The Criminal Law (Sexual Offences and Related Matters) Amendment Act No 32 of 20071 that has been going through major reforms since the passing of the Constitution of the Republic of South Africa, 1996, was finally passed into legislation by President Mbeki on 16 December 2007. 2 The new Sexual Offences Act has largely been created from amended Acts since the last existing Sexual Offences Act. 3 The new Act is a major turning point for the protection of children and other vulnerable members of the society who include the mentally disabled and women.
The editor of the Herald may be right to say that the Act is likely to violate the rights of an individual in some extent but the broader picture is that it advocates for the protection from sexual abuse of children particularly in a volatile environment like South Africa with one of the highest rates of sexual abuse and rape,5 but I differ to agree with him as I see the new Act as a tool for uplifting the rights of individuals who were victimised prior to the passing of the new Act. The Sexual Offences Act7 defines a child as an individual under the age of 18 years but in relation to consensual acts8, as an individual who is at least 12 years old but under the age of 16 years.
A child’s consent is important in relation to all the decisions she makes and in South Africa the age of consent of the girl child is 16years as compared to that of a boy which is 19 years. According to the United Nations Convention on the Rights of the Child10 and supporting sections in The Constitution of the Republic Of South Africa, 199611 a child has her rights to privacy, thought, conscience, freedom of expression and her rights should be of paramount importance with the aim of protecting her from abuse. It is of paramount importance that the child should be allowed to exercise these rights but in accordance to the laid down protocols of the relevant laws.
Thus, the United Nations recognises that once a child has reached the age of consent in regard to the actions affecting her, she must be responsible for the actions brought about by her decisions. The Sexual Offences Act13 does not seek to control the behaviour of children but seeks to instil moral characteristics into them, thus protecting them from falling prey to sexual predators. Despite their age of consent, children cannot choose what is right from wrong and thus the Sexual Offences Act protect her from sexual abuse and exploitation.
Consensual sexual acts are criminalised under the new Act between two children under the age of 16 years but prosecution only occurs under certain conditions where the claims of the accused and his defence go through the Director of Public Prosecution. 14 The editor of the Herald fails to see the Sexual Offences Act beyond the view regarding children’s rights in terms of s15 and s16. Before the Sexual Offences Act was passed, rape was defined as an assault that involved vaginal penetration by a male’s person without the consent of the female affected.
One of the major milestones brought by the Sexual Offences Act16 was the broad definition of rape to include penetration of all objects as well as making rape gender neutral17 and amending the previous statutes to extend the general definition of penetration as defined in the Act. 18 In the case of Masiya v Director of Public Prosecutions19 in which a young girl aged nine was anally penetrated was held by the judge as not meeting the definition of rape in the then existing regulations as a man cannot anally rape. 20 From this the victim was denied her rights of fair treatment as it was held that the assault is an indecent sexual assault.
One of the major achievements of the new Act is that definition of rape that now includes people of the same sex who felt victimised as the statutes of the previous Act21 did not include them. 22 This was when their human rights were being violated as they could be given equal judgement in the courts of law for similar offences that protected female rape victims, violation of their rights of equality according to s9 of the Constitution of the Republic of South Africa and thus, justification that the Act is not violating the rights of the individual.
The Sexual offences Act is a major tool against the exploitation of the children, the mentally disabled and corpses as it boldly shield them against even the slightest of sexual offence. 23 Waterhouse reveals that the Sexual Offences Act has “its net wide to criminalise any people who are involved in or gain from these acts in any way”24 which involves the subjection and exposure of children to all forms of sexual activities and acts and this is criminalised under the Act25 as well as all the accomplices.
The new regulations of the Sexual Offences Act26 makes it hard for perpetrators of sexual abuse to go off that easily, particularly those that rape children and the mentally ill as there is a National Register for Sex Offenders, in which the South African Authorities were highly influenced by the English legislation in regard to sex offenders, that make it make it impossible for them to come into contact with either children or people of mental physical disabilities wherever they may be employed as long as they do not come into close proximity with children or the mentally disabled.
Thus the protection of the victims is given much emphasis protecting their dignity as well as their rights in state protection. It is also commendable that the Act,28 taking a cue from the English legislation has put forward the provision for the protection of the rights of the sex offenders in relation to the confidentiality of their records in the register. 29 Conclusion The editor of the Herald simply ran to conclusion that the Sexual Offences Act violates human rights whilst looking at the light and minor sexual behaviour of children.
His was a ploy to write marketable news for the sale of his newspaper whilst misinforming the consumer, particularly the children. Under the new Act it is a criminal act for children under the new Act to have light physical sexual acts like kissing but the editor does not educate that it is a crime but prosecution will only be passed after passing through a tribunal under the Director of Public Prosecutions but does not allow adults who sexually abuse children to escape. I believe that the infringement of the people’s rights may be violated but it is justifiable as it is going down against the correct procedures of the Sexual Offences Act.
It is an Act passed for the best interests of protecting children from sexual abuse and exploitation of all forms. The editor should have brought forward what the Act has inherited from the previous statutes because there is still little that can be done to offenders as the rates of prosecution of rape offenders is still low because victims often feel victimised and usually prosecutions occur when a child is pressured or through medical reports. 30 Thus, the Act upholds the rights of people and it is their major tool against sexual abuse.