The Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007 (“the Act”) which was assented to by the President on 13 December 2007, took effect on 16 December 2007, save for chapters 5 (Services for victims of sexual offences and compulsory HIV testing of alleged sex offenders) and 6 (National register for sex offenders) which take effect on 21 March 2008 and 16 June 2008 respectively, unless brought into force on an earlier date fixed by the president by proclamation in the Gazette.
An overview of the Act can be found here. The text of the Act itself can be found here
It is conceded that the Act, in many ways, may substantially enhance and improve upon the previous legal norms relating to sexual offences. It is further conceded that many of the sections of the Act are necessary in order to deal with the specific character of sexual offences within South African society.
However, despite its positive aspects (which appear to have been all but ignored), Chapter 3 of the Act, which relates to sexual offences against children, caused some stir within the media. Various questions were raised but were left mainly unanswered…Are two children legally entitled to kiss? Are they prohibited from engaging in sexual activity, and if so, to what degree? Can children touch each other? What about normal consenting teenagers? What about holding hands? Will this Act merely cause children to hide their sexual activities even further? Etc.
Following upon the commencement of the Act, a number of teenagers have decided to take the law into their own hands, taking to streets, ice rinks and other venues (including the social networking website facebook) to publicly kiss and hug each other in protest.
(See this article in the Washington Post).
In response to the above protests, statements have been made by various departments of the South African Government (including statements by the South African Police Service) to the effect that, although it is technically illegal for two teenagers to kiss or engage in other sexual activity, arrest or prosecution of consenting teens is unlikely as this is not the focus or purpose of the Act. One specific such statement stands out:
“Justice department spokesman Zolile Nqayi said the clause against kissing in the Sexual Offenses Act had been placed there to prevent the sexual exploitation of minors.
“We are more concerned about the inappropriate kissing of a 13-year-old girl by a 40-year-old man, than we are about two teenagers sharing a consensual kiss,” he said, adding that in terms of policing the law would only come into effect should the parents report the offence.”
(See this article in the weekend post)
Of course, this begs the following question: Why does the Act contain such provisions if they are not going to be enforced?
In the face of legislation prohibiting certain activity, one cannot ignore the fact that such activities are offences, no matter how ludicrous the situation becomes. To do so is to ignore the rule of law and to accept the title of criminal.
The South African public does not care what the legislature is “concerned” about. We care only for the contents of that which the legislature publish as our duly elected representatives. The legislature is mandated to enact laws which accord with our sense of justice and freedom and which above all, accord with the Constitution. When the legislature enacts legislation, we expect it to be enforced, and enforced with vehemence, for fear that the South African Government itself may choose to ignore the rule of law.
Further, with respect to Zolile Nqayi’s statement that policing the Act would only come into effect should parents report the offence, it should be noted that not reporting the offence is in itself an offence, which carries a possible sentence of imprisonment for a period not exceeding 5 years (see section 54 of the Act).
But the purpose of this blog article is not to further the cause of those teenagers who choose to disobey the law, nor to attack the legislature for its actions. The purpose of this blog is to bring to light that portion of the Act which despite being the most frightening display of the legislature’s disregard for human rights, has been ignored despite all the media hype.
Lets start off with a definition as stated in section 1 of the Act:
“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
The above definition, includes (please note that I do not include contact with animals) the following:
1. In respect of subsection (a)(i) of the definition of sexual violation:
- Direct or indirect contact between:
- The genital organs or anus or breasts (if female) of person A and any part of the body of person B and or any object.
- The genital organs or anus or breasts (if female) of person A and any part of the body of person B and or any object.
The above definition is extremely wide. To my mind, it appears that if Person A bumps the crotch of his pants against a car door he will, according to the above definition have committed an act of sexual violation – he has performed an “act which causes” “indirect ” “contact between the genital organs” “of one person” “and” “any object”
Surely person “A” in the example above has no legal remedy against the car door, and vice versa. However, if person “A” were to bump his car door against person “B’s” crotch, there might be an interesting case in the making.
2. In respect of subsection (a)(ii) of the definition of sexual violation includes:
- “Direct or indirect contact between the mouth of person A and
- the genital organs, anus, breasts or mouth of person B; or
- any other part of the body of person B which could be used in an act of sexual penetration, cause sexual arousal or stimulation or be sexually aroused or stimulated thereby…”
- the genital organs, anus, breasts or mouth of person B; or
Again, a very wide definition, especially considering that virtually any part of a person’s body could “be used in an act of sexual penetration” or “cause sexual arousal or stimulation”
Sexual violation would therefore logically include, for example, person A kissing person B on the finger (as such would constitute direct contact between the mouth of one person and any part of the body of another person which could be used in an act of sexual penetration or cause sexual arousal or stimulation).
Of course, despite the fact that the Acts creates derogatory legal terms for normal human expressions of affection, these acts of sexual violation would only constitute offences in specific situations – the mere act of kissing another person does not in itself constitute a criminal offence – fortunately, the Act requires more.
Which brings us to Chapter 3, entitled Sexual Offences Against Children.
It should be noted that for the purposes of the following discussion, as for sections 15 and 16 of the Act:
“child” means—
(a) a person under the age of 18 years; or
(b) with reference to sections 15 and 16, a person 12 years or older but under the
age of 16 years,
and “children” has a corresponding meaning;
(see the definition of “Child” in section 1)
Chapter 3, inter alia, criminalises two specific acts – consensual sexual penetration with a child (not discussed herein) and consensual sexual violation with a child.
In respect of consensual sexual violation with a child the Act states as follows:
“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.“
If this section is disassembled and analysed, the following is found:
- Person “A” is not defined. Thus person A could be anyone from a 6 year old girl, to a 40 year old man.
- Person “B” must be a child. For the purposes of section 16, a child is a person 12 years or older but under the age of 16 years. Thus the offence created by section 16 cannot be committed against a person under the age of 12 or older than 16.
- Person “A’s” relationship with person “B” is irrelevant to the section. Whether “A” is “B’s” girlfriend, boyfriend, sibling, niece, uncle, teacher, sugar daddy or sexual predator is not a factor in respect of determining whether the offence has been committed.
- To determine whether or not a person has committed the offence in question, one must decide whether, factually, “A” has committed an act of “sexual violation”. In this respect, see the definition of “sexual violation”.
- It is irrelevant, for the purposes of determining whether or not the offence has been committed, whether “B” gave consent to the commission of the act.
A few examples will suffice to make my point.
“A” a 30 year old male, inappropriately kisses “B”, a 15 year old girl at a nightclub on her mouth. An offence? According to the act – YES.
“A” a 15 year old girl, in the heat of passion, kisses her boyfriend, “B”, a 14 year old, on the mouth. An offence? According to the Act – YES. (“A” would however be able to raise the valid defence that both “A” and “B” were children at the time and that the age difference between them is less than two years (see section 56(2)(b) of the Act)).
“A” an 8 year old boy, pulls his t-shirt over his head and then kisses his brother “B”, a 14 year old on the lips through the t-shirt. An offence? According to the act – YES.
“A” a 45 year old woman, says goodnight to her oldest daughter “B”, a 13 year old girl by kissing her on the lips. An offence? According to the Act – YES.
Section 16(1) of the Act does not only criminalise kissing (or other like behaviour) between teenagers, but criminalises acts of so call “sexual violation” with a child by anyone… not only sexual predators, not only lecherous old men… Anyone.
In other words? Don’t kiss your children. Don’t even kiss them on the elbow. Don’t kiss your siblings, don’t kiss your grandchildren, don’t kiss anyone… anywhere. And if you see anyone kissing their children, siblings, etc? You had better report it to the police or face up to 5 years in jail.
Again I state, with the absolute minimum of sarcasm… No more kissy kissy.