The criminalization of consensual sexual acts between children
- Authors: Grootboom, Lance Patrick
- Date: 2018
- Subjects: Sex crimes -- South Africa , Children -- Legal status, laws, etc -- South Africa , South Africa -- Children's Act, 2005
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30082 , vital:30823
- Description: Sections 15 and 16 of the Criminal Law Sexual Offences and Related Matters Act (hereinafter referred to as “SORMA”) regulated consensual sexual acts between children. Both these sections criminalised consensual sexual acts between children. Section 15 of SORMA deals with consensual sexual penetration with children 12 years old but under the age of 16 years and section 16 deals with acts of consensual sexual violation with children 12 years of age but under the age of 16. The aim of these two sections was to protect children from undue influence relating to sexual engagement with adults or significantly older children. A number of child organisations criticised sections 15 and 16 on grounds that it is not abnormal for adolescents in the age group 12 to 16 years to experiment with sex and that such conduct are developmentally significant and normative. In the Teddy Bear Clinic and Rapcan v Minister of Justice and Constitutional Development1 (hereinafter referred to as the Teddy Bear case), the constitutionality of sections 15 and 16 of SORMA were challenged in the Constitutional Court. The Constitutional Court held that both sections were unconstitutional and ruled that these sections violated childrens’ right to human dignity, privacy and the best interest of the child principle. The Constitutional Court suspended the declaration of invalidity for a period of 18 months in order to give Parliament an opportunity to remedy the defects in SORMA. On 3 July 2015 the Criminal Law Sexual Offences and Related Matters Amendment, Amendment 5 of 2015, came into operation and amended section 15 and 16 by decriminalising sexual acts between children aged between 12 to 15 years. This research evaluates the arguments and effects of the Teddy Bear case with reference to section 15 and 16 of SORMA and provides an analysis of the current amendments in the Amendment Act 5 2015, with specific reference to its impact on consensual sexual acts between children.
- Full Text:
- Date Issued: 2018
- Authors: Grootboom, Lance Patrick
- Date: 2018
- Subjects: Sex crimes -- South Africa , Children -- Legal status, laws, etc -- South Africa , South Africa -- Children's Act, 2005
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30082 , vital:30823
- Description: Sections 15 and 16 of the Criminal Law Sexual Offences and Related Matters Act (hereinafter referred to as “SORMA”) regulated consensual sexual acts between children. Both these sections criminalised consensual sexual acts between children. Section 15 of SORMA deals with consensual sexual penetration with children 12 years old but under the age of 16 years and section 16 deals with acts of consensual sexual violation with children 12 years of age but under the age of 16. The aim of these two sections was to protect children from undue influence relating to sexual engagement with adults or significantly older children. A number of child organisations criticised sections 15 and 16 on grounds that it is not abnormal for adolescents in the age group 12 to 16 years to experiment with sex and that such conduct are developmentally significant and normative. In the Teddy Bear Clinic and Rapcan v Minister of Justice and Constitutional Development1 (hereinafter referred to as the Teddy Bear case), the constitutionality of sections 15 and 16 of SORMA were challenged in the Constitutional Court. The Constitutional Court held that both sections were unconstitutional and ruled that these sections violated childrens’ right to human dignity, privacy and the best interest of the child principle. The Constitutional Court suspended the declaration of invalidity for a period of 18 months in order to give Parliament an opportunity to remedy the defects in SORMA. On 3 July 2015 the Criminal Law Sexual Offences and Related Matters Amendment, Amendment 5 of 2015, came into operation and amended section 15 and 16 by decriminalising sexual acts between children aged between 12 to 15 years. This research evaluates the arguments and effects of the Teddy Bear case with reference to section 15 and 16 of SORMA and provides an analysis of the current amendments in the Amendment Act 5 2015, with specific reference to its impact on consensual sexual acts between children.
- Full Text:
- Date Issued: 2018
The recognition of victims rights of sexual offences
- Authors: Dipa, Asanda
- Date: 2012
- Subjects: Sex crimes -- South Africa , Criminal justice, Administration of , Sex and law -- South Africa , Victims of crimes -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10181 , http://hdl.handle.net/10948/d1014361
- Description: “Indeed in rape cases it is the victim who is most often placed on trial rather than the perpetrator, accused of having ulterior motives and subjected to degrading questions with often pornographic overtones. Prosecutors might fail to adequately address the victims needs and all too often, information is either intentionally or unintentionally withheld from victims.” The victims of sexual offences have to face not only the consequences of the sexual crime that was perpetrated upon them, but they also have to deal with the effects of the criminal justice system. Victims who take part in the criminal justice system should not be exposed to unnecessary distress and trauma. The victims of sexual offences must not be re-victimised by the criminal justice system. Re-victimisation has been coined to describe the experience where victims are subjected to further victimisation by the very state organs to whom they turn for assistance. This has the effect that the victim is victimised twice, first by the offender and then by the criminal justice system. It is therefore the duty of the law to protect this group of witnesses from such a traumatic and damaging experience. The question that needs to be answered in this research is whether the Sexual Offences and Related Matters Amendment has made any difference in respect of protection of victims sexual crimes. It was concluded that the Sexual Offences Act is indeed a step in the right direction to protect the rights of victims of sexual offences but that it could have afforded more protection.
- Full Text:
- Date Issued: 2012
- Authors: Dipa, Asanda
- Date: 2012
- Subjects: Sex crimes -- South Africa , Criminal justice, Administration of , Sex and law -- South Africa , Victims of crimes -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10181 , http://hdl.handle.net/10948/d1014361
- Description: “Indeed in rape cases it is the victim who is most often placed on trial rather than the perpetrator, accused of having ulterior motives and subjected to degrading questions with often pornographic overtones. Prosecutors might fail to adequately address the victims needs and all too often, information is either intentionally or unintentionally withheld from victims.” The victims of sexual offences have to face not only the consequences of the sexual crime that was perpetrated upon them, but they also have to deal with the effects of the criminal justice system. Victims who take part in the criminal justice system should not be exposed to unnecessary distress and trauma. The victims of sexual offences must not be re-victimised by the criminal justice system. Re-victimisation has been coined to describe the experience where victims are subjected to further victimisation by the very state organs to whom they turn for assistance. This has the effect that the victim is victimised twice, first by the offender and then by the criminal justice system. It is therefore the duty of the law to protect this group of witnesses from such a traumatic and damaging experience. The question that needs to be answered in this research is whether the Sexual Offences and Related Matters Amendment has made any difference in respect of protection of victims sexual crimes. It was concluded that the Sexual Offences Act is indeed a step in the right direction to protect the rights of victims of sexual offences but that it could have afforded more protection.
- Full Text:
- Date Issued: 2012
Criminalisation of HIV/AIDS in South Africa: a critical look at the Criminal Law (Sexual offences and related matters) Amendment Act 32 of 2007
- Authors: Ndawula, Barnabas
- Date: 2010
- Subjects: AIDS (Disease) -- Law and legislation -- South Africa , Sex crimes -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10167 , http://hdl.handle.net/10948/1280 , AIDS (Disease) -- Law and legislation -- South Africa , Sex crimes -- South Africa
- Description: Human Immuno Virus (HIV) and Acquired Immuno Deficiency Syndrome (AIDS) have formed part of the South African landscape since the first report in 19831and today South Africa is reported to be the country with the highest number of people living with HIV/AIDS in the World2. This state of affairs, in combination with South Africa’s high sexual crime rate resulted in a general public out-cry with calls for the government and the legislature to enact laws to stem the spread of HIV/AIDS3. Government and the legislature finally responded by way of promulgating the criminal law (sexual Offences and related matters) Amendment Act4 (hereinafter the sexual Offences Act). The Sexual Offences Act inter alia provides for the compulsory testing of alleged offenders of sexual crimes5 This treatise will show that chapter five of the sexual Offences Act, indirectly criminalises HIV/AIDS, and that this is not desirable. It will be submitted that the criminalisation of HIV is against the stated UNAIDS policy 6 It is finally submitted in this treatise that South Africa should repeal all provisions in its law that directly or indirectly criminalises HIV/AIDS transmission and instead follow both and is a deterrent to public health methods of curbing the epidemic, while at the same time exacerbates the spread of the epidemic by forcing people who are HIV positive not to openly come out. It will be argued in the use of criminal law against the transmission of HIV creates stigma and is also an attack on individual human rights. The study will also show that the supposed marginalised persons, such as women and children are not protected by the use of criminal law in the prevention of HIV transmission, contrary to the arguments of the proponents of those who support the use of criminal law. The study will show that far from protecting these marginalised groups of people, criminalisation of HIV transmission, does in fact hurt them the UNAIDS policy and the South African development corporation (SADC) Model Law on HIV and AIDS.
- Full Text:
- Date Issued: 2010
- Authors: Ndawula, Barnabas
- Date: 2010
- Subjects: AIDS (Disease) -- Law and legislation -- South Africa , Sex crimes -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10167 , http://hdl.handle.net/10948/1280 , AIDS (Disease) -- Law and legislation -- South Africa , Sex crimes -- South Africa
- Description: Human Immuno Virus (HIV) and Acquired Immuno Deficiency Syndrome (AIDS) have formed part of the South African landscape since the first report in 19831and today South Africa is reported to be the country with the highest number of people living with HIV/AIDS in the World2. This state of affairs, in combination with South Africa’s high sexual crime rate resulted in a general public out-cry with calls for the government and the legislature to enact laws to stem the spread of HIV/AIDS3. Government and the legislature finally responded by way of promulgating the criminal law (sexual Offences and related matters) Amendment Act4 (hereinafter the sexual Offences Act). The Sexual Offences Act inter alia provides for the compulsory testing of alleged offenders of sexual crimes5 This treatise will show that chapter five of the sexual Offences Act, indirectly criminalises HIV/AIDS, and that this is not desirable. It will be submitted that the criminalisation of HIV is against the stated UNAIDS policy 6 It is finally submitted in this treatise that South Africa should repeal all provisions in its law that directly or indirectly criminalises HIV/AIDS transmission and instead follow both and is a deterrent to public health methods of curbing the epidemic, while at the same time exacerbates the spread of the epidemic by forcing people who are HIV positive not to openly come out. It will be argued in the use of criminal law against the transmission of HIV creates stigma and is also an attack on individual human rights. The study will also show that the supposed marginalised persons, such as women and children are not protected by the use of criminal law in the prevention of HIV transmission, contrary to the arguments of the proponents of those who support the use of criminal law. The study will show that far from protecting these marginalised groups of people, criminalisation of HIV transmission, does in fact hurt them the UNAIDS policy and the South African development corporation (SADC) Model Law on HIV and AIDS.
- Full Text:
- Date Issued: 2010
Child sex tourism in South African law
- Authors: Chetty, Kasturi
- Date: 2007
- Subjects: Child sexual abuse -- South Africa , Sex tourism -- Law and legislation -- South Africa , Sex crimes -- South Africa , Child prostitution -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10276 , http://hdl.handle.net/10948/485 , Child sexual abuse -- South Africa , Sex tourism -- Law and legislation -- South Africa , Sex crimes -- South Africa , Child prostitution -- South Africa
- Description: Child sex tourism is tourism organised with the primary purpose of facilitating a commercial sexual relationship with a child. It involves a segment of the local child sex industry that is directly connected to both an international and domestic tourist market. The increase of tourism has brought with it complications in that tourism is being used as a means for sex tourists to initiate contact with children. Aside from child sex tourists who are paedophiles, there are those who engage in the opportunistic exploitation of children while travelling on business or for other reasons. There are a number of social and economic factors leading to child sex tourism and the effect is that child victims are exposed to immediate harm, irreversible damage and even death. As South Africa's tourism industry expands into one of the country’s top earners of foreign currency, it is unfortunate to note that its child sex tourist trade is also on the increase. Reports show that sex tours are as easily organised as wine route tours in Cape Town. Commercial sexual exploitation of children is prevalent in South Africa and has become more organised in recent years. A comprehensive response to the problem is essential to ensure that South Africa does not become a “safe haven” for child sex tourists. Effective laws at home and the extraterritorial application of these laws to prosecute South African nationals for crimes committed abroad are imperative. Significant steps are being taken both nationally and internationally to target child sex tourism. South Africa has ratified several international instruments on children’s rights, trafficking in persons, child labour, and discrimination against women and young girls, all of which relate to child sex tourism. In doing so, South Africa has made an international commitment to uphold the provisions of these instruments and give effect to them. South Africa is therefore under an international obligation to create the necessary structures and apply mechanisms and resources to combat child sex tourism.
- Full Text:
- Date Issued: 2007
- Authors: Chetty, Kasturi
- Date: 2007
- Subjects: Child sexual abuse -- South Africa , Sex tourism -- Law and legislation -- South Africa , Sex crimes -- South Africa , Child prostitution -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10276 , http://hdl.handle.net/10948/485 , Child sexual abuse -- South Africa , Sex tourism -- Law and legislation -- South Africa , Sex crimes -- South Africa , Child prostitution -- South Africa
- Description: Child sex tourism is tourism organised with the primary purpose of facilitating a commercial sexual relationship with a child. It involves a segment of the local child sex industry that is directly connected to both an international and domestic tourist market. The increase of tourism has brought with it complications in that tourism is being used as a means for sex tourists to initiate contact with children. Aside from child sex tourists who are paedophiles, there are those who engage in the opportunistic exploitation of children while travelling on business or for other reasons. There are a number of social and economic factors leading to child sex tourism and the effect is that child victims are exposed to immediate harm, irreversible damage and even death. As South Africa's tourism industry expands into one of the country’s top earners of foreign currency, it is unfortunate to note that its child sex tourist trade is also on the increase. Reports show that sex tours are as easily organised as wine route tours in Cape Town. Commercial sexual exploitation of children is prevalent in South Africa and has become more organised in recent years. A comprehensive response to the problem is essential to ensure that South Africa does not become a “safe haven” for child sex tourists. Effective laws at home and the extraterritorial application of these laws to prosecute South African nationals for crimes committed abroad are imperative. Significant steps are being taken both nationally and internationally to target child sex tourism. South Africa has ratified several international instruments on children’s rights, trafficking in persons, child labour, and discrimination against women and young girls, all of which relate to child sex tourism. In doing so, South Africa has made an international commitment to uphold the provisions of these instruments and give effect to them. South Africa is therefore under an international obligation to create the necessary structures and apply mechanisms and resources to combat child sex tourism.
- Full Text:
- Date Issued: 2007
Aspects of the sentencing process in child sexual abuse cases
- Authors: Van der Merwe, Annette
- Date: 2006
- Subjects: Child sexual abuse -- South Africa , Sexually abused children -- Legal status, laws, etc -- South Africa , Child abuse -- Law and legislation -- South Africa , Sex crimes -- South Africa , Sentences(Criminal procedure) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3696 , http://hdl.handle.net/10962/d1003211 , Child sexual abuse -- South Africa , Sexually abused children -- Legal status, laws, etc -- South Africa , Child abuse -- Law and legislation -- South Africa , Sex crimes -- South Africa , Sentences(Criminal procedure) -- South Africa
- Description: This thesis investigates current sentencing practices relating to the diverse, complex and emotionally laden phenomenon of child sexual abuse. It focuses on relevant legislative provisions, on case law and on an empirical study conducted amongst regional court magistrates. Trends, developments and problems are analysed and possible solutions to the main problems identified are investigated. The thesis concludes with proposed guidelines regarding the sentencing process in child sexual abuse cases. Such guidelines address general and specific principles, the use of victim impact statements, the increased recognition and use of behavioural science in the sentencing phase with regard to both the victim and the offender, and relevant aggravating and mitigating factors. The guidelines are an attempt to give some structure to the current haphazard approach adopted by the courts with regard to harm experienced by the victim. They are also aimed at assisting experts to provide more effective and reliable pre-sentence reports. Further, the thesis attempts to provide clarity concerning the factors that are considered to be aggravating or mitigating in the offence category, child sexual abuse, as well as with regard to the weight that should be attached to them. In addition, recommendations are made for the purpose of possible law reform and further research in relation to the regulation of judicial discretion through the introduction of formal sentencing guidelines, victim impact statements and the accommodation of behavioural science in the sentencing process pertaining to sexual offenders. This proposal is based on current South African sentencing practices as reflected in the consolidation of local judgments scattered over many years in different law reports and, to some extent, on English, Canadian, Australian and American sentencing practices as researched in this study.
- Full Text:
- Date Issued: 2006
- Authors: Van der Merwe, Annette
- Date: 2006
- Subjects: Child sexual abuse -- South Africa , Sexually abused children -- Legal status, laws, etc -- South Africa , Child abuse -- Law and legislation -- South Africa , Sex crimes -- South Africa , Sentences(Criminal procedure) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3696 , http://hdl.handle.net/10962/d1003211 , Child sexual abuse -- South Africa , Sexually abused children -- Legal status, laws, etc -- South Africa , Child abuse -- Law and legislation -- South Africa , Sex crimes -- South Africa , Sentences(Criminal procedure) -- South Africa
- Description: This thesis investigates current sentencing practices relating to the diverse, complex and emotionally laden phenomenon of child sexual abuse. It focuses on relevant legislative provisions, on case law and on an empirical study conducted amongst regional court magistrates. Trends, developments and problems are analysed and possible solutions to the main problems identified are investigated. The thesis concludes with proposed guidelines regarding the sentencing process in child sexual abuse cases. Such guidelines address general and specific principles, the use of victim impact statements, the increased recognition and use of behavioural science in the sentencing phase with regard to both the victim and the offender, and relevant aggravating and mitigating factors. The guidelines are an attempt to give some structure to the current haphazard approach adopted by the courts with regard to harm experienced by the victim. They are also aimed at assisting experts to provide more effective and reliable pre-sentence reports. Further, the thesis attempts to provide clarity concerning the factors that are considered to be aggravating or mitigating in the offence category, child sexual abuse, as well as with regard to the weight that should be attached to them. In addition, recommendations are made for the purpose of possible law reform and further research in relation to the regulation of judicial discretion through the introduction of formal sentencing guidelines, victim impact statements and the accommodation of behavioural science in the sentencing process pertaining to sexual offenders. This proposal is based on current South African sentencing practices as reflected in the consolidation of local judgments scattered over many years in different law reports and, to some extent, on English, Canadian, Australian and American sentencing practices as researched in this study.
- Full Text:
- Date Issued: 2006
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