What the law states according to SA

A person will also be guilty of an offence if they have sexual intercourse with a person under the age of seventeen years.

A person will be guilty of an aggravated offence if they have sexual intercourse with any person under the age of fourteen years. 

If a person who is in a position of authority, for example, a teacher, foster parent or medical practitioner and they have sexual intercourse with a person under the age of 18 years of age then they will be guilty of an offence.

A person who has sexual intercourse with a person knowing that the other person has a intellectual disability unable to understand the nature or consequences of sexual intercourse will be guilty of an offence.

The maximum penalty for an offence with a person under the age of 14 is life imprisonment.

The maximum penalty for an offence other than that with a person under the age of 14 as noted above is 10 years imprisonment.

The prosecution must prove that:

  • That sexual intercourse took place; and
  • That the person was under a certain age; and
  • You had knowledge that you were having sexual intercourse with a person who was under the age specified under the legislation or was incapable of giving adequate consent due to an intellectual disability.

It may be a defence to the charge if:

  • There is an honest and reasonable mistake of fact

Under subsection (3) it will be a defence to a charge if the defendant was above the age of 16 years and the on the date in question the accused was under the age of 17 years or believed on reasonable grounds that the person was above the age of 17 years. (honest and reasonable mistake of fact)