SA’s “Sexual offences and Related Matters Amendment Act” (No 32, 2007): The Good, the Bad, and the Ugly

Good
1. At least one ridiculously contradictory concept have now been removed from law books:

There used to be a law stating that having consensual homosexual intercourse with someone under 19 is a crime. Then, same-sex marriages became legal. Last year’s Child Act then specified that 18-year-olds can consent to be wed. It would thus have been legal for a man to marry an 18-year-old boy, but intercourse would have been illegal for the couple. (??!!) This not an opinion on same-sex marriage; or age of consent. This is about legal contradictions.

2. Whereas the previous point is trivial, this one is not: It is only fair that the definition of rape have been changed to include other forms of penetration. The definition also changed to the point where a crime against a boy (or man) can be seen as rape too. That was one of the main purposes of the new law, and they seemingly got that one right.

Bad
3. In a previous article, I contrasted laws on rape with provisions in last year’s Child Act. I observed that even consensual intercourse with a 12-year old is rape, yet contraceptives can be given to 12-year olds; with no explicit demand to the contraceptive-giver to make sure what the situation of the child is. They now changed that. By section 15, consensual intercourse with 12-year olds is not rape any more. This way, the contraceptive-giving heath worker is not being indifferent to a most-certainly-raped child any more. She/he is indifferent to a child who is perhaps being raped. [Sarcastic mode on] Ah……, progress! [Sarcastic mode off/]

4. According to sections 15 and 16, teens (under 16) who, with mutual consent, engage in open-mouthed kissing (or anything more explicit), would be guilty of a crime if there is an age difference of more than three years. This means that a 17-year old boy will break the law when kissing a 14-year old girl. We know, nobody is going to actually prosecute them for it. But ridiculous laws cause disrespect for authority. In fact, the “broken windows” theory say that you can significantly reduce serious crime simply by prosecuting each and every crime, even the small ones. By making laws that are next-to-impossible to prosecute, you thus encourage crime.

5. According to section 18, someone who do or say things to a 17-year old with the idea to “diminish or reduce any resistance … to perform a sexual act” is “guilty of the offence of sexual grooming of a child.” That seems much too broad.

Let’s take an example: Joe (19) meets Anne (17). They talk. The next time they meet, they kiss. Later things go further. One thing lead to another, and they have consensual intercourse. You could argue that Anne would not have consented the first day they met. Thus talking to her, kissing her, complimenting her, etc. “diminished Anne’s resistance.” By this definition, Joe is guilty of the offence of “sexual grooming of a child.”

Joe’s pal hear of Joe’s crime, and does things differently: Instead of trying to have a relationship, he goes to a girl and ask her for sex. Oops. By Section 18(2)(b)) , someone who “describes the commission of any act” to a 17-year old with the idea to “diminish or reduce any resistance … to perform a sexual act” is guilty of the same crime as Joe.

6. Joe committed another crime in his relationship: He let Anne see him naked when they did the deed! According to section 22, you may not show your naked body to a consensual 17-year old. So: It is legal to have consensual sex with 16- or 17-year olds, but only in the dark!

Ugly
7. Nowhere in this new law do I find that non-consensual sexual acts (those described with the terms “rape” and “sexual assault”) with a child is regarded in a more serious light than the same acts with an adult. Nothing I can see tells me the prescribed penalty will be any different.

It would seem that nothing in this new law differentiate between for instance

(a) the unwanted fondling of a 28-year-old woman and

(b) similar fondling of a 8-year-old girl.

At first, I even thought that the law do not say anything about under 12’s giving consent to acts they do not understand, but at least that is not true. Although chapter 3 (The “Sexual Offences against Children” chapter) do not mention it, the description under “this act” in chapter 1: “Definitions and objects” mention that children below 12 are not capable of giving consent.

I sincerely hope that this is a case of previous laws already stating this, and those laws still staying the same. However, this sounds unlikely to me: The ages for what used to be called “Statutory rape” changed. (It used to be 13 -15, now it is 12 – 15.) Thus, the age limit on whatever other laws (concerning sexual deeds with younger children) that still exist, cannot stay the same either. If the ages in them do not appear amended in this act, they are probably not part of this country’s law any more.

Conclusion
If that last point is correct, this law is, on balance, very badly written and overall a negative thing by my standards. Please, law-makers, tell me I am wrong about my point 7. I really, really hope I am wrong!

Even if other laws cover the issue in point 6, this “Sexual offences and Related Matters Amendment Act” is not off the hook. The “broken windows principle” mean ridiculous rules like “teen, you may not kiss teens 3 years younger than yourself” or “adult, you may have intercourse with an older teen, but do not seduce him/her and don’t let him/ her see you naked” may be indirectly bad for law and order.

 

 

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3 thoughts on “SA’s “Sexual offences and Related Matters Amendment Act” (No 32, 2007): The Good, the Bad, and the Ugly

  1. shirley says:

    i just wanted to comment about your point, “teens kissing in public”. i think that you misunderstood this specific point. i dont disagree that it is not effective but this section is usually read in isolation of its over all intention. The Act provides that children who
    engage in certain acts with each other, such as
    kissing, cannot be prosecuted for doing so if both
    agreed to such acts and the age difference between
    the two children is not more than two years.

  2. christianrethinker says:

    Shirley, thanks a lot for your comment.

    I sometimes feel as if nobody read the things I wrote then. Leaving out the age difference was an important oversight and I corrected it.

  3. christianrethinker says:

    Shirley, is there any way you can disagree with my point 7? Do anything in this law say that unwanted sexual acts with a child is a more serious crime than the same acts with an adult? Because that one is really important.

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