sexual health and human rights in the african region - The ICHRP

another person’. 564 Penetration of a genital organ by a part of a body, other than
by a genital organ, constitutes sexual assault under the Sexual Offences Act. 565
[15] Lesotho has moved away from the traditional formulation of rape through the
Sexual Offences Act of 2003 which, inter alia, reforms the common law of rape
that was bequeathed to Lesotho by the United Kingdom. The Sexual Offences
Act abandons many of the legal tenets of rape as to amount to substantial reform
of rape law. The Act abandons altogether use of the term ‘rape’ in favour of
‘unlawful sexual act’. It moves away from putting a spotlight on ‘consent’ to
putting the spotlight on ‘coercive circumstances’.
[16] Under the Sexual Offences Act of Lesotho, a ‘sexual act’ is prima facie unlawful if
it takes place in any coercive circumstances.’ 566 A ‘sexual act’ is defined as ‘direct
or indirect contact with the anus, penis, buttocks, thighs or vagina of a person or
any other part of the body of another person’, ‘exposure or display of the genital
organs of one person to another’, ‘the insertion of any part of the body of a
person or any part of the body of an animal, or any object into the vagina or
anus or another person’, or ‘cunnilingus, fellatio or any other form of genital
stimulation’. The import of the definitional construction of a sexual act in relation
to the traditional formulation of rape is that it is designed to capture different
manifestations of sexual violence and not just coerced vaginal intercourse. Also,
it is a genderless act on the part of the perpetrator and a genderless coerced
experience on the part of the victim.
[17] Under the Sexual Offences Act of Lesotho, coercive circumstances include but are
not limited to: explicit and implicit use of physical or psychological force or
threats thereof; 567 a complainant who is below 12 years, 568 or is unlawfully
detained 569 or is affected by a physical or mental disability, alcohol or sleep to
such an extent that he or she is incapable to understanding the nature of a sexual
act or communicating unwillingness to submit to the act; 570 fraudulent
misrepresentation; 571 and failure to disclose a sexually transmitted disease which
the perpetrator is aware of or ought to be aware of. 572
[18] Historically, South African received common law, like its African counterparts
has defined rape as intentional and unlawful sexual intercourse with a woman
564 Section 2 ibid.
565 Section 5 ibid.
566 Section 3(1) of the Sexual Offences Act (Lesotho).
567 Section 2(a), (b) and (c) ibid.
568 Section 2(d) ibid.
569 Section 2(e) ibid.
570 Section 2(f) ibid.
571 Section 2(g) and (h) ibid.
572 Section 2(i) ibid.
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