Consent To Sexual Penetration By Fraudulent Means

1 South African Legal Position On Consent To Sexual Penetration By Fraudulent Means

1 1 Introduction

Fraudulence and fraudulent non-disclosure may result in the nullification of consent with regards to sexual penetration. The following written assignment is a discussion on the South African legal position with regards to this subject. The essay will discuss and define imperative concepts and principles such as what consent is; the principle of volenti non fit inuria; the definition of sexual penetration; error in negotio; error in persona and crimen injuria. All statements made will be certified by relevant legal sources and authority. The essay also includes an assessment of whether fraudulent non-disclosure of one’s HIV positive status

There are various forms of error in persona and not all will nullify consent. The consent will not be regarded as nullified if the accused assumes a fake name of a fictitious person or lies about minor facts such as age or health. Consent will also still be valid if the accused, without impersonating anyone, caused a woman to believe she was married to him. The relevant case law which is applicable to this situation is the case of S V W and Another. In this case, a Sunday school teacher and his wife worked together to mislead 3 girls (9, 13 and 13) into having sexual intercourse with the man in order to cure his infertility; the court found them guilty of rape of the 9 year old due to the fact that she could not legally consent and they were found guilty of statutory rape with regards to the other girls. The legal question in this case was; can the girls’ willingness be considered consent when the purpose of the sexual intercourse had been misrepresented, even though the nature of the act was fully communicated? The couple were found guilty due to statutory laws but not due to error in persona as they had fully informed the girls about the all the aspects. However Burchell concludes “that if the fraud of the accused in a rape case causes the complainant to mistake him for another existing person, error in persona will nullify

This is the case where a person giving consent is misled about the risks involved in the conduct consented to or is simply ignorant of these risks. An example of this is whether fraudulent non-disclosure of ones HIV positive status and whether this would nullify consent for the purposes of a rape conviction. It is stated in Burchell that, “One would expect that a person who is HIV positive would be obliged in terms of legal and moral convictions of the community to inform his intended sexual partner of his status or at least take precaution by means of using a condom during sexual intercourse”. The applicable case law for this situation is the case of S V Nyalungu. The High Court found in the case of Nyalungu that non-consensual sexual intercourse with a woman, where the person is aware of their HIV positive status but fails to inform the woman of this fact, is guilty of rape and attempted murder. However it is accepted in South African Legal System that fraudulent non-disclosure of ones HIV positive status does not nullify consent for the purposes of a rape conviction. A conviction in terms of attempted murder might be plausible. “It is due to the fact that the current medical predicament is that HIV/Aids is an incurable disease and if the accused does not disclose his status with the complainant, whether the complainant is infected or not, is arguably able to be held liable for either