Legal rights and support for survivors of a sexual offence
In the 2022/2023 fiscal year, almost 53,900 South Africans reported being a victim of a sexual crime. The majority of these (c. 80%) were rapes. But rape is not the only form of sexual offence. What is a sexual offence, what are your legal rights if you experience a sexual offence, and what support is available to help you recover?
Legislation – Sexual Offences Amendment Act
The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, more commonly known as the Sexual Offences Amendment Act (SOAA), was enacted to protect victims, especially women, children and people living with mental disabilities, who have been raped or have experienced sexual crimes. The SOAA defines six sexual crimes, although the first two are the most common:
- Rape occurs when a person forces another to have sexual intercourse without their consent. It is also a crime to force another person to rape someone, called compelled rape.
- Sexual assault occurs when a person sexually violates another person without their consent. It is also a crime for a person to force another person to witness and or perform sexual acts to someone. This is compelled sexual assault. Sexual assault is often a grey area. The term “assault” implies a violent act. But any touching that is not consensual is a violation and therefore an assault. A man who “pats” a woman’s buttocks in a lift is committing a sexual assault. While rape is easier to define (though the question of consent arises frequently in prosecutions of rape), sexual assault is often not reported because the victim is not aware that the unwelcome physical attention she has received is in fact assault. And it is more difficult to prove. But non-consensual touch is sexual assault and no one should be afraid to report it.
- Sexual grooming occurs when a person educates or prepares a child to perform or witness any sexual act or become sexually ready. A child is generally unaware of being groomed for sexual acts because the groomer is nice to the child, and because a child does not have a grasp of what the grooming behaviour means. When the child does understand the motive, they are usually too scared to report the incident or series of incidents, often because they have been threatened with consequences if they tell anyone. It is also a crime to groom mentally disabled persons.
- Incest occurs when people who are related and are not allowed by law to marry (e.g., brother and sister or father and daughter) engage in a sexual act, even if they are both above the age of consent and agree to the act.
- Child pornography occurs when a child is used for the purpose of publishing pornographic material.
- Child prostitution occurs when a person uses a child or anyone with mental disabilities to engage in sexual acts for a reward.
Recent updates to the SOAA
In addition to the six sexual crimes described above, the SAOO has seen some updates recently to the definitions and parameters of sexual offences. Notable developments include:
- Amendment Act 13 of 2021: The Criminal Law (Sexual Offences and Related Matters) Amendment Act 13 of 2021 aimed to amend the 2007 Act by extending the ambit of the offence of incest and introducing a new offence of sexual intimidation.
- Expansion of the National Register for Sex Offenders: The scope of the National Register for Sex Offenders (NRSO) has been amended to include the particulars of all sex offenders, not only those against children and persons who are mentally disabled.
- Decriminalisation of sex work: In December 2022, the South African Cabinet approved the publication of a bill for public comment which, among other things, seeks to decriminalise sex work. This bill proposes to repeal the Sexual Offences Act of 1957 and section 11 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007345.
These amendments and proposals are in line with the broader goal of strengthening the legal framework to better protect individuals from sexual offences and related matters.
Other legislation governing sexual offences
The SOAA is the core legislation governing sexual offences, but there are other laws that also provide protection.
- Protection from Harassment Act: Sexual harassment, encompassing lewd language and unwanted advances, is addressed under this Act. It provides legal recourse for victims to seek protection orders against perpetrators.
- Domestic Violence Act: This Act protects individuals from physical, sexual, and emotional abuse within domestic relationships. Victims can obtain protection orders against abusive partners.
- Children’s Act: Although the Children’s Act exists to safeguard the rights of children in a very broad sense, it includes provisions related to child protection from sexual abuse. It establishes measures to ensure the wellbeing of children who are victims of sexual offences.
Who can be a victim of a sexual crime?
Anyone can be a victim of rape or sexual assault, male or female. The SOAA requires all criminal justice officials (police, prosecutors, magistrates and court clerks) to deal with all reported sexual crimes without discriminating against victims because of race, nationality, sex, age, sexual orientation or any other reason. However, it is a fact that the majority of victims of sexual offences are children, women and persons living with mental disabilities. The Department of Justice has upgraded certain regional courts into sexual offences courtrooms, compliant with the new Sexual Offences Courts Model, in an attempt to facilitate access to justice for survivors of sexual offences.
Legal rights of survivors of a sexual offence
All victims of crime have rights. Indeed, all South Africans have rights enshrined in the Bill of Rights in our Constitution. There are specific rights that apply to someone who has experienced a sexual offence.
- You have the right to dignity and privacy: Everyone has an inherent right to dignity and security of person, guaranteed by the Constitution. Survivors have the right to privacy regarding personal information and experiences. Your identity and details of the case should be treated with sensitivity. When you report an incident to the police, you will be taken to a separate room where you can speak in a safe environment. Many police stations have trained officers who will support you and give you access to showers and “rape packs” – soap and clean underwear, etc. (since your own garments will be held as evidence).
- You have the right to information: When you report to a public hospital, you will receive information on procedures that will ensure the alleged perpetrator is tested for their HIV status (if they have been detained) and you have the right to receive post-exposure prophylaxis (PEP – medication that will prevent you being infected with HIV if you have been exposed).
- You have the right to treatment and counselling: You are entitled to immediate medical care, including the collection of forensic evidence. Medical professionals are trained to handle these cases with empathy and confidentiality. You also have the right to psychological support and trauma counselling, which is essential for emotional recovery. In cases where a witness under the age of 18 would suffer undue mental stress if they were to testify, the courts will appoint a competent person to act as an intermediary.
Support services for survivors of a sexual offence
It’s a sad reflection on the prevalence of rape in our society that we have an abundance of support services to help you if you experience a sexual offence. The first thing to do is report the crime to the police. The SAPS emergency number is 10111. In addition to opening a docket on your case, SAPS will help you access medical attention, shelter, and counselling.
In the days and weeks following the attack, you will need other practical and emotional support. The following organisations are there to help.
- Thuthuzela Care Centres (TCCs): TCCs are one-stop facilities that have been introduced as a critical part of South Africa’s anti-rape strategy, aiming to provide comprehensive support for survivors of sexual offences, reduce secondary victimisation, and secure a successful prosecution. Services include medical care, counselling, and assistance with legal proceedings. The website also provides information on gender-based violence.
- People Opposing Women Abuse (POWA): POWA offers support services, counselling, temporary shelter, and legal advice to survivors of gender-based violence, including sexual offences.
- TEARS Foundation: TEARS Foundation provides access to crisis intervention, advocacy, counselling, and prevention education services for those impacted by domestic violence, sexual assault and child sexual abuse.
- Childline South Africa: Childline provides a free counselling service to abused children and their families. It handles issues such as physical and sexual abuse, substance abuse, behavioural problems and trafficking, and gives legal advice.
- Rape Crisis centres: Rape Crisis centres provide counselling, legal support, and community education. Rape Crisis aims to promote safety in communities, reduce the trauma experienced by rape survivors, encourage the reporting of rape and work actively to address flaws in legislation.
- Gender-Based Violence Command Centre: The helpline provides support, counselling, and referrals for survivors of sexual offences. 0800 428 428
Don’t be afraid to seek help
It is the collective responsibility of society to create an environment that supports survivors, dismantles stigma, and holds perpetrators accountable for their actions. It is also our responsibility to reduce the high rates of GBV and femicide in South Africa. Sadly, that does not seem to be happening, despite repeated government and civil society initiatives. However, some sexual crimes can be anticipated and thereby avoided. If you are in a relationship with a partner who is emotionally abusive or controlling, your chances of experiencing violence in the future are high. It is not easy to escape from such a relationship, but it can be done, and we can help.
SD Law & Associates are experts in family law and have dealt with many cases of abuse in intimate relationships. If you are living with an abuser and want to discuss your options, we can guide you through the process with compassion and dignity. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.