Criminal Law (Sexual Offences and Related Matters) Ammendment Act, 2007:

This Act is a comprehensive piece of legislation that addresses various sexual offences, including those committed against children. It provides specific definitions for offences like rape, sexual assault, and the grooming of children.

Main objective of the Sexual Offences Act

• Ensure that children of specific age groups are not held criminally accountable for participating in consensual sexual activities with each other.
• Safeguard children aged 12 years or older but under 16 years from potential adult sexual predators.
• Emphasise that the age of consent for sexual activities remains above 12 years.

Children's Act 38/2005:

This Act aims to promote and protect the rights of children in South Africa, including provisions to safeguard children from sexual abuse and exploitation.

Defining Child Sexual Abuse

Child Sexual Abuse according to the Criminal Law Sexual Offences Act (32/2007):

Any person who engages a child (a person under the age of 18) with or without the consent of the child, in a sexual act. A Sexual Act is defined as an act of (a) sexual penetration or (b) sexual violation.

1. Sexual penetration can be seen as any sexual form of penetration to any extent whatsoever by the: (i) genital organ, (ii) any body part and/or (iii) object by one person, into, or beyond, the genital organs, anus, or mouth of another person and should be for sexual gratification.
2. Sexual violation includes any act which causes:
   1. Direct or indirect contact between the genital organs, anus or breasts of one person and any part of the body of another person,
   2. Including any object resembling or presenting the genital organs or anus of a person or animal.
   3. The mouth of one person and the genital organs, anus, breast or mouth of another person.

   Sexual violation further includes any act which causes:

   1. Any other part of the body of another person that could cause sexual arousal or stimulation (thus - do not have to touch it)
   2. Masturbation of one person by another person.
   3. Insertion of any object resembling or representing the genital organs of a person or animal, into or beyond the mouth of another person

Non-Contact Sexual Abuse

Article 19, 21, and 22 of the Sexual Offences Act also make reference to behaviour that is described by literature as non-contact sexual abuse. The behaviour described in the Act is limited to:

1. exposure of a child to pornography,
2. exposure of a child to a sexual offense,
3. exposure of a child to adult sexual activity,
4. exposure of a child to self-masturbation,
5. exposure of a child to a person's genital organs, anus, or breasts

The Issue of Consent

According to the Sexual Offences Act NO child under the age of 12 can consent to sex. Consequently, engaging in any form of sexual activity with a child under the age of 12, is classified as either rape or sexual assault under the law. As per the 2007 Amendment to the Criminal Law (Sexual Offences and Related Matters) Act, the age of consent is set at 16 years for both boys and girls.

Nevertheless, exceptions apply:

1. If both parties are between the ages of 12 and 16, they won’t be criminally charged; IF the age gap between them does not exceed 2 years.

Sources

• Republic of South Africa. 2005. Children's Act 38/2005
• Republic of South Africa. 2007. Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32/2007.