The following excerpt has been taken from “The Road to Recovery: You & Rape” – created and distributed by the Rape Crisis Cape Town Trust. You can download the complete booklet in English, Afrikaans or isiXhosa, from their website: rapecrisis.org.za
Rape is a violent crime in which a person uses sexual acts to intentionally harm and hurt another. We cannot talk about rape in polite terms or hide the truth about it. Rape is an abuse of power and an abuse of sex.
It is important for rape survivors to understand the exact meaning of the laws on rape, for two reasons. Firstly, a rape survivor needs enough information about the law to know whether or not her case has a chance of succeeding or not. Otherwise she might be very disappointed if the rapist is not found guilty and is allowed to go free without being punished. Secondly, she needs to know exactly what is expected of her in order to prove that the rapist is guilty in the eyes of the law. There are a lot of different things that she needs to do in order to help the law do its job, and these things are not easy, so the more she understands about them the better. This information allows rape survivors to make choices, and making choices can be very empowering for someone who is feeling like a victim.
The Criminal Law (Sexual Offences and Related Matters) Amendment Act (Act 32 of 2007) has been in effect in South Africa since 16 December 2007. This law states that it is a crime to intentionally commit a sexual act with another person without that person’s consent. The formal definition of rape that is presently used by our legal system is: Any person who unlawfully and intentionally commits an act of sexual penetration with a complainant, without the consent of the complainant, is guilty of the offence of rape. The complainant in this sentence is the rape survivor, meaning the person who complains to the criminal justice system about a crime. In court, the rapist’s lawyer will try to prove the accused is innocent of the crime. To do this, the lawyer has to either prove that the survivor consented to having sex with the rapist or that he never penetrated any part of her body sexually.
To look at this legal definition more carefully and put it into words that are easier to understand, we need ot explain what the law means by the word “consent” and the word “penetrate”.
According to the law, even if you indicated consent to the rapist in some way, for example by saying “yes” or by not resisting, there is no consent or permission granted to a sexual act:
- if you are forced into an act by violence or the threat of violence to yourself, to a loved one or to your property
- if you are drunk, drugged, asleep or unconscious. This means that if you’ve been drinking heavily or taking drugs, you are not able to give consent to sex
- If you are younger than 12 years old or mentally challenged
- if you are forced into consent by your boss or your teacher, for example if you are led to think that refusing sex will affect your position at work or at your learning institute
- if a professional or someone in authority has deceived you and made you believe that you need to submit to a sexual act for your physical, emotional or spiritual health.
According to the law, this could be any act which causes penetration to any extent by:
- the genital organs of one person passing into or through the genital organs, anus or mouth of another person
- any other part of the body of one person or any object passing into or through the genital organs or anus of another person.
There are some rapists who bring animals into the sexual acts they commit. The legal definition also includes sexual acts with or involving animals.
Other sexual crimes
The law also provides for a range of sexual crimes that do not fit the definition of rape or that include special circumstances, such as the involvement of a child. These sexual crimes include the following:
- Statutory rape: statutory rape means an act that is regarded as rape by law even if the persons concerned do not regard it as such. This occurs when an adult commits an act of penetration with a child between the ages of 12 and 16, whether or not the child consents. Many paedophiles believe that it is not a crime to have sex with a child. A child of 12 or younger is considered too young to be able to give consent at all, and the rapist or paedophile will automatically be prosecuted. If both people involved in the act of penetration are over the age of 12 but under the age of 16 and both consented, it is still a crime in the eyes of the law, but the authorities may decide not to go ahead and prosecute. A person can only legally consent to sex from the age of 16 onwards.
- Incest: with or without consent, it’s a crime to sexually penetrate blood relations (mothers, sisters, brothers, fathers, first cousins, aunts and uncles) or to penetrate adoptive relations.
- Compelled rape: this occurs when someone forces or compels a third person to commit an act of rape on another. Compelled sexual assault and compelled self-sexual assault are also crimes. Therefore, it is a crime to force someone to masturbate.
- Sexual assault: this is any sexual act, or the threat of such an act, that doesn’t fit the definition of rape and that occurs without the survivor’s consent. Statutory sexual assault is also a crime.
Rape Crisis Cape Town Trust. (2011). What is Rape? In The Road to Recovery: You and Rape (pp. 4 – 5). [Online available from: http://rapecrisis.org.za/wp-content/uploads/2011/11/you-and-rape-booklet-english.pdf [Accessed: 21 July 2015].
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