23
shall be guilty of an offence.
(2) . . .
(3) Any female who –
(a)
has or attempts to have unlawful carnal intercourse with a boy under the age of 16 years; or
(b)
commits or attempts to commit with such a boy or with a girl under the age of 19 years an
immoral or indecent act; or
(c)
solicits or entices such a boy or girl to the commission of an immoral or indecent act;
shall be guilty of an offence.’
‘Unlawful carnal intercourse’ is defined in s 1 of the Act as meaning ‘carnal
intercourse otherwise than between husband and wife’.
The prescribed penalty for an offence referred to in ss 14(1) or 14(3) is imprisonment
for a period not exceeding 6 months, with or without a fine not exceeding R12 000 in
addition to such imprisonment (s 22(f) of the Act).
[55]
It may be noted that, in terms of s 68(2) of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act 32 of 2007, read with the Schedule to such Act,
the whole of s 14 of the Sexual Offences Act is repealed. Moreover, in terms of s
68(1)(a), ‘[t]he common law relating to - (a) the irrebuttable presumption that a
female person under the age of 12 years is incapable of consenting to sexual
intercourse’ is also repealed. With the exception of Chapters 5 and 6 thereof, Act 32
of 2007 (the 2007 Act) came into operation on 16 December 2007 (see s 72(1)).
[56]
Part 1 of Chapter 3 of the 2007 Act, headed ‘Consensual sexual acts with
certain children’ replaces the provisions of s 14 of the Sexual Offences Act of 1957.
Part 1 comprises ss 15 and 16, which sections read as follows:
‘Acts of consensual sexual penetration with certain children (statutory rape)
15(1) A person (“A”) who commits an act of sexual penetration with a child (“B”) 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 penetration with a child.
(2)(a) The institution of a prosecution for an offence referred to in subsection (1) must be authorised in
writing by the National Director of Public Prosecutions if both A and B were children at the time of the
alleged commission of the offence: Provided that, in the event that the National Director of Public
Prosecutions authorises the institution of a prosecution, both A and B must be charged with
contravening subsection (1).
(b) The National Director of Public Prosecutions may not delegate his or her power to decide whether a
prosecution in terms of this section should be instituted or not.
Acts of consensual sexual violation with certain children (statutory sexual assault)
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