Rape as a materially-defined crime: Could ‘any act which causes sexual penetration’ include omissions?

• Jurisdiction: South Africa
• Citation: (2010) 23 SACJ 224
• Published date: 16 August 2019
• Pages: 224-238
• Date: 16 August 2019
• Author: Charnelle van der Bijl

Rape as a materially-dened crime:

Could ‘any act which causes sexual

penetration’ include omissions?

CHARNELLE VAN DER BIJL*

ABSTRACT

This article examines the new statutory def‌inition of rape as a materially-

def‌ined crime. It is hypothesised whether the phrase, ‘any act which causes

sexual penetration’ in the Criminal Law (Sexual Offences and Related

Matters) Amendment Act 32 of 2007, could be broad enough to include

omissions. The normative foundations of rape will be explored and the

legal interests protected by a def‌inition of rape will be identif‌ied. The terms

‘conduct’ and ‘condition’, which are central to a materially-def‌ined def‌inition,

will be examined in juxtaposition to the phrase, ‘any act which causes sexual

penetration’ to establish whether the deliberate infection of another with a

life-threatening illness during consensual intercourse, or a failure to report

specif‌ic cases of rape in prison, could possibly be considered to be forms of

conduct which cause the condition of sexual penetration proscribed by the

def‌inition of rape.

1. Introduction

Crimes can be divided into two groups, known as formally and materi-

ally-def‌ined crimes. In terms of formally-def‌ined crimes, certain types

of conduct are prohibited (‘conduct crimes’) irrespective of the result

attained through such conduct. 1 On the other hand, materially-def‌ined

crimes do not prohibit specif‌ic types of conduct, but any conduct which

causes a specif‌ic condition (‘result crimes’).2

Prior to the Criminal Law (Sexual Offences and Related Matters)

Amendment Act 32 of 2007 (hereinafter the ‘Act’), rape was a formally-

def‌ined crime in terms of the common law and consisted of a male

having sexual intercourse with a female without her consent.3 The

crime of r ape under South African law has since transmogrif‌ied itself

* BLC LLB LLD (University of Pretoria), Associate Professor in the Department of Crimi-

nal and Procedural law, University of South Africa.

1 CR Snyman Criminal law 5ed (2008) 79.

2 Ibid.

3 Snyman op cit (n1) 355-6. The def‌inition of rape was narrow and only incorpor ated

the penetration of a penis into a vagina.

224

(2010) 23 SACJ 224

© Juta and Company (Pty) Ltd