Our definition of "child" is a person under the age of 18 years. Our definition of child abuse is premised on and informed by the basic children’s rights enshrined in the United Nations Convention on the Rights of the Child (ratified by South Africa in 1995) and the Organisation of African Unity Charter on the Rights and Welfare of the African Child (ratified by South Africa in 2000). Thus it encompasses all aspects of violations of children’s rights.

To expand upon and complement the work that we undertake by training and raising awareness, we run a Resource Centre through which we make available, disseminate and produce resources; we actively engage in advocacy aimed at ensuring an appropriate legislative and policy framework for the protection and promotion of children’s rights; and we are involved in a limited amount of rehabilitation, particularly with regard to the Criminal Justice System.

Our work also includes offering support services to the children at the Sexual Offence’s Courts in Wynberg, Khayeltisha and recently Parow. It is in light of our work in these courts and the impact this Act will have for children that we are making the following submission.

• Section 1 Rape - The acts of sexual penetration and their circumstances that make sexual penetration unlawful.
• Section 11 Child Prostitution - The acts and circumstance of child prostitution and the criminalization there of, and the inclusion of juristic persons.
• Section 14 Witnesses to be notified of protective measures - That a person must be informed of the available services and protective measures.
• Section 15 (1)(b) – That a child who is a witness in criminal proceedings involving the alleged commission of a sexual offence must be declared a vulnerable witness.
• Section 15(5) - The appointment of an intermediary upon finding a child as a vulnerable witness.
• Section 16 and 18 - That some existing rules of evidence which are biased are to be limited or scrapped.
• Section 21 National Director of Public Prosecutions to decide - That SAPS cannot take a decision as to whether to proceed with a prosecution, such decisions can only be made by the National Department of Public Prosecutions.
• Section 23 Non- disclosure of conviction of sexual offence - That a person who fails to disclose a conviction of a sexual offence when applying for employment which would place such person in a position of authority or care for children, such person would be guilty of an offence

Of particular concern to RAPCAN are issues related to provisions for psycho-social support for child victims, children as vulnerable witnesses, post-exposure prophylaxis for children, and the necessity for a National Policy Framework.

We support the SALRC recognition that persons involved in sexual offence cases are vulnerable by the very nature of the crime perpetrated against them and would therefore require support. This could involve a number of elements, including the presence of a support person.

The current draft of the Sexual Offences Bill (4 August 2003) has removed section 15 (4)(a) of the SALRC draft "allowing that witness to be accompanied by a support person as provided for in section 17." The SALRC draft section 17 sets out the procedure for the appointment of a support person. Schedule 1 alludes to the need to protect the vulnerability of children at section (h) the vulnerability of children should entitle them speedy and special protection and provision of services by all role-players during all phases of the investigation, the court process and thereafter. However this clause was originally set out in the SALRC draft under the Objectives Section 1(i). Moving the objectives to a schedule at the end of the Bill defeats the aim of ensuring the those with the responsibility of implementation are aware of the intentions of the Bill.

In an account of the criminal justice process, The Second Rape ‘Lydia’s story’ the complainant noted, "Because the preliminary hearing was so upsetting for me, my psychologist came with me for each sentencing after." This is an indication from a victim as to the need for support during the court proceedings.

The SALRC Draft Bill allowed for the provision, at state expense, of appropriate medical care, treatment and counselling as may be required. In the SALRC’s accompanying report it was noted that it was of importance that the general nature of the clause had been so as to not only create an enforceable right, but to allow for the development of protocols and directives necessary for the practical implementation, without restricting the range of treatments as may be necessary.

The SALRC’s draft makes provision at Section 21 Provision of treatment for the provision, immediately after the alleged offence, of "appropriate medical care, treatment and counselling as may be required for such injuries.". If this clause was included, this girl would have received counselling and may never have landed up in the Juvenile section of Pollsmoor prison.

The second case is a clear example of the need for support and counselling to ensure that the victim is able to give evidence and is not unnecessarily traumatised in the process.

The SALRC’s Draft Bill allowed that the victims family should also receive some form of counselling and support. Parents and care-givers with whom we have worked at the Sexual Offences Courts we have commented that they have very little or no access to support for themselves as parents, and that they appreciate the work and the service we are offering. This is a clear indication that there is a need for the support services to be extended to include the family of the victim.

The current draft of the Sexual Offences Bill (4 August 2003) has removed Section 21. The counselling included in Section 21 is only one important aspect of this section. The other important step that the SALRC draft takes is in the provision of appropriate medical care and treatment. Dr Neil McKerrow has reported on the increased vulnerability of pre-pubertal children to HIV transmission due to the immaturity of the genital tract (the mucosa in the pre-pubertal child is only a single cell layer thick) tears and trauma occur more easily, thus increasing the likelihood of infection.

This is indicative of the need to ensure that children in particular are able to receive the necessary medical treatment in time to reduce the chances of infections.

The removal of this section will have an impact for adults but will have a greater impact particularly for children. As implementation is always questioned with regards to sections that require service delivery, the SALRC purposefully left this clause in general terms to ensure that implementation is a process of development of protocols. We would support the re-inclusion of this section on treatment, medical physical and psychological, for the protection and well being of children as whole human beings.

The SALRC Draft Bill includes a National Policy Framework (NPF) at Section 28, with it’s contents specified in Section 29 and the required consultative process described in Section 24. The 4 August Draft Bill has a watered down National Policy Framework (Section 24). It does not bind all organs of state, and it does not give direction or guidance as to the contents of the NPF, such as to encourage co-operative governance to ensure that there is cross-functional and multidisciplinary approach to the interpretation and implementation of the act. This could potentially undermine the Act, in that different departments will not be required to engage with other departments and organisations providing services to victims. This could create potential cracks through which victims could fall. This is contrary to the spirit of the act.

Furthermore, the consultative process, required by the SALRC draft for the NPF has been removed. This prevents a free flow of information between departments, spheres of government and the public, which can create confusion as to what is to be achieved, and how it will happen, and who is ultimately responsible for what aspects. RAPCAN supports the re-inclusion of a comprehensive strategy for a NPF.

Yours sincerely

Carol Bower

Executive Director

RAPCAN