What is rape?
Rape is defined as the unlawful and intentional penetration of another without consent.
What does section 3 of sexual offences act state
Section 3 of the sexual Offences Act states that any person who unlawfully and intentionally commits an act of sexual penetration with another person without consent is guilty of the offence of rape
What are the elements of rape?
- Sexual penetration of another person
- Without the consent of the latter person
- Unlawfullness
- Intention
What did Mayisa do to the defintion of rape?
Masiya extended the definition of rape to include anal rape, and gave effect to the Sexual Offences Act extended anal rape to include men.
Can rape be imputed?
Tshabalala holds that rape can be imputed onto an individual through common purpose to create perpetrator liability.
Define sexual penetration?
In section 1(1) of the Act includes any act which causes penetration to any extent whatsoever by:
(a) the genital organs of one person 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, 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
Define genital organs?
Genital organs defined by section 1(1) include the whole or part of the male and female genital organs, and further include surgically constructed or reconstructed genital organs
What is the requirments of the defence of consent?
Requirements of the defence of consent:
- The consent in the circumstances must be recognised by law as a possible defence (Njikelena, Sikunyana, Clarke & Brown)
- It must be real consent (Mccoy, Collett, Scottberg) (This is what is dealt with in rape)
- It must be given by a person capable of consenting. (Brown)
When consent isn’t voluntary or uncoerced?
- Submission as a result of force, intimidation or threats (section 1(3)(a) & R v Swiggelaar)
- Abuse of power (section 1(3)(b) & R v Mcoy)
- Committed under false pretence or fraudulent means (section 1(3)(c))
- If the person doesn’t have capacity (section 1(3)(d))
What does section 1(3) deal with?
Section 1(3), it deals with circumstances where there hasn’t been voluntary and uncoerced consent
What actions fall under section 1(3)?
- Where B (the complainant) submits or is subjected to such a sexual act
- Where there is an abuse of power or authority by A to the extent that B is inhibited from indicating his or her unwillingness or resistance to the sexual act, or unwillingness to participate in such a sexual act
- Where the sexual act is committed under false pretences or by fraudulent
- Where B is incapable in law of appreciating the nature of the sexual act,
What are circumstances under s1(3) were B (the complainant) submits or is subjected to such a sexual act as a result of?
Where B (the complainant) submits or is subjected to such a sexual act as a result of:
- the use of force or intimidation by A against B or against the property of B, C or D; or (Volschenk, S v S)
- a threat of harm by A against B, against the property of B, C or D;
What are circumstances under s1(3) where the sexual act is committed under false pretences or by fraudulent means, including where B is led to believe by A that?
Where the sexual act is committed under false pretences or by fraudulent means, including where B is led to believe by A that:
- B is committing such a sexual act with a particular person who is, in fact, a different person; or (R v C)
- such a sexual act is something other than that act; or (R v Williams 1931)
What are circumstances under s1(3) where B is incapable in law of appreciating the nature of the sexual act, including where B is, at the time of the commission of such sexual act?
Where B is incapable in law of appreciating the nature of the sexual act, including where B is, at the time of the commission of such sexual act-
- Asleep;
- Unconscious;
- in an altered state of consciousness, including under the influence of any medicine, drug, alcohol or other substance, to the extent that B’s consciousness or judgement is adversely affected;
- a child below the age of 12 years; or (S v Geldenhuys)
- a person with a mental disability.
What was dealt with a case in Volschenk?
S v Volschenk dealt with a police officer who threatened to lay a charge against a women ulesss she had sexual intercourse with her, she admitted. This case held that consent was given due to intimidation
What was held in S v S?
S v S held that if a person foresees the absence of consent due to tacit intimidation, the consent is not voluntary
What was held in Swiggelaar?
R v Swiggelaar, the police ordered the complainant to accompany her to the police station, where he pushed her against the wall and had intercourse with her. She protested but did not physically stop him. The court held that though consent of a woman might be gathered from her conduct apart from her words, it is fallacious to take the absence of resistance as proof of consent.
What was held in R v C?
R v C, dealt with a person who thought she was sleeping with her husband but was sleeping with a person who broke into the house, so consent but the consent was not valid due toan error in persona
What was held in Williams?
R v Williams 1931, deals with when a person consents to an operation that happens to be sexual intercourse.
What is consent to be vaild?
For consent to succeed as a defence, it must have been given consciously and voluntarily, either expressly or tacitly, by a person who has the mental ability to understand what he or she is consenting to and the consent must be based on a true knowledge of the material facts relating to intercourse
What was held in section 51 of the Criminal law act?
Section 51 of the Criminal Law Act, makes provision for minimum sentences imposed on rape. Section 51(6) are not applicable in respect of a child who was under the age of 18
What does section 51(1) hold that the court must sentence a person convicted of rape?
Section 51(1) holds that the court must sentence a person convicted of rape must be sentenced to imprisonment for life, when:
- Where Y was raped more than once
- Where Y was raped by more than one person and such person acted with a common purpose
- Where X is convicted of two or more offences of rape or compelled rape but not sentenced
- Where X knows that he has acquired HIV
- Where Y is below the age of 16
- Where Y is a physically disabled woman or mentally ill
What happens if none of the section 51 factors are present?
If none of the following is present, the court is obliged to impose:
- 10 years in respect of the first offender
- 15 years in respect of the second offender
- 20 years in respect of the third and subsequent offender
What was held in section 51(3)(a) hold?
Section 51(3)(a) highlights that the court can avoid this sentence if there are substantial and compelling circumstances
