Immorality Act
Encyclopedia
Immorality Act was the title of two acts
of the Parliament of South Africa
which prohibited, amongst other things, sexual relations between white people and people of other races. The first Immorality Act, of 1927, prohibited sex between whites and blacks, until amended in 1950 to prohibit sex between whites and all non-whites. The second Immorality Act, of 1957, continued this prohibition and also dealt with many other sex offences. The ban on interracial sex was lifted in 1985, but certain sections of the 1957 act dealing with prostitution remain in force as the "Sexual Offences Act, 1957".
" women for interracial intercourse.
The Immorality Amendment Act, 1950 (Act No. 21 of 1950) amended the 1927 act to forbid unmarried sexual intercourse between "Europeans" and anyone not "European". The prohibition was therefore extended to intercourse between white people and coloured
or Asian people. Interracial marriage
s had been banned in 1949 by the Prohibition of Mixed Marriages Act
.
-keeping, procuring, and living off the proceeds of prostitution; and it prohibited sexual intercourse with people under the age of sixteen.
The Immorality Amendment Act, 1969 (Act No. 57 of 1969) amended the 1957 act to introduce or expand a number of offences. It prohibited the manufacturing or sale of any "article intended to be used to perform an unnatural sexual act" (i.e. sex toys). Despite the fact that sex between men
was already prohibited under the common law crime of sodomy
, the 1969 act made it a more serious crime for a man to have sex with another male under the age of nineteen. It also introduced section 20A
, the infamous "three men at a party" clause, which prohibited any sexual activity between men at a party, where "party" was defined as any occasion where more than two people were present.
The Immorality and Prohibition of Mixed Marriages Amendment Act, 1985 (Act No. 72 of 1985) repealed the provisions of the 1957 act that prohibited interracial sex, and repealed the Prohibition of Mixed Marriages Act. This came as part of the repeal of many petty apartheid
laws under the government of P. W. Botha.
The Immorality Amendment Act, 1988 (Act No. 2 of 1988) renamed the Immorality Act, 1957 to the Sexual Offences Act, 1957. It criminalised, for the first time, a woman having sex with a person under the age of consent, for that purpose setting the age of consent at 16 for a boy and 19 for a girl. It also made it a crime to be a prostitute, where previously only certain acts related to prostitution (brothel-keeping, procuring, etc.) had been illegal.
repealed most of the remaining provisions of the 1957 act. The only provisions still in force are those related to prostitution.
The men-at-a-party offence (section 20A) was invalidated in 1998 by the Constitutional Court
in the case of National Coalition for Gay and Lesbian Equality v Minister of Justice. The increased age of consent of nineteen for same-sex sexual activity (as opposed to sixteen for opposite-sex sexual activity) was invalidated in 2008 in the case of Geldenhuys v National Director of Public Prosecutions
, although by that time the discriminatory provisions had been repealed by the 2007 amendment act.
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the Parliament of South Africa
Parliament of South Africa
The Parliament of South Africa is South Africa's legislature and under the country's current Constitution is composed of the National Assembly and the National Council of Provinces....
which prohibited, amongst other things, sexual relations between white people and people of other races. The first Immorality Act, of 1927, prohibited sex between whites and blacks, until amended in 1950 to prohibit sex between whites and all non-whites. The second Immorality Act, of 1957, continued this prohibition and also dealt with many other sex offences. The ban on interracial sex was lifted in 1985, but certain sections of the 1957 act dealing with prostitution remain in force as the "Sexual Offences Act, 1957".
The 1927 act
The Immorality Act, 1927 (Act No. 5 of 1927) prohibited sexual intercourse outside of marriage between "Europeans" (white people) and "natives" (black people). The penalty was up to five years imprisonment for the man and four years imprisonment for the woman. The act also prohibited "procuringProcuring (prostitution)
Procuring or pandering is the facilitation or provision of a prostitute in the arrangement of a sex act with a customer. Examples of procuring include:*trafficking a prostitute into a country for the purpose of soliciting sex...
" women for interracial intercourse.
The Immorality Amendment Act, 1950 (Act No. 21 of 1950) amended the 1927 act to forbid unmarried sexual intercourse between "Europeans" and anyone not "European". The prohibition was therefore extended to intercourse between white people and coloured
Coloured
In the South African, Namibian, Zambian, Botswana and Zimbabwean context, the term Coloured refers to an heterogenous ethnic group who possess ancestry from Europe, various Khoisan and Bantu tribes of Southern Africa, West Africa, Indonesia, Madagascar, Malaya, India, Mozambique,...
or Asian people. Interracial marriage
Interracial marriage
Interracial marriage occurs when two people of differing racial groups marry. This is a form of exogamy and can be seen in the broader context of miscegenation .-Legality of interracial marriage:In the Western world certain jurisdictions have had regulations...
s had been banned in 1949 by the Prohibition of Mixed Marriages Act
Prohibition of Mixed Marriages Act
The Prohibition of Mixed Marriages Act, Act No 55 of 1949, was an apartheid law in South Africa that prohibited marriages between people of different races. It was among the first pieces of apartheid legislation to be passed following the National Party's rise to power in 1948...
.
The 1957 act
The Immorality Act, 1957 (Act No. 23 of 1957; subsequently renamed the Sexual Offences Act, 1957) repealed the 1927 and 1950 acts and replaced them with a clause prohibiting sexual intercourse or "immoral or indecent acts" between white people and anyone not white. It increased the penalty to up to seven years imprisonment for both partners. The 1957 act also prohibited brothelBrothel
Brothels are business establishments where patrons can engage in sexual activities with prostitutes. Brothels are known under a variety of names, including bordello, cathouse, knocking shop, whorehouse, strumpet house, sporting house, house of ill repute, house of prostitution, and bawdy house...
-keeping, procuring, and living off the proceeds of prostitution; and it prohibited sexual intercourse with people under the age of sixteen.
The Immorality Amendment Act, 1969 (Act No. 57 of 1969) amended the 1957 act to introduce or expand a number of offences. It prohibited the manufacturing or sale of any "article intended to be used to perform an unnatural sexual act" (i.e. sex toys). Despite the fact that sex between men
Men who have sex with men
Men who have sex with men are male persons who engage in sexual activity with members of the same sex, regardless of how they identify themselves; many men choose not to accept sexual identities of homosexual or bisexual...
was already prohibited under the common law crime of sodomy
Sodomy law
A sodomy law is a law that defines certain sexual acts as crimes. The precise sexual acts meant by the term sodomy are rarely spelled out in the law, but are typically understood by courts to include any sexual act deemed unnatural. It also has a range of similar euphemisms...
, the 1969 act made it a more serious crime for a man to have sex with another male under the age of nineteen. It also introduced section 20A
Section 20A
Section 20A of the Sexual Offences Act, 1957, commonly known as the "men at a party" clause, was a South African law that criminalised all sexual acts between men that occurred in the presence of a third person...
, the infamous "three men at a party" clause, which prohibited any sexual activity between men at a party, where "party" was defined as any occasion where more than two people were present.
The Immorality and Prohibition of Mixed Marriages Amendment Act, 1985 (Act No. 72 of 1985) repealed the provisions of the 1957 act that prohibited interracial sex, and repealed the Prohibition of Mixed Marriages Act. This came as part of the repeal of many petty apartheid
Petty apartheid
Petty apartheid is a term which originally referred to the more apparently trivial aspects of apartheid in South Africa, but that is now also used to refer to segregation in other countries as well...
laws under the government of P. W. Botha.
The Immorality Amendment Act, 1988 (Act No. 2 of 1988) renamed the Immorality Act, 1957 to the Sexual Offences Act, 1957. It criminalised, for the first time, a woman having sex with a person under the age of consent, for that purpose setting the age of consent at 16 for a boy and 19 for a girl. It also made it a crime to be a prostitute, where previously only certain acts related to prostitution (brothel-keeping, procuring, etc.) had been illegal.
Repeal
The Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007
The Criminal Law Amendment Act, 2007 is a South African Act of Parliament which comprehensively revised and codified the law relating to sex offences...
repealed most of the remaining provisions of the 1957 act. The only provisions still in force are those related to prostitution.
The men-at-a-party offence (section 20A) was invalidated in 1998 by the Constitutional Court
Constitutional Court of South Africa
The Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...
in the case of National Coalition for Gay and Lesbian Equality v Minister of Justice. The increased age of consent of nineteen for same-sex sexual activity (as opposed to sixteen for opposite-sex sexual activity) was invalidated in 2008 in the case of Geldenhuys v National Director of Public Prosecutions
Geldenhuys v National Director of Public Prosecutions
Geldenhuys v National Director of Public Prosecutions and Others is a decision of the Constitutional Court of South Africa which struck down as unconstitutional provisions in the Sexual Offences Act, 1957 which set an age of consent of 19 for homosexual sex but only 16 for heterosexual sex...
, although by that time the discriminatory provisions had been repealed by the 2007 amendment act.