NATIONAL ASSOCIATION OF DEMOCRATIC LAWYERS
HUMAN RIGHTS RESEARCH AND ADVOCACY PROJECT
Submission to the Task Group on the Sexual Abuse of Children
Chair, Honourable Members of Portfolio Committees
Thank you for giving us the opportunity to make an oral submission on issues of sexual abuse of children.
NADEL Human Rights Research and Advocacy Project is a non-governmental human rights organisation committed to the promotion of a human rights culture in South Africa through its research, education and training, advocacy, lobbying and monitoring activities. The main areas of our research are gender discrimination and inequality, access to justice, socio-economic rights and basic service delivery.
We will begin by stating that in principle we commend the Task Group for holding these Public Hearings on the sexual abuse of children in an attempt to seek solutions to combat, and to provide protection for children from all forms of sexual abuse. Recognising that the hearings are designed to deal with all forms of sexual abuse we decided to confine our submission to gaps in the existing legislation with regard to the particular crime of child rape.
We further recognise that the South African Law Commission's Discussion Paper 102 on sexual offences and the subsequent proposed Draft Sexual Offences Bill is dealing with matters relating to sexual abuse of children, including child rape. It is, however, our strong feeling that the urgency of this issue demands that action against child rape and all other forms of sexual abuse of children be taken immediately.
Introduction
The submission is principled on the understanding that it is children's right to have their human dignity respected and protected, and to be free from all forms of violence, as provided for in the Constitution. In addition, a child's best interests are of paramount importance in all matters concerning children.
International children's rights instruments such as the UN Convention on the Rights of the Child (1979) and the African Charter of the Rights and Welfare of the Child (1990) call on state parties to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. Furthermore, these conventions obligate State Parties to take appropriate measures to specifically protect the child from all forms of sexual exploitation and sexual abuse.
South Africa has ratified both these Conventions. Recognising and acknowledging the difficulty of enforcing international Conventions, South Africa, in ratifying them, committed itself to provide all necessary legislative and other measures to protect its children from all forms of sexual abuse, as well as to combat sexual exploitation and abuse of children. However, current legislation, as this submission will show, does not deal adequately enough with issues related to the sexual abuse of children, hence it fails to sufficiently protect children from rape and other forms of sexual abuse. The following statistics reveal the horrifying reality children are confronted with.
Statistics:
- In 2000, SAPS estimated that every day 58 children were raped or had rape attempted on them. (SAPS Report; 2000)
- 21 000 cases of reported child rape in the year 2001 (Reuters 2001)
- 21% of these rapes are perpetrated by male relatives of the victim. (The Lancet National Survey 2001)
- Children constitute 41% of all reported rapes and attempted rapes in this country. (SAPS Report; 2000)
- 15% of these rapes are against children under the age of 11. (SAPS Report; 2000)
- In 1999, only half of the rape cases involving children were referred to court. (SAPS Report; 2000)
- 8 000 cases were subsequently withdrawn either during the investigation or in court. (SAPS Report; 2000)
- Of the 1 944 cases that were referred to court nearly 1 922 returned a not guilty verdict. (SAPS Report; 2000)
- Approximately only 9% of all child rape cases result in a conviction. (SAPS Report; 2000)
Section 28 of the Constitution of South Africa (1996) gives children special and particular rights recognising the different needs and requirements of children. Section 28(d) provides that every child has the right to be protected from maltreatment, neglect, abuse and degradation. Legislation, such as the Child Care Act, the Sexual Offences Act and the Domestic Violence Act are some of the legislative measures enabling the realisation of children's constitutionally guaranteed right to be protected from all forms of sexual abuse, including child rape.
Child Care Act
Prevention of the Ill-treatment of Children
The Child Care Act (No 74 of 1983, as amended 1999) does not specifically deal with rape and other forms of sexual abuse in and of itself as a criminal act. It does however, provide for the removal of a child thought to be at risk and in need of care (Chapter 3), as well as the prevention of the ill-treatment of children (Chapter 8). The Act, however, fails to define 'ill-treatment' leaving room for interpretation of what specific acts would constitute the ill-treatment of a child. As a result, the child may not only be inadequately protected from all forms of sexual abuse, but it also potentially hinders the successful prosecution of any person involved, directly or indirectly, in the sexual abuse of children.
We therefore recommend the inclusion of a clear definition of 'ill-treatment', explicitly identifying the various forms 'ill-treatment' can assume and acknowledging the various forms of sexual abuse that constitute the ill-treatment of children.
Section 50(1) of the Child Care Act seeks the prevention of the ill-treatment of children stating that Any parent or guardian of a child or any person having the custody of a child who
ill-treats that child or allows it to be ill-treated; or
abandons that child,
or any other person who ill-treats a child, shall be guilty of an offence.
This clause clearly allows for the prosecution of parents, guardians, or persons having custody of a child in the case of rape and other forms of sexual abuse. However, 'any other person' can only be found guilty of an offence if he or she actually commits the act of rape or sexual abuse and not for allowing the rape or sexual abuse to occur. Hence, if a person facilitating the occurrence of rape or sexual abuse can prove that he or she did not personally engage or participate in the sexual offence then they cannot be charged with an offence.
Taking into account the unequal power relations between children and adults and the subsequent influence adults have over children, as well as the trust children place in adults we strongly believe that in order to adequately protect children from all forms of sexual abuse it is essential to allow for the prosecution of any person who allows or facilitates, directly or indirectly, the sexual abuse of children. In that way, for example a teacher who through neglect of his or her supervisory duties is indirectly facilitating the sexual abuse of a child can be held responsible.
We therefore recommend that any person who sexually abuses a child or who allows or facilitates, directly or indirectly the sexual abuse of children, shall be guilty of an offence.
Furthermore, this Section fails to impose the responsibility on the part of health care professionals, social workers and teachers who have knowledge of, or reason to suspect, the sexual abuse of children to report this to the appropriate authorities, like the Child Welfare official or social worker. It can be argued that the fact that there is no clearly defined obligation to report sexual abuse of children allows for the perpetuation of the abuse.
We therefore recommend that that the Section on the Prevention of Ill-treatment of Children should include the obligation of mandatory reporting for certain professional groups, such as teachers, social workers, health care professionals as and when there is knowledge of, and reason to suspect sexual abuse occurring.
Sexual Offences Act
Definition of Rape
The Sexual Offences Act (no 27 of 1957, as amended 1988) does not provide a definition of rape or of indecent act. It does, however, define 'unlawful carnal intercourse' as carnal intercourse otherwise than between husband and wife. This definition is vague and general enough to outlaw any sexual activities outside of those sanctioned by marriage. It could be argued that this vagueness encompass rape in all its forms, but when read within the understanding of the entire Act and common law, its limitations and unconstitutionality becomes obvious.
The common law definition of rape that is currently used in practice defines rape as the unlawful intentional sexual intercourse with a woman without her consent. We consider this definition of rape to be extremely limited, discriminatory and unacceptable. According to this definition, an act of rape is only considered as rape where there is actual vaginal penetration with a penis. Any other form of rape without the vaginal penetration by a penis would therefore be considered indecent assault. Hence, the currently used definition of rape excludes the various forms that rape can assume. Furthermore, it implies the exclusion of child rape due to the use of the term woman suggestive of a female above the age of minority. The narrow understanding of rape as the vaginal penetration by a penis does not take into account the reality of same sex rape, as well as excludes female perpetrators of rape.
We strongly support the comprehensive and inclusive definition of rape (i.e., sexual penetration) as proposed by the South African Law Commission's Draft Sexual Offences Bill.
The proposed Bill defines sexual penetration as
…any act which causes penetration to any extent whatsoever by
(a) the genital organs of one person into the anus, mouth or genital organs of another person
(b) any object, including any part of the body of an animal, or part of the body of one person into the anus or genital organs of another person in a manner which simulates sexual intercourse
but does not include an act which is consistent with sound medical practices which is carried out for proper medical purposes.
Section 3(1) of the proposed Bill, dealing with the offence of rape, states that Any person who intentionally and unlawfully commits an act of sexual penetration as defined in section 1 with another person, or who intentionally and unlawfully compels, or induces or causes another person to commit such an act is guilty of the crime of rape.
We believe this definition to be sufficiently inclusive of all the various forms that rape can assume, that it covers adequately the rape of children, same sex rape and female perpetrators of rape and we are therefore recommending that the current limited and inadequate definition of 'unlawful carnal intercourse' be replaced by the SA Law Commission's proposed definition of 'sexual penetration'.
Definition of Indecent Act Due to the failure of the Act to define what constitutes an 'immoral and indecent act' one is left to assume and guess what these acts include. Subsequently, victims of sexual offences, indecent acts, are not sufficiently protected and it becomes possible for perpetrators of sexual offences to circumvent the law since their acts of sexual offence are not clearly defined within the law. We are of the strong belief that the various forms sexual offences can assume, demand a clear definition enabling not only the adequate protection of victims of such offences, especially child victims, but also the appropriate prosecution of the perpetrators of sexual offences.
Furthermore, the term 'immoral' is in itself laden with value judgements and is open to subjective interpretations and is therefore, in our view, inappropriate to define a criminal act. Taking into account the historically prescribed meaning of the term 'immorality' (e.g., interracial relationships, sexual activity before or outside marriage, same-sex relationships, etc), it can be argued, that the use of the term 'immoral' is in itself unconstitutional. The term 'immoral' implies that sexual activities are a sexual offence by virtue of race, sexuality, marital status, and sex violating anyone's constitutional guaranteed right not to be discriminated against on any of these grounds.
Considering the above arguments and limitations of the current legislation we strongly recommend clear definitions of all possible forms that 'indecent acts' can assume. We support the SA Law Commission's definition 'of an indecent act' as outlined in the proposed Draft Bill and commend the fact that the term 'immoral' is removed.
The Draft Bill defines 'indecent act' as …an act which causes-
direct or indirect contact between the anus, breasts or genital organs of one person and any part of the body of another person,
unjustified exposure or display of the genital organs of one person to another person, or
exposure or display of any pornographic material to a person below the age of 18 years or to any person against his or her will
but does not include an act of sexual penetration or an act which is consistent with sound medical practices which is carried out for proper medical purposes.
We believe that this definition is a concise and adequate definition of 'indecent act' and therefore recommend that it be included in current legislation. We further strongly recommend the removal of the term 'immoral' from the Sexual Offences Act.
Child Rape and Children
As mentioned above, the Sexual Offences Act does not explicitly address the offence of rape in general or specifically child rape. However, it can be assumed that Section 14, entitled 'Sexual Offences With Youth' is inclusive of children and the specific offence of child rape. Even though, a general understanding of the term 'youth' would imply that this Section does indeed not refer to children. It is further noted, that the complicity implied in the use of the word 'with' as opposed to 'against' in the heading of this Section is unacceptable.
Section 14(1) of the Sexual Offences Act states that …any male is guilty of an offence who
(a) has or attempts to have unlawful carnal intercourse with a girl under the age of (sixteen) 16 year; or
(b) commits or attempts to commit with such a girl or with a boy under the age of (nineteen) 19 years an immoral or indecent act; or
(c) solicits or entices such a girl or boy to the commission of an immoral or indecent act.
Section 14(3) deals with the same conduct as the one mentioned above, but reverses the sexes.
It could be argued that this Section is inclusive of child rape due to the age of the victims being covered. However, as argued above, the extremely limited understanding of 'unlawful carnal intercourse', as well as the lack of adequate definitions of 'rape' and 'immoral and indecent act' could be argued to imply the exclusion of child rape as a sexual offence.
We strongly believe that it is insufficient that the offence of child rape and sexual abuse of children may be implied in this Section and can therefore not provide adequate protection for child victims of sexual offences.
Furthermore, we believe that the different ages of consent are problematic, especially in view of the fact that the forms of sexual offences (i.e., unlawful carnal intercourse and immoral and indecent act) are not clearly defined. The current legislation allows for the age of the victim to be one of the criteria defining the particular sexual offence which is even more problematic considering the limitation in defining 'unlawful carnal intercourse'. The common understanding of this Section declares the age of consent for 'sexual intercourse' as 16 and for 'immoral and indecent act' as 19.
We are convinced that this Section is extremely inadequate to cover the offences of child rape and the sexual abuse of children. We therefore recommend that this Section be removed in its entirety and that the replacement with the SA Law Commission's proposed Section 6 of the Sexual Offences Bill, entitled 'Acts of sexual penetration or indecent acts with consenting minors' be considered.
Defence Against Unlawful Sexual Intercourse Section 14(2) of the Sexual Offences Act deals with possible arguments that can be used in defence of offenders' accused of 'unlawful carnal intercourse' and/or 'immoral and indecent act' against minors. Section 14(2) states that it shall be sufficient defence That the girl at the time of the commission of the offence was a prostitute, that the person so charged was at the said time under the age of (twenty one) 21 years and that it is the first occasion on which he is being so charged.
Section 14(4) deals with the same provision as mentioned above, but reverse the sexes.
This clause declares the act of committing a sexual offence as acceptable as and when the child victim at the time of the offence was a prostitute. Allowing this defence sends out the undisputable message that rape is not considered to be an offence if it is committed against a child prostitute. If the offence of rape is committed against a child, the fact that this child was a prostitute at the time of the rape has no bearing on the offence in question. It can be argued that this Section is not only contrary to the best interest of a child, it also violates the child victims right to be protected by, and be equal before the law. Furthermore, allowing such defence implies that a child prostitute, by virtue of being a prostitute, cannot be raped. This is unconstitutional and discriminatory since in the majority of cases child victims of rape and sexual abuse are female and by applying this Section become excluded from the protection of the law. In addition, this defence not only further victimises the child victim, but also decriminalises the perpetrator of sexual offences.
The age and first offence argument, whilst partially acceptable in mitigating sentences, cannot be used as a defence to avoid prosecution altogether. Furthermore, if we accept that the age of majority is 18 then it ought not to be altered to accommodate perpetrators of sexual offences, as it is suggested within this Act. It is not the argument of this submission that for instance child perpetrators should be treated as adults with regard to rape and sexual offences but that offenders above the age of 18, the age of majority, are treated within the appropriate provisions of the law.
We strongly recommend that the clause declaring the fact that a child is a prostitute at the time of being raped as an acceptable defence, be removed. The Act needs to explicitly condemn the offence of child rape and not provide for the perpetrator of such offences to avoid prosecution.
We further recommend that minor perpetrators be trialed in appropriate Children's and/or Juvenile Courts. However, the age of majority be above 18, as opposed to the extended age of 21 suggested in this Section of the Sexual Offences Act. We would also recommend that the application of the age of majority be limited taking into cognisance the age of the perpetrator, as well as the nature and severity of the sexual offence.
Gender bias
Recognising that the Amendment to the Sexual Offences Act (1988) went to a great deal of effort to make the Act more gender sensitive and inclusive of both females and males as possible perpetrators and victims, the Act still reflects the gender bias of the original Act of 1957. The implied understanding of the Act still portrays females as victims of sexual offences and males as the perpetrators. The narrow understanding of what constitutes rape, as well as the non-provision for child rape and sexual abuse of children are only a few of the examples to that effect. While the predominance of male perpetrators of sexual offences is not in dispute, we strongly believe, however, it is imperative that the acknowledgment of, and therefore provision for, female perpetrators be included in current legislation dealing with sexual offences, including child rape and sexual abuse of children.
We therefore recommend that the Sexual Offences Act be amended ensuring that the language of the entire Act is not only utilising gender sensitive language, but also inclusive of same sex offences and explicit about children.
Cautionary rule
The cautionary rule, an established rule of evidence, requires the court to take extra caution before accepting the evidence of certain witnesses based on the understanding that such evidence is potentially unreliable. The cautionary rule applies to witnesses such as victims of sexual offences, children and single witnesses.
We recognise the right of children to be able to speak for themselves and acknowledge the importance of their testimony in proceedings pertaining to sexual offences committed against them or that they have witnessed. The current practice in sexual offences cases, however, is to treat the testimony of complainants, who in reality are mostly female, as well as the testimony of children with caution assuming that women, based on their gender and sex and children based on their age are unreliable witnesses and are more likely to misrepresent the truth. As a result of this current practice, the testimony of a child 'victim' of sexual offences would be considered by virtue of being the complainant and a child, unreliable and to be treated with caution. Hence, children are excluded from participating in legal proceedings that directly or indirectly affect them and are denied the right to be heard.
It can be argued that the current application of the cautionary rule in sexual offences cases is unconstitutional, since it violates the right to equality, as well as the right not to be discriminated against. If and when the cautionary is applied, child victims of sexual offences, who are in the majority of cases female, as well as child witnesses to sexual offences, are discriminated against on the grounds of gender, sex and age. In addition, it violates children's right to be treated equal before the law.
We strongly support the Law Commission's recommendation to abolish the cautionary rule with regard to the 'victim' of sexual offences, children, as well as single witnesses, especially since the limitation or exclusion of children's participation in sexual offences proceedings based on their age, gender and sex constitutes a violation of their constitutionally guaranteed rights.
It is our strong belief, that the trauma of the crime and the subsequent trial notwithstanding, it is imperative that children are given the opportunity to speak for themselves as and when it becomes necessary. We therefore recommend that children who are 'victims' of sexual offences or who witness such an offence be given access to special protective measures attempting to reduce the potential trauma and further victimisation during the legal proceedings.
We further support the Law Commission's recommendation to establish a category of 'vulnerable witness' seeking to facilitate the protection of certain witnesses and the access to special measures, such as giving evidence by means of closed circuit television or through an intermediary.
Evidence of previous sexual history of the complainant
Current legislation (Criminal Procedure Act, No 51 of 1977, Section 227) allows the previous sexual history of the complainant in sexual offences cases to be admitted as and when the court is satisfied that such evidence is relevant. In other words, it is within the discretion of the court to allow, for instance, the rape victim's, including the child rape victim's, prior sexual history to be admitted as evidence.
The very fact of the possibility of the victim's prior sexual history to be included as evidence suggests that there are circumstances within which rape, as one of the sexual offences, would be 'acceptable', 'justifiable', 'excusable' or less of a crime. This implies further that the victim's prior sexual behaviour before the rape has any bearing on the occurrence of the rape. Such an implication is not only unacceptable, it also potentially minimises the seriousness of rape as a criminal offence suggesting that the right to be free of all forms of violence and abuse might be limitable for the victims of such abuse based on her or his prior sexual behaviour.
With regard to child rape and sexual abuse of children this is especially unacceptable. Whether a minor is sexually active prior to being raped is totally irrelevant to the fact of child rape. We strongly believe that the child's prior sexual history can never be relevant in a sexual offences case and should therefore be inadmissible under any circumstance.
Limiting the criteria for admissibility of such evidence, as recommended by the Law Commission's Discussion Paper on Sexual Offences, gives recognition to the fact that prior sexual history allowed as evidence in sexual offences cases is, in practice, often used to establish the complainant's promiscuity leading to the misconception and feeding into prevailing beliefs that the victim 'asked for it' or 'deserved it' due to prior behaviour.
However, it is a known fact that any discretion given to the court in deciding whether or not evidence relating to the complainant's prior sexual history is relevant opens the possibility for prejudice and further victimisation of the complainant, as well as minimisation of the gravity of the offence. It can be argued that allowing such evidence, by virtue of the kind of evidence it is, is prejudicial to the victim, is discriminatory and violates the victim's right to dignity, as well as the right to privacy. Furthermore, with regard to child rape victims it violates children's right to be protected from abuse and degradation and is undoubtedly not in the 'child's best interest' for such evidence to be admissible.
We therefore strongly recommend that the prior sexual history of the complainant in sexual offences cases be inadmissible under any circumstance based on the conviction that such evidence cannot be relevant in sexual offences cases.
Conclusion
Concluding our submission we would like to commend the Task Group's effort to seek solutions in combating child rape and the sexual abuse of children. We further would like to reiterate that, as a human rights organisation, we deplore the crime of child rape and the sexual abuse of children and urge that immediate action to be taken to combat the violation of children and their human rights.
Dr Johanna Kehler (Acting Project Director)
Silindiwe Sibanda (Senior Researcher)