The End of the Beginning and the Beginning of the End of Attempted Sexual Penetration: Revisiting Silo v S 2016 (2) SACR 259 (WCC)

Abstract

The fine line marking the transition from the end of the beginning and the beginning of the end of a crime, or defining in precise terms what is meant by consummation, has been, and still is, a problem in criminal law. In precise terms, the determination of the specific moment that the consummation can be said to have commenced is fraught with controversy. The textbook illustration is where the wrongdoer has not commenced all that he or she set out to do, either because he or she was deterred from doing so or refrained from doing so. In such a case, the dilemma is how to draw a line between conduct constituting mere acts of preparation and conduct amounting to an actual attempt. In Silo v S 2016 (2) SACR 259 (WCC), the High Court clarified the principles and the law relating to the attempt to commit an act of sexual penetration without the consent of the complainant in violation of section 3 of the Sexual Offences and Related Matters Amendment Act 32 of 2007. This case note critically examines the decision in Silo and its broader implications in the context of severe gender-based violence and a sexual violence pandemic that continues to plague society.