Sexual Offences Against Children Flashcards
(25 cards)
What is the legal definition of a “child” under the Criminal Law Amendment Act ?
- Any person under the age of 18 years; or
- For the purposes of sections 15 and 16, a person 12 years or older but under the age of 16 years.
What constitutes “child pornography” ?
“Child pornography” includes any image, depiction, or description of a person who is (or is made to appear as) under 18 years, and is of a sexual or explicit nature. This includes:
- Engaging in acts of sexual penetration or violation.
- Displaying genitals or breasts in a sexual manner.
- Engaging in lewd, sadistic, or suggestive acts.
- Depictions that violate the child’s dignity or sexual integrity, even if not explicitly sexual.
Distinguish between “sexual penetration” and “sexual violation.”
- Sexual penetration includes penetration to any extent by genital organs, any object/body part, or animal genitalia into the genitalia, anus, or mouth.
- Sexual violation involves non-penetrative contact of a sexual nature such as kissing, touching genitals or breasts, or masturbation by or to another.
What are the elements of the offence under Section 15 ?
Sexual penetration with a child aged 12–16 years; unlawfully and intentionally.
What are the amendments brought by the Teddy Bear Clinic decision to Section 15 ?
- Previously, all children aged 12–16 engaging in consensual sexual penetration were automatically criminalised.
- The Constitutional Court declared it unconstitutional to prosecute children for consensual sex with each other.
What is the new position after the decision in the Teddy Bear Clinic case ?
- Children 12–15 engaging in consensual sex cannot be prosecuted.
- If one is 16 or 17, they cannot be prosecuted if the age gap is less than 2 years.
- If age gap is more than 2 years, prosecution can only be authorised by the DPP.
- Adults engaging with children aged 12–16 are still criminally liable.
What are the elements of the offence under Section 16 ?
Sexual violation with a child aged 12–16 years; unlawfully and ntentionally.
How is Section 16 different from Section 15 ?
- Section 15 deals with penetrative sexual acts.
- Section 16 applies to non-penetrative sexual acts (kissing, fondling, etc.).
- Both require DPP approval for prosecution if age difference is more 2 years and one party is 16 or 17.
What defences are available under Section 56 ?
- Mistake as to age; the accused must prove they honestly and reasonably believed the child was over 16.
- Close-in-age; both parties were children (12–15 or 16–17) with less than 2 years age difference.
What constitutes the offence under Section 17(1) ?
- When a person intentionally engages the services of a child for sexual acts (whether or not the act occurs), and offers compensation (monetary or otherwise), that person is guilty of sexual exploitation.
- Consent is irrelevant.
What examples count as “compensation” ?
Money, food/clothing, school fees, job opportunities for parents, any benefit or reward.
What does Section 17(2) prohibit ?
The offering or arranging of child sexual services to others for reward, including:
- Persuading or coercing a child to participate in sexual acts.
- Advertising or promoting child sexual services.
- Detaining the child for sexual exploitation.
What does Section 17(3) criminalise ?
- Allowing or knowingly permitting a child to be exploited sexually, as a caregiver, parent or guardian, or as the owner/manager of a place used for such purposes.
- It criminalises furthering the exploitation without directly engaging in it.
What conduct is criminalised under Section 18(1) ?
- Section 18(1) criminalises promoting sexual grooming of a child by facilitating or encouraging a third party to engage in sexual conduct with a child.
- The accused does not need to interact with the child directly but must intend for the third party to commit a sexual act.
What are some examples of conduct under Section 18(1) ?
- Making, distributing, or showing materials (e.g., images or stories) designed to arouse sexual interest in children to a third party.
- Arranging for C to meet B under false pretences with sexual intentions.
- Providing information to C that encourages or incites sexual conduct with a child.
Explain the offence of sexual grooming of a child under Section 18(2) of the Act.
Section 18(2) addresses direct sexual grooming of a child by criminalising conduct where a person (A) interacts with a child (B) with the intention of lowering the child’s inhibitions or preparing them to engage in sexual acts.
What are some examples of conduct under Section 18(2) ?
- Showing the child sexually explicit material.
- Talking to the child about sexual acts.
- Convincing the child to meet in person or travel with A for sexual purposes.
- Creating a relationship of trust to facilitate future sexual abuse.
How does Section 18(2) differ from Section 18(1) ?
- While Section 18(1) involves a third party and indirect encouragement, Section 18(2) focuses on direct manipulation of the child by the accused.
- In S v RC the court held that grooming includes psychological preparation to make the child more susceptible to abuse.
Discuss the criminal liability of a person who shows pornography to a child and claims that the child consented.
Under Section 19 of the Act, it is a criminal offence to expose or display pornography or child pornography to a child, regardless of whether the child consented. The section explicitly states that consent is not a defence. This includes:
- Any depiction or description of a sexual nature inappropriate for children.
- Exposure to visual representations of sexual acts, even if involving adults.
Explain the offences created by Section 20 and Section 21 of the Act, and comment on the requirement of the child’s consent.
- Section 20 criminalises using a child for child pornography (e.g., producing pornographic content involving a child) and benefiting financially or otherwise from such production.
- Section 21 criminalises compelling or causing a child to witness sexual acts or self-masturbation, regardless of whether for the gratification of the accused or a third party.
- Consent is not a defence for either of these offences.
What is the purpose of the National Register for Sex Offenders (NRSO) ?
The NRSO is aimed at protecting children and persons who are mentally disabled from sexual offenders by:
- Recording details of individuals convicted or dealt with for sexual offences.
- Informing employers, licensing authorities, and adoption/fostering services of whether a person is on the Register.
- Preventing those on the Register from occupying positions of authority or care over children or mentally disabled persons.
Who must be included in the NRSO in terms of Section 50 of the Act ?
- Persons convicted of sexual offences against children or mentally disabled persons.
- Persons found not criminally responsible due to mental illness.
- Those convicted or dealt with for similar offences in foreign jurisdictions.
- Those on equivalent foreign sex offender registers.
Can someone be listed in the Register for offences committed before the Register was established or outside of South Africa ?
Section 42(1) and Section 50 confirm inclusion applies regardless of when or where the offence was committed—whether before or after the Chapter’s commencement or inside/outside the Republic.
What are the employment prohibitions under Section 41?
- May not be employed to work with children or mentally disabled persons.
- May not hold positions of authority, supervision, or care over these groups.
- May not be licensed to operate facilities involving such persons.
- May not be appointed as foster parents, adoptive parents, or curators.
