Section 20A
Encyclopedia
Section 20A of the Sexual Offences Act, 1957
, commonly known as the "men at a party" clause, was a South Africa
n law that criminalised all sexual acts between men that occurred in the presence of a third person. The section was enacted by the Immorality Amendment Act, 1969 and remained in force until it was invalidated as unconstitutional in 1998 by the Constitutional Court
in the case of National Coalition for Gay and Lesbian Equality v Minister of Justice.
The text of the clause was the following:
The prescribed penalty was a fine of up to R
4000 or imprisonment for up to two years or both.
"Sodomy
" and "unnatural sexual acts
" were offences in the Roman-Dutch common law of South Africa. These offences criminalised, inter alia, anal sex
, oral sex
, intercrural sex
and mutual masturbation between men, but did not apply to, for example, men merely touching or kissing each other. In January 1966 the police raided a gay party, at which about 300 men were present, in the Forest Town
suburb of Johannesburg
. This, and a number of subsequent raids on parties and clubs in various cities, let to a moral panic
. Homosexuality (particularly male homosexuality) was unacceptable in the Afrikaner Calvinist
ethos of the apartheid regime, and Parliament
reacted by convening a Select Committee which, in 1968, proposed a number of amendments to the Immorality Act (as the Sexual Offences Act was then known). One of these was the "men at a party" clause, which was consequently enacted in 1969.
In one notable case in 1987, a conviction under the section was reversed on appeal by the Witwatersrand Local Division because the court ruled that "a party" was not created when a police officer entered a room in a gay bathhouse
because the two men in the room jumped apart when he switched on the light.
The Interim Constitution adopted in 1994 and the final Constitution
which replaced it in 1997 both prohibited discrimination on the basis of sex, gender or sexual orientation. In 1997 the National Coalition for Gay and Lesbian Equality launched a constitutional challenge in the Witwatersrand High Court, asserting that the laws against "sodomy" and "unnatural sexual acts" as well as the "men at a party" clause infringed the equality clause
of the Constitution. The government did not oppose the application, and in May 1998 Judge Heher handed down a judgment and order striking down the impugned laws. South African law requires that a court order invalidating an act of Parliament be confirmed by the Constitutional Court; in October 1998 that court handed down a unanimous judgment confirming Judge Heher's order. Writing for the court, Justice Lourens Ackermann
described the clause as having an "absurdly discriminatory purpose and impact," and stated that, "There is nothing before us to show that the provision was motivated by anything other than rank prejudice."
Section 20A was formally removed from the statute-book by the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007
.
Sexual Offences Act, 1957
The Sexual Offences Act, 1957 is an act of the Parliament of South Africa which, in its current form, prohibits prostitution, brothel-keeping and procuring, and other activities related to prostitution...
, commonly known as the "men at a party" clause, was a South Africa
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
n law that criminalised all sexual acts between men that occurred in the presence of a third person. The section was enacted by the Immorality Amendment Act, 1969 and remained in force until it was invalidated as unconstitutional 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 text of the clause was the following:
The prescribed penalty was a fine of up to R
South African rand
The rand is the currency of South Africa. It takes its name from the Witwatersrand , the ridge upon which Johannesburg is built and where most of South Africa's gold deposits were found. The rand has the symbol "R" and is subdivided into 100 cents, symbol "c"...
4000 or imprisonment for up to two years or both.
"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...
" and "unnatural sexual acts
Unnatural act
Unnatural act is the term, once common in legal parlance, for certain sex acts, including anal sex, oral sex, other non-procreative sexual practices, incest, or procreative sexual acts in the wrong position or without procreative intent....
" were offences in the Roman-Dutch common law of South Africa. These offences criminalised, inter alia, anal sex
Anal sex
Anal sex is the sex act in which the penis is inserted into the anus of a sexual partner. The term can also include other sexual acts involving the anus, including pegging, anilingus , fingering, and object insertion.Common misconception describes anal sex as practiced almost exclusively by gay men...
, oral sex
Oral sex
Oral sex is sexual activity involving the stimulation of the genitalia of a sex partner by the use of the mouth, tongue, teeth or throat. Cunnilingus refers to oral sex performed on females while fellatio refer to oral sex performed on males. Anilingus refers to oral stimulation of a person's anus...
, intercrural sex
Intercrural sex
Intercrural sex , also known as femoral/interfemoral sex/intercourse, is a type of non-penetrative sex, in which a male places his penis between his partner's thighs , and thrusts to create friction.-Heterosexuality:The sex education and sexual experimentation of adolescents may feature intercrural...
and mutual masturbation between men, but did not apply to, for example, men merely touching or kissing each other. In January 1966 the police raided a gay party, at which about 300 men were present, in the Forest Town
Forest Town, Gauteng
Forest Town, as the name implies, is a leafy suburb of Johannesburg, South Africa. It lies between the busy thoroughfares of Jan Smuts Avenue and Oxford Road, and is bordered to one side by the Johannesburg Zoo....
suburb of Johannesburg
Johannesburg
Johannesburg also known as Jozi, Jo'burg or Egoli, is the largest city in South Africa, by population. Johannesburg is the provincial capital of Gauteng, the wealthiest province in South Africa, having the largest economy of any metropolitan region in Sub-Saharan Africa...
. This, and a number of subsequent raids on parties and clubs in various cities, let to a moral panic
Moral panic
A moral panic is the intensity of feeling expressed in a population about an issue that appears to threaten the social order. According to Stanley Cohen, author of Folk Devils and Moral Panics and credited creator of the term, a moral panic occurs when "[a] condition, episode, person or group of...
. Homosexuality (particularly male homosexuality) was unacceptable in the Afrikaner Calvinist
Afrikaner Calvinism
Afrikaner Calvinism is, according to theory, a unique cultural development that combined the Calvinist religion with the political aspirations of the white Afrikaans speaking people of South Africa....
ethos of the apartheid regime, and Parliament
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....
reacted by convening a Select Committee which, in 1968, proposed a number of amendments to the Immorality Act (as the Sexual Offences Act was then known). One of these was the "men at a party" clause, which was consequently enacted in 1969.
In one notable case in 1987, a conviction under the section was reversed on appeal by the Witwatersrand Local Division because the court ruled that "a party" was not created when a police officer entered a room in a gay bathhouse
Gay bathhouse
Gay bathhouses, also known as gay saunas or steam baths, are commercial bathhouses for men to have sex with other men. In gay slang in some regions these venues are also known colloquially as "the baths" or "the tubs," and should not be confused with public bathing.Not all men who visit gay...
because the two men in the room jumped apart when he switched on the light.
The Interim Constitution adopted in 1994 and the final Constitution
Constitution of South Africa
The Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the republic, sets out the rights and duties of its citizens, and defines the structure of the government. The current constitution, the country's fifth, was...
which replaced it in 1997 both prohibited discrimination on the basis of sex, gender or sexual orientation. In 1997 the National Coalition for Gay and Lesbian Equality launched a constitutional challenge in the Witwatersrand High Court, asserting that the laws against "sodomy" and "unnatural sexual acts" as well as the "men at a party" clause infringed the equality clause
Section Nine of the Constitution of South Africa
Section Nine of the Constitution of South Africa guarantees equality before the law and freedom from discrimination to the people of South Africa. This equality right is the first right listed in the Bill of Rights...
of the Constitution. The government did not oppose the application, and in May 1998 Judge Heher handed down a judgment and order striking down the impugned laws. South African law requires that a court order invalidating an act of Parliament be confirmed by the Constitutional Court; in October 1998 that court handed down a unanimous judgment confirming Judge Heher's order. Writing for the court, Justice Lourens Ackermann
Lourens Ackermann
Lourens Wepener Hugo Ackermann is a former justice of the Constitutional Court of South Africa, where he served from 1994 to 2004....
described the clause as having an "absurdly discriminatory purpose and impact," and stated that, "There is nothing before us to show that the provision was motivated by anything other than rank prejudice."
Section 20A was formally removed from the statute-book by the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007
Criminal 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...
.