Study unit 4 Law and Policies supporting victims’ rights in South Africa:
Definition of rape and sexual offences:
• The SORMA defines two main categories of offending namely rape and
sexual offence
• Defining sexual offences:
• SORMA repealed the common law definition of rape and replaced it.
• Before 2007, rape was narrowly defined as the unlawful penetration of a penis
into a vagina.
• Which meant that only a man could rape a woman
• The new definition expanded the nature of the Act:
• The unlawful penetration by a penis into the victim’s vagina, anus or mouth or
unlawful penetration with an object into the anus or vagina.
• Previously these other violations would have been charged as indecent
assault.
• It follows that the person committing the offence can now be a man or a
woman and so to the victim.
• Consent was reattained as an element of the offence.
• Sexual penetration is only unlawful if the prosecutor is able to prove that the
complainant did not consent.
• The prosecution must also prove that the accused intended to rape the
complainant.
• The Act provides an open list of coercive circumstances which include
circumstances where:
o the complainant submits as a result of force or intimidation, or the
threat of harm, by the accused against the complainant, another
person or his or her property.
o There is an abuse of power or authority by the accused to the extent
that the complainant felt unable to indicate his or her unwillingness or
resistance of the sexual act.
o The sexual act is committed under false pretenses
o Where the complainant was enabling of consenting because her or she
was asleep, unconscious, or in an altered state of consciousness to the
extent that his or her judgement was impaired.
Previous Sexual History of the Complainant:
You have to be able to discuss this section comprehensively- consult p73 in
your textbook (uploaded)
• In order to protect complainants from the inappropriate focus on their
character and previous sexual experience that typically accompanies rape
trials SORMA tightened up the “Rape Shield” provisions.
• Contained in section 227 of the criminal procedure Act 56 of 1955.
• Such evidence may only be led with the permission of the court.
Intellectual Property of Tanlan Webber – Do Not Distribute Illegally © 1
Definition of rape and sexual offences:
• The SORMA defines two main categories of offending namely rape and
sexual offence
• Defining sexual offences:
• SORMA repealed the common law definition of rape and replaced it.
• Before 2007, rape was narrowly defined as the unlawful penetration of a penis
into a vagina.
• Which meant that only a man could rape a woman
• The new definition expanded the nature of the Act:
• The unlawful penetration by a penis into the victim’s vagina, anus or mouth or
unlawful penetration with an object into the anus or vagina.
• Previously these other violations would have been charged as indecent
assault.
• It follows that the person committing the offence can now be a man or a
woman and so to the victim.
• Consent was reattained as an element of the offence.
• Sexual penetration is only unlawful if the prosecutor is able to prove that the
complainant did not consent.
• The prosecution must also prove that the accused intended to rape the
complainant.
• The Act provides an open list of coercive circumstances which include
circumstances where:
o the complainant submits as a result of force or intimidation, or the
threat of harm, by the accused against the complainant, another
person or his or her property.
o There is an abuse of power or authority by the accused to the extent
that the complainant felt unable to indicate his or her unwillingness or
resistance of the sexual act.
o The sexual act is committed under false pretenses
o Where the complainant was enabling of consenting because her or she
was asleep, unconscious, or in an altered state of consciousness to the
extent that his or her judgement was impaired.
Previous Sexual History of the Complainant:
You have to be able to discuss this section comprehensively- consult p73 in
your textbook (uploaded)
• In order to protect complainants from the inappropriate focus on their
character and previous sexual experience that typically accompanies rape
trials SORMA tightened up the “Rape Shield” provisions.
• Contained in section 227 of the criminal procedure Act 56 of 1955.
• Such evidence may only be led with the permission of the court.
Intellectual Property of Tanlan Webber – Do Not Distribute Illegally © 1
