S v MD AND ANOTHER 2017 (1) SACR 268 (ECB)
Sexual offences — Causing child to witness sexual act — Contravention of s 21(2)(a) of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 — What constitutes — Mere presence of child insufficient — Perpetrator must have consciously and deliberately created circumstances conducive to child witnessing sexual act and been aware that child watching.
Rape — Aiding and abetting rapist — What constitutes — Defence of necessity — Mother of child victim alleging that she was compelled to assist her husband in raping their child — Failure to call for assistance of neighbours and mother’s obvious ability to resist her husband constituting commission of offence.
The two accused, the biological father and mother respectively of the complainant, their 10-year-old daughter, were charged in the High Court as follows: count 1 (against accused 1) rape; count 2 (against accused 2) aiding and abetting accused 1 to rape the complainant; and count 3, causing the complainant to witness or be in their presence while engaging in a sexual act (contravention of s 21(2)(a) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007).
As to the second count, the court was required to determine whether the defence of necessity was available to the second accused in circumstances where she alleged that she had been forced to assist the first accused in committing the rape.
Held, that her inability to raise an alarm or to resist the first accused had to be rejected, as she had in the past sought assistance from her neighbours and also demonstrated the ability to resist him: she had — despite her physical disability — on a previous occasion severely assaulted him. In those circumstances, she could not have believed her life to be in imminent danger and was guilty of aiding and abetting the first accused to rape the complainant by putting a cloth into her mouth. (Paragraphs  –  at 281b – f.)
As to what constituted a contravention of s 21(2)(a),
Held, that the mere presence of a child, when the perpetrators were engaged in a sexual act, did not constitute a contravention of the relevant section. Otherwise, the multitude of people who lived in abject poverty, occupying single-roomed shacks together with their children, would always run the risk of contravening the section. The persons concerned must have consciously and deliberately created circumstances conducive to a child witnessing the sexual activity being engaged in. Furthermore, such persons must have been conscious of the fact that the child was watching them engage in said activity. The circumstances in the present matter, where the accused might have thought that the complainant was asleep, whereas she was not, did not render them guilty of the offence.