S v RC 2016 (1) SACR 34 (KZP)
Sexual offences — Sexual grooming — What constitutes — Section strikes at two forms of adult misconduct — Difference between conduct with intention to ‘encourage or persuade’ child to perform sexual act and intention to ‘diminish or reduce any resistance or unwillingness’ on part of child to engage in sexual act — While it might be an answer to first form to deny that one would have proceeded, it would not be to second form — Manipulation of child’s sexual psyche by adult for own amusement harmful conduct which may have far-reaching consequences for child, even if adult had no intention of ultimately performing any overt sexual act — Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, s 18(2)(b).
Duplication of charges- that it was fair to conclude that the incident of inappropriate touching was a substantial element of the state’s case in proving the requisite intention for a conviction on the first count and it did seem that fairness called for the appellant to be allowed the benefit of accepting that the conviction of common assault was in fact a duplicate conviction, and the appeal on this count accordingly had to succeed. The conviction and sentence on the first count were confirmed and conviction and sentence on the second count were set aside.
The appellant appealed against his convictions and sentences on one count under the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Act) and one count of common assault. He was sentenced to three years’ imprisonment, wholly suspended, on the first count, and a fine of R1000 was imposed in respect of the second count. The complainant on both counts was a 13-year-old female pupil at the school where the appellant taught. The first count was of sexual grooming in contravention of s 18 of the Act in that he had described various forms of oral sex to the complainant with the intention of encouraging or persuading her to perform, or to diminish resistance on her part to the performance of, a sexual act with him.
On appeal against this conviction it was contended that the state had not established that the conduct had been performed with the intention of encouraging or persuading the complainant to perform a sexual act with the appellant, or to diminish or reduce any resistance or unwillingness in that regard on her part. The second count was a charge of sexual assault under s 5(1) of the Act but he was convicted only of common assault on this count. The appellant was 33 years of age at the time of the offence and taught maths and science at the school and was also a youth leader in the church with which the school was associated. The school was a small one and the teachers got to know the pupils rather well. The complainant sought out the appellant for assistance with her schoolwork, after which the conversation in issue took place. Either version of the conversation revealed that there was a disturbingly inappropriate relationship between the appellant and the complainant.
The complainant testified that the appellant asked her whether she understood the meaning of certain sexual terms which were part of the vernacular. These were raised one at a time and she answered in the negative, and he then proceeded to describe each term in clear, vivid terms, one by one. The appellant admitted the graphic account of these exchanges but contended that the subjects arose and were canvassed as a result of an enquiry in each instance by the complainant. The appellant stated that he wanted to explain the dangers of the internet but offered no acceptable explanation as to why it was his duty or role to discuss this at school with a 13-year-old female pupil. He accepted that he was not qualified and that others were responsible for dealing with such life issues. A few weeks after this, during the course of an extra lesson, the complainant said that the appellant placed his knee between her slightly parted legs under the table where they were sitting and he moved his knee from side to side between her thighs. She was wearing her school skirt and after a while he mouthed words at her telling her to open her legs a little wider. He mouthed words to the complainant again, asking her if it felt nice and she replied in the affirmative. He then removed his knee and moved himself forward so that his chest touched the edge of the table top, and placed his hands or a hand under the desk and under her skirt and commenced caressing the complainant’s inner mid-thigh. The appellant contended that this was a complete fabrication. On appeal,
Held, that, on the evidence, the court was satisfied that the magistrate had been correct in accepting the complainant’s version of events and rejecting that of the appellant as false beyond doubt.
Held, further, that s 18(2)(b) of the Act struck at two forms of adult misconduct and there was a difference between, on the one hand, conduct with the intention to ‘encourage or persuade’ a child to perform a sexual act and, on the other, conduct with the intention to ‘diminish or reduce any resistance or unwillingness’ on the part of the child to engage in a sexual act. While it might be an answer to the first to say that ‘I would not have done it’ and therefore lacked intention, not so to the second. Manipulation of a child’s sexual psyche by an adult for his or her own amusement or sexual diversion was harmful conduct which may have far-reaching consequences for the child, even if the adult had no intention of ultimately performing any overt sexual act with the child.
Held, further, that the appellant must have understood that, within the framework of the relationship that had developed between him and the complainant, a private and intimate explanation with full details of the type of sexual activities he explained to her would have the effect of reducing her inhibitions and of diminishing her natural resistance or unwillingness to indulge in a sexual act with the person with whom such intimacies were shared. The episode of touching which followed a little later removed any residual reasonable doubt as to whether the appellant’s intention fell within the section under which he was charged, and in the circumstances the F appeal against the conviction on the first count could not succeed.
Held, further, as to the second count, that it was fair to conclude that the incident of inappropriate touching was a substantial element of the state’s case in proving the requisite intention for a conviction on the first count and it did seem that fairness called for the appellant to be allowed the benefit of accepting that the conviction of common assault was in fact a duplicate conviction, and the appeal on this count accordingly had to succeed. The conviction and sentence on the first count were confirmed and conviction and sentence on the second count were set aside.