What is Statutory Rape?

Anyone who takes a keen interest in the judicial system will quickly realise how common it is for one, seemingly straightforward term, to have many different legal distinctions. If you think about it, this makes a lot of sense. There are millions of potential factors that may influence any given case and, as such, we need to be hyper-specific when dealing with them. Rape is no exception. But what is Statutory Rape? How is it different from Rape more broadly and what kind of Penalties does it result in?

Statutory rape is a generic term commonly used to describe consensual sex that occurs between an adult and a minor who is under the age of consent. There are many caveats that need to be considered here.

When dealing with such cases, courts need to consider everything from the communication used to the age of the individuals involved. It’s at this point that we start to use terms such as Statutory Rape to highlight these factors.

What is Statutory Rape?

What is the Difference Between Rape and Statutory Rape?

Most people are already aware of the definition of Rape. In essence, when sexual intercourse occurs without consent, it is referred to as rape.

On the other hand, Statutory Rape occurs when an individual engages in sexual intercourse with a minor who provides consent. This seemingly contradicts the definition of rape (after all, consent was given) however, in the eyes of the law, the minor was not yet at an age where they could properly give consent and thus, such sexual interactions are still illegal.

In short, even when consent is given by a minor, the law presumes coercion as the minor is legally incapable of giving consent. 

What is the Age of Consent and How is it Related?

Section 15 of The Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007 describes statutory rape as consensual sexual penetration with certain children. The act uses the term ‘certain children’ because there are many nuanced exceptions to this rule and simply having sex with a minor doesn’t always constitute Statutory Rape. But why?

Well, while a person under the age of 18 is still considered a child in South Africa, the age of consent is actually 16. This means that at 16, a person may give their consent and legally engage in sexual intercourse with another properly-aged individual (there are rare cases in which a parent may argue that their 16-year old child was not mature enough to give proper consent but these cases are few and far between).

Two notable exceptions to this rule exist –

  • Consensual sex may occur when both individuals are between the ages of 12 and 16 – Simply put, a 15-year old can have sex with a 13-year old and not be guilty of statutory rape, however, if a 17 year old were to have sex with a 13-year old, it would be considered statutory rape even if consent was given.
  • Children over the age of 12 can consent to sex with individuals when their age difference is less than 2 years – For example, a 17-year old may have consensual sex with a 15-year old.

Obviously, the age of the individuals involved is the key consideration in these cases and this fact brings up some common questions.

Is it Statutory Rape if Both Parties are Under 16?

As mentioned, when both parties are under 16, the legality of the action is determined by the relative difference in their ages. So long as both parties are above the age of 12, this would not be considered a case of statutory rape.

Is it Statutory Rape if Both Parties are Under 16?

It should be noted, however, that 12 is the cut off age in this matter. As a result, a 15-year old having consensual sex with a 9-year old could still be charged with statutory rape.

Why is it Called Statutory Rape?

From a practical point of view, the term statutory rape is used to distinguish the crime from rape more broadly as the two acts are technically very different. But why is it called statutory rape specifically? Where does the ‘statutory’ part come from? 

Well, the legal system normally makes a distinction between common law and statutory law. Put simply, common law usually stems from the written opinions of judges and tribunals and the relevant precedents that they set. By contrast, statutory law normally results from formal legislation passed by institutions such as parliament.

In many countries, rape has been a common-law crime for as long as anyone can remember, whereas consensual sex with a minor has normally been made an illegal act via laws passed by parliaments and congresses. The fact that the offence usually originates from statutory law is what gives statutory rape its title.

This also explains why some countries do not use the term ‘statutory rape’ as the legislative origin of this crime may be different in those nations.  

Is it Statutory Rape if You Didn’t Know that the Person was Underage?

Unfortunately, it’s not always easy to distinguish a person’s exact age and there are many individuals under the age of consent who might genuinely be mistaken for a 16 or 17-year old, indeed, many underage individuals may even lie about their age and claim to be older than they actually are. So what happens if an adult has consensual sex with a minor who they honestly believe to be above the age of consent?

Is it Statutory Rape if You Didn’t Know that the Person was Underage?

By looking through the pertinent case law, we can see that judges do consider this element of supposed ignorance as a relevant factor when ruling on cases of statutory rape –

Whether or not this defence is usually successful is another discussion altogether, but clearly, this uncertainty surrounding age can influence a case to a certain extent.

What are the Penalties for Statutory Rape?

The aforementioned Criminal Law Act prescribes a prison sentence of no more than 6 years with or without a fine of no more than R12 000 for those found guilty of statutory rape. Once again though, it should be noted that various factors may influence the rulings of a judge in these matters and guilty parties can receive lighter sentences.

By contrast, the penalties for rape are usually more severe.

In Conclusion – What is Statutory Rape?

Statutory rape is different to rape in a number of ways. While rape involves sexual intercourse without consent, statutory rape occurs when consent has been given but, due to the age of one the of parties, their consent is not legally recognised. Simply put, consent given by minors under the age of 16 usually does not make the act of sexual intercourse legal and the adult in such a scenario would be guilty of statutory rape.

The age of consent in South Africa is 16, however, consent is recognised when there is less than 2 years age difference between the two parties or when both parties are between the ages of 12-16. In certain cases, parents may argue that a child over the age of 16, but under the age of 18, is still not mentally or emotionally capable of providing consent but these cases are rarely successful.

What is Statutory Rape?

Some real-world examples involving these rules may play out as follows –

  • A 13-year old can consent to sex with a 15-year old
  • A 15-year old can consent to sex with a 17-year old
  • A 10-year old cannot consent to sex with a 15-year old

Sometimes it is claimed during statutory rape trials that the guilty party was unaware that the other party was underage when they had sex. This factor is sometimes taken into consideration by the courts. Penalties for statutory rape include a prison sentence of no more than 6 years with or without a fine of no more than R12 000. That said, certain elements within a case may result in less severe punishment.

The term statutory rape comes from the fact that the offence can usually trace its origin to bits of formal legislation which constitute a part of statutory law as opposed to common law.

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

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