# Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007/2009-02-17

This is the text of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, as at 17 February 2009, that being the date on which the Judicial Matters Amendment Act, 2008, was published and came into force.
(English text signed by the President.) (Assented to 13 December 2007.)
Act
To comprehensively and extensively review and amend all aspects of the laws and the implementation of the laws relating to sexual offences, and to deal with all legal aspects of or relating to sexual offences in a single statute, by—
* repealing the common law offence of rape and replacing it with a new expanded statutory offence of rape, applicable to all forms of sexual penetration without consent, irrespective of gender;
* 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 certain parts of the human anatomy, the exposure or display of child pornography and the engaging of sexual services of an adult;
* repealing the common law offences of incest, bestiality and violation of a corpse, as far as such violation is of a sexual nature, and enacting corresponding new statutory offences;
* enacting comprehensive provisions dealing with the creation of certain new, expanded or amended 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, despite some of the offences being similar to offences created in respect of adults as the creation of these offences aims to address the particular vulnerability of children and persons who are mentally disabled in respect of sexual abuse or exploitation;
* eliminating the differentiation drawn between the age of consent for different consensual sexual acts and providing for special provisions relating to the prosecution and adjudication of consensual sexual acts between children older than 12 years but younger than 16 years;
* criminalising any attempt, conspiracy or incitement to commit a sexual offence;
* creating a duty to report sexual offences committed with or against children or persons who are mentally disabled;
* providing the South African Police Service with new investigative tools when investigating sexual offences or other offences involving the HIV status of the perpetrator;
* providing our courts with extra-territorial jurisdiction when hearing matters relating to sexual offences;
* providing certain services to certain victims of sexual offences, inter alia, to minimise or, as far as possible, eliminate secondary traumatisation, including affording a victim of certain sexual offences the right to require that the alleged perpetrator be tested for his or her HIV status and the right to receive Post Exposure Prophylaxis in certain circumstances;
* establishing and regulating a National Register for Sex Offenders;
* further regulating procedures, defences and other evidentiary matters in the prosecution and adjudication of sexual offences;
* making provision for the adoption of a national policy framework regulating all matters in this Act, including the manner in which sexual offences and related matters must be dealt with uniformly, in a co-ordinated and sensitive manner, by all Government departments and institutions and the issuing of national instructions and directives to be followed by the law enforcement agencies, the national prosecuting authority and health care practitioners to guide the implementation, enforcement and administration of this Act in order to achieve the objects of the Act;
* making interim provision relating to the trafficking in persons for sexual purposes; and
* to provide for matters connected therewith.
as amended by
Judicial Matters Amendment Act, No. 66 of 2008
Preamble
Whereas the commission of sexual offences in the Republic is of grave concern, as it has a particularly disadvantageous impact on vulnerable persons, the society as a whole and the economy;
Whereas women and children, being particularly vulnerable, are more likely to become victims of sexual offences, including participating in adult prostitution and sexual exploitation of children;
Whereas the prevalence of the commission of sexual offences in our society is primarily a social phenomenon, which is reflective of deep-seated, systemic dysfunctionality in our society, and that legal mechanisms to address this social phenomenon are limited and are reactive in nature, but nonetheless necessary;
Whereas the South African common law and statutory law do not deal adequately, effectively and in a non-discriminatory manner with many aspects relating to or associated with the commission of sexual offences, and a uniform and co-ordinated approach to the implementation of and service delivery in terms of the laws relating to sexual offences is not consistently evident in Government; and thereby which, in too many instances, fails to provide adequate and effective protection to the victims of sexual offences thereby exacerbating their plight through secondary victimisation and traumatisation;
Whereas several international legal instruments, including the United Nations Convention on the Elimination of all Forms of Discrimination Against Women, 1979, and the United Nations Convention on the Rights of the Child, 1989, place obligations on the Republic towards the combating and, ultimately, eradicating of abuse and violence against women and children;
And whereas the Bill of Rights in the Constitution of the Republic of South Africa, 1996, enshrines the rights of all people in the Republic of South Africa, including the right to equality, the right to privacy, the right to dignity, the right to freedom and security of the person, which incorporates the right to be free from all forms of violence from either public or private sources, and the rights of children and other vulnerable persons to have their best interests considered to be of paramount importance,
Be it therefore enacted by the Parliament of the Republic of South Africa, as follows:—
Index
Chapter 1
Definitions and objects
| 1. | Definitions and interpretation of Act |
| 2. | Objects |
Chapter 2
Sexual offences
Part 1: Rape and compelled rape
| 3. | Rape |
| 4. | Compelled rape |
Part 2: Sexual assault, compelled sexual assault and compelled self-sexual assault
| 5. | Sexual assault |
| 6. | Compelled sexual assault |
| 7. | Compelled self-sexual assault |
Part 3: Persons 18 years or older: Compelling or causing persons 18 years or older to witness sexual offences, sexual acts or self-masturbation, exposure or display of or causing exposure or display of genital organs, anus or female breasts (“flashing”), child pornography to persons 18 years or older or engaging sexual services of persons 18 years or older
| 8. | Compelling or causing persons 18 years or older to witness sexual offences, sexual acts or self-masturbation |
| 9. | Exposure or display of or causing exposure or display of genital organs, anus or female breasts to persons 18 years or older (“flashing”) |
| 10. | Exposure or display of or causing exposure or display of child pornography to persons 18 years or older |
| 11. | Engaging sexual services of persons 18 years or older |
Part 4: Incest, bestiality and sexual acts with corpse
| 12. | Incest |
| 13. | Bestiality |
| 14. | Sexual acts with corpse |
Chapter 3
Sexual offences against children
Part 1: Consensual sexual acts with certain children
| 15. | Acts of consensual sexual penetration with certain children (statutory rape) |
| 16. | Acts of consensual sexual violation with certain children (statutory sexual assault) |
Part 2: Sexual exploitation and sexual grooming of children, exposure or display of or causing exposure or display of child pornography or pornography to children and using children for pornographic purposes or benefiting from child pornography
| 17. | Sexual exploitation of children |
| 18. | Sexual grooming of children |
| 19. | Exposure or display of or causing exposure or display of child pornography or pornography to children |
| 20. | Using children for or benefiting from child pornography |
Part 3: Compelling or causing children to witness sexual offences, sexual acts or self-masturbation and exposure or display of or causing exposure or display of genital organs, anus or female breasts (“flashing”) to children
| 21. | Compelling or causing children to witness sexual offences, sexual acts or self-masturbation |
| 22. | Exposure or display of or causing of exposure or display of genital organs, anus or female breasts to children (“flashing”) |
Chapter 4
Sexual offences against persons who are mentally disabled
Sexual exploitation and sexual grooming of, exposure or display of or causing exposure or display of child pornography or pornography to persons who are mentally disabled and using persons who are mentally disabled for pornographic purposes or benefiting therefrom
| 23. | Sexual exploitation of persons who are mentally disabled |
| 24. | Sexual grooming of persons who are mentally disabled |
| 25. | Exposure or display of or causing exposure or display of child pornography or pornography to persons who are mentally disabled |
| 26. | Using persons who are mentally disabled for pornographic purposes or benefiting therefrom |
Chapter 5
Services for victims of sexual offences and compulsory HIV testing of alleged sex offenders
Part 1: Definitions and services for victims of sexual offences
| 27. | Definitions |
| 28. | Services for victims relating to Post Exposure Prophylaxis and compulsory HIV testing of alleged sex offenders |
| 29. | Designation of public health establishments for purposes of providing Post Exposure Prophylaxis and carrying out compulsory HIV testing |
Part 2: Application for compulsory HIV testing of alleged sex offender by victim
| 30. | Application by victim or interested person for HIV testing of alleged sex offender |
| 31. | Consideration of application by magistrate and issuing of order |
Part 3: Application for compulsory HIV testing of alleged offender by investigating officer
| 32. | Application by investigating officer for HIV testing of alleged offender |
Part 4: Execution of orders for compulsory HIV testing and results of HIV tests
| 33. | Execution of order and issuing of warrant of arrest |
| 34. | Use of results of HIV tests |
Part 5: Miscellaneous
| 35. | Register of applications and orders |
| 36. | Confidentiality of outcome of application |
| 37. | Confidentiality of HIV test results obtained |
| 38. | Offences and penalties |
| 39. | Regulations |
Chapter 6
National Register for Sex Offenders
| 40. | Definitions |
| 41. | Prohibition on certain types of employment by certain persons who have committed sexual offences against children and persons who are mentally disabled |
| 42. | Establishment of National Register for Sex Offenders and designation of Registrar of Register |
| 43. | Objects of Register |
| 44. | Persons entitled to apply for certificate |
| 45. | Obligations of employers in respect of employees |
| 46. | Obligations of employees |
| 47. | Obligations in respect of licence applications |
| 48. | Obligations in respect of applications for fostering, kinship care-giving, temporary safe care-giving, adoption of children or curatorship |
| 49. | Contents of Register |
| 50. | Persons whose names must be included in Register and related matters |
| 51. | Removal of particulars from Register |
| 52. | Confidentiality and disclosure of information |
| 53. | Regulations pertaining to Register |
Chapter 7
General provisions
Part 1: Miscellaneous offences: Obligation to report commission of sexual offences against children or persons who are mentally disabled and attempt, conspiracy, incitement or inducing another person to commit sexual offence
| 54. | Obligation to report commission of sexual offences against children or persons who are mentally disabled |
| 55. | Attempt, conspiracy, incitement or inducing another person to commit sexual offence |
Part 2: Defences and sentencing, inability of children under 12 years and persons who are mentally disabled to consent to sexual acts, other evidentiary matters and extra-territorial jurisdiction
| 56. | Defences and sentencing |
| 57. | Inability of children under 12 years and persons who are mentally disabled to consent to sexual acts |
| 58. | Evidence of previous consistent statements |
| 59. | Evidence of delay in reporting |
| 60. | Court may not treat evidence of complainant with caution on account of nature of offence |
| 61. | Extra-territorial jurisdiction |
Part 3: National policy framework
| 62. | National policy framework |
| 63. | Establishment of Inter-sectoral Committee |
| 64. | Meetings of Committee |
| 65. | Responsibilities, functions and duties of Committee |
Part 4: National instructions and directives, regulations and repeal and amendment of laws
| 66. | National instructions and directives |
| 67. | Regulations |
| 68. | Repeal and amendment of laws |
Part 5: Transitional provisions
| 69. | Transitional provisions |
Part 6: Transitional provisions relating to trafficking in persons for sexual purposes
| 70. | Application and interpretation |
| 71. | Trafficking in persons for sexual purposes |
| 72. | Short title and commencement |
Schedule
Laws amended or repealed by section 68