Summary DR Nel's Section C of Advanced Criminal Law (451)

NOTES MADE IN 2021



DR NEL



CRIMINAL LAW
451 SUMMARY
Table of Contents

DR NEL: THE DYNAMIC NATURE OF CRIMINAL LAW.........................................................................1

A1: JUSTIFICATION FOR CRIMINALISATION: HARM, OFFENCE, PATERNALISM, MORALITY?...................................1
FOCUS 1: THE VALUES AND INTERESTS UNDERLYING CRIMINALISATION..................................................................1
FOCUS 2: ANY PLACE IN SA LAW FOR CRIMES AGAINST MORALITY? INFLUENCE OF THE CRIMINAL LAW (SEXUAL
OFFENCES AND RELATED MATTERS) AMENDMENT ACT.....................................................................................3
FOCUS 3: QUO VADIS THE CRIME OF ADULT PROSTITUTION?..............................................................................9
FOCUS 4: CANNABIS AND THE LAW: EVALUATING THE IMPLICATIONS OF LEGALISING THE PRIVATE USE OF CANNABIS.. .13
A2: PROTECTING BODILY & SEXUAL INTEGRITY BY MEANS OF CRIMINAL LAW..................................................20
FOCUS 1: CHANGES IN OUR LAW RELATING TO SEXUAL OFFENCES AS A RESULT OF THE CRIMINAL LAW (SEXUAL
OFFENCES AND RELATED MATTERS) AMENDMENT ACT...................................................................................20
FOCUS 2: IS SEPARATE CRIMINALISATION OF FRAUDULENT NON-DISCLOSURE OF HIV+ STATUS DESIRABLE?...............27
FOCUS 3: SHADES OF GREY: CRIMINALISING SADOMASOCHISM/CORPORATE PUNISHMENT......................................28
A3: THE LIMITS OF LIFE: DO THE UNBORN HAVE A RIGHT TO LIFE, AND DO THE TERMINALLY ILL HAVE A RIGHT TO DIE?
.....................................................................................................................................................40
FOCUS 1: EXTENDING THE DEFINITION OF MURDER TO INCLUDE KILLING UNBORN CHILDREN?.................................40
FOCUS 2: MURDER AND CONSENT AS DEFENCE: RECENT DEVELOPMENTS FROM A HUMAN RIGHTS PERSPECTIVE.........41


DR NEL: THE DYNAMIC NATURE OF CRIMINAL LAW


A1: JUSTIFICATION FOR CRIMINALISATION: HARM, OFFENCE,
PATERNALISM, MORALITY?


FOCUS 1: THE VALUES AND INTERESTS UNDERLYING CRIMINALISATION




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,  Introduction
 Criminal Law is dynamic
 Crimes adapt, change, and become obsolete
 We need a critical attitude to Criminal Law
 “Quality” of a crime: how is it determined?
 Crime’s reason for existence:
 Constitution
o Bill of Rights (protection vs infringement of rights)
o Section 36 inquiry (is the limitation justified?)
o We must weigh up what is infringed and what is being protected
o Example: the marijuana debacle
 Boni mores
 Public policy
 Other considerations:
o Cultural and historical context
 Plan of action:
 The critical examination of certain crimes/aspects of certain crimes
 An analysis of recent developments in Criminal Law
 Aim:
 To determine whether these (definitions of) crimes are still “viable” in their
present form/at all or what the rationale was/is for them to be decriminalised
 Examples:
 Crimes against morality
o 1. Incest
o 2. Bestiality
o 3. Prostitution
o 4. Violating a corpse (sexual acts with a corpse)
o 5. Heresy (blasphemy)
o 6. Homosexuality
 Possible reasons for criminalisation: Fineberg
 1. Causing harm to others
 2. Causing offence to others
 3. Paternalism
o Where the State steps in to regulate behaviour to protect the
individual
o Idea of state acting as a father figure

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, o Punishing the person who is harmed by the commission of the crime.
o Example: drug use
 4. Mere morality
o Chiefly criminalised because they are considered morally wrong
o Not linked to the causation of harm
o Examples:
 Prostitution
 Homosexuality
 Incest
 Fineberg sees the first two as acceptable within reason, but that the second
two are not acceptable.
o For example, even if something is harmful, is criminalisation the best
sanction?




FOCUS 2: ANY PLACE IN SA LAW FOR CRIMES AGAINST MORALITY?
INFLUENCE OF THE CRIMINAL LAW (SEXUAL OFFENCES AND RELATED
MATTERS) AMENDMENT ACT




 Incest:
 Legal position in terms of Criminal Law (Sexual Offences And Related
Matters) Amendment Act 32 of 2007 (“Amendment Act”) as amended by B
16B-2020
o Codified the common law sexual offenses
 Criminalisation of sexual penetration or a violation by a “reprehensible”
adult
 Parties related within the following degrees are prohibited from marrying
each other:
o Consanguinity
 Related through blood
 Cousins not included – they are in second degree
o Affinity
 Related through marriage
 Your family: son in law, daughter in law, e.g.

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,  While still married
o Adoption
 Parent-child relationships only
 Not between two adopted children with the same adoptive
parents
 Considerations: unlawful actions can be considered lawful if certain grounds
are met.
o Consideration: intention required.
 Dolus eventualis applicable
 New amendment: sexual violations in general to be included (this extends
the criminalisation of incest)
o Old provision: section 12(1) of the Act
 Persons who may not lawfully marry each other on account of
consanguinity, affinity, or an adoptive relationship and who
unlawfully and intentionally engage in an act of sexual
penetration with each other, are, despite their mutual consent
to engage in such act, guilty of the offense of incest.
 Note: it does not have to be a non-consensual act. Consent is
not a ground of justification.
o Proposed amendment: B16-B2020
 3. Section 12 of the principal Act is hereby amended by the
substitution for subsection (1) of the following subsection:
 Section 12(1): persons who may not lawfully marry each other
on account of consanguinity, affinity, or an adoptive
relationship and who unlawfully and intentionally engage in an
act of
 (a) sexual penetration with each other; or
 (b) sexual violation with each other where one of them is
a child and the act of sexual violation was of such a
nature that it was reprehensible for the adult person to
have acted in that manner under the circumstance
concerned
 Are despite their mutual consent to engage in such act, guilty
of the offense of incest.
 Note:



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