By Pfarelo Brandy Matsila and Hulisani Khorombi

Introduction

The Criminal Law (Sexual Offences and Related Matters) Amendment Act 2021 represents a crucial advancement in South Africa’s legal framework. It designed to provide enhanced protection to individuals who are vulnerable to sexual exploitation and violence. This Act plays a critical role in addressing sexual offences, particularly for children, individuals with mental disabilities, and women under the age of 25 who are engaged in higher education or vocational training. It has been instrumental in ensuring that institutions such as educational facilities and workplaces are held accountable for safeguarding these populations.

The Act’s focus on protecting vulnerable groups is both timely and essential in a society where sexual violence remains a pervasive issue. By codifying protections for these groups, the Act acknowledges the importance of safeguarding bodily autonomy and addressing imbalances in power that can lead to exploitation. However, as valuable as the Act is, it is equally important to scrutinize the inclusivity and adequacy of its definitions—particularly the notion of “vulnerable persons.” When examined through the lenses of Intersectionality and Sexual Citizenship Theory, significant gaps emerge that call for a broader and more inclusive understanding of vulnerability.

The Importance of the Criminal Law (Sexual Offences and Related Matters) Amendment Act

The Act’s inclusion of specific protections for children, individuals with mental disabilities, and women under the age of 25 within education and vocational training environments is commendable. These groups have historically faced significant risks of sexual exploitation and harassment. The Act’s recognition of their vulnerability represents a forward-thinking attempt to provide legal safeguards where they are most needed.

Particularly important is the Act’s emphasis on higher education institutions and vocational training settings, where young women are often at risk due to imbalanced power dynamics, exposure to predatory behaviour, and lack of sufficient institutional accountability. These provisions aim to create safer environments for young women to pursue their education and careers without the constant fear of sexual harassment or violence.

Moreover, the Act is a vital step towards addressing the rights of persons with mental disabilities, who often lack the legal and social protections necessary to defend themselves against sexual violence. This inclusion strengthens the legal protections for individuals who are most at risk of exploitation due to their inability to give informed consent.

Critique: Gaps in the Definition of Vulnerability

While the Act makes substantial strides in protecting certain groups, its current definition of “vulnerable persons” is limited in several key areas. These limitations, when viewed through Intersectionality and Sexual Citizenship Theory, reveal the ways in which the legal framework overlooks important social and contextual factors that contribute to vulnerability.

1. Women Under 25 Not in Education or Vocational Training

The Act identifies women under the age of 25 who are in higher education or vocational training as vulnerable, providing them with essential legal protections. However, women under 25 who do not fit into these categories—such as those who are unemployed, working in informal sectors, or in low-wage jobs—are excluded from this definition. This exclusion creates a narrow view of vulnerability that ignores the realities of many young women’s lives.

Sexual Citizenship Critique: Sexual citizenship, as described by Richardson (2000), involves the right to bodily autonomy and safety for all individuals, regardless of their institutional or employment status. Vulnerability should not be confined to educational or training environments. Women in precarious or informal work environments, or those who are unemployed, face significant risks of exploitation and harassment. The law’s failure to include these women leaves many vulnerable individuals unprotected.
Intersectionality Critique: Intersectionality emphasizes how multiple social identities—such as race, class, and gender—interact to create different experiences of oppression. A young woman of colour from an economically disadvantaged background, for example, may face heightened risks of sexual violence despite not being in education or vocational training. Ignoring these intersecting identities perpetuates a system of exclusion, leaving out those who are most in need of legal protection (Crenshaw, 1989).

2. Infantilization of Women and Exclusion of Men

The Act’s focus on women under 25 reinforces a paternalistic narrative that women need protection solely because of their age. This focus can be seen as infantilizing, reducing women’s vulnerability to a matter of age and failing to recognize that women of all ages face risks of sexual exploitation. Furthermore, the exclusion of men from the definition of vulnerability is problematic, as it reinforces gendered stereotypes that position men as invulnerable to sexual harm.

Sexual Citizenship Critique: Sexual citizenship is based on the principle that all individuals, regardless of gender, have the right to bodily autonomy and protection from sexual violence. By excluding men from the definition of vulnerable persons, the Act denies male victims their right to protection. Male survivors of sexual violence, particularly those from marginalized communities such as men of colour or those from lower socioeconomic backgrounds, are rendered invisible in the legal framework (Richardson, 2000).
Intersectionality Critique: Intersectionality underscores how men, too, can be vulnerable to sexual exploitation, particularly when other factors such as race, class, or disability come into play. For instance, a black man working in precarious labour conditions may experience intersecting forms of oppression that make him more vulnerable to exploitation. The law’s gendered approach to vulnerability fails to account for these intersections, perpetuating harmful stereotypes about masculinity and neglecting the experiences of male survivors (Crenshaw, 1989).

3. Neglect of Economic and Social Disadvantages

The Act does not account for the ways in which economic disadvantage exacerbates vulnerability. People in precarious working conditions, particularly in informal sectors, are at increased risk of sexual exploitation. Yet, the Act focuses on institutional settings such as schools and training centers, neglecting individuals who are outside these environments but face similar or greater risks.

Sexual Citizenship Critique: Economic precarity is a significant factor in creating vulnerability. People who are economically disadvantaged, especially women working in informal sectors or low-wage jobs, often lack the social and legal protections available to those in more formalized settings. Sexual citizenship theory demands that the law recognize and address the vulnerabilities created by economic insecurity (Richardson, 2000).
Intersectionality Critique: The intersection of race, gender, and class compounds vulnerability for many individuals. A woman of colour in an informal labor setting may face exploitation due to both her economic status and her race, with limited recourse to legal protection. Ignoring the role of economic disadvantage in the legal definition of vulnerability disproportionately harms marginalized groups, leaving them without the protections they need (Crenshaw, 1989).

4. Insufficient Attention to Race and Disability

The Act fails to adequately consider how race and disability interact with gender and age to create distinct forms of vulnerability. Although persons with mental disabilities are included in the definition of vulnerability, there is no explicit mention of individuals with physical or sensory disabilities, nor is there an acknowledgment of how race and ethnicity affect vulnerability to sexual exploitation.

Sexual Citizenship Critique: Vulnerability cannot be viewed in isolation from factors like race and disability. People with physical and sensory disabilities, as well as racial minorities, often experience increased vulnerability to sexual harm. Legal protections should reflect the diverse and intersectional nature of vulnerability to ensure that all individuals have the right to bodily autonomy and safety (Richardson, 2000).
Intersectionality Critique: Intersectionality reveals that individuals who are marginalized by both race and disability experience compounded vulnerabilities. For example, a black woman with a physical disability faces distinct risks of exploitation that differ from those faced by women without disabilities or from other racial backgrounds. Failing to address these intersecting identities means that the most vulnerable individuals remain unprotected by the law (Crenshaw, 1989).

Recommendations for a More Inclusive Definition of Vulnerability

To address these gaps, the Act’s definition of vulnerability should be revised to reflect a broader and more intersectional understanding of who is vulnerable to sexual harm. Key recommendations include:

Expand Protections for Women: The law should extend its definition of vulnerability to include women under 25 who are not in education or vocational training, as well as women of all ages in precarious working conditions.
Include Men and Non-Binary Individuals: Legal protections should be extended to men and non-binary individuals, acknowledging that vulnerability to sexual exploitation is not confined to women.
Recognize Economic and Social Disadvantage: Vulnerability should be defined in relation to economic and social factors, particularly for individuals working in informal sectors or facing economic instability.
Address Intersectional Vulnerabilities: The law must explicitly consider the ways in which race, disability, and class intersect to create heightened vulnerabilities for marginalized groups.

Conclusion

The Criminal Law (Sexual Offences and Related Matters) Amendment Act is a crucial step toward addressing sexual violence and exploitation in South Africa. However, the current definition of vulnerability is too narrow and fails to account for the complex and intersecting factors that shape individuals’ experiences of exploitation. By revisiting the definition of vulnerability through the lenses of Sexual Citizenship Theory and Intersectionality, we can ensure that legal protections are extended to all individuals who are at risk, regardless of their gender, age, or socioeconomic status.

References

Campus Violence statistics. Available at: https://rainn.org/statistics/campus-sexual-violence

Crenshaw, K. (1989). Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics. University of Chicago Legal Forum.

Criminal Law (Sexual Offences and Related Matters) Amendment Act 13 of 2021. Available from: https://www.justice.gov.za/legislation/acts/2021-013.pdf

Lifting the veil on violence against children in South Africa. Available at: https://www.statssa.gov.za/?p=17023

Richardson, D. (2000). Constructing Sexual Citizenship: Theorizing Sexual Rights. Critical Social Policy, 20(1), 105–135.