Criminal Law (Sexual Offences) Amendment Bill: deliberations

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
26 January 2004
CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL: DELIBERATIONS

Chairperson: Adv J De Lange (ANC)

Documents handed out:
Summary of Submissions on Criminal Law (Sexual Offences) Amendment Bill
Criminal Law (Sexual Offences) Amendment Bill [B50-2003]

SUMMARY
The Committee considered Clauses 2, 3, 6 and 9 of the Bill in the light of the comments and proposals made during public hearings. Amongst other issues, discussion centred around the act of sexual penetration and act of indecent assault, the distinction between HIV/AIDS and other STDs and what would be an appropriate age of consent for both heterosexual and homosexual children.

MINUTES
Preamble
The Committee decided to deal with the comments on the Preamble at a later stage.

Clause 2: Rape
The Chair was of the view that sexual harassment is not part of any of the offences mentioned in the Bill and thus found it hard to accept the proposal made by NICRO. In accepting the proposal regarding the creation of one composite offence describing all acts of forced penetration, he directed the department to discard all the distinctions made by offences created in Clauses 2, 3 and 4 and thereby create one composite description.

Ms S Camerer (DA) agreed with the Chair.

The Chair noted that in the research he had undertaken, he had not found any jurisdiction that has excluded the concept of consent in relation to the definition of rape. Although the legislation in both Michigan and Illinois moved away from the concept of consent, the legislation of Illinois made it clear that a lack of consent is a defence and the courts in Michigan also interpreted that to be the case. Based on this and his concern that the determination of rape should not be left to the sole discretion of the bench, the Chair proposed that the concept of consent be retained as part of the definition.

He supported the proposal by Nadel - in line with the concern raised by the South African Council of Churches - that a distinction be made between HIV/AIDS and other STDs. These two should be clearly defined in the Bill since their consequences are totally different.

In order to curb the concerns raised as far as subclause (4)(c) is concerned especially the protection that should be afforded to vulnerable groups, he proposed that it should only be the National Director of Public Prosecutions that is entitled to decided whether to prosecute or not. He said that the legislation should expressly state that these powers may not be delegated by the National Director of Public Prosecutions and that were s/he decides to prosecute then s/he should take into account the circumstances of the person to be prosecuted and his/her vulnerability.

Ms Camerer, in concurring with the Chair, objected to the proposal by Rape Crisis, Cape Town Trust and IDASA as far as omission of the subclause (4)(c) provision from the Bill.

The Chair asked the Department to refine the wording of subclause (7) as it is not clear what is meant in this subclause in its present formulation. He accepted the concerns raised by Rape Crisis, Cape Town Trust, IDASA and Sarah Baartman Legal Advice and Training Project regarding the provisions of subclause (9) and thus proposed that the subclause be deleted completely. He also accepted the proposal made by Sarah Baartman Legal Advice and Training Project regarding the creation of a separate offence to deal with cases where a perpetrator forces another person, against his/her will, to have sex with the victim. He referred to the Staggie case as an example of this. However he said that this offence should not form part of rape as was initially suggested by the South African Reform Commission (SALRC) in its report but should constitute a new separate offence apart from rape. With regard to the concern raised by Africa Christian Action that the use of condom may have the effect of excusing a person from not disclosing his/her status, he said that while the use of the condom may be a defence in other countries - however that is not the real issue. The issue is not about the precaution taken by one party but whether the other party had exercised his/her free will after being informed of the status of the other party.

Clause 3: Sexual violation and Clause 4: Oral genital sexual violation
The Chair noted that the concern raised by the Commission on Gender Equality regarding Clauses 3 and 4 has be catered for as these offences would now form part of one composite description of the penetration offence.

Clause 6: Compelled or induced indecent acts
The Chair said that it should be noted that the proposed definition of rape now caters for the use of objects and as the result the use of objects to force penetration is no longer part of the indecent assault. Based on that he proposed that indecent assault should be taken as meaning any form of sexual stimulation which does not involve penetration. In agreement with the concerns raised by Sarah Baartman Legal Advice and Training Centre and SA Council of Churches, he viewed the definition of indecent act and the offence created in Clause 6 as being vague and ambiguous. He requested the Department to refine them and ensure that this offence is linked to something sexual and also make consent part of the offence.

Mr H Du Preez (Department of Justice: Legal Drafter) noted that they would address the concerns raised by the Chair.

Clause 9: Acts which cause penetration or indecent acts…children with their consent
The Chair noted that subclause (1) is very clear that any person above the age of sixteen having sexual penetration with a child under the age of sixteen, whether with his/her consent or not, would be guilty of a statutory offence. However he said that, unlike subclause (4) read in conjunction with subclause (5), subclause (1) is not so clear about what would happen if children below the age of sixteen are found to have engaged in consensual sexual penetration or where the accused reasonably believed the child to be above the age of sixteen. He questioned that part of subclause (5)(b) which provides a defence to an accused who has been deceived about the age of the child by a third party "in whose care such child had been". He was of the view that this defence is unnecessary since it could be abused by those dealing with those people trafficking with children. He proposed that the words "who is older than 12 years of age, but" be inserted in subclause (4) after the words "Any person who commits an indecent act with a child".

Ms Camerer agreed and said that one should not be afforded a defence for reliance on the information given by a procurer or trafficker.

Ms D Clark (South African Law Reform Commission) acknowledged these concerns and said that it is not their intention to afford such a defence, however they had included it because it was part of the old Act.

Ms Camerer raised concern about the reduction of the age of consent.

The Chair explained that this Bill does not diminish the age of consent at all, expect in relation to a homosexual relationship. The current law permits homosexual boys to engage in sexual activity only when they reach the age of nineteen while that is not the case with girls. Therefore in line with the provisions of the Constitution, especially the Equality Clause, the Bill sought to bring the age of consent for all children, whether boys or girls and homosexual or heterosexual, to the same level. As the Committee cannot distinguish between these children on the basis of their gender or sexual orientation, then there are only two options available: either bring down the homosexual age of consent to sixteen or increase the heterosexual age of consent to nineteen or choose something in between.

Mr S Swart (ACDP) noted that many people have opted for the view that the age of consent should be raised from sixteen to eighteen and this is also in line with the suggestion by the SALRC in its report. He proposed that the Committee should consider this popular view. He pointed out that the draft Tobacco Products Control Amendment Bill also considers the lifting of the age for eligibility to purchase cigarettes from the age of sixteen to eighteen years. However in order to protect those who are already involved in these relationships he proposed that an exemption clause be inserted as it has been used effectively in English law during the transitional period. He added that the Bill should also create possibilities for the prosecuting authority to allow for diversion in certain circumstances.

The Chair acknowledged that Mr Swart's proposal could be taken as an option since it is in line with the constitutional definition of a child as noted in the SA Council of Churches submission. He said that the Bill should make it clear that if the prosecuting authority decides to prosecute children, under the age of consent, who are found guilty of contravening subclause (1), then both children would have to be prosecuted. To prosecute one of them and not the other although both of them were involved in the act of contravening the law, would be unconstitutional. He proposed that the provisions of subclause (5) be rewritten and the age difference between the children be changed from "three" to "two years". It should be made clear in the Bill that the decision to prosecute under subclause (5) would only be taken by a person at the level of the Director of Prosecutions and should not be further delegated.

The meeting was adjourned