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Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007)

Chapter 3 : Sexual Offences against Children

Part 1: Consensual sexual acts with certain children

16. Acts of consensual sexual violation with certain children (statutory sexual assault) 2

 

(1) A person ('A') who commits an act of sexual violation with a child ('B') who is 12 years of age or older but under the age of 16 years is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual violation with a child, unless A, at the time of the alleged commission of such an act, was—
(a) 12 years of age or older but under the age of 16 years; or
(b) either 16 or 17 years of age and the age difference between A and B was not more than two years.

 

(2)

(a) The institution of a prosecution for an offence referred to in subsection (1) must be authorised in writing by the relevant Director of Public Prosecutions if A was either 16 or 17 years of age at the time of the alleged commission of the offence and the age difference between A and B was more than two years.
(b) The Director of Public Prosecutions concerned may delegate his or her power to decide whether a prosecution in terms of this section should be instituted or not.

 

2 In Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another 2014 (2) SA 168 (CC), ss. 15 and 16 were found to be inconsistent with the Constitution and invalid to the extent that they impose criminal liability on children under the age of 16 years. The declaration of invalidity was suspended for a period of 18 months in order to allow Parliament to correct the defects. A moratorium was placed on all investigations into, arrests of, prosecutions of, and criminal and ancillary proceedings against, children under the age of 16 years in relation to these provisions, pending Parliament's correction of the defects. Furthermore, children under the age of 16 years who have been convicted of an offence referred to in s. 15 or 16, or issued a diversion order following a charge under those provisions, are not to appear in the National Register of Sex Offenders, and are to be issued certificates of expungement.

 

[Section 16 substituted by section 3 of Act No. 5 of 2015]