Solved: The difference between rape and statutory rape
In the common law rape may be defined as the unlawful and intentional sexual intercourse with a female without her consent. The requirement of force or violence in rape was disposed of by the courts
MBOMBELA – The act consists of sexual intercourse between a man and a woman and can be described as the penetration of a female’s sexual organ by that of a male. It is not necessary that the intercourse be completed, but the slightest penetration is sufficient. The state must prove perpetration beyond reasonable doubt.
Evidence of DNA testing of an accused’s blood, for comparison with tissue found in the female organ of the complainant, has the substantial benefit of harnessing advances in modern science may liberate men from unfounded charges of rape, and women from humiliating questions with regards to allegations of rape. Rape can only be committed by a male.
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The courts concur that the absence of consent to sexual intercourse is the basis of the crime, rape. Consent is therefore in most cases a factual question, but consent will not be a defense where such consent was obtained in an improper manner.
Subsequently all circumstances must be scrutinized to establish the presence or absence of consent. In terms of the Criminal Law Amendment Act 32 of 2007, the age of consent in South Africa is 16 years of age. Section 15-16 (“Statutory Rape”) prohibits certain cases where an act of sexual penetration or violation is committed with a child, despite the consent of a child to commission such an act.
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A person in such a case can be found guilty of an offence of having committed an act of consensual sexual penetration or violation with a child and not rape.
Specific sanctions are prescribed and the court can also use its discretion in applying Section 276 of the Criminal Procedure Act to hand down an appropriate sentence to the perpetrator.
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Various other offences were created in terms of this act, for example, the sexual exploitation of children, sexual grooming of children and exposure or display of child pornography.
In terms of Section 57 of the Act, children under the age of 12 are conclusively presumed by law to be incapable of consenting, such a sexual act with a child under that age constitutes rape and is not merely a violation of Section 15 of the Act.
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On July 26, a stepdad who had sexual relations with his stepdaughter was sentenced in the Nelspruit Regional Court. “The emphasis here is this was not a rape with violence; this was consensual sexual relations with a minor, which by legislation bounds to statutory rape,” said Magistrate Vanessa Joubert.
The man, who cannot be named to protect the identity of his minor victim, pleaded guilty to five counts of various sexual offences against his stepdaughter. He was sentenced to 7 years direct imprisonment.
