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Criminal Law 451 Section A Summary
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Neat and comprehensive summary of the coursework prescribed for Section A of the Criminal Law 451 module.
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CRIMINAL LAW 451SECTION A: THE DYNAMIC NATURE OF CRIMINAL LAW
Justification for criminalisation: harm, offence, paternalism, and morality
The values and interests underlying the criminalisation of certain conduct
• The following values and interests underlie criminalisation:
1. The crime’s reason for existence
a) Causing harm to others – acceptable ground
b) Causing serious offence to others (not harmful but offensive) – acceptable
ground
c) Paternalism (punish to discourage) – unacceptable ground
d) Mere morality – unacceptable ground
2. Constitution (Bill of Rights and the limitations clause)
3. Boni mores
4. Public policy
5. Other considerations (cultural and/or historical context)
Any place in SA for crimes against morality?
• Examples of crimes against morality:
o Incest
o Bestiality
o Prostitution
o Necrophilia (“sexual acts with a corpse”)
1. The crime of INCEST
o What is incest?
§ Section 12(1) of the SORMA: “Persons who may not lawfully marry each
other on account of consanguinity, affinity or adoptive relationship and
who unlawfully and intentionally engage in an act of sexual penetration
with each other, are, despite their mutual consent to engage in such act,
guilty of the offence of incest.”
o Elements of the offence
a) An act of sexual penetration
§ in general, the Act merely codifies the common law crime of incest.
However, the Act contains a much broader notion of sexual penetration.
§ Section 1: “Sexual act” means an act of sexual penetration
§ Section 1: ‘Sexual penetration” includes any act which causes penetration
by:
• The genitals of X into the genital organs, anus or mouth of Y.
• Any other part of the body of X or, any object, into the genital
organs or anus of Y.
1
, • The genital organs of an animal into the genital organ, anus or
mouth of Y.
b) Between two people who may noy lawfully marry each other on account of
consanguinity, affinity or adoptive relationship
§ Consanguinity
• Refers to all persons who have a common ancestor.
• Includes:
o Ascendants and descendants in the direct line ad infinitum
such as father-daughter; mother-son; grandfather-
granddaughter.
o Collaterals within a first degree of descent such as brother-
sister and uncle-niece.
§ Affinity
• Established through a legally recognised marriage.
• Affinity in the ascending and descending line ad infinitum such as
husband and mother/daughter-in law.
• Termination of the marriage by death or divorce does not
terminate the prohibition.
§ Adoptive relationship
• Only sexual intercourse between an adoptive parent and the
adopted child and not between the adopted child and the
adoptive parent’s blood relations (such as a biological daughter).
c) Unlawfulness
§ Grounds of justification will be applicable.
§ However, consent is not a defence as per this section. In the event that
consent is absent, is becomes rape.
d) Intention (at least dolus eventualis)
§ Direction of will = intend to have sexual intercourse AND
§ Consciousness of wrongfulness = within the prohibited degree of
consanguinity, affinity or adoptive relationship.
o Reason for the crime of incest?
§ Harm to others?
• Possibly based on biological/eugenic considerations such as a fear
of birth defects arising.
o But this argument is only valid vis-à-vis consanguinity and
not affinity and adoption because there is no fear of birth
defects solely by virtue of their sexual relations.
• Protection of individual family members from the abuse of power
by another family member?
o So, you criminalise incest to protect vulnerable family
members from the dominance of another family member.
o However, remember the role of the element of consent.
§ Incest is the criminalisation of sexual conduct
where there is consent.
§ Where there is no consent, it is rape and therefore
in any event criminalised.
2
, § Where the person is a child below 12 it is in any
event rape regardless of whether there was de
facto consent – section 3 of the Act.
§ Where the person is a child between 12-16, it is
statutory rape – sections 15 and 16 of the Act.
Offensive to others?
§
• It occurs in private, so this is not a relevant consideration here.
• If it happens in public then the conduct amounts to public
indecency and that will be the relevant crime because the public
will not know that they are within the prohibited degree of
consanguinity, affinity or adoptive relationship.
§ Paternalism?
• Also seems to be irrelevant when it comes to the crime of incest.
§ Mere morality?
• Apart from incest between persons related within the prohibited
degrees of consanguinity, this seems to be the only reason for
criminalisation. Is this valid?
• Basis of criminalisation is essentially that society thinks it is
inappropriate/taboo/etc.
• However, we know from the case of National Coalition for Gay
and Lesbian Equality and Another v Minister of Justice and Others
that “the enforcement of the private moral views of a section of
the community, which are based to a large extent on nothing
more than prejudice, cannot qualify as… a legitimate purpose.”
• Thus, the reason that same-sex relationships are not prohibited
anymore can be utilised to argue that incestuous relationships
should also no longer be prohibited.
o What should happen to the crime of incest?
§ Alternatives to criminalising incest?
a) Draft a narrower definition of incest so as to exclude affinity and
adoptive relationships from the prohibited degrees.
b) Utilise other existing criminal sanctions where relevant (rape,
statutory rape and public indecency).
c) Utilise criminal punishment as a last resort after failed attempts at
therapy.
d) Argue that the marriage prohibition, a non-criminal sanction, is
sufficient.
Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill
Amendment of section 12 of Act 32 of 2007
3. Section 12 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection:
‘‘(1) Persons who may not lawfully marry each other on account of consanguinity, affinity or an adoptive relationship and
who unlawfully and intentionally engage in an act of—
(a) sexual penetration with each other; or
(b) sexual violation with each other where one of them is a child, and the act of sexual violation was of such a
nature that it was reprehensible for the adult person to have acted in that manner under the circumstances
concerned,
are, despite their mutual consent to engage in such act, guilty of the offence of incest.’’. 3
, Stübing v Germany
Facts
Patrick Stübing was born in 1976 and three years later he was removed from his family home
and placed in a children’s home before being taken up by foster parents.
In 2000, he re-established contact with his family and met his 16-year-old sister, SK. After their
mother died later that year, their relationship intensified. Over the next few years, they had four
children, before Patrick underwent a vasectomy.
Section 173 of the German Criminal Code prohibits sexual intercourse between consanguine
siblings and makes it punishable by up to 2 years’ imprisonment or a fine.
Patrick was convicted of 16 counts of incest in 2002 and then again convicted in 2004 and 2005.
Although charged, SK did not receive a sentence as the court ruled that she suffered from a
personality disorder and mild learning difficulties.
Patrick challenged the constitutionality of this provision, but the Federal Constitutional Court
ruled that the ban was justified on the grounds of public health, self-determination and the
protection of the family and society.
Patrick then decided to lodge a case in the ECHR alleging that his criminal conviction violated
Article 8 of the Convention (right to respect for his private and family life).
Arguments
Applicant’s case
Patrick argued that the conviction affected his ability to raise his children and interfered with his
sexual life. Incestuous relationships did not spread genetic diseases in society and, moreover,
other people with a higher risk of transferring genetic defects, such as older and disabled
persons, were allowed to procreate.
In this case, the siblings had not grown up together. The normal sexual inhibitions had not
developed. The sex was consensual. No one was harmed by the incest. In fact, the conviction
destroyer the family unit rather than protect it. Unlike incest between a mother and a son or a
father and a daughter, there will be no overlap in family roles. The child will have a clear mother
and father.
The protection of morals was not a sufficient reason to justify the criminal conviction.
Government’s case
Argued that although the conviction interfered with Article 8, such interference was justified in a
democratic society to prevent disorder and protect morals.
The ban served to protect the family structure and hence society as a whole. The ban protects
the weaker party from abuse of power. The risk of genetic damage to offspring adds another
justification for imposing criminal liability. Finally, the ban reflects societal convictions on the 4
immorality of incest.
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