Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007/2015-07-07/Chapter 7

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Defences

56. (1) Whenever an accused person is charged with an offence under section 3, 4, 5, 6 or 7 it is not a valid defence for that accused person to contend that a marital or other relationship exists or existed between him or her and the complainant.

(2) Whenever an accused person is charged with an offence under—

section 15 or 16, it is, subject to subsection (3), a valid defence to such a charge to contend that the child deceived the accused person into believing that he or she was 16 years or older at the time of the alleged commission of the offence and the accused person reasonably believed that the child was 16 years or older.

(3) The provisions of subsection (2)(a) do not apply if the accused person is related to the child within the prohibited incest degrees of blood, affinity or an adoptive relationship.

(4) A person (“A”) may not be convicted of an offence in terms of section 12 if, at the time when the act of sexual penetration was first committed—

A was below the age of 18 years; and

the other person (“B”) exercised power or authority over A or a relationship of trust existed between A and B.

(5) A person may not be convicted of an offence in terms of section 17(4) or (5) or section 23(4) or (5) or section 54, if that person is—

a child; and

not a person contemplated in section 17(1) and (2) or 23(1) and (2), as the case may be.

(6) It is not a valid defense to a charge under section 20(1), in respect of a visual representation that—

the accused person believed that a person shown in the representation that is alleged to constitute child pornography, was or was depicted as being 18 years or older unless the accused took all reasonable steps to ascertain the age of that person; and

took all reasonable steps to ensure that, where the person was 18 years or older, the representation did not depict that person as being under the age of 18 years.

(8) A person may not be convicted of an offence in terms of section 9 or 22 if that person commits such act in compliance with and in the interest of a legitimate cultural practice.

Regulations

67. (1) The Minister, after consultation with the cabinet members responsible for safety and security, correctional services, social development and health and the National Director of Public Prosecutions, may make regulations regarding—

any matter which is required or permitted by this Act to be prescribed by regulation;

the inter-sectoral implementation of this Act; and

any other matter which is necessary or expedient to be prescribed in order to achieve or promote the objects of this Act.

(2) The Minister may make regulations regarding the procedure to be followed in respect of the applications referred to in section 51(2A) of this Act.

Removal of particulars from Register and expungement of certain criminal records under the Sexual Offences Act, 1957, and this Act

69A. (1) (a) Where a court has convicted a person of any of the offences referred to in paragraph (b), the—

particulars of that person in respect of that offence must be removed automatically from the Register by the Registrar; and

criminal record, containing the conviction and sentence in question, of that person in respect of that offence must be expunged automatically by the Criminal Record Centre of the South African Police Service,

as provided for in subsection (2).

(b) The offences contemplated in paragraph (a) are the following:

A contravention of section 14(1)(a) or 14(3)(a) of the Sexual Offences Act, 1957 (Act No. 23 of 1957), if the convicted person was 16 years or younger at the time of the commission of the offence;

a contravention of section 14(1)(b), 14(1)(c), 14(3)(b) or 14(3)(c) of the Sexual Offences Act, 1957, if the convicted person was 19 years of younger at the time of the commission of the offence; and

a contravention of section 15 or 16 of this Act if the convicted person was 12 years or older, but under the age of 16 years at the time of the commission of the offence.

(2) (a) The—

Registrar must remove the particulars from the Register; and

head of the Criminal Record Centre of the South African Police Service or a senior person or persons at the rank of Director or above, employed at the Centre, who has or have been authorised, in writing, by the head of the Centre to do so, must expunge the criminal record of a person,

if that person qualiﬁes for the automatic removal of his or her particulars from the Register, and the automatic expungement of his or her criminal record, as provided for in subsection (1).

(b) The—

Registrar must, on the written request of a person who qualiﬁes to have his or her particulars removed automatically in terms of subsection (1), in writing, conﬁrm that the particulars in question have been removed; and

head of the Criminal Record Centre of the South African Police Service must, on the written request of a person who qualiﬁes to have his or her criminal record expunged automatically in terms of subsection (1), in writing, conﬁrm that the criminal record in question has been expunged.”.

