Rape as a materially-defined crime : could 'any act which causes sexual penetration' include omissions?

Abstract

This article examines the new statutory definition of rape as a materially-defined crime. It is hypothesised whether the phrase, 'any act which causes sexual penetration' in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, could be broad enough to include omissions. The normative foundations of rape will be explored and the legal interests protected by a definition of rape will be identified. The terms 'conduct' and 'condition', which are central to a materially-defined definition, will be examined in juxtaposition to the phrase, 'any act which causes sexual penetration' to establish whether the deliberate infection of another with a life-threatening illness during consensual intercourse, or a failure to report specific cases of rape in prison, could possibly be considered to be forms of conduct which cause the condition of sexual penetration proscribed by the definition of rape.