Clause
Definitions & Rape
SALC
Definitions: 2.In this Act, unless the
(i)
(ii)
(iii) context indicate otherwise-
“an act which causes penetration” refers to an act contemplated in sections 3, 4 and 5;
“child” means a person below the age of 18 years;
“complainant” refers to the
(iv)
(v) alleged victim of a sexual offence;
“genital organs” include the whole or part of male and female genital organs and further include surgically constructed or reconstructed genital organs;
"indecent act" means any act which causes -
(a) direct or indirect contact between the anus or
(vi)
(b) genital organs of one person or, in the case of a female, her breasts and any part of the body of another person or any object, including any part of the body of an animal; exposure or display of the genital organs of one person to another person; or exposure or (c) display of any pornographic material to any person against his or her will or to a child, but does not include an act which causes penetration;
"mentally impaired person" means a person affected by any mental impairment irrespective of its cause,
Aug. 2003 Draft
Definitions and Interpretations of Act: 1(1) In this Act, unless the context indicates otherwise- “an act which causes penetration” means an act contemplated in sections
2,3,and 4: “Child” means a person below the age of 18 years; “complainant means the alleged victim of a sexual offence; “genital organs” include the whole or part of male and female genital organs and further include surgically constructed or reconstructed genital organs; “indecent act” means any act which causes- (a) direct or indirect contact between the anus or genital organs of one person or, in the case of a female, her breasts and any part of the body of another person or any object, including any part of the body of an animal.; (b) exposure or display of the genital organs of one person to another person; or (c) exposure or display of any pornographic material to any person against his or her will or to a child, but does not include an act which causes penetration; “mentally impaired person” means a person affected by any mental impairment irrespective of its cause, whether temporary or permanent, and for the purposes of sections
2,3,4,6,7,and 8 means a person affected by such mental impairment to the extent that he or she, at the time of the alleged commission of the offence in question, was- (a) unable to appreciate the nature and reasonably foreseeable consequences of an indecent act or an act which causes penetration; (b)
Able to appreciate the nature and reasonably foreseeable consequences of such an act but unable to act in accordance with that appreciation; (c) unable to commission of any such act; or (d) unable to communicate his or her unwillingness to participate in any such act; “sexual offence” means any offence in terms of this Act, excluding Schedule 2, and includes any common law sexual offence; “this Act” includes the regulations made under section
25. (2) the provisions in Schedule of this Act should at all times be taken into consideration in the application of the provisions of this Act.
Rape: 2. (1) A person who unlawfully and intentionally commits an act which causes penetration to any extent whatsoever by the genital organs of that person into or beyond the anus or genital organs of another person or any act which causes penetration to any
Feb. 2004 Draft
Definitions and objects of Act 1. In this
Act, unless the context indicates otherwise- “AIDS” means the Acquired
Immune Deficiency Syndrome; “child” means a person below the age of 18 years; “complainant” means the alleges victim of a sexual offence; “commercial carrier” includes a company, or the owner, operator, or master of any means of transport, that engages in the transportation of goods or people for commercial gain; :genital organs” include the whole part of male and female genital organs and further include surgically constructed or reconstructed genital organs; “HIV” means the Human-
Immuno-deficiency Virus; “sexual violation” means any act which causes-
(a) direct or indirect contact between the anus or genital organs of one person or, in the case of a female, her breasts and any part of the body of another person or any object, including any part of the body of an animal; (b) direct contact between the mouth of one person and the anus or genital organs of another person or the anus or genital organs of an animal or any object resembling the anus or genital organs or female breasts; or (c) exposure or display of the genital organs of one person to another person; but does not include an act of sexual penetration;
“mentally disabled person” means a person affected by any mental impairment to the extent that he or she, at the time of the alleges commission of the offence in question was- (a) unable to appreciate the nature and reasonably foreseeable consequences of a sexual act; (b) able to appreciate the nature and reasonably foreseeable consequences of such an act but unable to act in accordance with that appreciation; (c) unable to resist the commission of any such act; or (d) unable to communicate his or her unwillingness to participate in any such act; “sexual act” means an act of sexual penetration or an act of sexual violations; “sexual offence” means any offence in terms of this Act; “sexual penetration” means any act which causes penetration to any extent whatsoever by-
(a) the genital organs of one person into or beyond the anus, mouth or genital organs of another person; (b) any object,

whether temporary or permanent, and for purposes of sections 3, 4,
5, 7, 8 and 9 means a person affected by such mental impairment to the extent that he or she, at the time of the alleged commission of the offence in question, was -
(a) unable to appreciate the nature and reasonably foreseeable consequences of an indecent act or an act which causes penetration;
(b) able to appreciate the nature and reasonably foreseeable consequences of such an act but unable to act in accordance with that appreciation;
(c) unable to resist the commission of any such act; or
(d) unable to
(vii) communicate his or her unwillingness to participate in any such act;
“sexual offence” means any offence in terms of this
Act, excluding the
Schedule, and includes any common law sexual offence;
“this Act” includes the (viii) regulations made under section 31.
(3) (1)
Any person who unlawfully and intentionally commits any act which causes penetration to any extent whatsoever by the genital organs of that person into or beyond the anus or genital organs of another person, or any act which causes penetration to any extent whatsoever by the genital organs of another person into or beyond the anus or genital organs of the person committing the act, is guilty of the offence of rape. (2) An act which causes penetration is prima facie unlawful if it is extent whatsoever by the genital organs of another person into to beyond the anus or genital organs of the person committing the act, is guilty of the offence of rape. (2) An act which causes penetration is prima facie unlawful if it is committed- (a) in any coercive circumstance; (b) under false pretences or by fraudulent means or (c) in respect of a person who is incapable in law of appreciating the nature of an act which causes penetration. (3) Coercive circumstances, as referred to in subsection
(2)(a), include any circumstances where -
(a) there is any use of force against the complainant or another person
(b)
(c) or against the property of the complainant or that of any other person; there is any threat of harm against the complainant or another person or against the property of the complainant or that of any other person; or
There is an abuse of power or authority to the extent that the person in respect of whom an act which causes penetration is committed is inhibited from indicating his or her resistance to such an act, or his or her unwillingness to participate in such an act.
(4) False pretences or fraudulent means, referred to in subsection (2) (b) are circumstances where a person- (a) in respect of whom an act which causes penetration is being committed, is led to believe that he or she is committing such an act with a particular person who Is in fact a different person; (b) in respect of whom an act which causes penetration is being committed, is led to believe that such an act is something other than that act; or (c) intentionally fails to disclose to the person in the respect of whom an act which causes penetration is being committed, that he or she is infected by a life-threatening sexually transmissible infection in circumstances in which there is a significant risk of transmission of such infection to that person.
(5) The circumstances in which a person is incapable in law of appreciating the nature of an act which causes penetration referred to in a subsection (2) (c) include circumstances where such a person is, at the time of the commission of such an act- (a) asleep; (b) including any part of the body of an animal, or other part of the body of one person into or beyond the anus or genital organs of another person; or (c) the anus or genital organs of an animal or any object resembling the anus or genital organs into or beyond the mouth of another person; “trafficking” means the supply, recruitment, procurement, capture, removal, transportation, transfer, harbouring, sale, disposal or receiving of a person, within or across the borders of the Republic of South Africa, for the sue in sexual acts, including sexual exploitation or pornography of a person;
“this Act” includes the regulations made under section 25.
Rape: 3 (1) Any person (“A”) who unlawfully and intentionally commits an act of sexual penetration with another person (“B”) without the consent of B, is guilty of the offence of rape. (2) For the purposes of subsection (1) “consent” means free agreement. (3) circumstances in which B does not freely agree to an act of sexual penetration, as contemplated in subsection (1), include, but are not limited to, the following- (a) where there is a use of force against B or another person (“C”) or against the property of B or that of C; (b) Where there is a threat of harm against B or C or against the property of B or that of C; (c) where there is an abuse of power or authority to the extent that B is inhibited from indicating his or her resistance to such an act, or his or her unwillingness to participate in such an act; (d) where B is led to believe that he or he is committing such an act with a particular person who is in fact a different person; (e) where B is led to believe that such an act is something other than that act or (f) where
B is, at the time of the commissions of such an act- (i) asleep; (ii) Unconscious
(iii) in an altered state of consciousness;
(iv) under the influence of any medicine, drug, alcohol, or other substance to the extent that the person’s consciousness or judgement is adversely affected; (v) a mentally disabled person; or (vi) below the age of 12 years. (4) A marital or other relationship, previous or existing, shall not be a defence to a charge under subsection (1). (5) It is a defence to a charge under subsection (1) insofar as it

committed- (a) in any coercive circumstances (b) under false pretences or by fraudulent means; or
(c) in respect of a person who is incapable in law of appreciating the nature of an act which causes penetration.
Coercive circumstances, as referred to in subsection (2)(a), include any circumstances where -
(a)there is any use of force against the complainant or another person or against the property of the complainant or that of any other person;
(b) there is any threat of harm against the complainant or another person or against the property of the
(c) complainant or that of any other person; or
There is an abuse of power or authority to the extent that the person in respect of whom an act which causes penetration is committed is inhibited from indicating his or her resistance to such an act, or his or her unwillingness to participate in such an act. unconscious; (c) in an altered state of consciousness (d) under the influence of any medicine, drug, alcohol, or other substance to the extent that the person’s consciousness or judgement is adversely affected; (e) a mentally impaired person; or
(f) below the age of 12 years. (6) A marital or other relationship, previous or existing, shall not be a defence to a charge of rape. (7)
The common law relating to- (a) irrebuttable presumption that a female person under the age of 12 years is incapable of consenting to sexual intercourse; and (b) the offence of rape except where the offence has been committed prior to the commencement of this Act, is repealed (8) Subject to the provisions of this Act, any reference to “rape” in any law must be construed as a reference to the offence of rape under this section, unless it is a reference to rape committed before the commencement of this Act which must be construed to be a reference to the common law offence of rape. (9) Nothing in this section may be construed as precluding any person charges with the offence of rape from raising any defence at common law o such a charge, nor does it adjust the standard of proof required for adducing evidence in rebuttal. relates to an act of sexual penetration with a mentally disabled person if A reasonably believed that B, who encouraged the act of sexual penetration, was not so disabled and was above the age of 16/18 years at the time of the alleged commission of the offence
Comments on Changes in Definitions:
1.
Sexual Violation replaces Indecent Act in the February 2004 draft. (3 oral submissions suggesting the clarification of “indecent act”).
2.
Sexual Violation no longer includes exposure or display of any pornographic material to nay person against his or her will or to a child.
3.
In the February 2004 Bill “Sexual Violation” without consent is referred to as a “Sexual Assault”.
4.
In the February 2004 Bill “Sexual Act” means an act of sexual penetration or an act of sexual violation
5.
“Sexual Penetration” in the Feb. 2004 Bill is used to describe all acts Rape. No longer differentiates between the different types of penetration (Oral genital sexual violation, sexual violation, etc).
6.
“Consent” has replaced “coercive circumstances and fraudulent means” in the definition of rape in the Feb.
2004 Draft. “Consent” is defined as free agreement.
7.
The SALC Bill and the August 2004 Bill include intentional non-disclosure of a sexually transmissible infection as a false pretense or fraudulent means, which is prosecutable as rape. In the February 2004 Bill this offence is removed from the rape clause and included as a separate offence.
8.
The Rape, sexual violation, oral genital sexual violation, and compelled or induced indecent acts clauses in the SALC Bill and the August 2003 Bill are the same.
Comments on Submissions regarding Definitions and Rape

1.
There were 10 oral submissions criticizing the narrow definition of rape in the August 2003 bill. The definition of rape was broadened to include penetration by objects, into mouth, and anus in the February 2004 bill.
2.
Non-disclosure of HIV was classified as Rape in the Aug 2004 Bill. The majority of submission regarding HIV
& Rape suggested that the Sexual Offences Bill should not be used as the vehicle for criminalizing the spread of HIV. Other submissions suggested the Bill should state “the intentional spread of HIV/AIDS” rather than using “non-disclosure”. The Feb 2004 Bill offered two options removing the spread of HIV/AIDS from the rape clause. Although the non-disclosure of HIV is no longer defined as rape, it is still a prosecutable offence in the Sexual Offences Bill.
3.
The February 2004 draft uses “includes but is not limited to” in the definition of Rape. (1 oral submission)
4.
There are no submissions suggesting “coercion” be changed to “consent” in the definition of rape.