Sexual offences against children Flashcards
(34 cards)
What is the definition of a “child” under Act 32 of 2007 ?
- A person under the age of 18 years; or
- With reference to sections 15 and 16, a person 12 years or older but under the age of 16 years.
What is “child pornography” as defined in the Act ?
Means any image, description, or presentation of a person under the age of 18 years of an explicit or sexual nature, whether intended to stimulate erotic or aesthetic feelings or not.
How is “pornography” defined in the Act ?
“Pornography” refers to any image or description of a person 18 years or older that is of an explicit or sexual nature and is intended to stimulate erotic feelings.
What is the definition of a “sexual act” under the Act ?
- Sexual penetration.
- Sexual violation.
How is “sexual penetration” defined in the Act ?
- The genital organs of one person into or beyond the genital organs, anus, or mouth of another.
- Any other body part or object into or beyond the genital organs or anus of another person.
- The genital organs of an animal into or beyond the mouth of another person.
What is considered “sexual violation” under the Act ?
Direct or indirect contact between:
- The genital organs, anus, or female breasts of one person and any part of another person’s body, an animal, or an object.
- A person’s mouth and the genital organs, anus, female breasts, or mouth of another person.
- A person’s mouth and the genital organs or anus of an animal.
How did Act 5 of 2015 change the definition of statutory rape ?
A person (‘A’) commits an offence if they engage in sexual penetration with a child (‘B’) who is 12 years or older but under 16 years, unless:
- A is also between 12 and 15 years at the time of the act.
- A is 16 or 17 years old and the age difference is not more than 2 years.
How does prosecution work for 16- or 17-year-olds ?
- If the age difference is more than 2 years, prosecution must be authorized in writing by the Director of Public Prosecutions (DPP).
- Unlike before, the DPP can delegate their decision-making power.
Teddybear case.
How did the law change regarding children between 12 and 15 years old ?
They can no longer be prosecuted for consensual sexual penetration.
What about 16- and 17-year-olds engaging in sexual penetration with younger children ?
- They are not prosecuted if the child is under 16, but the age difference is 2 years or less.
- They can be prosecuted if the child is under 16, and the age difference is more than 2 years.
How did the amendment improve the position for 16- and 17-year-olds ?
- Previously, all 16- and 17-year-olds had to be prosecuted if they engaged in consensual sexual activity with minors.
- Now, the DPP has discretion to prosecute only if the age gap is more than 2 years.
Can a person (X) claim they were deceived about the child’s (Y’s) age ?
- Yes, if Y deceived X into believing they were 16 years or older, X may have a defence.
- The State bears the burden of proving that X was not deceived.
What happens if both X and Y are children ?
- If both participants are children and the age difference is not more than 2 years, prosecution must be authorized in writing by the DPP.
- This defence only applies to charges under Section 16 (not Section 15).
How did Act 5 of 2015 change the definition of statutory sexual assault ?
Section 16.
A person (‘A’) commits an offence if they engage in sexual violation with a child (‘B’) who is 12 years or older but under 16 years, unless:
- A is also between 12 and 15 years at the time of the act.
- A is 16 or 17 years old and the age difference is not more than 2 years.
How does prosecution work for 16- or 17-year-olds?
Section 16.
- If the age difference is more than 2 years, prosecution must be authorized in writing by the Director of Public Prosecutions (DPP).
- Unlike before, the DPP can now delegate their decision-making power.
Teddybear case.
What is covered under Section 17(1) ?
- Engaging the services of a child for sexual purposes in exchange for any form of reward, favor, or compensation, regardless of whether the sexual act occurs or not.
- Consent is not a defence.
What counts as “compensation” under Section 17(1) ?
- Food, clothes for the child or their family.
- Payment of school fees.
- Providing employment for the child’s parent.
- Offering opportunities the child wouldn’t otherwise have.
What does Section 17(2) criminalize ?
Offering or facilitating the services of a child for sexual exploitation.
Can a person be guilty under Section 17(2) even if the sexual act never happens ?
Yes, the crime is committed as soon as the child is offered or facilitated for exploitation, regardless of whether the act occurs.
Who can be guilty under Section 17(3) ?
Any person who knowingly allows or permits a child to be sexually exploited, including:
- Primary caregivers, parents, or guardians who allow a child in their care to be exploited.
- Property owners who knowingly allow their property to be used for child sexual exploitation.
Does a person have to actively facilitate child sexual exploitation to be guilty ?
No, a person is guilty even if they simply allow it to happen or do nothing to stop it.
What is prohibited under Section
17(4) ?
A person who receives financial or other rewards from the sexual exploitation of a child is guilty, even if they were not directly involved in arranging the act.
What does Section 17(5) criminalize ?
A person who lives wholly or partially off rewards from the sexual exploitation of a child.
What is the difference between Sections 17(4) and 17(5) ?
- Section 17(4) entails receiving a one-time reward for child sexual exploitation.
- Section 17(5) entails living off the ongoing earnings of child exploitation.
