1. (1) In this Act, unless the context indicates otherwise—
“care giver” means any person who, in relation to a person who is mentally disabled, takes responsibility for meeting the daily needs of or is in substantial contact with such person;
“child” means a person under the age of 18 years and “children” has a corresponding meaning;
“child pornography” means any image, however created, or any description or presentation of a person, real or simulated, who is, or who is depicted or described or presented as being, under the age of 18 years, of an explicit or sexual nature, whether such image or description or presentation is intended to stimulate erotic or aesthetic feelings or not, including any such image or description of such person—
(a)
engaged in an act that constitutes a sexual offence;
(b)
engaged in an act of sexual penetration;
(c)
engaged in an act of sexual violation;
(d)
engaged in an act of self-masturbation;
(e)
displaying the genital organs of such person in a state of arousal or stimulation;
(f)
unduly displaying the genital organs or anus of such person;
(g)
displaying any form of stimulation of a sexual nature of such person's breasts;
(h)
engaged in sexually suggestive or lewd acts;
(i)
engaged in or as the subject of sadistic or masochistic acts of a sexual nature;
(j)
engaged in any conduct or activity characteristically associated with sexual intercourse;
(k)
showing or describing such person—
(i)
participating in, or assisting or facilitating another person to participate in; or
(ii)
being in the presence of another person who commits or in any other manner being involved in,
any act contemplated in paragraphs (a) to (j); or
(l)
showing or describing the body, or parts of the body, of such person in a manner or in circumstances which, within the context, violate or offend the sexual integrity or dignity of that person or any category of persons under 18 or is capable of being used for the purposes of violating or offending the sexual integrity or dignity of that person, any person or group or categories of persons;
“complainant” means the alleged victim of a sexual offence;
“Director of Public Prosecutions” means a Director of Public Prosecutions contemplated in section 179(1)(b) of the Constitution of the Republic of South Africa, 1996, and appointed in terms of section 13 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998), acting in accordance with any directives issued under this Act by the National Director of Public Prosecutions, where applicable, or in accordance with any other prosecution policy or policy directives contemplated in section 21 of the National Prosecuting Authority Act, 1998;
“genital organs” includes the whole or part of the male and female genital organs, and further includes surgically constructed or reconstructed genital organs;
“Minister” means the cabinet member responsible for the administration of justice;
“National Director of Public Prosecutions” means the person contemplated in section 179(1)(a) of the Constitution of the Republic of South Africa, 1996, and appointed in terms of section 10 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998);
“person who is mentally disabled” means a person affected by any mental disability, including any disorder or disability of the mind, to the extent that he or she, at the time of the alleged commission of the offence in question, was—
(a)
unable to appreciate the nature and reasonably foreseeable consequences of a sexual act;
(b)
able to appreciate the nature and reasonably foreseeable consequences of such an act, but unable to act in accordance with that appreciation;
(c)
unable to resist the commission of any such act; or
(d)
unable to communicate his or her unwillingness to participate in any such act;
“pornography” means any image, however created, or any description of a person, real or simulated, who is 18 years or older, of an explicit or sexual nature that is intended to stimulate erotic feelings, including any such image or description of such person—
(a)
engaged in an act that constitutes a sexual offence;
(b)
engaged in an act of sexual penetration;
(c)
engaged in an act of sexual violation;
(d)
engaged in an act of self-masturbation;
(e)
displaying the genital organs of such person in a state of arousal or stimulation;
(f)
unduly displaying the genital organs or anus of such person;
(g)
displaying any form of stimulation of a sexual nature of the female breasts;
(h)
engaged in sexually suggestive or lewd acts;
(i)
engaged in or as the subject of sadistic or masochistic acts of a sexual nature;
(j)
engaged in any conduct or activity characteristically associated with sexual intercourse; or
(k)
showing or describing the body, or parts of the body, of that person in a manner or in circumstances which, within the context, violate or offend the sexual integrity or dignity of that person or any other person or is capable of being used for the purposes of violating or offending the sexual integrity or dignity of that person or any other person;
“Republic” means the Republic of South Africa;
“sexual act” means an act of sexual penetration or an act of sexual violation;
“sexual offence” means any offence in terms of Chapters 2, 3 and 4 and sections 55 and 71(1), (2) and (6) of this Act;
“sexual penetration” includes any act which causes penetration to any extent whatsoever by—
(a)
the genital organs of one person into or beyond the genital organs, anus, or mouth of another person;
(b)
any other part of the body of one person or, any object, including any part of the body of an animal, into or beyond the genital organs or anus of another person; or
(c)
the genital organs of an animal, into or beyond the mouth of another person,
and “sexually penetrates” has a corresponding meaning;
“sexual violation” includes any act which causes—
(a)
direct or indirect contact between the—
(i)
genital organs or anus of one person or, in the case of a female, her breasts, and any part of the body of another person or an animal, or any object, including any object resembling or representing the genital organs or anus of a person or an animal;
(ii)
mouth of one person and—
(aa)
the genital organs or anus of another person or, in the case of a female, her breasts;
(bb)
the mouth of another person;
(cc)
any other part of the body of another person, other than the genital organs or anus of that person or, in the case of a female, her breasts, which could—
(aaa)
be used in an act of sexual penetration;
(bbb)
cause sexual arousal or stimulation; or
(ccc)
be sexually aroused or stimulated thereby; or
(dd)
any object resembling the genital organs or anus of a person, and in the case of a female, her breasts, or an animal; or
(iii)
mouth of the complainant and the genital organs or anus of an animal;
(b)
the masturbation of one person by another person; or
(c)
the insertion of any object resembling or representing the genital organs of a person or animal, into or beyond the mouth of another person,
but does not include an act of sexual penetration, and “sexually violates” has a corresponding meaning; and
“this Act” includes any regulations made under this Act, including the regulations made under sections 39, 53 and 67.
(2) For the purposes of sections 3, 4, 5(1), 6, 7, 8(1), 8(2), 8(3), 9, 10, 12, 17(1), 17(2), 17(3)(a), 19, 20(1), 21(1), 21(2), 21(3) and 22, “consent” means voluntary or uncoerced agreement.
(3) Circumstances in subsection (2) in respect of which a person (“B”) (the complainant) does not voluntarily or without coercion agree to an act of sexual penetration, as contemplated in sections 3 and 4, or an act of sexual violation as contemplated in sections 5(1), 6 and 7 or any other act as contemplated in sections 8(1), 8(2), 8(3), 9, 10, 12, 17(1), 17(2), 17(3)(a), 19, 20(1), 21(1), 21(2), 21(3) and 22 include, but are not limited to, the following:
(a)
Where B (the complainant) submits or is subjected to such a sexual act as a result of—
(i)
the use of force or intimidation by A (the accused person) against B, C (a third person) or D (another person) or against the property of B, C or D; or
(ii)
a threat of harm by A against B, C or D or against the property of B, C or D;
(b)
where there is an abuse of power or authority by A to the extent that B is inhibited from indicating his or her unwillingness or resistance to the sexual act, or unwillingness to participate in such a sexual act;
(c)
where the sexual act is committed under false pretences or by fraudulent means, including where B is led to believe by A that—
(i)
B is committing such a sexual act with a particular person who is in fact a different person; or
(ii)
such a sexual act is something other than that act; or
(d)
where B is incapable in law of appreciating the nature of the sexual act, including where B is, at the time of the commission of such sexual act—
(i)
asleep;
(ii)
unconscious;
(iii)
in an altered state of consciousness, including under the influence of any medicine, drug, alcohol or other substance, to the extent that B's consciousness or judgement is adversely affected;
(iv)
a child below the age of 12 years; or
(v)
a person who is mentally disabled.
Objects
2. The objects of this Act are to afford complainants of sexual offences the maximum and least traumatising protection that the law can provide, to introduce measures which seek to enable the relevant organs of state to give full effect to the provisions of this Act and to combat and, ultimately, eradicate the relatively high incidence of sexual offences committed in the Republic by:
(a)
Enacting all matters relating to sexual offences in a single statute;
(b)
criminalising all forms of sexual abuse or exploitation;
(c)
repealing certain common law sexual offences and replacing them with new and, in some instances, expanded or extended statutory sexual offences, irrespective of gender;
(d)
protecting complainants of sexual offences and their families from secondary victimisation and trauma by establishing a co-operative response between all government departments involved in implementing an effective, responsive and sensitive criminal justice system relating to sexual offences;
(e)
promoting the spirit of batho pele (“the people first”) in respect of service delivery in the criminal justice system dealing with sexual offences by—
(i)
ensuring more effective and efficient investigation and prosecution of perpetrators of sexual offences by clearly defining existing offences, and creating new offences;
(ii)
giving proper recognition to the needs of victims of sexual offences through timeous, effective and non-discriminatory investigation and prosecution;
(iii)
facilitating a uniform and co-ordinated approach by relevant Government departments in dealing with sexual offences;
(iv)
entrenching accountability of government officials; and
(v)
minimising disparities in the provision of services to victims of sexual offences;
(f)
providing certain services to victims of sexual offences, including affording victims of sexual offences the right to receive Post Exposure Prophylaxis in certain circumstances; and
(g)
establishing a National Register for Sex Offenders in order to establish a record of persons who are or have been convicted of sexual offences against children and persons who are mentally disabled so as to prohibit such persons
from being employed in a manner that places them in a position to work with or have access to or authority or supervision over or care of children or persons who are mentally disabled.