1. The document defines sexual offenses and the proper procedures for investigating sexual assault allegations according to South African law. It outlines what constitutes sexual penetration and sexual violation. 2. It provides guidance on properly handling reported incidents, including immediately reporting complaints, conducting prompt unbiased investigations with at least two investigators, keeping the process confidential, and interviewing witnesses and both the complainant and subject. 3. The evaluation of evidence should consider all aspects of the investigation to make a conclusion on what occurred and potentially recommend corrective actions if harassment is found to have happened. Fairness and discretion are important throughout the process.

1. Conducting Sexual
Assault Investigations
Prof Rajen Padayachi:
rajenpadayachi19@gmail.com

2. 1. What is/are sexual offenses
Definitions are inscribed in:
 Criminal Law Sexual Offenses &
Related Matters Amended Act of
2007
 Labour Relations Act- Practise code
on handling sexual harrassment

3. 1.1 Criminal Law Act of 2007
 In Section 3 of the Act penetration is:-
 “sexual penetration” includes any act which causes penetration
to any extent whatsoever by—
 (a) the genital organs of one person into or beyond the genital
organs, anus, or mouth of another person;
 (b) any other part of the body of one person or, any object,
including any part of the body of an animal, into or beyond the
genital organs or anus of another person; or
 (c) the genital organs of an animal, into or beyond the mouth of
another person, and “sexually penetrates” has a corresponding
meaning”

4. 1.1 Criminal Law Act of 2007
 In Section 5 of the Act violation is:-
 “sexual violation” includes any act which causes—
 direct or indirect contact between the— (i) genital organs or anus of
one person or, in the case of a female, her breasts, and any part of
the body of another person or an animal, or any object, including any
object resembling or representing the genital organs or anus of a
person or an animal; (ii) mouth of one person and
 (aa) the genital organs or anus of another person or, in the case of a
female, her breasts;
 (bb) the mouth of another person;
 (cc) any other part of the body of another person, other than the
genital organs or anus of that person or, in the case of a female, her
breasts, which could—

5. Criminal Law Act of 2007
 (aaa) be used in an act of sexual penetration;
 (bbb) cause sexual arousal or stimulation; or
 (ccc) be sexually aroused or stimulated thereby;
or
 (ddd) any object resembling the genital organs or
anus of a person, and in the case of a female, her
breasts, or an animal; or
 (iii) mouth of the complainant and the genital
organs or anus of an animal;

6. Criminal Law Act of 2007
 (b) the masturbation of one person
by another person; or
(c) the insertion of any object
resembling or representing the
genital organs of a person or
animal, into or beyond the sexual
penetration, and “sexually
violates” has a corresponding
meaning”

7. 2. Handling full response to
reported incidents
 Report any complaints of sexual harassment immediately to the
human resources department and/or to the department or person
responsible for enforcing the company’s anti-harassment policies.
 Initiate an investigation into sexual harassment allegations as quickly
as possible
 Ensure the complainant knows that the company is taking his or her
complaint seriously and reflect this in your manner and professional
conduct.
 Assign two investigators to sexual harassment investigation interviews
– one to conduct the interview and one to take notes and provide
support. Ensure at least one of the investigators is the same gender as
the complainant.

8. Handling full response to reported
incidents
 Ensure an unbiased investigation by assigning investigators
who don’t have a relationship with the complaining
employee, the subject of the allegation or any witnesses.
 Conduct all investigation interviews in a private place,
away from other employees and management.
 Keep all details of the case confidential and be discreet
about the allegations and the identities of the
complainant and the subject of the investigation.
 Explain the company’s anti-retaliation policy to every
person you speak to in the

9. Handling full response to reported
incidents
 Consider the need to separate the parties during the investigation,
but be mindful of the danger of this looking like retaliation.
 Familiarize yourself with institutional policy before beginning the
investigation.
 Gather all the documents you need:
 company code of conduct and related policy documents
 employee files
 copy of the allegation
 any supporting documents

10. Handling full response to reported
incident
 The second investigator should take notes during the interviews, or
record the interviews for later transcription.
 Don’t promise confidentiality to any interviewees, but explain that
you will do your best to keep the details of the investigation
confidential.
 The second investigator should take notes during the interviews, or
record the interviews for later transcription.
 Don’t promise confidentiality to any interviewees, but explain that
you will do your best to keep the details of the investigation
confidential.

11. Handling full response to reported
incidents & Interviewing Complainant
 Take statements from interviewees when appropriate. Statements can
be valuable evidence that supports or refutes the complainant’s story.
 Assess the credibility of each interviewee and document your
assessment in your notes
 Interview the complainant as soon as possible after the allegation.
This reinforces the importance of the issue and reassures him or her
that the company is taking the allegation seriously.
 Acknowledge the sensitivity of the allegation and reassure the
complainant that the company is serious about getting to the truth
and preventing more occurrences.

12. Handling full response to reported
incidents: Interviewing the Complainant
 Find out how the alleged harassment has affected the complainant as well as
the details of the actual event.
 Ask the complainant what outcome he or she would like to see.

13. Interviewing the Witnesses
 Interview the subject’s supervisor to find out about any discipline
problems, behavior patterns or other clues and request any
documentation that is relevant to the investigation.
 Interview any witnesses to the sexual harassment. Cover the “who, what,
where, when and how” questions first, then ask about any other
information they can provide that might help you find out what
happened. For example, you could ask whether they saw the complainant
immediately after the alleged incident and what was said.
 Try to get the witness to provide the identities of the accused and
complainant before you disclose them.
 Ask for specific details of what witnesses saw or heard themselves.
 Ask witnesses whether they can think of anyone else who may be able to
share information about the incident.

14. Interviewing the Subject of
Allegation
 Interview the subject of the harassment
allegation last.
 Establish the relationship between the subject of
the allegation and the complainant. For example,
is the accused the complainant’s supervisor? Is or
was there a romantic relationship between the
two?
 Ask how long the two parties have known one
another and whether they socialize outside of
work.

15. Interviewing the Subject of
Allegation
 Be sensitive to the stressful nature of the
situation and the repercussions of the
investigation for the subject.
 Assess the reaction of the subject to the
complaint. Is he or she surprised, angry, resigned?
 If the subject denies the allegation, ask if he or
she can think of a reason that the complainant
would make the complaint.

16. Evaluating the Evidence
 Consider all the evidence collected, including
interviews, credibility assessments,
documentation, etc.
 Re-interview witnesses to fill in any gaps in
information or to probe further where you think
there is more to learn.
 Come to a conclusion about what happened and
document this in a detailed investigation report.

17. Evaluating the Evidence
 Recommend corrective action if sexual harassment occurred and if the
company has asked for recommendations. Ensure corrective action
recommended can’t be seen as punitive to the victim, unreasonable in
severity or retaliatory. It should also be consistent with discipline
imposed for similar misconduct in the past.
 Alternatively, convene a Disciplinary Committee.
 Constitute the Disciplinary Committee.
 Hand over all files & evidence to the Disciplinary Chairperson.
 Keep copies of relevant submissions,

18. Who needs to be involved and how
 Relevant HR person who handles all STAFF complaints and should be
familiar with Company HR Policy.
 Safety & Health Officer if authorised to handle Sexual Assault cases.
 Line manager of complainant to provide relevant feedback to relevant
parties.
 Line manager of alleged victim to provide updates to relevant parties.
 Constituents of Disciplinary Committee.
 Union reps for fairness of process.

19. CONCLUSIONS
 To be handled discretely.
 Ensure fairness to alleged victim and
alleged transgressor.
 Be neutral.
 Convey Disciplinary Committee
Chairpersons final arbitrary decision and/
or recommendations to relevant authority.

20. QUESTIONS
Answers