In order to fully understand the difference between molestation and rape, it is important to know what Molestation is not. The term “Molestation” refers to any type of sexual act that involves force or the use of physical force. “Rape” on the other hand, refers to a vaginal or anal sex act with the aid of either forced touching or lies. So, how does the “Rape” or “Molestation” difference play out in our daily lives? Let’s examine a few scenarios…
A friend recently told me of a situation where she was raped by her brother: She went to the local hospital because she was bleeding profusely from the attack. Upon further investigation, it was found that the rape had not taken place through force or violence… it was, in fact, the victim giving her brother oral sex. Despite this evidence, the man was still charged with rape despite the fact that he had given his victim oral sex. This, obviously, flies in the face of every medical belief that the victim must give her assailant free consent to have sex with her.
Another example would be situations: in which victims engage in non-consensual sexual activities with their in-laws. The law states that it is unlawful for a sexual partner to engage in non-consensual sex with the victim. However, one could argue that since these sexual activities were not initiated by the victim (she is a “sister” or someone of the opposite sex), the law does not apply. Therefore, in this case, it could be argued that the sexual activities did not occur without her consent, but that the perpetrator violated her legal rights in the process. If this sounds familiar, it’s time to get informed about molestation versus rape.
We often hear about new sexual offences being committed against young boys and girls: Such cases are sometimes referred to as “child abuse”. When this type of case arises, the alleged perpetrator is not always the offender: he can be the relative of the child, or even a boyfriend or another close family member. The difference between molestation and rape is that the sexual act must be performed with the permission of the victim. In other words, if a boy was molested by his stepfather, and the boy later felt uncomfortable and wanted to file a complaint against his stepfather for abuse, the boy has every right to claim that the activity was not done with his consent. As we just said, if a man is convicted of a new sexual offence involving penetration, regardless of whether the intercourse was performed with the victim’s consent or not, he will be charged with rape.
The new law in South Africa: however, does not differentiate between the types of sexual offences. Misdemeanours, such as soliciting a woman for sexual purposes (known as “aggravated sexual offences”) are now also included within the realm of sexual offences. Therefore, men who are charged with such offences under the new law could still face the same charges, irrespective of whether they have committed molestation or rape, if they have engaged in any other type of sexual act. The same is true for persons accused of offences involving penetrative sex.
Those people who say: that the new law is too difficult to apply to medical cases are clearly mistaken. The evidence, both visual and testimonial, shows that all forms of crimes, including forcible sexual intercourse, are covered by the new law.
Anyone who is concerned that a loved one may have been violated, or who suspects someone else being violated, should consult a lawyer.
