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

human dignity, privacy and freedom from security of the person, and the rights
of children.
[29] The South African Sexual Offences Act is a comprehensive piece of legislation
comprising seventy-two sections. Nearly all the provisions of statute speak
directly to sexual offences at a substantive and/or procedural level. Because
sexual offences have an obvious link with sexual health, it would be
impracticable to discuss the entirety of the provisions. The following discussion,
therefore, focuses only on those provisions that introduce significant reforms to
the law.
[30] Section 3 of the Act defines rape in the following terms:
Any person (“A”) who unlawfully and intentionally commits an act of sexual penetration with a
complainant (‘B’) without the consent of B, is guilty of the offence of rape’
This new definition changes the law of rape in three main ways. First, rape can
now be committed by a male or female or any other gender variation. Thus, the
crime or rape is now gender or sex neutral in terms of who might be the
perpetrator and who might be the victim. Secondly, sexual penetration is defined
generously to cover not only acts of penetration into a vagina, but also into any
other part of the body of another person. Furthermore, penetration can be a
genital organ or other object. 582 Thirdly, the Sexual Offences Act redefines
consent by attempting to capture, more fully, the circumstances in which consent
may be absent.
[31] According to the Sexual Offences Act, consent means a ‘voluntary or uncoerced
agreement’. 583 The Act lists the following circumstances as ‘inclusive’ of the
circumstances in which submission to a sexual act will not be voluntary or
uncoerced:
(a) where submission or subjection to a sexual act is a result of force or
intimidation or a result of a threat of harm to the victim or another person or
threat of harm to his or her property or the property of another;
(b) where submission or subjection to a sexual act takes place in context of abuse
of power or authority by the perpetrator such that the victim is inhibited from
indicating unwillingness or resistance to the sexual act;
(c) where the sexual act is committed under false pretences or by fraudulent
means; and
582 According to section 1 of the Act, ‘sexual penetration’ means penetration by: (a) the genital organs of
one person or 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 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.
583 Section 1(2) of the Sexual Offences Act.
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