South Africa has some of the most progressive legislation regarding sexual violence today. But this wasn’t always the case. While current legislation has gone some way to protect many people, the wounds inflicted by previous iterations of the law and the violence of the state expressed thereby still plague many South Africans. And as forward-thinking as current legislation may be, various aspects of the law still inflict wounds on South Africans, including those the law is meant to protect: victims and survivors of sexual violence.
The Criminal Law Sexual Offences Amendment Act of 2007 (or Sexual Offences Act [PDF]) came into effect 10 years ago as of December 14, and remains the primary legislation to define what sexual offences are and the sentences attached to these crimes. The Sexual Offences Act (SOA) was developed to replace its predecessor, which first came into affect 60 years ago in 1957. This legislation was the second of its kind however, and was preceded by a similar law from 1927 – the first ‘Immorality Act’.
The 1927 Immorality Act was the first to prohibit specifically unmarried sex between “Europeans” and “natives”, with a penalty was up to five years imprisonment for men and four years imprisonment for women. (Interracial marriage itself was only criminalised in 1949 by the Prohibition of Mixed Marriages Act.)The 1927 act also prohibited “procuring” women for interracial intercourse, and contained a proposal that described a punishment of up to six years of imprisonment specifically for women of colour who were thought to be “provoking” white men to have sex with them.
The Immorality Amendment Act of 1950 amended the 1927 act to forbid sexual intercourse between “Europeans” and anyone not “European”. The second Immorality Act, of 1957, replaced them with a clause prohibiting sexual intercourse or “immoral or indecent acts” between white people and anyone not white. It increased the penalty to up to seven years imprisonment for both partners.
Reminiscent of their time, the Immorality Acts (and their subsequent amendment acts) were not only deeply racist and misogynistic, but also profoundly homophobic. Sex between men was long criminalised under the common law crime of ‘sodomy’, but under the 1969 Immorality Amendment Act the infamous “three men at a party” clause was introduced, which prohibited any sexual activity between men at a party – where “party” was defined as any occasion where more than two people were present.
All of these aspects served to deny victims and survivors of sexual violence access to justice, whilst also persecuting many thousands of South Africans who engaged in consensual behaviour wrongfully criminalised by the law.
While the Immorality Act underwent several amendments over the course of 50 years, the most substantial was the Sexual Offences Act of 2007. The latter saw most provisions of the Immorality Act repealed or replaced, leaving only those sections relating to prostitution and brothel-keeping.
Some of the most significant changes realised by the Sexual Offences Act include the broadening of definitions of sexual offences, including rape and sexual assault, as well as the decriminalisation of homosexuality.
While the Sexual Offences Act radically changed how sexual offences are defined and prosecuted in South Africa, the constitutionality of various sections of the law have been challenged over the course of the last decade.
The most recent challenge to a section of the SOA is currently being presided over at the Constitutional Court. Section 18, which barred the right to prosecute all sexual offences, other than rape, after a period of 20 years after the offence has been perpetrated, was struck down in the South Gauteng High Court on June 19 by Acting Judge Claire Hartford. The case was brought by eight alleged victims who wanted to prosecute billionaire stockbroker Sidney Frankel for sexual offences committed over 20 years ago, between 1976 and 1991.
The matter was first heard on the Constitutional Court on November 14, where the Women’s Legal Centre (WLC) and others argue that Section 18 the applicants’ right to human dignity by arbitrarily distinguishing between non-penetrative and penetrative sexual offences. The protection afforded to survivors of non-penetrative sexual offences, as opposed to survivors of rape and compelled rape, infringes the former’s right to equality, and that on the basis of these infringements the section is unconstitutional and therefore invalid.
Sections 15 and 16 were struck in October 2013, and related to the criminalisation of ‘sexual contact’ between minor teenagers. The impugned sections of the SOA sought to prohibit 12 to 15-year-old children from engaging in any voluntary and consensual sexual conduct with one another. The prohibited conduct includes anything from holding hands through to penetrative sex. In fact, all forms of contact between children of 12 to 15 years old that an adult may merely consider ‘sexual’ are prohibited.
Critically though, under sections 15 and 16 of the SOA teenage rape survivors, especially girls, ran the risk of being criminally charged for being raped. Then attorney for the WLC Sanya Bornman pointed out that such legislation had a disastrous impact on the provision of services for young teen rape survivors.
And since girls bear the physical marker for sex both in terms of pregnancy and a higher chance of contracting an STD, girl teens were also more likely to be prosecuted under this legislation, according to Bornman. “Clearly section 15 and 16 affect girls disproportionately to boys, and for that reason alone the sections violate all girls’ constitutional right to equality before the law,” she added at the time.
In a unanimous judgment authored by Justice Sisi Khampepe, the court found that the sections served to deny teens of their right to privacy and dignity, among others.
South Africa has some of the most progressive legislation regarding sexual violence today. But this wasn’t always the case. While current legislation has gone some way to protect many people, the wounds inflicted by previous iterations of the law and the violence of the state expressed thereby still plague many South Africans. And as forward-thinking as current legislation may be, various aspects of the law still inflict wounds on South Africans, including those the law is meant to protect: victims and survivors of sexual violence.
While the Sexual Offences Act may be some of the most progressive legislation globally with regards to the definition and prosecution of sexual offences, it’s common cause that this does not necessarily translate into effective implementation of the law. A 2008 research report conducted by the Centre for the Study of Violence and Reconciliation (CSVR) found that the conviction rate for rapes reported in Gauteng in 2003 was only 4.1%. A conviction for any sexual offence resulted in just over 6.2% cases, according to that study. A similar study released this year, also conducted by the CVSR, found that the conviction rate for any sexual offence reported in Gauteng in 2012 was only 6.5%.
As is the nature of legislation, the Sexual Offences Act will continue to be amended and fine-tuned well into the foreseeable future. But all the work on legislation will amount to little if the state – including the police, NPA, and judicial system – continue to fail to implement and defend the spirit of the law in the pursuit of justice and protection of victims and survivors of sexual violence.
A version of this story was published in the City Press on November 26, 2017.
Michelle Solomon 