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Having sex under false pretences seen as rape
Lenore Oliver. The Sunday Independent. 26 January 2003. Republished courtesy of Independent Newspapers (Pty) Ltd
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The draft of a new bill on sexual offences states that having sex while pretending to be someone else could land lustful men and women in hot water - they could face rape charges. So could people who know that they are infected with a life-threatening sexually transmitted disease such as HIV/AIDS but who fail to disclose this to their sexual partner.
According to a report by the South African Law Commission handed to Minister of Justice Penuell Maduna, having sex with a consenting person under false pretences would constitute rape. The report formed part of the final recommendations by the Commission on the law relating to sexual offences.
Joan van Niekerk, who led the task team that drafted a new bill on sexual offences, said examples included a man getting into his sleeping sister-in-law's bed pretending to be her husband, or a traditional healer convincing a person he or she would be healed by having sex with the healer.
"These laws have been hidden in the legislation without the public's knowledge. Now we've set it out extremely clearly. It does not matter whether the victim is responsive during the act. If a victim can justifiably explain that she was misled, her consent cannot be used as a defence by the offender. In the case of the traditional healer, the victim is being convinced that the act is not a sexual act. Last year we had a ChildLine case of a 12-year-old girl being raped by a traditional healer. He convinced her family that the girl would be healed from an illness if she had sex with him."
Van Niekerk said the task team's aim in drafting the bill was to improve the justice system's response to such cases without compromising the rights of victims. "This legislation would mean nothing without the criminal justice system having a rapid response," she said.
The bill broadens the definition of rape to include anal and vaginal penetration and stipulates that men can be rape victims and women can be convicted of rape. The Commission recommended that the State no longer had to prove lack of consent, but rather that penetration occurred "under coercive circumstances". |
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