Reflection on the Criminal Law (Sexual Offences and Related Matters) Amendment Act 13 of 2021 for 16 Days
Recently, changes to the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, came into commencement. Some pertinent changes include the extension of the list of persons who are to be protected in terms of Chapter 6 of the Act and further regulation of the reporting duty of persons who are aware that sexual offences have been committed against persons who are vulnerable (South African Government, 2022).
The definition of ‘person who is vulnerable’, now includes a female under the age of 25 years who: (i) receives tuition at a higher education college, higher education institution or university; (ii) receives vocational training at any training institute, or as part of their employment; or (iii) lives in a building, structure or facility used primarily as a residence for any of the persons referred to in subparagraphs (i) and (ii) (Republic of South Africa, 2022).
Effectively, if females from this group report rape or sexual assault there is now a legal duty to immediately report to the police when there is knowledge, a reasonable belief, or suspicion of an offence, irrespective of the wishes of the female reporting. Failure to report such offences can lead to a fine or imprisonment not exceeding five years, or both. According to the National Prosecuting Authority (NPA), sexual violence is not being addressed adequately and the belief is that by making reporting compulsory a “culture of reporting” will be created, signalling a zero-tolerance approach to sexual violence and warning perpetrators that sexual violence is a crime which will be stamped out
As we approach the 25th anniversary of South Africa’s initiation of the United Nations 16 Days of Activism for No Violence against Women and Children Campaign, we reflect on the power and impact of the current amendment. The 16 Days campaign focuses on raising awareness for the impact that gender-based violence and femicide (GBVF) has on women and children (South African Government, 2023). The government has also launched the National Strategic Plan on Gender-Based Violence and Femicide (NSP – GBVF) (2020-2030). We reflect here on how these programmes contribute to the shift that is needed from women and girls as victims of GBVF to men and boys as perpetrators of sexual violence, reflecting a society in need of intervention, healing, and transformation.
Or put differently, does this change in legislation contribute to women and girls’ survivorship of sexual abuse and violence? For example, the process of compulsory reporting will inevitably affect the agency and autonomy of women aged 19-25 and their readiness to engage with the criminal justice system. From our perspective, the current act also does not account for cases where women may be unsure if a sexual assault has taken place or whether they did provide informed consent. The act makes provision for reporting but this does not necessarily equal support for women or institutional accountability towards safeguarding and change.
The theme for this year’s 16 Days Campaign is: “Accelerating actions to end gender-based violence & femicide: leaving no one behind.” Overall, we believe that the amendments are a positive indication of the government’s serious commitment to curbing GBVF and the protection of women, who do indeed remain a vulnerable group in South African society. However, it remains debatable whether we are actively ensuring that our society is safer for women, or contributing to heightening their status of vulnerability. As we mark 25 years of the 16 Days Campaign, we hope this amendment and its implementation will be the start of a re-renewed exchange about accelerating change actions to end GBVF, not only ensuring women are not left behind but locating them at the forefront of the conversation.
- Republic of South Africa. (2022). Criminal Law (Sexual Offences and Related Matters) Amendment Act 13 of 2021. Cape Town: Government Printers Retrieved from https://www.gov.za/sites/default/files/gcis_document/202203/45823gen787.pdf
- South African Government. (2022). Criminal Law (Sexual Offences and Related Matters) Amendment Act 13 of 2021 (English / Afrikaans). https://www.gov.za/documents/criminal-law-sexual-offences-and-related-matters-amendment-act-amendment-act-13-2021-28
- South African Government. (2023). 16 Days of Activism 2023. https://www.gov.za/16DaysOfActivism2023