JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE

CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL

B50 - 2003

17 SEPTEMBER 2003

The Commission on Gender Equality (CGE) is an independent statutory body, established in terms of Section 187, chapter 9 of the Constitution of South Africa, Act 108 of 1996 (hereinafter referred to as the Constitution).

Our mandate is to promote respect for gender equality and the protection, development and attainment of gender equality. The powers and functions of the CGE are detailed in the Commission on Gender Equality Act 39 of 1996. In terms of Section 11(1), the CGE must inter-alia evaluate any law proposed by Parliament, affecting or likely to affect gender equality or the status of women, and make recommendations to Parliament with regards thereto.

The CGE recognizing that the different forms of violence committed against women is one of many obstacles standing in the way of women attaining equality, has identified the area of domestic violence, in particular, the area of domestic violence and violence against women generally as an area of focus. The CGE has, through out the years, received and investigated, and in appropriate cases referred to other institutions, many complaints of sexual offences against women and children. The complaints include complaints about escalation of sexual offences, especially against children; investigating officers failing to properly investigate cases, the manner in which cases are being handled by the State Prosecutors and the delays by courts in finalizing cases.

On 7 March 2002 CGE gave input on the contents of the Sexual Offences discussion paper and draft Bill during a train the trainer workshop hosted by the Human Rights Institute of South Africa (HURISA). Participants included delegates from the various provinces, and their concerns are accordingly included in this submission. The CGE has also hosted a workshop with relevant stakeholders previously, and made a submission to the South African Law Commission. The CGE welcomes the opportunity to present on this Bill.

During the Commission on Gender Equality’s 16 days of activism campaign, the plight of violence against women and children was highlighted. Communities are calling on government to do something about the rapid increase of violence against women and children, for eg. Magistrate van Schalkwyk has reported that during the course of her duties, she has witnessed a public outcry for the blood of perpetrators of sexual offences. People have called for their castration and even demanded that we hang them. These people don’t take into account the fact that sexual offenders also have rights, simply because sexual offences have become synonymous with a death sentence in light of victims’ possible exposure to HIV. Many people believe that the Constitution and Judiciary are perpetrator friendly.

It is against this backdrop that the provisions of the Bill must be analysed in terms of its implications for women. Therefore, certain positive measures should be adopted to promote and advance gender equality. It is accepted in our law that gender equality will not be achieved through the adoption of gender-neutral measures. Instead, what is required, is that the actual circumstances of women and the impact of measures on such women be taken account of and inform the measures that are adopted. In line with this reasoning, one has to look at the gendered nature of both HIV/Aids and sexual offences in South Africa.

Our submission will focus on the following issues, which are of primary concern to the Commission:

1. Introduction
2. Constitutional Perspective
3. Concerns and recommendations

Sexual offences are highly gendered and contribute to the disempowerment of women. Dealing effectively with them and with their consequences is important for achieving gender equality, which is a founding value of the Constitution. S9 of the Constitution prohibits unfair discrimination on the basis of gender and sex.

National Legislation must be enacted to prevent or prohibit unfair discrimination.

Sections 7, 9, 10, 12, 14 and 24 of the Constitution permits the State to the enact legislation promoting protection, freedom and security of person, privacy, respect, human dignity, equality and access to health care in South Africa. As noted, the obligations emanating from the Constitutional rights of women are twofold:

• Government is charged with combating violence against women,
• Where a violation does occur, the state is obliged to take adequate measures to address it.

All these rights are limited by the law of general application, to the extent that they are reasonable and justifiable in an open and democratic society based on human dignity. It therefore raises the following questions:

• What is the purpose or aim of this Bill, and does this Bill achieve this purpose?
• Does this Bill afford adequate protection to the victims of sexual crimes?

The rights at issue are primarily those of the victim and perpetrator. Each of these rights imposes several obligations on the state. A fundamental question is whether, through the adoption of this Bill, the state is adequately discharging these constitutional obligations.

Section 9 The right to equality

The right to gender / sex equality requires that the state adopt appropriate measures that are sufficiently receptive to and address issues of gender inequality.

Section 12(1)(c) The right to be free from violence

Everyone has the right to be free from all forms of violence from both public and private sources. In view of the gendered nature of sexual violence, this right imposes a three-fold obligation on the State.

Firstly, it requires that specific, appropriate measures be adopted to prevent violence in all its forms and manifestations.

Secondly, it requires that measures be adopted to minimise the secondary effects and impact of such violence where it has in fact occurred.

Thirdly, it requires that whatever measures are in fact adopted are receptive to the plight of women. The intentions of the Bill are accordingly in line with these state obligations.

Victims of sexual violence, as with everyone else in South Africa have a right of access to health care services. It is critical that "health care services" is interpreted so as to respond to the effects and impact of sexual violence on women. For instance, it would include measures to reduce possible transmission of HIV through exposure during rape. If such exposure has taken place, the health service delivery infrastructure must be tailored in such a way that it minimises victims’ risk of infection. In part, this means providing access to anti retrovirals and pre and post test counselling. Health care services also refer to a particular standard of mental health care and appropriate measures to facilitate appropriate mental health.

The primary victims of sexual offences are women and the primary perpetrators of such offences are men. The patterns of HIV/Aids transmission are highly skewed in terms of gender and sex. Women are biologically more susceptible to infection than men due to a number of factors including a greater degree of exposure during sexual intercourse. In addition, social factors, such as the relative status and power inequalities between men and women in our society render women more susceptible to violence. The exceedingly high levels of sexual violence against women coupled by the excessively high rates of HIV/Aids infection in South Africa means that women are highly exposed to contracting HIV/Aids as a result of sexual violence. Although informed opinion varies on the extent of exposure such victims are subject to, it is undisputed that exposure is nevertheless a real risk.

Section 12 of the Constitution provides for the ‘freedom and security of the person’, which includes the right to bodily and physical integrity.

We welcome and support the abolition of cautionary rule, and the corroboration of a single witness rule in sexual offences. We do realize that our common law, and the law of evidence, makes it difficult to secure a conviction in sexual offences. This acknowledges the nature of these offences, which usually occur in private, without witness present. It also takes into account that the vulnerable groups such as children remain the target of these offences.

Research in Australia supports the conclusion that the lack of corroborative evidence in cases where the victim is a young child, results in many cases not proceeding to prosecution. This is also the case in South Africa. This rule has since been abolished in Australia. We feel that this will assist in more cases being reported, and convictions being secured. To ensure uniformity with regard to the application of the rules of evidence, it is essential that the Judicial Officers be given proper training in respect thereof.

We support the recommendation in clause 22, that any permanent resident or citizen of South Africa, who commits, what would have been an offence under the Sexual Offences Bill, outside the country, be found guilty of the offence. This provision may act as a deterrent to those who travel to other jurisdictions to commit sexual offences especially against children.

The preamble of this Bill states that the purpose of this act is to afford the complainants of sexual offences, the maximum and least traumatising protection that the law can provide, to introduce measures which seek to enable the relevant organs of state to give full effect to the provisions of this Act, and to strengthen the States commitment to eradicate the pandemic of sexual offences committed in RSA, or elsewhere. The Commission on Gender Equality has received numerous concerns about the removal of the provisions relating to the treatment and counselling of victims, from the draft Bill. We do realise that these are crucial components in respect of the victims needs. Furthermore we do realise that one government department cannot, in legislation as this, impose an obligation on another.

It is recommended that a clause be inserted, which obliges the first state official, to whom the alleged offence is reported to, to hand a notice containing information as prescribed regarding: The complainant, or an interested person’s right to the compulsory HIV testing of an alleged offender; How HIV or STD’s are is transmitted, and the risk factors associated with the transmission of HIV in sexual violence; Details about ART, including an explanation of what it is, what it entails, and where it is available; HIV testing and window periods associated with the different tests; Information about the morning after Pill, and from which state clinics it is available, to the victim or the interested person. Due to illiteracy, language, racial, and cultural barriers, this obligation should only be discharged, if the contents of the notice is explained in a manner, and language which the complainant is able to understand. Sanctions for non-compliance by the relevant role players, as in the Domestic Violence Act, would motivate uncooperative officials to comply. This information should be given in the prescribed form, which should be prescribed by this Bill, as in the Domestic Violence Act.

The primary victims of sexual offences are women and the primary perpetrators of such offences are men. The patterns of HIV testing are highly skewed in terms of gender and sex. Women are more likely to be tested for HIV/ AIDS, because when women are pregnant, they have to present themselves to antenatal clinics where they are tested for, amongst other things, HIV/ AIDS. Many women are infected by husbands or partners who themselves have acquired the infection outside the relationship, but remain heedless of the risk of infection until the woman’s HIV status is known. These women are known to suffer abandonment, rejection and violence on disclosing their HIV status to the male partners who transmitted the infection to them. The reasons for the fear are numerous, especially for African women, and can include the fact the husband is the breadwinner and also cultural, religious and social constraints, and these reasons also make it difficult for the woman to negotiate the use of condom. The woman is then compelled to sleep with her husband without using protection. These woman run the risk of being prosecuted, as there will be evidence that she knew that she was HIV positive, but slept with her husband anyway, and this can be equated to deliberate infection. Men on the other hand rarely get tested, so it would make it difficult to prove that the man is the one who infected the women unless the women shows that prior to sexual contact with the perpetrator she was a virgin.

This obligatory disclosure of HIV status, will in all likelihood further victimise these women who are themselves already suffering disproportionately from the burden of the HIV/AID pandemic, and that a criminal provision exacerbating this state of affairs can hardly be desirable.

The safe guard in the Commission's proposal is that it refers to "non-consensual HIV-related behavior" meaning that in the above scenario the sexual activity would be consensual, so there would be no offence. But what must be considered here is that, if the husband knew that the wife was infected he would have in all probabilities, not have consented to having sex with her. We are concerned that the interpretation may render this act non-consensual. The concern about this provision does not mean the CGE does not realize the need for punishing those persons that intentionally infect others with HIV/AIDS, (in many cases it is men who are perpetrators of this deed) our concern is that women may be disproportionately punished for non disclosure.

The listing of this as a separate category of crimes, may lead to a lesser sentence. We are concerned that this offence might be interpreted in a lower hierarchy of crimes, and could lead to a lesser sentence. Any act of sexual violation is harmful to a persons mental and physical health.

This clause fails to take into account the reality that this provision will punish those people who were forcefully removed from their land, and placed in informal and low cost houses. Most South Africans live in one bed roomed houses. The RDP houses, township establishments, informal housing, and other low cost houses, generally have one bedroom, which houses the family, and at times includes extended families.

We understand the importance of protecting children, from being sexually conditioned at an early age. If the aim of this clause was to combat sexual offences with children, then it should clearly state so, to avoid unintended results. We recommend that this clause be incorporated with clause 10, to contextualise the intention hereof.

We are concerned about Clause 9(5)(ii). This stipulates that the age of the accused should not exceed the age of the complainant by more than three years. In teenage years, three years is a big gap, especially with regard to development. Eg. There is a huge power imbalance between a 13 year old, and a 16 year old.

We support the amendment to the prescription Act in this regard, which now includes two new offences.

This definition should be extended to children in foster care, as it is important that they are afforded the same protection as other children.

We support the inclusion of this section where certain witnesses are automatically declared by the court as vulnerable witnesses. The CGE believes that this section will go a long way towards insuring that more and more victims of sexual offences report these crimes with the knowledge that the necessary protection will be afforded to them.

We welcome this clause, and believe that it will be more effective than a sexual offender register. This places the obligation of disclosure on the convicted sexual offender, which removes the burden of the employer having to call on the sexual offender register.

We are concerned that the mandatory sentence is set at a maximum. The sentence are imprisonment, or the option of a fine, or both. What is the purpose of setting a maximum mandatory sentence, and how will this change the current situation?

One way to avoid leniency in sentencing is to have minimum mandatory sentences for violent offences. Appropriate mandatory sentences give the public a sense that justice is being served. Mandatory sentences are also an explicit consequence of the implications of engaging in violence - an important consideration as many criminals don't assess the consequences of their violent conduct."

In a case of S v Young, two learned judges gave careful consideration to the same issues, arising out of a set of agreed facts, but arrived at diametrically opposed conclusions. It seems that the nature of our sentencing procedure makes this type of outcome virtually inevitable, because whereas the course of the trial is determined by clearly defined rules of law, the approach to sentence is left largely to chance. What this means, is that the point of view of the individual sentencer will largely determine their approach to a given set of facts, and there will therefore be as many different approaches as there are different sentencers. This state of affairs is quite understandable, because judges are human beings: each one is a unique product of a unique combination of social, physical, psychological and economic influences, so each will inevitably go their own way in the absence of clearly articulated guidelines; as a consequence, uniformity in sentencing remains unattainable. The problem of uniformity has not yet been approached seriously and scientifically in our law, and uncertain , albeit vital, problem,

PROBLEMS IN RESPECT OF THE SENTENCING PROCESS IN SOUTH AFRICA
Some of the problems are listed as follows:

• The legislative framework for control of the sentencing discretion is too broad and it enhances inconsistency and disparity in sentencing practices.
• The principles developed by the courts to limit or control the sentencing discretion are ineffective.
• The principles upon which a superior court will interfere with a sentence imposed by the court of first instance are vague and the lower courts are in desperate need of a comprehensive set of principles which can be used as basic guidelines in sentencing.
• There is a clear absence of a systematic approach to sentencing.
• There is a clear absence of a structured sentencing policy and sentencing guidelines.
• Most sentencers appear to approach the question of sentencing in an intuitive and unscientific manner.
• Sentencing practices fail to protect the community from criminals committing serious offences.
• Academics have highlighted a number of factors which were in the past regarded as justification for discrimination in sentencing, for example race, gender, class, ecomomic position and political background.
• Many sentencers imposed sentences with a specific political backgroud as point of departure.

In S v Khumalo, the court held that: In the assessment of an appropriate sentence, regard must be had inter alia to the main purposes of punishment ... namely deterrent, preventive, reformative and retributive ... Deterrence has been described as the 'essential', 'all important', 'paramount' and 'universally admitted' object of punishment. If the sentence is not a deterrent factor, there will be no incentive for victims of sexual offences to come forward to report these crimes.

We therefore support the enactment of a mandatory minimum sentence combined with a discretion to depart from the sentences under certain conditions. This option implies the enactment of a mandatory minimum sentence for example 15, 20 and 25 years imprisonment for a first, second and third conviction respectively coupled with a discretion to the sentencing officer to depart from the prescribed sentence if special circumstances exist. In such circumstances the sentencing court is required to record the circumstances and to give written reasons for departure from the prescribed sentence.

Child prostitution is a serious offence, and a financially lucrative market. In such cases, upon conviction, the court should be obliged to enquire and assess the monetary gain, or equivalent of any advantage, which the convicted person may have gained as a result of the criminal activity. In addition to any punishment, the court should impose a fine equal to proceeds of the amount assessed. This will ensure that the penalty matches the crime .

The CGE commends the SALC, and the Justice Portfolio Committee for the initiative of this legislation, as part of the process in an attempt to redress the consequences of sexual abuse faced by women.

Despite the concerns raised in this presentation, we believe that it is important to implement this Bill, as it will potentially assist in affording victims of sexual offences, greater protection. We acknowledge that there will be implications of education and training, which will be imperative for the effective implementation of this Bill.

This Bill should be used as a starting point in mobilizing other rights, and this should not be seen as governments solution in addressing the increase of violent sexual crimes, and HIV / Aids. We have to build incrementally towards our ultimate goals, of a holistic, therapeutic mode of intervention in sexual offences cases.

We wish to thank the SALC for their extensive research on this Bill.