should change
Barry Streek
The age of consent for homosexuals should be reduced from 19 to 16, the South African Law Commission has proposed in an overhaul of the country’s sexual offence laws.
The commission says because sexual intercourse in common law is restricted to the penetration of the vagina by the penis, the common law offence of rape should be replaced with a new gender-neutral statutory offence which centres on “unlawful sexual penetration”.
It has also called for a fundamental change in rape cases, shifting the onus to the accused to prove there was consent to a sexual act. In the past, rape victims had to prove the absence of consent.
In addition, it has proposed compulsory HIV testing of people arrested for sexual offences where there is initiation of the testing process by the victim of a sexual assault or a person acting on his or her behalf.
The proposed Sexual Offences Bill will outlaw the commercial exploitation of children under the age of 18 and anyone who participates in, persuades or induces a child to commit a sexual act for reward will be guilty of an offence.
The Bill defines a child as someone under the age of 16 and it will be an offence to commit a sexual act with any child.
To provide better protection of children, the commission proposes that the sexual penetration of any child below the age of 12 should constitute rape.
The commission says sexual penetration is unlawful when it occurs under coercive circumstances, which includes the application of force, threats, the abuse of power or authority, and the use of drugs.
Sexual penetration is defined broadly by the commission to include the penetration to “to any extent whatsoever” by a penis, any object or part of the body of one person, or any part of the body of an animal into the vagina, anus or mouth of another person.
Simulated sexual intercourse is also included under the definition of “sexual penetration”.
In terms of the recommendations, oral, anal or vaginal penetration or even simulated sexual intercourse under coercive circumstances can constitute rape. This means that both men and women can be rape victims and perpetrators.
In terms of the current definition of rape, the state has to prove beyond a reasonable doubt that the women did not consent to sexual intercourse. This creates the impression that the victims of rape are put on trial to prove the absence of their consent to sexual intercourse.
The commission proposes that the absence or consent to sexual intercourse will no longer be an element of the offence. The accused can still raise consent as a justification for his or her unlawful conduct, but will carry the burden of proof in this regard.
The draft Bill contains a provision that “no marriage or other relationship” will be a defence against a rape charge, making it clear that one spouse can be convicted of raping another.
In a National Coalition for Gay and Lesbian Equality case the Constitutional Court declared the common law offence of sodomy unconstitutional, but the commission’s proposals on a gender-neutral definition of rape also cover anal penetration under coercive circumstances.
It doesn’t recommend the repeal of the common law offence of bestiality but does propose the inclusion of a statutory provision in the new sexual offences Act to cover forced or manipulated sexual activity between people and animals.
It calls for the statutory provision of “child molestation” aimed at prohibiting sexual acts with children below 16 years of age. Consent by a child under 16 years of age to any sexual act is not a defence under this provision.
It also recommends that statutory provision should be made for a new offence, persistent sexual abuse of a child, to cover repeated inter-familial sexual abuse.
The commission said it recognises that a clear need exists for specific legislation criminalising stalking or harassment and recommends that a specific investigation be conducted in this regard.
It didn’t recommend the introduction of legislation to prohibit female genital mutilation, but invites comment on this issue.
The cut-off date for the Sexual Offences Bill is September 29 1999.