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Rape

Rape is defined as the unlawful and intentional sexual penetration of another person without their consent. The key elements of rape are sexual penetration, lack of consent, unlawfulness, and intention. Consent is absent in cases involving force, threats of harm, abuse of power, false pretenses, or an inability to understand the nature of the sexual act. Rape was expanded beyond just vaginal penetration to include other acts by recent legislation in South Africa.

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62 views14 pages

Rape

Rape is defined as the unlawful and intentional sexual penetration of another person without their consent. The key elements of rape are sexual penetration, lack of consent, unlawfulness, and intention. Consent is absent in cases involving force, threats of harm, abuse of power, false pretenses, or an inability to understand the nature of the sexual act. Rape was expanded beyond just vaginal penetration to include other acts by recent legislation in South Africa.

Uploaded by

Talea Naidoo
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PPTX, PDF, TXT or read online on Scribd
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Rape

Introduction
• Rape at Common Law:could only be committed against women and
only included vaginal penetration. Penetration in anus not rape, but
indecent assault.
• Masiya v Director of Public Prosecutions 2007 (2) SACR 435 (CC) –
extension of definition of Rape? Was this correct?
• Parliamentary intervention:
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of
2007.
Definition & Elements
• Section 3: 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.

• Elements:
(a) Sexual penetration of another person
(b) Without the consent of the latter person
(c) Unlawfulness
(d) Intention
A. SEXUAL PENETRATION
• The concept is defined in s1 of the 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 organ, anus or
mount 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).

Genital organs?
B. ABSENCE OF CONSENT
• Consent means voluntary uncoerced agreement.
• Must be given before commission of the act.
• Consent absent in the following instances:
(1) Use of force or intimidation
(2) Threats of harm
(3) Abuse of power or authority
(4) False pretences
(5) Inability to appreciate nature of sexual act

• Marital Rape? s5 of PFVA; S 56(1) of Act under discussion.


(1) Use of force or intimidation
• Force? Subject/object of the force/intimidation?

• S v Swiggelaar 1950 (1) PH H61 (A)


“If a man so intimidates a woman as to induce her to abandon resistance and submit to
intercourse to which she is unwilling, he commits the crime of rape. All the circumstances
must be taken into account to determine whether passivity is proof of implied consent or
whether it is merely the abandonment of outward resistance which the woman, while
persisting in her objection to intercourse, is afraid to display or realises is useless” 110 -111.

• K 1958 –
(2) Threats of harm

• Harm?

• Subject/object of the harm.


3. Abuse of power or authority
• Nature of abuse of power/authority?

• Loss of employment?

• S v Volschenk 1968 (2) PH H283 (D)

• S v S 1971 (2) SA 591 (A)


4. False pretences – s1(3)(C)

• Error in persona

• Error in negotio
5. Inability to appreciate nature of sexual
act
• Certain people cannot, by law, give consent (s 1(3)(d)).

• K (1958).
C. UNLAWFULNESS
• Is Consent a defence?

• Unlawfulness nonetheless an element of all offences.

• Other justification grounds?


D. INTENTION
• An express requirement – s3

• Knowledge that victim has not consented.

• Dolus eventualis suffices –

• Accused must know or foresee that the victim is below 12; incapable
of consenting etc.
Sentencing – see Snyman
• S 51(1) of Criminal Law Amendment Act 105 of 1997

• Life imprisonment?

• Minimum sentence?

• Avoiding minimum sentences


• Substantial and compelling circumstances
The end.

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