offence and in respect of whom a court has made a ﬁnding and given a direction in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1977—
(a)
(i)
(ii)
(b)
(i)
(ii)
Amendment of section 56 of Act 32 of 2007
9. Section 56 of the principal Act is hereby amended by the deletion in subsection (2) of paragraph (b).
Substitution of section 67 of Act 32 of 2007
10. The following section is hereby substituted for section 67 of the principal Act:
“Regulations
67. (1) The Minister, after consultation with the cabinet members responsible for safety and security, correctional services, social development and health and the National Director of Public Prosecutions, may make regulations regarding—
(a)
(b)
(c)
(2) The Minister may make regulations regarding the procedure to be followed in respect of the applications referred to in section 51(2A) of this Act.”.
Insertion of section 69A in Act 32 of 2007
11. The following section is hereby inserted in the principal Act after section 69:
“Removal of particulars from Register and expungement of certain criminal records under the Sexual Offences Act, 1957, and this Act
69A. (1) (a) Where a court has convicted a person of any of the offences referred to in paragraph (b), the—
(i)
(ii)
as provided for in subsection (2).
(b) The offences contemplated in paragraph (a) are the following:
(i)
(ii)
(iii)
(2) (a) The—
(i)
(ii)
if that person qualiﬁes for the automatic removal of his or her particulars from the Register, and the automatic expungement of his or her criminal record, as provided for in subsection (1).
(b) The—
(i)
(ii)
Amendment of long title of Act 32 of 2007
12. The long title of the principal Act is hereby amended by the substitution for the seventh bullet of the following bullet:
Amendment of Index to Act 32 of 2007
13. The index of the principal Act is hereby amended by the insertion after item 69 of the following item:
“69A.
Short title
14. This Act is called the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Act, 2015.
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