SUBMISSION ON THE SEXUAL OFFENCES BILL
To the Committee on Justice and Constitutional Development
RAPE CRISIS CAPE TOWN TRUST
IDASA
September 2003
TABLE OF CONTENTS:
Executive summary
Rape Crisis Cape Town Trust
IDASA
Introduction
The provision of treatment to sexual offence survivors
Psycho-social Treatment
Rape, Sexual Violation and Oral Genital Sexual Violation
Guiding Principles
Vulnerable witnesses and protective measures
National policy framework
Evidence of previous consistent Statements and delay in reporting
Evidence surrounding circumstances and impact of sexual offence
Application of caution and requirement for corroboration
Amendment of section 227 of the Criminal Procedure Act of 1977
Supervision of Dangerous Sexual Offenders
Non-disclosure of conviction of sexual offence
EXECUTIVE SUMMARY
We commend the original intent to reform the sexual offences legislation and common law. This intent included broadening the definitions, addressing the prejudiced rules of evidence and affording greater attention and protection to the constitutional rights of complainants in sexual offences. We believe that these and other changes are fundamental to ensure that effective legislation is put in place to address sexual offences.
South Africa has ratified numerous international conventions relating to the prevention of gender based violence and gender discrimination.
Addressing the definitions and changing the evidentiary rules relating to sexual offences will have some positive effect on the existing situation, however, alone, this will not address the needs of South African society in relation to sexual offences effectively. In order to improve access to justice, the processes of the entire criminal justice system that contribute substantially to the current pandemic of sexual offences in South Africa must be improved. Changes on this level require the commitment of finances and we believe that the State must take responsibility for meeting these costs.
Although we would prefer that this legislation be promulgated as soon as possible, it is of greater importance to us that time and care is taken to pass legislation of a high standard in order to address the current situation of sexual violence in the country.
We are in support of the following aspects of the Bill:
The stated purpose of the Bill to provide the maximum and least traumatising protection to complainants in sexual offence cases.
The development of the circumstances that make an act of sexual penetration unlawful. - Section 2(2).
The declaration of sexual offence complainants as a vulnerable witness and the duty placed on the court to notify the witness of protective measures - Section 14 and 15(1).
Provisions in the Bill that strengthen the position for implementing protective measures in existing legislation. We are in favour of implementing the intermediary system for all child complainants’ testimony and providing some adult complainants with access to this system - Section 15(4) and (5).
That no inference may be drawn on the basis of a delay in reporting the incident or in the absence of previous consistent statements - Section 16.
The inclusion of provisions which will facilitate the Court in hearing evidence of the impact of the sexual offence on the life of the survivor - Section 17.
That the cautionary rules, which are biased in nature, are scrapped - Section 18.
Provisions declaring certain convicted sexual offenders "Dangerous Sexual Offenders" and support implementation of additional measures to protect the complainant if the offender is released early from prison - Section 20.
The provision that the decision to discontinue investigation into a matter must rest with the National Department of Public Prosecutions and not with the South African Police Service - Section 21.
The proposed amendments to Section 227 of the Criminal Procedure Act of 1977 relating to evidence of previous sexual history of the complainant.
We believe that the following aspects of the Bill need to be addressed further:
We commend the inclusion of guiding principles in the Bill but we recommend that this section be moved to the front of the Bill and compelling language used in order to ensure that these principles are taken into account by the court when making decisions relating to court procedures – Schedule 1.
We believe that all acts involving sexual penetration under unlawful circumstances must be defined as rape. This must include the penetration of a penis or object into another person’s anus or vagina and the penetration of one person’s genital organs into the mouth of another person – Sections 2, 3 and 4.
We are opposed to the inclusion of subsection 2(4)(c) in this Bill. We believe that this issue should be contemplated separately.
While we commend the provision of protective measures for complainants while they testify in court, we believe that the wording of this section must be reworked to ensure that these measures are used in all cases where they are necessary. Provision for a support person to be in court with the complainant must be included – Section 15(4) and 15(6)(d).
The costs relating to the provision for drug and alcohol treatment orders for convicted offenders must be considered in relation to consideration of treatment for survivors – Section 19. The treatment needs of survivors must be prioritised above those of the offenders. The Bill must include a clause providing for health care and psychological treatment for survivors. We believe that the State must bear the cost of this.
Certain employers must be given the right to investigate prospective employees for previous convictions of sexual offences. The responsibility to reveal this information must not lie solely with the convicted offender Section 23.
The National Policy Framework must include binding protocols for all State service providers who work with sexual offences. The principle of training service providers on the management of sexual offences must be contained within the National Policy Framework Section 24.
Rape Crisis Cape Town Trust
Rape Crisis Cape Town Trust welcomes the opportunity to comment on the proposed sexual offences Bill. We believe that changes to the current law are critical to ensure access to justice for survivors of sexual violence.
This organisation has been involved in this process since its inception. This includes the fact that the deputy minister of Justice at the time approached Rape Crisis Cape Town Trust and three other organisations to draft a discussion document relating to the Legal Aspects of Rape. (See Annexure A for more information on the organisation)
The contents of the proposed Bill have been work shopped amongst members of the organisation as well as with members of the Western Cape Network on Violence Against Women. Where possible we have included quotes from survivors of sexual violence who have utilised our services and from the counsellors who work directly with survivors at our offices.
IDASA
IDASA is an independent, non-profit, public interest organisation that promotes democracy in South Africa. The Budget Information Service (BIS) is a programme within IDASA. BIS uses the data and budget information that is published by government to analyse revenue and expenditure impacts on the lives of low income, poor and vulnerable communities. This independent research output adds value to the work of several important role-players. It is used to enhance the role of civil society organisations in their pro-poor and rights-based advocacy work, to inform parliamentarians in their oversight and monitoring of government departments, to engage government officials and influence and advocate budget decisions.
INTRODUCTION
In 1994, the new democratically elected government placed the rights of women and children high on their agenda. Government recognised that the high levels of discrimination facing these groups was unacceptable and that measures needed to be introduced to ensure that the rights of women and children were equally valued and protected in society. Not only is government’s commitment enshrined in our Constitution, but our government has also ratified International Conventions that echo these, for example the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC).
Government department policies and protocols consistently prioritise addressing gender equality and violence against women and children. In spite of these priorities and policies there is still a low conviction rate of 7% on sexual offence cases that have been reported to the SAPS. It is well documented that there is an extremely low rate of reporting sexual offences to SAPS for a variety of reasons. These include:
Some concrete efforts have been made to address sexual offences more effectively and these need to be recognised. There has been specialised training of detectives by SAPS and initiatives such as the Sexual Offence Courts that are effective in ensuring that a greater number of sexual offence survivors access justice in their criminal cases, have been put in place. We are pleased to note that there are more instances where our clients report positive experiences of the criminal justice system, however secondary victimisation of sexual offences complainants is still widespread.
Sadly Rape Crisis is still not in a position to assure our clients that their cases will be taken seriously and that they will not be faced with insensitive, blaming and minimising attitudes from State role players. The rights, needs and opinions of complainants are generally invisible within the criminal justice system.
In spite of progressive policies and legislation (such as section 158 CPA 1977, Criminal Law Amendment Act 105 of 1997 on minimum sentencing) pervasive misconceptions regarding the causes and effects of sexual offences influence the implementation of these measures, which are intended for the specific purpose of improving access to justice for sexual offence complainants.
In recognising the phenomenally high rates of sexual violence perpetrated against women and children in South Africa, it is imperative that we have legislation that addresses this problem fully and effectively. This means that we need legislation that conveys the message that sexual violence in our developing democracy will not be tolerated and that government will do everything in its power to ensure that such crimes are fully addressed and that they carry serious consequences for offenders.
Current common and statutory law is often discriminatory and fails to offer adequate protection or to deal effectively with sexual violence. The proposed Sexual Offences Bill attempts to overcome the shortcomings of the existing legislation. It is a response which recognises the obligations placed on the State by international legal instruments that we have ratified, the high incidence of sexual offences in South Africa and the fact that women and children are particularly vulnerable to sexual offences.
The flaws in the processes and procedures of the criminal justice system contribute substantially to the current pandemic of sexual violence in South Africa.
We wish to commend and draw attention to those points in the preamble of the Bill that reflect what this Bill intends to achieve.
According to the preamble, the stated purpose of the Bill is to:
However, it is our belief that the Bill, as it was presented to the Justice portfolio committee in August 2003, does not meet the intended purpose entirely.
Although we would prefer that this legislation be promulgated as soon as possible it is of greater importance to us that time and care is taken to pass legislation of a high standard in order to effectively address the current situation of sexual violence in the South Africa.
1. BUDGETING FOR GOOD LEGISLATION
Members of Cabinet and members of the Justice Portfolio Committee have repeatedly raised reservations about the important provisions within the different drafts of the Sexual Offences Bill that have cost implications.
It is of grave concern to us when critical aspects ensuring that sexual violence is adequately addressed are omitted from national legislation.
Recommendations within SALC Discussion Paper 102 that would potentially have advanced the protection of the interests of the complainant have either been completely excluded by Cabinet or watered down in the Bill. These include the guiding principles, the national policy framework, protective measures and treatment for survivors. The result is that the changes that have been recommended in the Bill as it stands will have not make a substantial difference in case management of sexual offences or in the current low prosecution and consequent conviction rates in these matters.
High costs and limited resources are being used as a justification for introducing legislation that is unlikely to make a substantial difference to the way in which sexual violence is addressed by the existing legislation and common law.
In order to give effect to the intentions of the Bill and the law reform process funds must be allocated to the management of sexual offence cases. It is only if adequate budgetary allocations are made to the relevant government departments that the intentions expressed on paper can be implemented in practice. In allocating sufficient funds to enable implementation, government concretely expresses its commitment to address the sexual violence that pervades our society.
We submit that it is the responsibility of the State to ensure that the process of seeking justice is effective. In order to do this we believe that the State must take responsibility for meeting the costs of implementing effective and meaningful legislation.
With regard to sexual offences, the State takes responsibility for the crime committed against the victim to the extent that the criminal matter is prosecuted by the State. This responsibility was strongly expressed by the SA Law Commission which stated, "although all victims suffer individual trauma, crimes are committed against society at large. It is therefore proper that the State, and not the victim, prosecute offenders." This position was based on the assumption that "recommendations contained in discussion paper 102 would greatly assist complainants and advance the protection of their interests in a manner consistent with the constitutional imperatives applying to the State."
These recommendations are the measures that have been removed from or greatly reduced in the current Bill. Thus on the one hand the State insists on taking responsibility for prosecuting the crimes yet on the other no adequate measures are going to be put in place to ensure that the constitutional rights of complainants are protected in a system that is notorious for marginalising these rights.
Passing ‘flimsy’ legislation in order to reduce the costs to the State of addressing sexual violence will inevitably mean that the legislation that will be in place will have little impact on alleviating the problem. The well-researched and widely consulted process of the law commission since 1996 will, in part, be wasted and a vital piece of legislation regarding a serious issue in our country will be rendered toothless.
Notwithstanding the above, we note that according to members of the SALC and Non Governmental Organisations there are international donor agencies that have indicated an interest in rendering financial assistance for certain critical aspects of service provision to victims of sexual offences and within the South African criminal justice system. Crimes of sexual violence have reached pandemic proportions and the consequences of these crimes require critical and immediate medical and psycho-social support and effective judicial processes. It is not clear why our government would opt to exclude the provision of such services rather than to explore the avenue of accepting donor funds or forming partnerships with such donor agencies.
We submit that the State must explore accepting donor contributions in order to cover some of the costs related to sexual offences.
The true indication of a government’s commitment to an issue and to the delivery of services towards the well-being of its citizens is budget allocations. The fact that government has expressed an unwillingness to allocate money in order to fully and adequately address sexual violence makes it clear that violence perpetrated against women and children is in actual fact not a priority for it.
Judging from the budgetary allocations to the various national departments, it is clear that government prioritises defence above health, social development and justice. The Defence budget for this financial year is more than double the Health budget, five times more than the Justice budget and ten times more than the Social Development budget (See Annexure B).
The reality within South Africa is that the majority of citizens, primarily women and children, live in abject poverty and are increasingly vulnerable to gender based violence and HIV infection. This threatens the well-being of the nation and in light of this it is completely unacceptable for our government not to prioritise the budgets of those departments that will be able to effectively address all of the critical needs of its citizens.
We submit that all aspects of government must commit to ensuring that overall budget allocations reflect the needs of the citizens of this country.
In order to ensure that the legislation will be effective, it is necessary that it not only deal with the perpetrators of these crimes but also the needs of their victims.
We are disturbed at the emphasis in this Bill on the rights of offenders, when the needs and rights of victims are seen as being peripheral and expendable. The exclusion of the clauses that make provision for health care and psychological treatment to victims must be seen in relation to the fact that no similar concern has been raised in relation to the clause providing for treatment orders for offenders. There has been little hesitation in the decision to provide medical treatment, including management of HIV/AIDS to convicted offenders. The Department of Correctional Services has indicated that the increase in their budget for the 2003/04 financial year is partly due to increased provision of health and physical care to prisoners.
For these reasons we are of the view that our government seems prepared to ignore its responsibility to victims of sexual offences, yet will readily meet the needs of offenders.
In light of the above, we feel that much work lies ahead in ensuring that we develop effective legislation to address sexual offences. Passing comprehensive legislation now will minimise costs to the State in the long run. We therefore propose the following:
Recommendation:
The cost implications of implementing measures that will improve access to justice in sexual offence cases by addressing the criminal justice processes must be met. Every effort must be made to ensure that Cabinet accepts that the State must take responsibility for meeting these costs.
The needs of victims of crimes must be prioritised above those of offenders for health care and psychological treatment.
2. EXCLUSIONS FROM THE BILL
As already Stated in this submission, provisions that have been excluded from the proposed Bill are, in fact, critical to ensuring that the response to sexual offences by the State will be effective and therefore should not have been excluded. The provision of these services must be prioritised, and therefore the financial obligations for such services must be accepted as a priority.
Cabinet omitted the clause on provision of treatment in the Bill which obligated the State to provide medical treatment to rape survivors to prevent STIs (including HIV) and pregnancy. The reason provided was that in legislating such an obligation, the State would be bound to ensure financial resources are available to provide for such treatment. A Cabinet spokesperson expressed the view that such responsibility should not be placed on government, but should rather be a "principled position".
The risk of HIV infection is significantly increased in circumstances of sexual assault. It is imperative that survivors have access to the appropriate treatment. The National Department of Health (NDoH) policy is committed to providing Post Exposure Prophylaxis to rape survivors, however the implementation of this policy across the country is currently erratic. NDoH is currently in a process of developing a sexual assault care policy that addresses the other medical treatment concerns of survivors of sexual violence.
Including the provision of treatment as a clause in the Bill will ensure that the provisions in departmental policy are enforceable and ensure that there is formal resource allocation for treatment needs. The response of Cabinet is disturbing because without a specific legislative obligation or firm long-term policy commitment, it is almost impossible for departments to secure adequate funding that is targeted at a specific intervention. In the absence of legislation we cannot be certain of what the ‘principled positions’ will be at any given time, particularly in view of the NDoH’s questionable ‘principled positions’ on HIV treatment in the past.
Recommendation:
Provision must be made in the Bill to ensure that the victims of sexual offences have access to treatment for the health related impact of these crimes. It is the responsibility of the State to ensure that this treatment is available.
Removing the clause that provided for psycho-social support is dismissive of the severe psychological trauma suffered by a survivor as a result of the sexual violence. Our society constantly minimises the effects of sexual violation on the survivor and many survivors live for years with the after-effects of such an experience and although they are able to cope, their functioning can be severely impaired by the experience. Survivors commonly experience a range of distressing symptoms (see Annexure C for more detail on Rape Trauma Syndrome). Suffice it to say the effects of a sexual assault can be so pervasive that they permeate everything: the survivor’s sense of self, intimate relationships, sexuality, parenting, working life and even his or her sanity. It certainly affects the survivor’s ability to deal with the criminal justice system and take up her legal rights and responsibilities.
Counselling benefits survivors in a number of ways:
There are not enough organisations providing affordable and accessible counselling services to survivors of sexual violence in South Africa at this time, high levels of unemployment, low wages and poor socio-economic conditions mean that few survivors are able to afford those services. Services tend to be weighted in favour of urban areas, which exacerbates the dire situation for survivors of sexual violence in rural areas. The majority of survivors in South Africa are left without the option of counselling.
The criminal justice system is in no position at this time to offer justice or healing to the majority of survivors of these crimes. The sense of hopelessness that many experience in the face of the perpetrator and the often overwhelmingly negative response of the State and other sectors of society can be addressed to some extent through counselling processes.
Counselling, by offering advice, support and information, endeavours to assist survivors towards regaining some sense of control over their lives after a profoundly damaging experience and to assist survivors in coping with and adapting to a fundamentally life changing experience.
Recommendation:
Provision must be made in the Bill for victims of sexual offences to have access State funded counselling and psychological care in order to address the effects of the sexual violence on that individual.
Cabinet cut the clause providing for support persons to the complainant as a protective measure while testifying reportedly as a result of the costs associated with implementing the measure as it was proposed by the SALC report (December 2002). (We discuss this issue more fully in conjunction with our discussion on protective measures in the section Vulnerable Witnesses and Protective Measures on pages 20 and 21).
However we would like it to be noted that the National Department of Justice has already set up the Closed Circuit Television (CCTV) system in a number of courts nationally. Does this not mean that the cost of establishing this system in all of the courts is not as prohibitive as has been suggested?
It is imperative that the budgetary requirements of implementing these protective measures nationally be addressed in order to give meaning to these measures. Allocations must be made to meet the costs of social workers, and CCTV systems and the training of personnel on how to use the technology.
Recommendation:
Protective measures are a crucial part of ensuring that the interests of justice are served in sexual offence cases. The implementation of these measures must be prioritised in order to protect the constitutional rights of the victims of sexual offences and in order to ensure that the courts have access to more information regarding the events in question.
3. DEFINITIONS
Sections 2, 3, 4 & 5: Rape, Sexual Violation and Oral Genital Sexual Violation
We welcome changes to the current definition of rape because it does not reflect the actual experiences of survivors of sexual violence. We support the inclusion of penetration of the anus into the definition of rape. We do not agree with the distinctions that have been made between Rape, Sexual Violation and Oral Genital Sexual Violation by the SALC and in the Bill.
From the perspective of survivors who have been subjected to different forms of penetration, the penetration itself is the core issue, not the object that is used. All forms of unwanted penetration cause profound trauma and an extreme sense of violation. Perpetrators who use objects, other body parts or animals sometimes display a greater degree of cruelty and this can increase the level of disgust and degradation experienced by the survivor. The use of objects and other parts of the body may result in a greater degree of physical injury to the victim.
The seriousness of oral penetration must be recognised. Survivors who have experienced this express a deep sense of violation. It is as invasive, degrading and humiliating as violation of the genial organs is and also leaves survivors with long term emotional scarring.
Creating separate categories to differentiate between the objects that are used and the different body orifices that could be penetrated does not address the issue of the degree of violation experienced by the survivor. That can only be measured on a case by case basis and must be based on the impact of the violation on the survivor and the level of cruelty expressed in the acts of the perpetrator. Rape Crisis has counselled clients who were equally traumatised by acts that might have been considered very different in nature and degree of violence.
We commend the inclusion of the provisions relating to the circumstances in which the acts are unlawful as set out in sections 2(2); (3); and (5).
However Section 2(4)(c) states that intentionally failing to disclose a life threatening sexually transmitted infection must be classified as rape. We believe that this issue must not be included here and should instead considered separately in other legislation.
Section 2(9) of the Bill states that a person charged with the offence of rape can raise any defence at common law to such charge. The defence of mistaken identity or consent (amongst others) will be raised regardless of the provisions of this Bill and inserting a clause making it clear that such defences can be raised is entirely unnecessary.
Recommendation:
The definition of Rape in section 2(1) must be amended to incorporate the acts defined as Sexual Violation in section 3 and Oral Genital Sexual Violation as defined section 4.
Section 2(4)(c) must be deleted.
Section 2(9) must be deleted.
4. SAFEGUARDING COMPLAINANT’S RIGHTS
The SALC recognised the serious need to provide greater protection to the rights of complainants who utilise the criminal justice system, however they rejected proposals for the provision of legal representation to complainants stating that other measures within their proposed Bill would provide for protection of the rights and prevention of further trauma to the complainant by the criminal justice process. These measures include those found in the guiding principles, the provision of protective measures for vulnerable witnesses while they testify and the development of a national policy framework which included binding protocols for management of sexual offence cases.
Schedule One: Guiding Principles
We welcome the inclusion of guiding principles in this Bill. We believe that this will inculcate a culture of understanding that victims’ rights are as important as those of the offender and highlight the fact that all rights are equal as enshrined in our constitution. As acknowledged in the preamble to the Bill our constitution affords all citizens the right to equality, privacy, dignity, the right to freedom and the right to be free from all forms of violence from either the public or private sources.
Despite the fact that members of the criminal justice system are familiar with the provisions of the Bill of Rights, it is common practice that the constitutional rights of accused are prioritised over those of the complainant in sexual offence cases. We believe that it is important that the human rights of accused persons are protected by the constitution to ensure a fair trial process, however it is, in many cases, at the expense of the complainants’ constitutional rights. Complainants are routinely subjected to further unnecessary and unjustifiable humiliation, aggression and emotional attack by the criminal justice processes all in the name of the rights of accused persons.
We believe that provisions relating to the limitation of rights as set out in section 36 of the Bill of Rights are seldom taken into account during the process of administering justice in sexual offence matters. The inclusion of the guiding principles in this Bill will enhance awareness of the necessity to consider the constitutional rights of the complainant in all decisions relating to the processes of the trial.
We are concerned, however, that these guiding principles as contained in the Bill have been inserted as an afterthought; this suggests that the guiding principles are not a core factor in the intent of this Bill. This will lead to the inference that service providers may use their discretion as to whether or not to adhere to them. This has the effect of undermining the purpose of this proposed legislation as Stated in the preamble.
The language that has been used in these guiding principles once again gives the impression that discretion can be used when taking these rights into account. The language must be strengthened in order to convey that consideration of these rights is imperative to a fair trial process. For example, phrases such as "complainants should have the right to express an opinion, …" must be changed to read, "Complainants have the right to express an opinion…" and so on.
In addition to the above we wish to highlight the critical nature of certain aspects of the guiding principles:
The trial is extremely important to the complainant on a personal level and on an objective level, the processes of the criminal justice system do not reflect this. Due to the fact that the State takes responsibility for prosecuting the offender and the complainant is merely seen as the chief witness in the case, the information that is available to the survivor regarding her case and her ability to control decisions that are made is limited. The lack of control over the trial and pre trial process reflects the lack of control that was experienced during the sexual offence and is a great source of unnecessary distress to the complainant.
This lack of effective inclusion of the complainant into the trial and pre trial processes undermines the process of seeking justice in sexual offence cases in a number of different ways:
Generally, cases within our criminal justice system take a long time to go to trial. The extensive number of cases awaiting trial in the system and postponement of cases are commonly understood as core reasons for this situation. The Department of Justice’s initiatives to increase court hours have steadily improved the situation.
We are pleased to report that initiatives at certain Sexual Offence Courts within the Western Cape have impacted positively on the length of time taken for sexual offence cases to go to trial and to be finalised. Unfortunately this must be qualified by stating that this improvement is not yet visible across the board and the improved timeframes are not ideal.
Besides the long wait for the first trial date, it is extremely common for these matters to be postponed on a number of occasions. The constitutional right of the accused to legal representation is one of the primary reasons given in order to postpone the trial; other reasons given by the defence include illness and injury (to the accused or the defence attorney). Of course cases are also postponed for reasons relating to other court personnel or the complainant.
The effect of the postponements on the complainant is that each time that the complainant is expected to appear in court the memories and feelings of fear, helplessness and loss related to the sexual violation return; this impacts negatively on her ability to cope with her life generally in the time surrounding this appearance. Where this occurs repeatedly, the complainant may feel defeated and further traumatised by the criminal justice process before the trial commences as a result may request that the case be withdrawn, because it is impairing her day to day functioning.
The effect of the long periods of time that pass before the complainant testifies is that the passage of time and the psychological process of coping with the experience naturally compromise the complainant’s memory of the event. This weakens her evidence at trial.
For these reasons postponements are is often used as a tactic by the defence to secure an acquittal, quoting their right to legal representation and other rights related to a fair trial process. Conversely the failure of a complainant to appear on a single date often results in the case being struck off the role (without any consultation), irrespective of the reasons for this failure to appear which most commonly includes not being notified of the date by the investigating officer. This results in further delays in getting the case reinstated, if the complainant is aware that she can make a request to have the case reinstated.
For these reasons we believe that it is in the interests of justice that the guiding principles must be as compelling as possible to ensure that the perspectives and needs of complainants are taken into account in any decision-making related to the case.
Recommendation:
We support the inclusion of this section in the Bill. The guiding principles must be inserted after Section 1 as Section 2.
The guiding principles are critical to ensuring the rights of the complainant and the wording must be compelling. Where the word ‘should’ appears it must be replaced with ‘must’ and other appropriately binding language where relevant, in order to convey the import of this section.
Section 14: Witness to be notified of protective measures
We commend the declaration of certain witnesses as vulnerable witnesses as outlined in section 14 of the Bill as well as the duty placed on the court to enquire whether the witness has been informed of the protective measures available.
Section 15: Vulnerable Witnesses
Speaking in court involves the kind of public speaking that terrifies and silences most people. Having to speak openly about a taboo subject like sex, which many women, especially young women and adolescents, don’t have the words for is exceptionally difficult.
The experience of testifying in court is intimidating to complainants because the environment and procedures are invariably unfamiliar and alienating. The fact that the complainant is required to recount in detail her deeply personal, humiliating and painful experience, not only to a room full of strangers but also in the presence of the accused in the majority of cases is frightening and at times silencing. This can impact negatively on the complainant’s ability to express herself coherently and completely in court with the result that the court may make a decision on the matter without having the benefit of all of the necessary information.
To recall and speak about the incident during which the complainant was made vulnerable and the attacker succeeded in overpowering and violating her can cause the complainant to feel once again that the perpetrator has control over her and although there is little opportunity in court for the accused to cause further physical harm to the complainant, there is ample opportunity for him to cause further psychological harm. The link between the initial violation and testifying in court can be unbearable to the complainant and in many cases constitutes a further trauma related directly to the initial event.
We are concerned that the assumption is often made that it is not as difficult for an adult as it is for a child to testify in the presence of the accused. The assertion has been made that an adult complainant in a sexual offence case is the same as a complainant in any other case. Although adult complainants generally cope better with testifying in the presence of the accused than children do, adults do require the option protective measures such as the CCTV system.
The nature of the court process means that the negative effects on the complainant can never be entirely removed, it can however be minimised by implementation of various protective measures.
We strongly support the provisions in the Bill for protective measures to be put in place while a vulnerable witness is testifying. Widespread use of these provisions will reduce secondary victimisation of the survivor and create an environment that is more conducive to testifying in these trials. This will assist the court in gaining as much detailed information as possible regarding the incident and consequently ensure that the court is better informed in its decision-making regarding the case.
The protective measures contained within section 15(4) of the Bill all currently exist within the Criminal Procedure Act, 1977. Current implementation of these provisions is problematic, most notably the implementation of section 158 of that act. We welcome the provision that these measures be used in sexual offence cases irrespective of qualifying criteria set out in these sections of the CPA, 1977
The way in which section 15(4) of this Bill is worded makes it possible for those Courts that currently show reluctance to implement the provisions of these sections of the CPA 1977, to sidestep those protective measures that will reduce the stress on the complainant in court and improve the quality of the evidence available to the presiding officer. For example provisions prohibiting the publication of the identity of the complainant (Section 15(4)(d)) could be the only protective measure utilised in a particular case, meaning that the complainant can still be subjected to the psychological trauma of testifying and cross examination in the presence of the accused with no additional steps being taken as a safeguard. We submit that the provision of 15(4)(d) must not be the only protective measure utilised in any case. When this section is implemented in a case the court must utilise at least one other protective measure unless the witness chooses not to.
We commend the inclusion of section 15(5) in the Bill which States that the intermediary system must be used for all child witnesses and places a duty on the court to record the reasons for not using this system in any case involving a child witness. Although there is a higher level of understanding of the need to use protective measures for child complainants than for adult complainants, implementation of these measures is erratic and still poorly understood by some State service providers. In our experience within the Western Cape Province, Section 170(A) relating to the use of the intermediary system for children is relatively well utilised by the specialised Sexual Offences Courts where the equipment and intermediaries are available and where court personnel have received training on how to operate the equipment. There is however widespread reluctance to use this measure for the testimony of older children, the provision is also poorly utilised in courts that do not specialise in of sexual offences.
Section 15(6) deals with the circumstances that must be taken into account when the court is determining which protective measures should be applied. Subsection 15(6)(d) indicates that the question as to whether the protective measures are likely to prevent the evidence given by the witness from being effectively tested by a party to the proceedings must be considered. We submit that subsection (d) should relate only to 15(4)(e) which allows the court to implement "any other measure which the court deems just and appropriate." and not to the other provisions within 15(4). The particular provisions contained within 15(4) that would be affected by this clause are 15(4)(a) and 15(4)(b) these provisions have been sufficiently tested in case law and discussed in the SALC report (December 2002) to establish that they do not prevent the evidence from being effectively tested.
Sarkin AJ, in S v Staggie and Another held in relation to the use of CCTV system as set out in Section 158 of the Criminal Procedure Act of 1977 that:
"In this case there are grounds for finding that it is in the interests of justice that she be able to testify via closed-circuit television."
And
"The ability of the accused to have a fair trial must be protected at all times. The ability of the accused to adequately cross-examine the witness must also be protected. This can be achieved in these circumstances."
Cabinet removed the provision of a support person to the complainant as a protective measure.
The provision for the presence of a support person to the complainant while s/he testifies would provide a tangible reminder to the complainant of the support and care available to her at the time of testifying. It will also serve as a reminder that she is not once again alone against her attacker as she was during the incident.
The costs of paying support persons witness fees were reportedly the reason for the entire provision being removed from the Bill, we believe that in the ideal situation witness fees should be paid to the support person. However we recommend that the clause relating to payment of witness fees be dropped in order to retain the provision.
We are aware of concerns that: "activity of pressure groups tend towards interference in the judicial process" and that it could "potentially lead to adverse inferences being made against the witness’s credibility". This response illustrates the tendency to prioritise the needs of the court unnecessarily above those of the complainant. It is unlikely that the support person would be someone from a "pressure group" and even when that person came from an organisation her or his role would be one of support to the complainant, not pressure on the court. The SALC proposal provides measures by which the court could address problematic situations relating to this measure.
Putting protective measures in place while the complainant testifies is critical to ensure that the Court hears everything the complainant has to say in order to make a just decision regarding the matter.
Recommendation:
Section 15(6)(d) be amended to read: In contemplating measures referred to in subsection (4)(e) the question whether the protective measures are likely to prevent the evidence given by the witness from being effectively tested by a party to the proceedings.
Section 15(6)(e) where the protective measure referred to in subsection (4)(d) are implemented the court must direct that at least one other protective measure referred to in subsection 15(4) is implemented.
The clause providing for support persons as a protective measure to the complainant in a sexual offence matter should be reinserted into section 15(4).
Section 17 of the Bill proposed by the SALC (December 2002) relating to the appointment of support persons should be reinstated into the Bill with the exclusion of subsection 17(9).
Section 24: National Policy Framework
We are disappointed at the limited version of this clause in the Bill.
Procedural guidelines relating to the management of sexual offences exist within some of the departments of the criminal justice system. The Department of Justice led an intersectoral process to develop National Policy Guidelines for Victims of Sexual Offences in 1998. Stemming from these guidelines the South African Police Service developed a comprehensive National Instruction on Sexual Offences (NI 22/1998), the National Prosecuting Authority have Policy Directives including directives on the management of sexual offence cases (October 1999) and the National Department of Health is in the process of finalising its Sexual Assault Care policy
In spite of these existing guidelines, the individuals whose responsibility it is to implement these practices do not all understand or agree with the principles of non-discrimination and improved service delivery to sexual offence complainants. As such it is commonplace for officials within the criminal justice system (including SAPS officials, clinical forensic practitioners, prosecutors and presiding officers) to disregard these guidelines and protocols
For example it is common practice for SAPS members to "filter" rape cases at their own personal discretion as they are reported to the police station; these cases are never entered into the system. Research conducted by CIET Africa reports that the greater proportion of sexual violence cases are filtered out at the point of registration at the police station.
Unfortunately, as with broader society, many members of the criminal justice system still cling to archaic notions of the role of women in society. The notion that the complainant in some way caused the incident or deserved it is common and routinely conveyed either directly or indirectly to the complainant at the time when she is at her most vulnerable. Unsatisfactory or mediocre service delivery to the public is accepted as the norm and officials often turn a blind eye when they are aware of poor treatment of complainants by their colleagues.
We are pleased to report that there has been progress in service delivery to sexual offence complainants over the past few years. More Rape Crisis clients indicate positive experiences of the CJS than before. We are gratified to work with a greater number of individuals within the system who are committed to ensuring that complainants receive the professional and sympathetic case management needed to ensure that the process of seeking justice is an empowering experience for the complainant.
As the level of resources to effectively manage sexual offence cases have been progressively made available and as a greater number of State officials received specialised training in the management of these cases we have seen an improvement in service delivery.
Unfortunately these measures are not implemented across the board and there are still far too many cases that are severely mismanaged resulting in further victimisation and trauma of sexual offence complainants. At this time implementation of existing guidelines is erratic and standards are inconsistent, thus undermining the intended impact of these measures.
We submit that the Bill must establish criteria for the implementation of a NPF and outline consequences and clear complaints mechanisms where guidelines are not followed. Provisions and budget must accommodate thorough standardised training for all criminal justice officials.
The nature of the work in institutions such as SAPS, NDoH and NDPP means that officials are constantly exposed to instances of trauma and traumatised people while at the same time being overburdened with enormous caseloads within the context of an often unsupportive environment. This creates a high incidence of associated stress and trauma in the officials themselves and results in a high turnover of these officials. Officials experiencing high levels of stress and trauma increase the likelihood of secondary victimisation of complainants. Supervision, debriefing and incentive structures for State service providers must be viewed as an integral aspect of service delivery to complainants.
These incentives must relate to the aptitude and the inclination of a particular official to providing a meaningful service to complainants and selection processes and criteria must be put in place to safeguard this.
The extensive measures that have to date been taken to improve service delivery to sexual offence complainants have been undermined by the lack of recourse in cases where officials fail to follow these guidelines. In order to ensure effective and acceptable levels of service delivery to sexual offence complainants, all relevant State departments must have clear and binding guidelines with set consequences for not following them. These must include effective dissemination and training on the guidelines as well as appropriate sanctions if the guidelines are not followed.
Recommendation:
We recommend that the National Policy Guidelines as proposed in sections 28, 29 and 30 of the Bill proposed by the SALC report (December 2002) be included in this Bill.
Section 21: National Director of Public Prosecutions to decide whether police investigation should be discontinued
We support this provision and believe that it is necessary in order to ensure greater accountability in the decisions relating to the investigation of sexual offence matters. Decisions not to investigate or prosecute are frequently made on the basis of incomplete investigations, resulting in cases where there is sufficient evidence to prosecute the case, but it has simply not been gathered, not being prosecuted.
Currently there are strongly held perceptions within the SAPS relating to what constitutes a ‘real’ rape. Cases that do not fall within the prevalent notions of ‘real’ rape are less likely to be accepted by the police and complainants experience greater difficulty in obtaining an acceptable level of investigation into these matters. This impacts on the community by creating the perception that certain rapists can continue to operate with impunity and thus the power of that perpetrator over his chosen victims is increased.
5. RULES OF EVIDENCE
Section 16: Evidence of previous consistent Statements and delay in reporting
We support the inclusion of Section 16 in the Bill. Many courts still operate on the misperception that in circumstances of sexual violence the victim will immediately tell the first person she sees of her experience.
Survivors are in the time immediately following the attack often in a State of confusion and shock regarding the enormity of the incident as well as trying to understand the meaning of what she has just experienced. Many fear the social stigma associated with sexual violence and try to keep the experience a secret, perpetrators often warn survivors against telling anyone and survivors may remain silent out of fear of repercussions. For many the taboo about talking about sex is a further inhibitor to immediate disclosure of the incident. For these reasons many survivors take time before disclosing the experience, if they choose to disclose the incident at all.
The complainant is often harassed by the defence in court regarding her decision not to disclose the incident at the first reasonable opportunity. Unfortunately "reasonable" is decided from the perspective of the presiding officer and this is generally influenced by the assertions of the defence lawyer. Critical information relating to the impact of the incident on the complainant at the time and the nature of the relationships between the complainant and the persons with whom she came into contact is seldom presented.
A reasonable and predictable response to the incident is thus used as justification in court that the incident did not take place.
Section 17: Evidence surrounding circumstances and impact of sexual offence
We support the inclusion of this section in the Bill. We refer to our earlier discussion on the issue of definitions and hold that including evidence of this nature in the trial is a more effective approach to establishing the seriousness of a particular incident of sexual violence.
Common understanding regarding sexual violence tends to be that these incidents are all relatively similar and should have similar effects on the survivor. In truth however, each incident is different and the normal responses of the survivor will be different depending on the specific nature of that particular incident. (See Annexure C on Rape Trauma Syndrome). The court can be assisted in understanding the behaviour and reactions of the survivor during and after an experience of sexual violence by hearing evidence from experts to contextualise the survivor’s reactions within the framework of Rape Trauma Syndrome. This will provide the court with an expert opinion on the reasonableness of the actions of a particular complainant.
Many courts misunderstand the serious impact of sexual offences on the life of the complainant. As noted in a recent newspaper article in which a senior advocate referred to the rape of a 14 year old girl a ‘gentle rape’ as there had been no evidence of psychological damage to the victim.
The fact that information regarding the effects of the offence is not explicitly brought to the attention of the court means that many presiding officers are convinced that the impact of the incident is not significant in the life of the survivor. Survivors continuously report that an experience of this nature is life changing; the fact that a person is functional in society and able to speak in court should not be taken as evidence that the complainant has not been affected by her experience.
By highlighting the need to lead evidence regarding the impact of the offence the court will be able to make better informed decisions relating to what the impact of the offence has been on the complainant based on the complainants (or a family member or counsellors) testimony on this issue, instead of it being based solely on the assertions and insinuations of the defence or on the presiding officer’s understanding of human psychology and responses to trauma.
Section 18: Application of caution and requirement for corroboration
We strongly agree with section 18 and the reasoning for this as contained within the SALC report.
The myth that rape is a charge easily made and difficult to refute is strongly believed in our society today. There are many who believe that women and especially young women often lie about an experience of rape in order to get revenge on an "innocent" man. While it is true that, as with all other crimes, false reports are made of rape, this happens extremely seldom. The process of disclosing an experience of being raped and reporting it to the criminal justice system is notoriously difficult for survivors. The majority of reports are met with scepticism and the fact that the perpetrator chose to commit the act is clouded by allegations that through her dress, actions or words the survivor was in some way the cause, or that she deserved it.
Many truthful accounts are disregarded by the criminal justice system and the perpetrators in those cases escape liability for their actions and their choices are, in this way, endorsed by the criminal justice system.
Amendment of section 227 of the Criminal Procedure Act of 1977
We support the proposed amendment of this section. By providing clear guidelines as to when evidence of previous sexual conduct can be admitted, unnecessary goading and harassment of sexual offence complainants by the defence will be considerably reduced. Furthermore this will ensure that the court has access to the relevant information required in order to make a fair decision on the matter, but that prejudicial notions of ‘acceptable’ sexual behaviour do not influence the Court’s decision.
6. MEASURES RELATING TO CONVICTED OFFENDERS
Section 20: Supervision of dangerous sexual offenders
We Support the provisions of section 20 declaring certain convicted offenders as dangerous sexual offenders and provisions for long-term supervision for those offenders who are released early from imprisonment.
Many sexual offence survivors live in fear that when the accused is released from prison he will retaliate against her for having facilitated his imprisonment, this especially notable in survivors who have been violated by hardened criminals such as gangsters. The declaration of dangerous sexual offenders will provide further protection and some peace of mind to these survivors.
We support the concept and principle of rehabilitation of offenders as raised in section 20(5). With regard to section 20(4)(c), we submit that it is imperative that an independent evaluator evaluates the proposed rehabilitation programmes that are to be utilised by the State to ascertain that programme’s effectiveness. We are concerned that many rehabilitation programmes do not live up to their claims of effective rehabilitation. We are unaware at this time of compelling evidence to suggest that rehabilitation of sexual offenders is effective in the long term. Evidence suggests that the efficacy of such programmes is limited in a number of ways. We believe that rehabilitation must never replace or minimise punishment for the crime.
We support the additional measures contained within section 20(6) and 20(8) of the Bill as these provide a degree of protection to survivors against harassment from the offender once he has been released.
We support the principle of diversion as opposed to imprisonment for certain juvenile offenders.
Section 23: Non-disclosure of conviction of sexual offence
We support the provision placing an obligation on a convicted sexual offender to disclose such a conviction to a prospective employer where that employment will involve working with children in any way. We are concerned that the responsibility should not lie with the convicted person alone and that provision should be made for the prospective employer to have access to this information.
7. ENDORSEMENTS
This submission has been officially endorsed by the following Organisations and individuals: