CRIMES AGAINST THE PERSON: SEXUAL OFFENCES

RAPE

Common law Definition:

Rape consists in intentional unlawful sexual intercourse with a woman without her consent. Extended by the decision in Masiya v DPP (Pretoria) & Others 2007 (8) BCLR 827 (CC) - includes anal penetration of a female by a male without her consent.

Changes in the South African law of rape over the past 20 years
Boys under 14 yrs Husband raping wife: Family Violence Act 133 of 1993 Evidence of sexual history: CPA 1989 Cautionary rule: S v Jackson 1998 (2) SA 984 SCA. Extension of definition: Masiya 2007

Elements of Common Law Crime of Rape:

i) ii) iii) iv) v) Unlawful Sexual intercourse With a woman Without consent Fault

i) Unlawful
S v Saffier 2003 (2) SACR 141 (SE)

ii) Sexual Intercourse

Slightest penetration sufficient S v Blaauw 1999 (2) SACR 295 (W)

iii) With a Woman

Human female who is alive. Woman cannot be convicted as a perpetrator could be convicted as an accomplice.

iv) Absence of Consent

Consent must have been given consciously and voluntarily, either expressly or tacitly, by a woman who has the mental ability to understand what she is consenting to, and consent must be based on a true knowledge of the material facts relating to the intercourse. Consent must be given before penetration.

iv) Absence of Consent

a) Lack of mental capacity: mental defect/intoxication/girl under the age of 12 b) Lack of opportunity: Asleep/intoxicated/under influence of drugs/hypnosis c) Lack of physical capacity - Duress
R v Siggelaar 1950 (1) PH H61 (A) at 110-111: If a man so intimidates a woman as to induce her to abandon resistance and submit to intercourse to which she is unwilling, he commits the crime of rape.

f) Consent obtained by fraud or mistake: error in persona/error in negotio

v) Fault
Dolus eventualis

SENTENCE:
Criminal Law Amendment Act 105 of 1997: s.51(1) - 51(3) CR Snyman Criminal Law 4th ed (2002) p.450-2 S v Blaauw 1999 (2) SACR 295 (W) S v Malgas 2002 (1) SACR 469 (SCA) S v Mahomotsa 2002 (2) SACR 435 (SCA)

SEXUAL INTERCOURSE WITH YOUNG FEMALES

Sexual Offences Act 23 of 1957 S. 14(1)(a). Consequences: No consent regardless of age = rape Under 16 with consent = contravention of s.14(1)(a) Under 12 = rape & also contravention of s.14(1)(a)

SEXUAL INTERCOURSE WITH YOUNG FEMALES

Sexual Offences Act 23 of 1957 S. 14(2) = Defences:

(a) Girl a prostitute, male under 21, first occasion. (b) Girl deceived accused into believing she was over 16.
S v M 1997 (2) SACR 340 (O)

SEXUAL INTERCOURSE WITH YOUNG MALES

Sexual Offences Act 23 of 1957 S.14(3)(a) S.14(4) Defences.