Study Unit 1: The Dynamic Nature of Criminal Law
Introduction:
Criminal law comes from long ago – even from Roman times, but it’s nature is dynamic & ever-changing.
Crimes adapt, change, become obsolete
Critical attitude to criminal law is necessary
Possible criteria to evaluate a crime:
o Effect crime has on the victim (does the crime cause harm)
o Public policy (how people/ society feel about conduct)
o Maintaining general order of society/ community
o General ‘moral’ principles/ ‘morality’
o Impact of the conduct on constitutional/ legislative rights
o Political nature & position of the state.
Possible reasons for existence of a crime (as opposed to legal conduct):
Joel Feinberg: key importance is autonomy so crimes are categorised into 4 categories
o 1. Crime which causes harm to others (legitimate reason)
Feinberg considers this type of criminalisation acceptable
o 2. Crime which causes serious offence to others
Feinberg considers this type of criminalisation acceptable
o 3. Paternalism (State telling citizens not to do something for their own good) (punishing the person
whose harmed by the commission of the crime)
Feinberg considers this kind of criminalisation unacceptable
Very against hard paternalism – is sometimes for the position where someone really can’t
make their own children (e.g. mentally ill people or minors who can’t decide things for
themselves).
o 4. Mere morality (not linked to harm – crime is merely deemed immoral)
e.g. sex work, same sex relationships etc.
Feinberg considers this kind of criminalisation unacceptable
Constitution: crimes which are unconstitutional or go against rights in the BOR.
o Which rights are infringed ito the const. & which rights are protected
o Is limitation of rights justified ito s36 Const.?
Boni Mores – difficult to put substance to this since it’s up to interpretation of a judge
Public policy – similar to boni mores – to what extent do we take this into account?
Other considerations (politics, religion, culture, community views).
Just because something is harmful doesn’t mean it must be criminalised – is there a less restrictive means
to prevent the conduct or punish?
o Criminal sanctions should be a last resort since it’s extreme & carries stigma
o Criminalisation should be saved for the most serious offences for things that matter.
Much conduct can be criminalised for multiple reasons (see Joel Feinberg’s categories) so overlap is possible,
one must find the most dominant reason.
Crimes against morality:
Examples: sex work, criminalising same sex relationships or sex, bigamy (marrying multiple spouses at once),
drug crimes, violation of a corpse, bestiality, blasphemy, incest.
Incest:
Common law crime which was codified in the Criminal Law (Sexual Offences & Related Matters) Amendment
Act 32 of 2007
o The common law crime was limited to only actual sexual intercourse in the traditional sense (male &
female having penetrative, penis in vagina sex).
o Now, the Sexual Offences Amendment Act widens the definition to incl. various acts under the
umbrella of penetration.
Inc. penetration of vagina, anus or mouth by a penis, other body part or any object.
S12 Sexual Offences Amendment Act: ‘persons who may not lawfully marry each other on account of
Consanguity, affinity or an adoptive relationship & who unlawfully & 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 The terms ‘affinity’, ‘Consanguity’ & ‘adoptive relationship’ are further dealt with in s12(2)
o For the finer details of the terms ‘affinity’, ‘consanguity’ & ‘adoptive relationship’ the courts tend to
refer to the old common law crime cases for interpretative assistance.
Sexual penetration is criminalised between parties related within forbidden degrees
o Now there’s a new amendment which will come into play which also incl. sexual violation of a child
by a reprehensible adult.
o Forbidden degrees – people who can’t marry one another (siblings, certain adopted relations,
relations by affinity/ marriage which are forbidden & anyone in the vertical line).
E.g. grandparents, siblings, children, uncles, aunts, parents, children in law, siblings in law,
step children/ parents, adoptive parents & adopted children (also adoptive siblings are not
forbidden).
Elements of the crime of incest:
o 1. Act of sexual penetration
Sexual violation is therefore not incl. in this crime.
o 2. Act between 2 people who can’t lawfully marry each other on account of Consanguity, affinity or
adoptive relationship
s12(2)(a): the prohibited degrees of consanguity (blood relationship) are the following: (i)
ascendants & descendants in the direct line; or (ii) collaterals, if either of them is related to
their common ancestor in the first degree of descent.
S12(2)(b): the prohibited degrees of affinity are relations by marriage in the ascending &
descending line
S12(2)(c): an adoptive relationship is the relationship of adoption as provided for in any
other law.
There’s no distinction re: consanguity between children who are ‘legitimate’ or ‘illegitimate’.
There’s no distinction between relatives of full or half blood.
Customary law: these rules differ ito the rules re: consanguity & affinity relationships.
Ascendants means ancestors & descendants refers to offspring.
Common law prohibits relations between ascendants & descendants in the direct
line ad infinitum & the leg. has the same interpretation.
o E.g. parents & children, grandparents & grandchildren etc.
Collaterals: everything except relations within the first degree are permitted
Therefore siblings, half siblings, step siblings, uncles/ aunts & their nieces/ nephews
(since they have a common ancestor in the first degree) may not get married or have
sex but this doesn’t apply to cousins
Relationships of affinity can only be established by a lawful marriage
Relations in the ascending & descending line ad infinitum are prohibited
At common law a person couldn’t marry their deceased or divorced spouse’s
descendants/ ascendants in the direct down line ad infinitum
Now s28 of the Marriage Act 1961 expressly allows a spouse to marry their deceased
or divorced spouse’s family (incl. sister) except someone who’s an ancestor or
descendant of the deceased spouse.
The courts have however determined that the above prohibition in the Marriage Act
only applies while the marriage still exists – the courts have held that if one divorces
their spouse & then has sex within a previously forbidden relation, it’s no longer
incest since the marriage creating the affinity relationship no longer exists.
Is this even a valid reason to criminalise – this shouldn’t be incest at all, it’s merely
adultery when one cheats on ones’ spouse with their sibling. Adultery is no longer
punishable by law.
Criminalising affinity relations as incest doesn’t have a scientific basis since there’s
no blood/ genetic mixing with family
o Courts tend to impose very light sentences & there is strong argument to
decriminalise these specific relations.
The Children’s Act prohibits marriage & sex between adoptive parents & their adoptive
children
, There’s no prohibition between an adoptive child & their adoptive sibling, provided
the siblings aren’t blood related.
o 3. Unlawfulness
Grounds of justification can exclude unlawfulness (e.g. someone forces you to have sex with
your sibling, you have the defence of necessity)
If both parties knowingly consented there’s no defence.
Ground of justification: the incest was committed under duress or was forced (rape)
o 4. Intention
It must be intentional & you must know that you’re within the forbidden degree of relations
E.g. if you genuinely don’t know that someone is your family member this is a defence.
One must at least foresee a possibility of the relation (dolus eventualis) & carry on anyway.
Proposed amendment (tabled June 2021):
o S12(1) of the Act (old provision): ‘persons who may not lawfully marry each other on account of
consanguinity, affinity or an adoptive relationship & who unlawfully & intentionally engage in an act
of sexual penetration with each other, are, despite their mutual consent to engage in such act, guilty
of the crime of incest.’
Consent is therefore not a ground of justification, hence the criminalisation of mere morality
o Proposed amendment B16-B2020: ‘persons who may not lawfully marry each other on account of
consanguinity, affinity or an adoptive relationship & who unlawfully & intentionally engage in an act
of (a) sexual penetration with each other, (b) or sexual violation with each other where once of
them is a child & the act of the 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 crime of incest.’
Sexual Offences Act incl. a definition of ‘sexual violation’ & it’s basically a sexual act falling
just short of penetration
This new proposed amendment will extend the scope of what incest incl.
How does the updated definition in the proposed amendment change the crime from the original common
law crime:
o Original common law crime only included a male penetrating a female, but this definition of
penetration is now wider as is the acts included in what constitutes incest (sexual violation)
o Punishable conduct:
Common law: sexual penetration (male & female)
Proposed amendment: sexual penetration of sexual violation of a child by a reprehensible
adult
This is now a gender-neutral crime (penetration isn’t only between male & female)
Nothing in the crime precludes the child from being charged in the crime either.
o Issue: this adds stigma onto the child – this can punish the victim & is undesirable.
Reason for criminalisation:
o Feinberg would classify this under the categories
o Harm to others:
Aggravating nature of the crime – to emphasise reprehensibility of the crime.
Harm (genetic) to children born of a sexual relationship between those related very closely
ito Consanguity (although this would only apply to a limited number of possible incestual
relationships)
Not a valid objection in most instances
Abuse of uneven power dynamic/ protection of individual family members
Rape revolves around abuse of power/ authority, so incest isn’t dealing with this – if
an uneven power dynamic is abused it’s rape in any case.
Lack of consent is in any case rape
This incl. de facto consent (i.e. consent not recognised by the law & therefore this
incl. statutory rape or statutory sexual violation)
The only thing that’s really criminalised is therefore between consenting adults.
o Offence to others:
Offence to closely connected family members
Lecturer finds this an insufficient reason for punishment
, Even ito offence of this relationship in public the offence would be public indecency
if they were having sex in public so this wouldn’t fall under incest.
o Paternalism:
Blood relatives having children with birth defects due to incest – protecting the parents from
the difficulty of having a child with special needs
Lecturer finds this isn’t a good reason
o Mere morality
This is where criminalisation falls under
‘protection of the family unit’ – is there a perfect way to have a family, is it the role of the
law to tell us what families must look like?
Argument that if incest is legal then people will start viewing close relatives like siblings as
potential sexual partners
The reason people don’t commit incest is generally not because incest is legally
prohibited, it’s because most people don’t have that desire on a biological level.
Boni mores opposes sexual relationships between close relatives.
Many other jurisdictions don’t criminalise to the extent we do (we criminalise
relationships by affinity, including in-laws, adoptees etc.)
Our incest prohibition has roots in RDL (not English law, which developed totally differently).
National Coalition for Gay & Lesbian Equality & Another v Minister for Justice & Others 1998 CC: ‘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, can’t qualify as a legit purpose for limiting rights to equality, human dignity,
privacy & freedom’
o Morality isn’t a good reason in itself for criminalisation, so why is the law now being extended
Labuschagne in 1985: talks of incest criminalisation at common law.
o Says there’s no justification for punishing relations between non-blood related people since there’s
no biological reason for it.
Many other jurisdictions don’t criminalise non-blood related persons
o Generally, when we speak of sexual relations between siblings, it often involves experimentation at a
young age, so is it even desirable or fair to punish those.
o To punish consensual sexual relations between adults causes more harm than good.
o Perhaps other help rather than criminalisation would be more productive.
o Agrees children must be protected as persons under authority from sexual abuse (& there wasn’t
this protection at common law – but now there is this protection ito leg.).
Possible solutions or alternatives to criminalising incest?
o Alternative definition of the crime
o Is the new proposed amendment sufficient – should it be narrower & more specific to prevent
specific harm
o Wouldn’t it be better to just use the law we already have to criminalise issues which can arise from
incest (such as rape or statutory rape).
o Punishment should perhaps only be used as a backup where no other options have helped (e.g.
therapy & alternatives have been exhausted)
o Perhaps only marriage between these people should remain prohibited while their actual physical
relationship may remain intact (non-criminal consequence which is still negative)
o Social taboo/ stigma is quite a punishment in itself to make people refrain
o Stübing v Germany 2012 European Court of Human & People’s Rights: S was separated from his
sister when they were young & they met as adults & started an incestual relationship & S went to
prison. S argued that this infringed his human rights. Court considered many considerations which
are in favour of criminalisation & one judge dissented saying that eugenics argument was invalid &
sexual self-determination was NB. S said he wasn’t undermining family life because him & his sister
were a new family. Court decided in favour of G & against S.
Stübing v Germany 2012:
Facts: this case was heard in the European Court of Human Rights. The male applicant had been in the foster
care system & had a biological sister he didn’t know about until he was 24 years old. When they met, they
fell in love & began a consensual sexual relationship & lived together for many years & eventually had 4 kids
together. A German court convicted the applicant of 16 counts of incest & gave him a suspended sentence
