Amended Sexual Offences Act receives praise for broader definition of rape to include boys and men

Namhla Tshisela

Namhla Tshisela

The government has no intention of stopping teenagers under the age of 16 from displaying their affection and experimenting sexually, say experts on human and children's rights.

This follows media reports that the amended Sexual Offences Act, signed into law last week, criminalises "any light sexual behaviour" regardless of consent between minors.

The provision applies to children between the ages of 12 and 16.

Department of Justice and Constitutional Development spokesman Zolile Nqayi said: "Technically this legislation criminalises kissing and other sexual interaction [by adults] with children though there are specific provisions that relate to such acts if both persons are children."

Judith Cohen, head of the South African Human Rights Commission's parliamentary programme, said the act was a "major milestone" because it protected children from sexual violation.

It was progressive and long overdue, she said.

"The act does not criminalise consensual sexual contact between children under the age of 16," said Cohen.

She said the provision of the law would apply in cases where it was found that the acts committed "exposed the child to vulnerability of sexual offence or exploitation".

Nqayi said the National Director of Public Prosecutions would have to weigh factors such as the parties' "understanding of the concept of kissing and whether such an offence must be prosecuted".

Joan van Niekerk, national coordinator of Childline, saidreports claiming that the act outlawed consensual sexual contact of teenagers under 16 were "gross exaggerations".

But she criticised the clause as a "clumsy attempt" by the government to "curtail sexual activity in the youth".

Provisions in the new law have received mixed reviews from different organisations.

Wendy Isaacs, legal adviser at People Opposing Women Abuse (Powa), commended the law for broadening the defi- nition of rape.

She said t the new law offered a "gender neutral" definition that included both women and men and non-vaginal pene- tration.

Under the law, the definition of rape also includes penetration of other orifices such as the mouth and anus; and the use of other objects, body parts and animals.

Isaacs complimented the law for shifting the focus from "lack of consent" to "coercive circumstances" which considered power relations between the offender and victim.

But Powa said it was "not particularly enthusiastic" that the issuing of post-exposure prophylaxis to rape victims, a short-term antiretroviral treatment that reduces the chances of HIV- infection, was limited to those who reported the rape and-or laid charges.

"It has been proven that only one in nine sexual offences is reported to the police," Isaacs said.

The reinstatement of certain provisions received the thumbs-down from both Powa and Childline.

Van Niekerk said it was frustrating that, despite recommendations by the South African Law Reform Commission that an "intermediary system" be enforced for all child victims of sexual violations testifying in court, this could only be done through the discretion of a magistrate.

The system allows for child victims to testify in the presence of an appointed "support person" and closed circuit television to avoid the secondary trauma of appearing in court, said Van Niekerk.

She said that the law still continued to undermine the testimony of children in sexual offence cases despite "overwhelming" proof that their testimony was more reliable than that of adults.

"These recommendations could have afforded vulnerable children far more protection," Van Niekerk said.

She also lambasted the "duplication" of the offender register, a record of convicted sex offenders, which is also included in the Children's Act.

"It was foolhardy of the government to duplicate relatively valueless and expensive legislation," she said.

Van Niekerk said that the register provided little protection for children but instead gave victims a false sense of security because most offences were not reported and it did not contribute to the arrest of offenders.

Isaacs welcomed the scrapping of the "cautionary rule" which previously could discredit the victim's testimony as false.

"The law now makes it illegal to use the rule and this needs to be implemented immediately," she said.

Isaacs was, however, dissatisfied that the courts could still question the sexual history of the complainant though "certain criteria" would have to considered.

"It is still not clear whether the new law would make a difference in the lives of rape victims," Isaacs said.

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