Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007/2014-01-22/Chapter 3

by enacted by the Parliament of South Africa

Chapter 3

Sexual offences against children

Part 1: Consensual sexual acts with certain children

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”) 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.

(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 at the time of the alleged commission of the offence: 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 may not delegate his or her power to decide whether a prosecution in terms of this section should be instituted or not.

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”) 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.

(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 at the time of the alleged commission of the offence: Provided that, in the event that the Director of Public Prosecutions concerned 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.

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

Sexual exploitation of children

17. (1) A person (“A”) who unlawfully and intentionally engages the services of a child complainant (“B”), with or without the consent of B, for financial or other reward, favour or compensation to B or to a third person (“C”)—

(a)

for the purpose of engaging in a sexual act with B, irrespective of whether the sexual act is committed or not; or

(b)

by committing a sexual act with B,

is, in addition to any other offence which he or she may be convicted of, guilty of the offence of sexual exploitation of a child.

[Sub-s. (1) substituted by s. 2 of Act No. 6 of 2012.]

(2) A person (“A”) who unlawfully and intentionally offers the services of a child complainant (“B”) to a third person (“C”), with or without the consent of B, for financial or other reward, favour or compensation to A, B or to another person (“D”)—

(a)

for purposes of the commission of a sexual act with B by C;

(b)

by inviting, persuading or inducing B to allow C to commit a sexual act with B;

(c)

by participating in, being involved in, promoting, encouraging or facilitating the commission of a sexual act with B by C;

(d)

by making available, offering or engaging B for purposes of the commission of a sexual act with B by C; or

(e)

by detaining B, whether under threat, force, coercion, deception, abuse of power or authority, for purposes of the commission of a sexual act with B by C,

is guilty of an offence of being involved in the sexual exploitation of a child.

(3) A person (“A”) who—

(a)

intentionally allows or knowingly permits the commission of a sexual act by a third person (“C”) with a child complainant (“B”), with or without the consent of B, while being a primary care-giver defined in section 1 of the Social Assistance Act, 2004 (Act No. 13 of 2004), parent or guardian of B; or

(b)

owns, leases, rents, manages, occupies or has control of any movable or immovable property and intentionally allows or knowingly permits such movable or immovable property to be used for purposes of the commission of a sexual act with B by C, with or without the consent of B,

is guilty of the offence of furthering the sexual exploitation of a child.

(4) A person (“A”) who intentionally receives financial or other reward, favour or compensation from the commission of a sexual act with a child complainant (“B”), with or without the consent of B, by a third person (“C”), is guilty of an offence of benefiting from the sexual exploitation of a child.

(5) A person (“A”) who intentionally lives wholly or in part on rewards, favours or compensation for the commission of a sexual act with a child complainant (“B”), with or without the consent of B, by a third person (“C”), is guilty of an offence of living from the earnings of the sexual exploitation of a child.

(6) A person (“A”), including a juristic person, who—

(a)

makes or organises any travel arrangements for or on behalf of a third person (“C”), whether that other person is resident within or outside the borders of the Republic, with the intention of facilitating the commission of any sexual act with a child complainant (“B”), with or without the consent of B, irrespective of whether that act is committed or not; or

(b)

prints or publishes, in any manner, any information that is intended to promote or facilitate conduct that would constitute a sexual act with B,

is guilty of an offence of promoting child sex tours.

Sexual grooming of children

18. (1) A person (“A”) who—

(a)

manufactures, produces, possesses, distributes or facilitates the manufacture, production or distribution of an article, which is exclusively intended to facilitate the commission of a sexual act with or by a child (“B”);

(b)

manufactures, produces, possesses, distributes or facilitates the manufacture, production or distribution of a publication or film that promotes or is intended to be used in the commission of a sexual act with or by B;

(c)

supplies, exposes or displays to a third person (“C”)—

(i)

an article which is intended to be used in the performance of a sexual act;

(ii)

child pornography or pornography; or

(iii)

a publication or film,

with the intention to encourage, enable, instruct or persuade C to perform a sexual act with B; or

(d)

arranges or facilitates a meeting or communication between C and B by any means from, to or in any part of the world, with the intention that C will perform a sexual act with B,

is guilty of the offence of promoting the sexual grooming of a child.

(2) A person (“A”) who—

(a)

supplies, exposes or displays to a child complainant (“B”)—

(i)

an article which is intended to be used in the performance of a sexual act;

(ii)

child pornography or pornography; or

(iii)

a publication or film,

with the intention to encourage, enable, instruct or persuade B to perform a sexual act;

(b)

commits any act with or in the presence of B or who describes the commission of any act to or in the presence of B with the intention to encourage or persuade B or to diminish or reduce any resistance or unwillingness on the part of B to—

(i)

perform a sexual act with A or a third person (“C”);

(ii)

perform an act of self-masturbation in the presence of A or C or while A or C is watching;

(iii)

be in the presence of or watch A or C while A or C performs a sexual act or an act of self-masturbation;

(iv)

be exposed to child pornography or pornography;

(v)

be used for pornographic purposes as contemplated in section 20(1); or

(vi)

expose his or her body, or parts of his or her body to A or C in a manner or in circumstances which violate or offend the sexual integrity or dignity of B;

(c)

arranges or facilitates a meeting or communication with B by any means from, to or in any part of the world, with the intention that A will commit a sexual act with B;

(d)

having met or communicated with B by any means from, to or in any part of the world, invites, persuades, seduces, induces, entices or coerces B—

(i)

to travel to any part of the world in order to meet A with the intention to commit a sexual act with B; or

(ii)

during such meeting or communication or any subsequent meeting or communication to—

(aa)

commit a sexual act with A;

(bb)

discuss, explain or describe the commission of a sexual act; or

(cc)

provide A, by means of any form of communication including electronic communication, with any image, publication, depiction, description or sequence of child pornography of B himself or herself or any other person; or

(e)

having met or communicated with B by any means from, to or in any part of the world, intentionally travels to meet or meets B with the intention of committing a sexual act with B,

is guilty of the offence of sexual grooming of a child.

Exposure or display of or causing exposure or display of child pornography or pornography to children

19. A person (“A”) who unlawfully and intentionally exposes or displays or causes the exposure or display of—

(a)

any image, publication, depiction, description or sequence of child pornography or pornography;

(b)

any image, publication, depiction, description or sequence containing a visual presentation, description or representation of a sexual nature of a child, which may be disturbing or harmful to, or age-inappropriate for children, as contemplated in the Films and Publications Act, 1996 (Act No. 65 of 1996), or in terms of any other legislation; or

(c)

any image, publication, depiction, description or sequence containing a visual presentation, description or representation of pornography or an act of an explicit sexual nature of a person 18 years or older, which may be disturbing or harmful to, or age-inappropriate, for children, as contemplated in the Films and Publications Act, 1996, or in terms of any other law,

to a child (“B”), with or without the consent of B, is guilty of the offence of exposing or displaying or causing the exposure or display of child pornography or pornography to a child.

Using children for or benefiting from child pornography

20. (1) A person (“A”) who unlawfully and intentionally uses a child complainant (“B”), with or without the consent of B, whether for financial or other reward, favour or compensation to B or to a third person (“C”) or not—

(a)

for purposes of creating, making or producing;

(b)

by creating, making or producing; or

(c)

in any manner assisting to create, make or produce,

any image, publication, depiction, description or sequence in any manner whatsoever of child pornography, is guilty of the offence of using a child for child pornography.

(2) Any person who knowingly and intentionally in any manner whatsoever gains financially from, or receives any favour, benefit, reward, compensation or any other advantage, as the result of the commission of any act contemplated in subsection (1), is guilty of the offence of 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

Compelling or causing children to witness sexual offences, sexual acts or self-masturbation

21. (1) A person (“A”) who unlawfully and intentionally, whether for the sexual gratification of A or of a third person (“C”) or not, compels or causes a child complainant (“B”), without the consent of B, to be in the presence of or watch A or C while he, she or they commit a sexual offence, is guilty of the offence of compelling or causing a child to witness a sexual offence.

(2) A person (“A”) who unlawfully and intentionally, whether for the sexual gratification of A or of a third person (“C”) or not, compels or causes a child complainant (“B”), without the consent of B, to be in the presence of or watch—

(a)

A while he or she engages in a sexual act with C or another person ("D"); or

(b)

C while he or she engages in a sexual act with D,

is guilty of the offence of compelling or causing a child to witness a sexual act.

(3) A person (“A”) who unlawfully and intentionally, whether for the sexual gratification of A or of a third person (“C”) or not, compels or causes a child complainant (“B”), without the consent of B, to be in the presence of or watch A or C while he or she engages in an act of self-masturbation, is guilty of the offence of compelling or causing a child to witness self-masturbation.

Exposure or display of or causing exposure or display of genital organs, anus or female breasts to children (“flashing”)

22. A person (“A”) who unlawfully and intentionally, whether for the sexual gratification of A or of a third person (“C”) or not, exposes or displays or causes the exposure or display of the genital organs, anus or female breasts of A or C to a child complainant (“B”), with or without the consent of B, is guilty of the offence of exposing or displaying or causing the exposure or display of genital organs, anus or female breasts to a child.