Unit 4.5 Flashcards
The Criminal Law (Sexual Offences and Related Matters) Amendment Act (32 of 2007) (SORMA):
1) Set out to legislate a comprehensive state response to a range of sexual offences.
2) Codified and repealed the common law.
3) Enacted new statutory offences.
4) Amended a number of existing laws
Rape:
Old definition
1) The unlawful penetration of a penis into a vagina.
2) This meant that only a man could rape a woman.
Rape: New definition
1) includes the unlawful penetration by a penis into the victim’s vagina, anus
or mouth, or unlawful penetration with an object into the anus or vagina.
2) Previously, these other violations would have been charged as indecent assault
Sexual penetration is only unlawful IF:
1) The prosecutor is able to prove that the complainant did not consent.
2) An requirement that inevitably focuses attention on the conduct of the
victim.
3) The prosecution must also prove that the accused intended to rape the complainant
Sexual assault:
1) Direct or indirect contact between the genital organs, anus or female breasts of one person and any other part of another person’s body, an animal’s body or an object.
2) Direct or indirect contact between one person’s mouth and another’s genital organs, anus, female breasts or mouth.
3) Conviction requires the prosecution to prove non-consent on the part of the complainant and intention on the part of the accused.
List of coercive circumstances lacking consent:
1) The complainant submits as a result of force or intimidation, or the threat of harm by the accused against the complainant, another person or their property.
2) There is an abuse of power or authority by the accused to the extent that the complainant felt unable to indicate their unwillingness or resistance to the sexual act.
3) The sexual act is committed under false pretences, including where the accused leads the
complainant to believe that they are having sex with one person, when, in fact, it is another, or that the sexual act is another kind of act (example, a gynaecological examination).
4) Where the complainant was incapable of consenting because they were asleep,
unconscious or in an altered state of consciousness to the extent that their judgement was
impaired
When is penetration or a sexual violation
unlawful?
1) If the prosecutor is able to prove that the complainant did not consent
2) A requirement that inevitably focuses attention on the conduct of the victim.
The court may only grant such an application after considering a number of factors, including:
1) Whether it is in the interests of justice.
2) The accused’s rights to a fair trial.
3) Society’s interest in encouraging the reporting of sexual offences.
4) The complainant’s personal dignity and right to privacy.
Röhrs’ detailed study of access to PEP raised concerns regarding implementation in terms of:
1) Institutional capacity.
2) The knowledge of criminal justice and health actors.
3) The prioritisation of criminal justice processes
Other criminal acts defined by SORMA
1) The showing of pornography to a child.
2) Benefitting from child pornography
3) Exhibitionism (flashing).
4) Necrophilia (sexual intercourse with a corpse).
5) Incest.
6) Engaging in sexual activities in the presence of a child younger than 16.
7) Grooming a child via the internet.
8)Sexual exploitation of children.
9) Child trafficking
National register for sex offenders
SORMA makes provision for a national register for the protection of children against sexual offenders and lists people not suitable to work with children
Mandatory minimum sentences:
Legislation pertaining to mandatory minimum sentences that should be imposed for serious crimes
came into force in 1997
Life imprisonment for certain types of murder, such as:
1) Where certain body parts were removed.
2) Where it was premeditated
Life imprisonment for rape, such as:
1) Where the victim was raped more than once.
2) Where it was committed by more than 1 person.
3) Where the perpetrator knows they are HIV positive.
4) Where the victim is under 16.
Additions
1) Minimum of 15 years for other types of murder.
2) 10 years for rape if it is a first offence.
According to the Criminal Law (Sentencing) Amendment Act 38 of 2007, these aspects are specifically excluded as a justification for imposing a lesser sentence than the prescribed minimum sentence:
1) The complainants previous sexual history.
2) The apparent lack of physical injury to the complainant.
3) An accused person’s cultural or religious beliefs about rape.
4) Any relationship between the accused and complainant prior to the offence being
committed.
