SOUTH AFRICAN LAW COMMISSION
SEXUAL OFFENCES BILL
Progress
On 7th December 2002 the Commission convened and approved the Report on Sexual Offences and the draft Bill on Sexual Offences
The Report addresses substantive and procedural issues related to Sexual Offences and encapsulates legislative and non legislative recommendations
The Report was officially handed over to the Minister for Justice and Constitutional Development on 21st January 2003
Ministerial Memoranda expositing the non legislative recommendations have been forwarded to:
Department of Safety and Security
Department of Health
Department of Correctional Services
Department of Education
Department of Social development
For their urgent attention and considered implementation
Preamble
Purpose of the Bill
Maximum and least traumatising protection the law can provide
Introduce measures which enable organs of state to give full effect to the Bill
Fortify the state’s commitment to eradicate the pandemic of sexual offences
National Policy Framework
Empowering provision in Bill : statutory duty on govt dept’s and relevant NGO’s to compile an inter-sectoral, national policy framework
Purpose: to guide the implementation, enforcement and administration of the Sexual Offences Act
Aim: uniform and acceptable approach towards treatment & protection of complainants and apprehension & prosecution of offenders
Provides for internal accountability mechanisms: positive duties
Rape: common law
Unlawful, intentional sexual intercourse with a woman without her consent.
‘Sexual intercourse’ – penetration by male sexual organ # penetration per anum/ object
‘woman’ – gender specific – man with woman
‘without her consent’ – woman put to the proof that there was no consent
Irrebuttable presumption that girl <12 cannot consent gender specific – not applicable to boys
Penetrative offences: Bill
All inclusive Rape definition was based on premise that the Sentencing Framework Bill would be passed before the consideration of the Sexual Offences Bill
Current law applicable: Minimum sentencing provisions in Criminal Law Amendment Act 105 of 1997: follows a grading system for sentencing
Degrees of sexual penetration
Rape: genital organs – anus/genital organs
Sexual violation – object/body part of animal or person – anus/genital organs
Oral genital violation – genital organs of person/animal - mouth
Penetrative offences: Bill
Rape: - Gender neutral
Intentional causing of penetration by the genital organs into or beyond the anus or genital organs
3 categories of circumstances make the act prima facie unlawful:
Coercive circumstances
False pretences/fraudulent means
Person committing the act of penetration The act itself
Intentional non-disclosing infection with a life-threatening sexually transmissible disease where there is significant risk of transmission.
Incapable in law of appreciating the nature of the act which causes penetration
Includes marital rape
Confirms defences at common law : evidential burden on accused
Penetration: Sentencing
Life imprisonment
Death of victim
More than one person/more than once
2/more convictions of rape
Knowingly has AIDS
Complainant younger than 16
Complainant is physically disabled
Complainant is mentally ill
Involving infliction of grievous bodily harm Oral genital sexual violation < 16
Sexual violation with infliction of grievous harm Penetration: Sentencing
Rape (other)
First offender: 10 years
Second offender: 15 years
Third or subs. Offender: 20 years
Applicable to (ordinary) sexual violation
Oral genital sexual violation > 16
Grievous bodily harm > Grievous harm: psychological trauma
Children consenting to penetration or indecent acts
Consent to penetration negated where child is 12 – 16 years
Defence:
Accused deceived that child was16
Accused reasonably believed that child was 16
Defence does not apply where related to child by blood or affinity or the child did not appreciate the nature of the act
Children consenting to penetration or indecent acts
Consent to indecent acts negated below 16 years
Defence:
Accused below the age of 16 years and
Age of accused did not exceed the age of the child by more than three years; or
Accused deceived that child was 16 and reasonably believed that child was 16
Defence does not apply where related to child by blood or affinity or the child did not appreciate the nature of the act or child was below the age of 12
Promotion of a sexual offence with a child
Any person who –
manufactures or distributes an article that promotes a sexual offence with a child or
where a person sells, supplies or displays to a child an article which is intended to perform a sexual act
Guilty of the offence of promoting a sexual offence with a child
Fine and/or imprisonment not exceeding 6 years
Child prostitution
Decriminalisation of child and mentally impaired prostitutes
Decriminalisation of children benefitting from child prostitution in certain circumstances
Explicit criminalisation and severe penalisation of all role-players involved in child prostitution and prostitution of mentally impaired persons
Prohibition of organising or promoting child sex tours
Rules of evidence and Procedure
Category of vulnerable witness
Automatic:
Complainant in the proceedings
A child
Excludes accused
Application:
Any other witness on grounds of age, trauma, cultural differences, any other relevant factor
May call an expert to help assess vulnerability
Must direct protection by one or more protective measures eg. appointment of a support person (prescribed witness fees)
Automatic appointment of intermediary for a child vulnerable witness, adult may apply
Cautionary rules and corroboration
Evidence of a complainant of a sexual offence or a child may not be treated with caution or require corroboration merely because of the fact that it is a sexual offence complaint or a complaint by a child.
Provision of treatment
Physical, psychological/other injuries due to alleged sexual offence
Immediate and appropriate medical care, treatment and counselling
Exposure to a sexually transmissible infection
Be advised regarding testing
Have access to all possible means of prevention, treatment and medical care
After reporting offence to SAPS or Health facility
State shall pay for the care, treatment, testing, prevention and counselling
Sentencing/post trial
Drug and alcohol treatment order in addition to sentence
Supervision of dangerous sexual offenders
More than one conviction for a SO
Convicted of a SO with violence/threats to violence
Convicted of a SO against a child where perpetrator is an adult
After being released after partial completion or on parole = long term supervision 5 years + by Dept of Correctional Services; review after 3 years
Non-disclosure of conviction of SO
All persons convicted of a SO must disclose such conviction when:
Applying for employment placing him/her in a position of authority or care of children
When offering or agreeing to take care of or supervise children
Failure to do so: fine and/or imprisonment not exceeding 3 years.
Extra-territorial jurisdiction
Applicable to citizens and permanent residence
Relevant to all provisions in Sexual Offence Bill