In the Children’s Act, the definition of sexual abuse, in relation to a child, suggests that a child must be sexually molested or assaulted for the conduct to constitute abuse. In the circumstances, it would appear as though there is no duty, in terms of the Children’s Act, to report an act of consensual sexual penetration with a child.
However, the offence of statutory rape is defined in chapter 3, section 15 of the Sexual Offences and Related Matters Act, Act 32 of 2007 (hereinafter referred to as “the Act”). It is stated that “…a person who commits an act of sexual penetration with a child is, despite the consent of the child to the commission of such an act, guilty of the offence of having committed an act of consensual sexual penetration with a child.”
In terms of the Act, a child is defined (for purposes of section 15 and 16 of the Act) as a person 12 years or older but under the age of 16 years.
In terms of section 54 of the Act, a person who has knowledge that a sexual offence has been committed against a child must report such knowledge immediately to a police official. In terms of the Act, a sexual offence is defined as any offence in terms of chapters 2, 3 and 4 and sections 55 and 71 (1), (2) and (6) of the Act. (Statutory rape is defined in chapter 3 of the act and is therefore included in the definition of sexual offence).
It is furthermore stated in section 34 of the Act that a person who fails to report knowledge of a sexual offence committed against a child, is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding 5 years or to both a fine and such imprisonment.
In the circumstances, an act of consensual sexual penetration between any person (including a child) and a child (12 years or older but under the age of 16), constitutes a sexual offence. Knowledge of such an offence must be reported immediately to a police official.
In terms of chapter 2 section 6(3) and (4) of the Children’s Act, if it is in the best interests of the child, the child’s family must be given an opportunity to express their views and the reporting of a sexual offence should be dealt with in a manner that is conducive to conciliation and problem solving rather than a confrontational approach.
Finally, a child, having regard to his or her age, maturity and stage of development, and a person who has parental responsibilities and rights in respect of that child, where appropriate, must be informed of any decision to report a sexual offence since the decision is likely to significantly affect the child.
