According to the Sexual Offences Amendment Act of 2007, a child under the age of 12 is too young to give permission to any sexual act. A sexual act with a child under 12 is automatically a crime.
Boys and girls can consent to sex from the age of 16 but if they did not give consent, then a case of rape or sexual assault should be opened.
Statutory rape occurs when children between the ages of 12 and 16 experience sexual penetration into their genitals or anus
- If the child did not consent, then the perpetrator must be charged with rape or sexual assault.
- If the child willingly consented to the sexual act, and the other person involved is over 16, the older person can be charged with consensual sexual penetration of a child or the consensual sexual assault of a child.
- When two children under the age of 16 have consensual sex with each other, then both can be charged with the crime of ‘consensual sexual penetration’. This must first be authorised by the National Directorate of Public Prosecutions. The two children should not be arrested but summoned to appear in court after an investigation has taken place.
Sexual violation of a child between the age of 12 and 16
All sex-acts that are sexual offences against adults also apply to children but the age of the person who commits these kinds of acts against children in this age group is taken into account. Sexual violation is:
- Direct or indirect contact between the genitals, anus or female breasts of one person and another part of the body of another person, animal or object, for example: touching a girl’s breasts or rubbing genitals against her body without her consent
- Contact with the mouth of one person and
- the mouth of another person, for example: Kissing someone without their consent
- the genitals, anus or breasts of another person
- any other part of another person’s body in a way that causes sexual arousal
- any object that resembles the genitals, anus or breasts, for example: sex toys
- the genital organs or anus of an animal
- inserting an object that resembles human or animal genitals, for example a dildo, into a person’s mouth
- Masturbating someone with the mouth without their consent
The “Kissing Law”: sexual violation includes kissing and children between the ages of 12 and 16 are considered too young for consent. If they choose to kiss each other, they could – in theory – be charged with a crime. The Department of Justice has said that this law is aimed at adults who target children and doesn’t criminalise teenage sexual experimentation.
Sexual Exploitation of Children
The 2007 Sexual Offences Act defines a child as anyone under the age of 18 years. Sexual exploitation of a child includes the following:
- Paying or rewarding a child for sex
- Earning money from allowing others to have sex with children
- Offering the sexual services of a child to others, whether for money, or as compensation to another person or
- Encouraging or persuading children to have sex with others
- Forcing a child to have sex with others, either by violence or threats or by abuse of power over a child by a relative, employer or school teacher
- A parent or guardian who allows others to have sex with, or violate a child in their care: for example, a mother who allows a boyfriend to have sex with her child, because he supports her financially can be charged with sexual exploitation
- Someone who owns property and allows it to be used as a venue for sex with children can also be prosecuted for this crime
Sexual Grooming of children also relates to children under the age of 18. ‘Grooming’ means to prepare a child to take part in sexual acts. This happens when someone makes friends with a child and buys them gifts or shows them pornography, with the intention of having sex with that child.
It is also a crime to display the anus, breasts, or genital organs to children, or to force them to witness sexual acts without their consent