Paedophilia and the South African criminal justice system: A psychological perspective

• Jurisdiction: South Africa
• Citation: (2004) 17 SACJ 41
• Date: 24 May 2019
• Author: J le Roux
• Pages: 41-56
• Published date: 24 May 2019

Paedophilia and the South African

criminal justice system:

A psychological perspective

J LE ROUX* AND I MURERIWA**

'Alas! Regardless of their doom, the little victims play! No sense have they

of ills to come nor care beyond today.'

(Thomas Gray)

ABSTRACT

This article addresses the phenomenon of paedophilia as a motivation for child sexual

abuse and explores the possible effect of paedophilia on the criminal liability and

sentencing of the sex offender. It is indicated that various types of paedophiles can be

distinguished and that perpetrators engage in paedophiliac behaviour for a variety of

reasons. The impact the various types of paedophilia have on the criminal capacity

and culpability of the offender is discussed specifically and the article concludes with

a brief discussion of relevant reported case law.

Introduction

This article focuses on paedophilia as a motivating factor for child sexual

abuse.' Pivotal to the discussion is the possible effect of paedophilia on the

criminal liability of the perpetrator.

Child abuse is an age-old phenomenon and is presently a very real social

evil. Child abuse is a broad concept and includes physical abuse,

2

emotional

*



Blur LLB (UPE) LLD (Pret),

Associate Professor in the Department of Public Law, University of

Pretoria.

** LLB LLM (Pret),

Lecturer in the Department of Private Law, University of Pretoria.

1

H Kaplan and BJ Sadock

Synopsis of Psychiatry

(1994) 673 define paedophilia as a psychiatric

disorder serving as a motivating factor for a paedophilic accused of committing child sexual

abuse with a prepubescent child in order to achieve a state of erotic arousal and orgasm.

2



Researchers provide various definitions for physical abuse. CN Lee

Child Abuse, A Reader and

Sourcebook

(1986) 48 defines physical abuse as intentional, non-accidental acts or omissions,

on the part of a parent or other caretaker in interaction with a child in his care, aimed at

hurting, injuring or destroying that child. D Finkelhor, RJ Genes, GT Hotaling and MA Strauss

give a similar definition in

The Dark Side of Families: Current Family Violence Research

(1983) 88.

41

(2004) 17 SACJ 41

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42



SACJ •

(2004) 17

abuse,

3

child neglect

4

and child sexual abuse.

5

Child sexual abuse can

manifest in various forms, such as incest,

6

child rape,

7

(child pornography,

8

)

child prostitution

9

and paedophilia.

10

3

Emotional abuse exists where the child is repeatedly falsely accused, humiliated, rejected or

scolded. Child emotional abuse results in a low self-esteem and a lack of self-confidence on

the part of the victim. See J le Roux and J Engelbrecht in

Introduction to Child Law in South

Africa

(2000) (editor CJ Davel) 344.

4

Child neglect can manifest in physical neglect, social neglect, emotional neglect, intellectual

neglect, medical neglect or educational neglect. AR Carl

Is My Kind Veilig?

(1987) 18 defines

child neglect as the chronic disregard of the child's basic needs.

5

Child sexual abuse denotes the use of a child for the sexual gratification of another person. C

Crosson-Tower

Understanding Child Abuse and Neglect

(1999) 118 by definition limits the

perpetrators of child sexual abuse to

adult persons

while Le Roux and Engelbrecht op cit (n2)

344 hold a different opinion.

6





CR Snyman

Criminal Law

(2002) 355 defines incest as: '... the unlawful and intentional sexual

intercourse between male and female persons who are prohibited from marrying each other

because they are related within the prohibited degrees of consanguinity, affinity or adoptive

relationship'. The definition of JM Burchell and J Milton

Principles of Criminal Law

2ed

(1997) 532 is similar: '... unlawful and intentional sexual intercourse between two persons

who on account of consanguinity, affinity or adoptive relationship may not marry one

another'. See also D Finkelhor

Sexually Victimized Children

(1979) 84; GM Spies and JC Uys

'Bloedskande — 'n Gesinsprobleem' (1986) Maatskaplike Werk (3) 164 and JM Eekelaar and

NK Katz

Family Violence: An International and Interdiscplinary Study

(1978) 519.

The crime of rape is

currently

defined by JM Burchell and J Milton op cit (n6) 487 as

intentional unlawful sexual intercourse with a woman without her consent. For the sake of

brevity the South African Law Reform Commission's proposed new definition for the crime of

rape will not be discussed here.

8

Child pornography according to s 1 of the Films and Publications Act 65 of 1996, as amended

by Act 34 of 1999,

includes any image, real or simulated, however created, depicting a person who is or who is

shown as being under the age of 18 years, engaged in sexual conduct or a display of

genitals which amounts to sexual exploitation, or participating in, or assisting another

person to engage in sexual conduct which amounts to sexual exploitation or degradation of

children.

J le Roux

The Black Child in Crisis

(1994) 7 defines child pornography as the explicit

organization, description, photography or exhibition of sexual activity involving children. The

purpose is to stimulate erotic rather than aesthetic feelings, for commercial gain or personal

gratification. Soft-core (erotic material not totally explicit) and hard-core (totally explicit

material) can be distinguished. KV Lanning

Child Molesters: A Behavioural Analysis for Law

Enforcement Officers: Investigation Cases of Child Sexual Exploitation

(1987) 18 defines child

pornography as the sexually explicit reproduction of a child's image, voice, or handwriting —

including sexually explicit photographs, negatives, slides, magazines, movies, videotapes,

audiotapes and handwritten notes. See also RB Flowers

Children and Criminality: The Child

as Victim and Perpetrator

(1986) 82.

9

Le Roux op cit (n8) defines child prostitution as promiscuous sexual intercourse involving

children in exchange for money. The reward is monetary, and sexual or emotional

gratification is seldom involved.

10

The concept 'paedophilia' is explained in Part 2 infra.

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