In this introductory section, we briefly set out why sexual offences are different from other crimes, and thus warrant a specialized approach in legislation. We also examine the framework within which South Africa is required to reform its law relating to sexual assault.

This submission is based on the premise that sexual assault warrants an approach from the criminal justice system and the health sector that is different from the approach adopted towards other forms of violent crime.

The Ontario Court (General Division) in Canada has recognized that sexual assault is a crime that is not comparable to any other form of violent crime, and expressed this as follows:

The South African Supreme Court has similarly recognized the serious nature of sexual assault in S v Chapman:

Sexual assault victims, unlike other victims of crime, are not venerated for their bravery in coming forward with their experiences. Instead, they are ignored, dismissed, questioned and shamed by the very people meant to support them – their families, communities, the criminal justice system and society in general.

Follow-up studies conducted with rape victims have found that these victims have high levels of persistent post-traumatic stress disorder, compared to victims of other crimes. Researcher Judith Herman notes that these effects of rape are not surprising, given the particular nature of the trauma: the essential element of rape is the physical, psychological and moral violation of the person.

We therefore firstly submit that the unique features of sexual assault should be firmly borne in mind when formulating legislation. Secondly, we also argue that where the proposed legislation seeks to enact specific measures relating only to sexual assault victims (as opposed to victims of other forms of violent crime), such differential treatment is necessary in order to address the circumstances and consequences particular to sexual assault.

The South African Constitution is unique in its specific enunciation of the right to freedom from all forms of violence as an aspect of the right to freedom and security of the person. The effect of section 12(1)(c) is further amplified when this provision is read with section 7(2), which requires the state to ‘respect, protect, promote and fulfil the rights in the Bill of Rights’. This section thus makes it clear that in addition to (obviously) refraining from the commission of acts against the individual, the state should also take certain positive steps to ensure the realization of the right to freedom from violence.

This interpretation of section 12(1)(c) is strengthened by an examination of international human rights jurisprudence. In the well-known Velasquez Rodriguez case, the Inter-American Court of Human Rights held that an obligation to ensure the exercise of rights included a requirement that states should prevent, investigate and punish any violation of the recognized rights. The state should moreover attempt to restore the right and provide compensation for damages resulting from the violation.

This dictum has found resonance in the treatment of violence against women in the international human rights sphere. The Special Rapporteur on Violence Against Women (appointed by the UN Commission on Human Rights) describes state responsibility as follows in her preliminary report dealing with domestic violence:

These principles are also set out in the provisions of a number of international human rights instruments. While the Convention on the Elimination of All Forms of Discrimination Against Women does not explicitly refer to violence against violence, the Committee tasked with the implementation of the Convention has provided guidelines for its interpretation in the context of violence against women. In General Recommendation 19, the Committee states:

The Committee accordingly recommends that states parties should ensure that laws against family violence and abuse, rape, sexual assault and other gender-based violence give adequate protection to all women, and respect their integrity and dignity. In addition, states parties should take effective legal measures to protect women against violence, including penal sanctions, civil remedies and compensatory provisions.

The Committee’s recommendations are echoed in the provisions of the Declaration on the Elimination of Violence Against Women. Article 4(c) determines that states should (inter alia) develop penal sanctions in domestic legislation to ‘punish and redress the wrongs caused to women who are subjected to violence’.

The Beijing Declaration and Platform for Action, which identifies violence against women as one of its ‘critical areas of concern’, lists a number of actions to be undertaken by governments. This list specifies the following actions, amongst others:

The guidelines set out in the Beijing Platform are noteworthy in that they concretize the general duties referred to in the Women’s Convention as well as in the Violence Declaration. In the Southern African context, similar guidance is provided by the Addendum to the SADC Declaration on Gender and Development on the prevention and eradication of violence against women and children. The Addendum (inter alia) requires SADC members to review and reform the criminal laws and procedures applicable to cases of sexual offences, to eliminate gender bias and ensure justice and fairness to both the victim and the accused.

We argue here that the cumulative effect of constitutional provisions and international human rights norms is to impose a clear obligation on the South African state to reexamine and reform current sexual assault law. This duty should be carried out in the context of the overarching imperative to prevent, investigate, punish and compensate for acts of sexual assault against women. It is therefore not enough to simply ‘reform’ the law: the objective of reform measures should fit into the paradigm demarcated by the Constitution and international human rights law.

This reading is borne out by the recent judgement of the South African Constitutional Court in S v Baloyi. In this matter the Court was called on to determine the constitutionality of section 3(5) of the Prevention of Family Violence Act. In reaching the conclusion that the section concerned does not offend against the Constitution, Sachs J notes that the State is under a series of constitutional mandates which include the obligation to deal with domestic violence: to protect both the rights of everyone to enjoy freedom and security of the person and to bodily and physical integrity, and the right to have their dignity respected and protected, as well as the defensive rights not to be subjected to torture and not to be treated or punished in a cruel, inhuman or degrading way. He adds that in enacting the relevant legislation, the legislature was also acting in compliance with South Africa’s international obligations.

In order to gain a clearer understanding of these international obligations, we include the following extracts from relevant documents:

• General Recommendation No 19 (Committee on the Elimination of Discrimination Against Women)

• Beijing Declaration and Platform for Action

According to the Platform, the actions to be taken by governments include –

• SADC Gender Declaration: Addendum on the Prevention and Eradication of Violence Against Women and Children

Measures to be undertaken include -

• Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women In Africa

The Protocol was accepted by the African Union Ordinary Assembly in Maputo in July 2003.

States Parties shall take appropriate and effective measures to -

The substantive provisions of the Bill currently do not set out what the rights of victims of sexual assault are. However, Schedule 1 contains the following provisions:

1. Complainants should not be discriminated against, either directly or indirectly, on the grounds of race, colour, ethnic or social origin, birth status, sex, gender, sexual orientation, age and developmental level, disability, religion, conscience, belief, culture or language;
2. Complainants should be treated with dignity and respect;
3. Complainants should be ensured access to the mechanisms of justice;
4. Complainants should be informed of their rights and the procedures within the criminal justice system which affect them;
5. Complainants should have the right to express an opinion, to be informed of all decisions, and to have their opinion taken seriously in any matter affecting them;
6. In addition to all due process and constitutional rights, complainants should have the following rights –
1. to have present at all decisions affecting them a person or persons important to their lives;
2. to have matters explained to them in a clear, understandable manner appropriate to their age and in a language and manner which they understand;
3. to remain in the family, where appropriate, during the investigation and whilst awaiting a final resolution of the matter and, if a child is removed from the family, to have the placement periodically reviewed;
4. to have procedures dealt with expeditiously in time frames appropriate to the complainant and the offence;
7. Complainants should have the right to confidentiality and privacy and to protection from publicity about the offence.

The Commission examines the rights of victims of sexual offences and recognizes a need for better protection of victims. It specifically acknowledges the vulnerability of victims of sexual assault. The Commission considers several options to improve the protection of such rights, including –

• amendment of the Constitution to include a section of victims’ rights;
• incorporation of the rights of victims of sexual offences into specific sexual offence legislation; and
• adoption of a Victims’ Charter.

However, the Commission ultimately concludes that it is not within the scope of the sexual offences investigation to develop fully the proposals aimed at improving the position of victims. It recommends that the various options mooted in respect of better protection of the rights of victims be further investigated. It therefore stops short of recommending the adoption of any of the options, and states that it is confident that the various measures provided for in its draft Bill (such as complainants being declared vulnerable witnesses) will go a long way to improve the outcomes for victims.

We submit, with respect, that the approach taken by the Law Reform Commission is incorrect. We believe that the enumeration of the rights of victims of sexual offences as a substantive clause of the legislation is essential, and we have accordingly formulated a provision for incorporation in the Bill.

Our argument here has two facets. The first is to motivate why victims’ rights should be included in the Bill. The second facet is to explore which rights should be mentioned.

The South African criminal justice system is predominantly adversarial in nature. Criminal trials are seen as two-sided ‘battles’ between the state (represented by the public prosecutor) and the accused, who has a constitutionally guaranteed right to legal representation. The presiding officer acts as an impartial umpire who decides the guilt or innocence of the accused based on the evidence adduced by both sides. The role of the judicial officer is an essentially passive one – she or he should ‘intervene only to ensure that each party plays according to the rules’.

In South African law, as in other legal systems, sexual assault is prosecuted as an offence against the state or social order, and not as a dispute between the victim and the accused. The immediate effect of this is that the complainant in a sexual assault case is not a party to the criminal trial. Despite the intensely personal nature of the crime, she is no more than a state witness. This implies, for example, that she does not have a right to legal representation at any stage of the proceedings. (The prosecutor does not act as the victim’s representative; the prosecutor’s primary role is to assist the court in arriving at a just verdict and, in the event of a conviction, a fair sentence based upon the evidence presented.)

In addition, the limited role of the victim implies that she does not have the right to –

• Contest any interlocutory findings, for example, a decision to release the accused on bail;
• Call witnesses, adduce evidence or challenge evidence presented by the prosecution or the defence at the criminal trial or related proceedings such as the bail hearing; or
• Appeal against an acquittal or, in the event of conviction of the accused, against the sentence imposed.

The reality is however that victims experience sexual assault and the subsequent criminal justice process (where they elect to lay charges with the police) as intensely personal. This is evidenced by the fact that victims often refer to the incident as ‘my rape’, to the investigating officer as ‘my detective’ and the criminal investigation and trial as ‘my case’. This is however contradicted by the fact that she is not a party to the criminal trial.

It is therefore not surprising that victims generally experience a sense of alienation and exclusion from the criminal justice process, as expressed in the following observation:

Given the inherent limitations of a predominantly adversarial system as set out above, it is clear that victims have limited ‘due process’ rights in relation to criminal trials. Similarly, there is very little possibility of direct victim participation in the criminal trial. Significantly, researchers have found that victim participation in the criminal justice process, whether active or passive, is important for the victim’s conception of fairness. Victim involvement and the opportunity to voice concerns are necessary not only for victim satisfaction with justice but also for psychological healing.

While the rights of arrested, detained and accused person are clearly articulated in the Constitution, there are no similar provisions that expressly deal with the rights of victims of crime. This does not mean that victims of crime are without constitutional protection. We submit that the inclusion of the rights to equality, dignity and, specifically, to freedom from all forms of violence, mean that constitutional recognition is given to the interests of victims.

In the context of rape, South African courts have shown a marked willingness to consider the interests of victims as a counterweight to the rights of accused persons. An example is provided in Klink NO v Regional court Magistrate NO and Others, where section 170A of the Criminal Procedure Act was challenged on the grounds that it deprived the accused of his right to a fair trial by limiting his right to cross-examine the witness. The court, while recognizing the accused’s right to cross-examine as part of a fair trial, held that it was still necessary to balance the rights of the accused with the rights of witnesses not be subject to further traumatizing events in their pursuits of justice. The recent judgment in S v Staggie is also instructive in this regard.

However, the fact that the rights of victims of sexual assault are not clearly set out in the Constitution or other legislation implies that the ambit of these rights has until now been left for determination by the courts on a case by case basis. Litigation is a lengthy and costly process of seeking recourse, and one that is out of reach of most sexual assault victims.

In addition, it should be noted that victims of sexual assault share specific vulnerabilities as a group. This includes the high levels of secondary victimization that such victims experience. 'Secondary victimisation' can be described as the unsympathetic, disbelieving and inappropriate responses that victims of sexual assault experience at the hands of society in general and at each stage of the criminal justice process. These responses, often based in stereotypical perceptions of rape and of how victims should behave, serve to exacerbate the effects of the sexual assault upon victims.

We submit that the above considerations, weighed together, make a compelling argument for setting out the rights of sexual assault victims in sexual offences legislation.

In compiling our recommendation regarding the rights to be included in the Bill, we drew inter alia on the following sources:

• The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power;
• The US Attorney-General Guidelines for Victim and Witness Assistance;
• Perspectives and experiences of victims of sexual assault as established through recent research.

2. to be treated with fairness, dignity and respect;
3. to be reasonably protected from the perpetrator;
4. to be informed of their rights, of the procedures within the criminal justice system which affect them, and the status of their case, including, but not limited to –

1. the steps that will be taken by the police after the victim reports the sexual assault, with specific reference to the arrest of the perpetrator;
2. the role of the complainant in the police investigation and the criminal trial;
3. reasons for delays in effecting arrest, especially where the perpetrator is known to the complainant and she has given the police sufficient information to find him;
4. the nature and purpose of bail;
5. Information about the status of the perpetrator where an arrest has taken place (especially where the perpetrator has been released on bail and there is thus a possibility that the victim may encounter him);
6. impending trial dates;
7. the status of the case on an ongoing basis, what the next stages in the process will be and the manner in which information about such stages can be obtained; and
8. the outcome of the case when the case is finalised and the reasons for this outcome, including the outcome of appeal proceedings;

2. to express an opinion, to be informed of all decisions, and to have their opinion taken seriously in any matter affecting them;
3. to have matters explained to them in a clear, understandable manner appropriate to their age and in a language and manner that they understand;
4. to have procedures dealt with expeditiously in time frames appropriate to the complainant and the offence; and
5. to confidentiality and privacy and to protection from publicity about the offence.

A crime victim has the following rights under 42 U.S.C. & 10606(b):

1. The right to be treated with fairness and with respect for the victim’s dignity and privacy.
2. The right to be reasonably protected from the accused offender.
3. The right to be notified of court proceedings.
4. The right to be present at all public court proceedings related to the offense, unless the court determines that testimony by the victim would be materially affected if the victim heard other testimony at trial.
5. The right to confer with [an] attorney for the Government in the case.
6. The right to restitution.
7. The right to information about the conviction, sentencing, imprisonment, and release of the offender.

The Bill does not include any provisions setting out what the responsibilities of specific sectors of the criminal justice system or health care workers in the implementation of the legislation should be. However, the preamble includes the following provision:

The Law Reform Commission recommends that positive duties be visibly imposed on public office bearers dealing with sexual offence matters by way of multi-disciplinary protocols. It however stops short of including these duties in the proposed legislation itself, but instead recommends that an empowering provision be included in the Bill that places a statutory obligation on government departments and relevant NGO’s to compile an inter-sectoral, national policy framework to guide the implementation, enforcement and administration of the Sexual Offences Act. This framework must provide for the compilation of internal accountability mechanisms within each of these structures.

In 1997, various government departments collaborated on the formulation of uniform guidelines for the management of sexual assault cases. Although adherence to these standards could have made a significant difference to the experiences of victims of sexual assault, the practical implementation of these guidelines has been disappointing. Firstly, departments were slow to circulate or disseminate the guidelines to all provinces. Secondly, the Guidelines were worded broadly and contained no sanction for non-compliance. In addition, compliance with the Guidelines has not been not monitored.

The South African Police Service issued the guidelines to its members in the form of a National Instruction. The Instruction aims to ensure compliance by stating that its guidelines may only be deviated from where compelling reasons exist to do so. It also states that disciplinary steps will be taken against a SAPS member who disregards any portion of the Instruction. In spite of this injunction, and the official circulation of the National Instruction in 1998, the Law Reform Commission notes that very few SAPS members comply with or seem to be aware of its existence.

The guidelines for prosecutors were amplified in 1999 by the policy directives that were released by the National Director of Public Prosecutions in October 1999. The Law Reform Commission has expressed the opinion that non-compliance with these directives is not sanctionable, as they do not place a duty on prosecutors to act in accordance with them.

It should therefore be noted that documents setting out the ‘minimum’ standards for case management (whether in the form of national instructions, policy directives or guidelines) are already in existence. However, it is in the realm of ensuring compliance with these standards where considerable difficulties are experienced, and we argue that more stringent measures than ‘departmental protocols’ or ‘codes of good practice’ are clearly required.

Researchers have in recent years argued strongly that the positive duties resting on state officials, specifically police and prosecutors, should be clearly set out in national legislation. This argument is based on the following considerations:

• One of the major apprehensions regarding the existing guideline documents is that many state officials are simply unaware of the existence of these documents, let alone of the nature of their contents. The inclusion of state duties in national legislation should address this concern.
• Secondly, the inclusion of duties in legislation also serves the important function of informing victims and service providers of what is expected from criminal justice personnel. Policy documents setting out ‘directives’ or ‘guidelines’, such as the SAPS National Instructions, are generally not accessible to members of the public. While it may be possible for a victim to eventually gain access to such documents by invoking the Promotion of Access to Information Act, this may be a laborious and time-consuming endeavour.
• A further concern about guideline documents is the prevailing uncertainty of the legal status of these documents, i.e. whether the provisions are binding on individual state officials or whether they merely constitute ‘good conduct’ guidelines. This uncertainty also impacts on the question of how instances of failure to comply with positive duties should be sanctioned.
• On a more fundamental level, it should also be noted that statutory duties carry the force of legislative injunction. As demonstrated by the findings of this research project, the response of criminal justice personnel to sexual assault victims is unfortunately often still disrespectful and inappropriate. The inclusion of state duties in legislation would serve to convey the message that the legislature takes sexual assault seriously, and expects state officials to do so as well.

The Domestic Violence Act contains examples of the imposition of statutory duties on key state officials. Section 2 imposes a duty on any member of the SAPS to assist complainants and to inform them of their rights. This must take place either at the scene of an incident of domestic violence or when the incident of domestic violence is reported. The Regulations issued by the Minister of Justice in terms of section 19 of the Act contains a prescribed form setting out the information that must be conveyed to the complainant by a SAPS member.

The Namibian Combating of Rape Act is an instructive example of the enumeration of statutory duties. For example, this Act contains detailed provisions setting out the duties of police officials, prosecutors and presiding officers in relation to bail in sexual assault matters.

While we still maintain that the inclusion of statutory duties would be the ideal mechanism to ensure compliance with acceptable standards of case management, we concede that this option may not be the most practicable one in the context of the current Bill. (In order to comprehensively enumerate the standards for each sector, very detailed provisions would be required.)

The provision currently found in Clause 24 of the Bill is similar to Clause 28 of the legislation proposed by the Law Reform Commission in its final report. However, the Law Reform Commission’s proposal goes much further, in that it clarifies what the contents of the policy framework should be (Clause 29), what the impact of the policy framework should be (Clause 28(3)), and sets out the process to be followed in developing and publishing the national policy framework. [These provisions are attached here for ease of reference.]

The motivation for the Law Reform Commission’s proposal is set out in its report. It is further based on the Commission’s in-depth examination of how the criminal justice system and health care workers currently respond to sexual assault.

3. COMMENTS

We endorse the recommendations of the Law Reform Commission regarding the need for a national policy framework that will provide for an integrated, co-ordinated and uniform approach by organs of state in all spheres of government and civil society. The absence of such an integrated approach has long been identified as a major stumbling block to the improvement of the criminal justice and health sector responses to sexual assault, and the introduction of a statutory provision to enable the bridging of this gap is a constructive proposal.

However, we emphasise that the enactment of Clause 24 as it currently stands will not be adequate to attain the objectives of the national policy framework, since it does not contain sufficient guidance on the purpose and contents of this framework. In this respect, Clause 29(2) of the Law Reform Commission’s Bill is of particular significance.

As a point of departure, it will be necessary to make certain policy decisions about which state officials should have particular duties at different stages of the criminal justice process. It has, for example, been pointed out as problematic in a number of jurisdictions that no specific state agency is assigned the responsibility for providing victims with follow-up information after reporting the sexual assault. At present, both the SAPS National Instruction No 2/ 1998 as well as the National Prosecution Directives appear to place the responsibility for keeping the victim informed of key events as well as general progress in the case on the SAPS. However, the Law Reform Commission interestingly recommends that the Office of the Director of Public Prosecutions should formally assume responsibility, from the first appearance of the accused onwards, for directly communicating relevant information to the victim, rather than this being done through members of the police.

This example demonstrates the need for inter-departmental consultation to take place to ensure that responsibilities are appropriately allocated in terms of a national framework. The re-introduction of the Law Reform Commission’s Clause 29(2) into the Bill could go a long way to ensure that such consultation does take place.

A concern that may arise here is whether the legislature, in enacting such guidelines on the development of a policy framework, may be encroaching on the domain traditionally reserved for the executive sphere of government – thus infringing the doctrine of the separation of powers.

We submit that an examination of recently enacted South African legislation yields several examples of provisions where specific Ministers, departments, independent bodies (including the Human Rights Commission) and even the judiciary are given duties to comply with to ensure proper implementation of the legislation in question. These include:

• Sections 10 and 91A of the Promotion of Access to Information Act 2 of 2000;
• Section 18 of the Domestic Violence Act 116 of 1998;
• Sections 30 and 31 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.

It is important to note that these statutes have in common the objective of realization of specific rights in areas where these rights have historically been disregarded, or to protect groups that have been placed at a disadvantage in the past. Examples include the right to equality and the prohibition of discrimination and the right to freedom from violence, especially domestic violence. In this sense, the Sexual Offences Bill complies with this profile of ‘restorative’ or ‘protective’ legislation.

A question that becomes unavoidable at this point is the practical concern of whether the reform of sexual assault law will serve to change the incidence of sexual assault in South Africa. On a simplistic level, the answer to this question would have to be in the negative. It would be naive, if not dangerous, to assume that law reform in itself will stem the time of violence against women. Legal provisions and their practical application within the criminal justice system form part of a closely interlinked lattice of structural responses to violence against women, and in order to ensure that the criminal justice system responds more appropriately, law reform should consequently be accompanied by a ‘safety net’ of legislative and policy measures to secure the proper implementation of new provisions.

28. (1) The Minister for Justice and Constitutional Development must –

1. prepare a national policy framework to guide the implementation, enforcement and administration of this Act in order to secure acceptable and uniform treatment of all sexual offence matters;
2. review the policy framework at least once every five years; and
3. when required, amend the policy framework.
2. The Minister must publish the national policy framework and each amendment of the framework by notice in the Government Gazette.
3. The national policy framework binds –

1. all organs of state in the national, provincial and local spheres of government; and
2. any other organization involved in programmes or projects concerning sexual offence matters.

29. (1) The national policy framework must –

1. be a coherent policy directive appropriate for the Republic as a whole to guide the apprehension and prosecution of offenders and the protection of victims of sexual offences;
2. provide for an integrated, co-ordinated and uniform approach by organs of state in all spheres of government and other organizations on which it is binding; and
3. be consistent with the provisions of this Act.
2. The national policy framework must reflect the following core components:

1. national objectives to ensure a uniform approach on how sexual offence matters should be dealt with;
2. priorities and strategies to achieve those objectives;
3. performance indicators to measure progress with the achievement of those objectives;
4. provide for uniform accountability and disciplinary mechanisms for all functionaries involved;
5. a framework for co-operative governance on a cross-functional and multi-disciplinary basis in the implementation of this Act;
6. the allocation to the different spheres of government and to different organs of state of primary and supporting roles and responsibilities in this regard;
7. the engagement of non-governmental organizations in the implementation, enforcement and administration of this Act and in the development and implementation of programmes and projects giving effect to this Act; and
8. measures to ensure adequate funds.

1. generally follow a consultative process as may be appropriate in the circumstances;
2. consult with –

1. Cabinet members whose departments are affected by the framework or amendment; and
2. organs of state in other spheres of government in accordance with the principles of co-operative government as set out in Chapter 3 of the Constitution; and

The draft Bill proposed in the Law Reform Commission’s report did not include any provisions on bail. Instead, the Commission recommended a number of non-legislative measures to address current shortcomings.

We respectfully submit that the approach taken by the SA Law Reform Commission in relation to bail in sexual assault cases is incorrect. This submission is based on the results of a three-year research project on the granting of bail in sexual assault cases that we conducted during 2000-2003.

During 2000-2003, the Consortium on Violence Against Women conducted research to establish –

• How is the law on bail currently applied in cases of sexual assault?
• What are the needs and concerns of victims of sexual assault around bail?

This research project originated (inter alia) in pre-trial consultations with rape survivors at Rape Crisis, Cape Town as well as concerns that the amendments of bail legislation in 1997 did not go far enough to encompass the specific difficulties encountered in sexual assault cases.

• An analysis of the legislative and policy framework and relevant case law;
• Screening of 397 police dockets in sexual assault cases at 11 police stations in the Cape Town, Mitchell’s Plain and George regional divisions;
• Screening of 268 charge sheets at 5 courts;
• Interviews with police officials, prosecutors and magistrates; and
• Interviews with victims of sexual assault and group discussions with counsellors at Rape Crisis, Cape Town.

Our main research findings are set out in the following two documents (copies have been made available to the Project Committee):

• R Barday and H Combrinck Implementation of Bail Legislation in Sexual Assault Cases: First Report (2002);
• H Combrinck and Z Skepu Bail in Sexual Assault Cases: Victims’ Experiences (2003).

Certain of our findings, for example, the observation that victims experience major difficulties in obtaining information about the status of their cases (including the question whether or not the accused has been arrested and released on bail) have already been referred to earlier in this submission where we argued for the inclusion of victims’ rights in the sexual offences legislation. Based on our research findings, we are further of the opinion that the safety of the victim should be made more prominent in the court’s consideration of whether or not the release of the accused will be in the interests of justice, and we accordingly recommend the amendment of the relevant provisions of section 60(4) of the Criminal Procedure Act. Similarly, the determination of appropriate bail conditions should also be made with a clear awareness of the victim’s need for protection against further violence, intimidation or harassment by the accused.

• Factors considered by the court in deciding on bail

A prosecutor interviewed during the research project felt that the interests of the accused weigh quite heavily with presiding officers:

Interestingly, a number of magistrates indicated that of the five ‘indicators’ of the interests of justice listed in section 60(4), they regard the question of whether there is a likelihood (in exceptional circumstances) that the release of the accused wil disturb the public order or undermine the public peace as particularly significant in sexual offence cases. However, another magistrate prioritized the likelihood that the accused will attempt to influence or intimidate witnesses:

• Focus of the bail investigation

Although certain investigating officers did acknowledge that aspects such as threats made to the complainant are important to investigate for purposes of bail, the majority appeared to concentrate on information relevant to whether or not the accused will stand trial, such as whether he has a fixed address, permanent employment, etc. Investigating officers generally did not believe that involving the complainant in the bail investigation is helpful.

• Intimidation and harassment of the victim

Victims who participated in the research reported high levels of intimidation and harassment by the perpetrator and his family and friends. Where victims reported such instances of intimidation, the official response appeared to be less than satisfactory, with little or no attempt to intervene to secure the victim’s safety. On the other hand, when going through case dockets and court records, researchers found no instances of applications to cancel an accused’s bail due to his non-compliance with bail conditions aimed at prohibiting contact with the victim. There could be several explanations for this discrepancy: it could be that bail conditions to prohibit the accused from making contact with the victim are not imposed in all instances where this should happen. Secondly, it is possible that victims are not informed of the bail conditions and of what they should do in the event of the breach of a ‘no contact’ bail condition. Thirdly, it is further possible that where victims do report alleged breaches of the bail conditions, officials do not take action to intervene – thus explaining the lack of applications for cancellation. This example again reinforces the importance of informing victims of key events in the criminal justice process, as we have argued above. In addition, we argue that the documents setting out the standards for case management, discussed above, should clearly impose a duty to on the police to inform the victim of the outcome of the bail hearing, of the nature of bail conditions and what she should do in the event of a breach of such conditions. Police and prosecutors should further be required to take immediate action when the victim reports an alleged breach of a ‘no contact’ bail condition.

We recommend the insertion of the following provisions (as indicated):

1. the fact that the accused is familiar with the identity of witnesses and with the evidence which they may bring against him or her;
2. whether the witnesses have already made statements and agreed to testify;
3. whether the investigation against the accused has already been completed;
4. the relationship of the accused with the various witnesses and the extent to which they could be influenced or intimidated;
5. how effective and enforceable bail conditions prohibiting communication between the accused and witnesses are likely to be;
6. whether the accused has access to evidentiary material which is to be presented at his or her trial;
7. the ease with which evidentiary material could be concealed or destroyed;
8. the view of any person against whom an offence was allegedly committed regarding their safety; or
9. any other factor which in the opinion of the court should be taken into account.

Notwithstanding the fact that the prosecution does not oppose the granting of bail, the court has the duty, contemplated in subsection (9), to weigh up the personal interests of the accused against the interests of justice: Provided that the interests of justice should be interpreted to include, but not be limited to, the safety of any persons against whom the offence has allegedly been committed.

The court may make the release of an accused on bail subject to conditions which, in the court’s opinion, are in the interests of justice: Provided that the interests of justice should be interpreted to include, but not be limited to, the safety of any persons against whom the offence has allegedly been committed.

Senior Researcher

Gender Project

Community Law Centre

University of the Western Cape

Criminologist

Institute of Criminology,

Faculty of Law

University of Cape Town

We agree that by broadening the definition of rape to be more reflective of the experiences of victims one may indirectly provide more appropriate redress and increase victims' access to the criminal justice system. An example is found in the present distinction between instances of vaginal penetration by the penis (regarded as the offence of 'rape') and acts of forced penetration other than vaginal penetration by a penis (punished as 'indecent assault'). While some may argue that as long as the offender does not go unpunished, it does not really matter whether he or she is charged with rape or indecent assault, we argue that there are a number of practical implications to this distinction.

Firstly, Schedules 5 and 6 of the Criminal Procedure Act treat indecent assault differently from the offence of rape for purposes of the determination of the accused's pre-trial disposition in terms of s 60(11) of this Act. Secondly, indecent assault is also treated differently from rape in terms of Act 105 of 1997. Thirdly, rape trials must be heard in the regional or high court, since the district court lacks substantive jurisdiction in respect of rape. This is not the case with indecent assault, which may also be heard in the district court. Although there may be prescriptions issued by the Directors of Public Prosecutions to the effect that 'more serious' instances of indecent assault should be heard on regional court level, anecdotal evidence indicates that such serious cases are, on occasion, tried in district court.

For a long time, the offence of rape was construed narrowly and limited to situations where the woman's resistance was overcome through physical force. The courts however gradually widened the ambit of the offence by construing 'absence of consent' to include instances where intercourse was obtained through fraud or deception. This is essentially the definition of rape as adopted in South Africa from English common law.

We support the broadening of the offence to be gender-neutral, in other words that the perpetrator and the victim may be either male or female. We similarly support the move away from ‘absence of consent’. The Law Reform Commission points out that this shift represents a shift of focus from the subjective state of mind of the victim to the imbalance of power between the parties on the occasion in question:

The replacement of 'absence of consent' as an element of rape highlights a significant symbolic shift in the understanding of the true nature and experience of sexual violence. For the victim, the distinction between rape and consensual intercourse is not to be found in consent. Rather, it revolves around the coercion that is used to vitiate her consent. Therefore, viewing 'absence of consent' as the central element of the offence serves to define the experience from the perspective of the perpetrator, rather than the victim. We accordingly support the approach followed by the Law Reform Commission.

However, we submit that the creation of a distinction between different forms of sexual penetration is problematic. We address this below. In addition, we have also identified other aspects of the definition that require clarification and reformulation.

Our proposals are aimed not only at aligning the definitions of offences with the interests that we aim to protect, but also at ensuring that the legislation is easy to comprehend and apply.

Clause 2 sets out the proposed redefinition of the offence of rape, and introduces two new statutory offences, namely sexual violation and oral genital sexual violation in clauses 3 and 4 respectively. A further new offence, ‘compelling or inducing indecent acts’, is set out in Clause 6. The Bill does not propose the redefinition of the offence of indecent assault.

The above provisions of the Bill are found in the same format in the draft legislation set out in the Law Reform Commission’s report. In order to gain an understanding of the Commission’s motivation for these proposals, it is valuable to also consult the preceding Discussion Paper on Sexual Offences: The Substantive Law and Discussion Paper on Sexual Offences: Process and Procedure.

4. PROPOSED CHANGES
1. Consolidation of Three Penetrative Offences into One Offence of ‘Rape’

As a starting point, it is useful to bear in mind that the offence of rape is aimed at protecting the interests of sexual autonomy and integrity. One of the original points of criticism against the common law offence of rape was its specificity regarding ‘orifice’ and 'object'. Commentators have expressed the view that the definition of rape should be extended to include penetration with objects such as bottles or sticks, and also to include penetration of the victim’s anus or mouth by the genital organs of the perpetrator. As it currently stands, the reformulation of the definition as contained in the draft Bill does not address this concern.

Penetration by an object other than a penis and forced oral penetration are just as violent as penetration by a genital organ. The proposed grading in the definition of offences only serves to minimise other sexual violations and creates an opportunity for the reduction of charges in matters that prosecutors may regard as 'difficult' rape cases. If the legal definition of rape is not sufficiently broad, the experience of the rape victim may not be regarded legally as constituting rape even though she defines it as rape.

‘Who is to say that the sexual humiliation suffered through forced oral or rectal penetration is a lesser violation of the personal private inner space, a lesser injury to mind, spirit and sense of self?… All acts of sex forced on unwilling victims deserve to be treated as equally grave offences in the eyes of the law, for the avenue of penetration is less significant than the intention to degrade.’

The Commission bases its distinction between penile penetration and penetration with 'other objects' on a reluctance to label perpetrators of less serious forms of penetration (for example, 'slight' digital penetration of a victim's genital organs) as 'rapists'. The Commission's hesitation to include other forms of sexual penetration (i.e. vaginal or anal penetration by an object or forced oral intercourse in the form of penile penetration of the victim's mouth) in the definition of rape is therefore aimed at avoiding undue prosecution of an accused for an offence that does not constitute 'real' rape.

 

If the objective of the reformulation of the definition is to protect the sexual autonomy of rape victims and to advance the notion of rape as an act of violence rather than a sexual act, the emphasis on penile penetration as an element of rape undermines this objective. An alternative to establishing the separate offences of ‘rape’, 'sexual violation' and ‘oral genital sexual violation’ would be to extend the proposed definition of rape to include acts set out in the definitions of the latter two offences and to keep the offence of 'indecent assault' for all non-penetrative sexual acts falling outside of this extended definition.

The provisions of the Namibian Combating of Rape Act may be instructive in this regard. The Act defines 'rape' as the intentional commission of a sexual act with another person under coercive circumstances. A 'sexual act' is defined in s 1(1) to cover a number of penetrative and non-penetrative acts. Significantly, the acts of 'insertion of the penis', 'insertion of any other body part' as well as 'insertion of any object' are all included in the definition of a 'sexual act'.

It is significant to note that the International Tribunal for the former Yugoslavia has accepted that the actions of penetration of the vagina or anus of the victim by objects other than the penis of the perpetrator as well as penetration of the mouth of the victim by the penis of the perpetrator constitute rape. The definition of ‘the crime against humanity of rape’ as set out in the statutes for the International Criminal Court is framed in similar broad terms.

The South African Law Reform Commission's concern with creating a layered scheme of penetration-based offences is further related to sentencing purposes. However, we argue that the introduction of such a graded scheme of definitions is not necessary: it is possible to make such a distinction once there has been a conviction of rape, as is currently the case in terms of Act 105 of 1997.

We concur with the following statement by Davis J in S v Schwartz:

'As controversial a proposition as this is bound to be, as not all murders carry the same blameworthiness, so too, not all rapes deserve equal punishment. That in no way diminishes the horror of rape; it is however to say that there is a difference even in the heart of darkness.'

In principle, therefore, making a distinction between different instances of rape for purposes of sentencing is not in itself objectionable. However, this distinction should not occur on the level of enacting different offences relating to forced penetration.

It should further be noted that the proposed Sentencing Framework Bill, which will repeal the provisions of Act 105 of 1997, places extensive reliance on the notion of 'serious offences'. However, this term is not defined in the Bill. This implies that where one starts diluting the offence of 'rape' to another (less serious) form of violation, there is a real risk that the Sentencing Framework will not capture instances of 'sexual violation' or 'oral genital violation' as 'serious offences'.

We accordingly recommend the consolidation of the offences of ‘sexual violation’ and ‘oral genital sexual violation’ into the offence of rape set out in Clause 2(1).

2. Deletion of Provision regarding Prima Facie Unlawfulness

Clause 2(2) of the Bill provides that an act which causes penetration is prima facie unlawful if it is committed in any coercive circumstance, under false pretences or by fraudulent means, or in respect of a person who is incapable in law of appreciating the nature of an act which causes penetration.

The background to this provision is firstly found in the Law Reform Commission’s first Discussion Paper. The Commission notes here that once unlawfulness is established by proof that the rape took place in certain circumstances, the onus must be on the accused to prove his or her defence that may or may not be based on consent as a justification for his or her actions. As Van der Merwe points out, the Law Commission did not clearly indicate at this point whether it intended to impose a so called 'reverse onus' (where, instead of the state proving the guilt of the accused beyond reasonable doubt, the onus is on the accused to prove his innocence) or whether it proposed placing an evidentiary burden on the accused. The former would not only fly in the face of established principles of criminal liability, but would also run the risk of being found constitutionally suspect.

In its 2002 Report, the Commission is at pains to state that what is intended in clause (3)(2) is indeed an evidentiary burden.

The Commission is satisfied that its proposal does not place a reverse onus on the accused, but merely an evidential onus… [t]o make it clear that its proposals do not alter the standard of proof required when an accused adduces evidence in rebuttal, it is deemed appropriate to add words to this effect in subclause (10) [sic] - where the accused's entitlement to raise defences at common law is retained.

The crisp question arising here is whether this provision is necessary at all. According to the principles of South African law of evidence, the state bears the burden of proof to prove the guilt of the accused beyond a reasonable doubt. This burden of proof remains on the state throughout the trial. Schwikkard and Van der Merwe note that at the outset of the trial, 'in tandem with the burden of proof', the state must also discharge an evidential burden. The state will do this by establishing a prima facie case against the accused. Once a prima facie case is established, the evidential burden will shift to the accused to adduce evidence in order to escape conviction. The burden of proof however remains with the prosecution.

The state also bears the burden of proving the absence of any defence raised by the accused, for example, the absence of private defence, compulsion or necessity and consent. While there is a procedural duty on the accused to introduce his or her defence (for example by putting his defence to state witnesses during cross-examination), this duty does not in any way translate into a burden resting on the accused to prove his defence.

The proposed provision appears to require the state to present proof of two elements, namely that the accused committed an act causing sexual penetration and that he or she committed such act under coercive circumstances, under false pretenses or in respect of a person incapable of appreciating the nature of penetration. Once the state has established that the act causing penetration was committed under the 'listed' circumstances, this act is prima facie unlawful. According to the Commission, an evidential burden now shifts to the accused to show that his actions were not unlawful. Where the accused wishes to raise the defence of consent to counter the element of unlawfulness, he or she would not have the onus of proving such a defence. The burden of proof to 'disprove' the accused's defence of consent remains on the state.

We accordingly submit that the proposed subclause takes the matter no further than would have been the case if coercive circumstances, false pretenses or the victim's lack of capacity were recognised as elements of the offence that the state has to prove. We therefore propose that this subclause is firstly unnecessary and secondly has the potential of confusing the burden of proof with the evidentiary burden that an accused would bear once the state has provided prima facie evidence of the offence.

The Law Reform Commission's proposal aims to move away from 'absence of consent' and the resultant trial of the victim. As much as this objective is a sound one, it should be acknowledged that it is simply not possible to keep the absence of consent on the part of the victim out of the trial where this is what the accused's defence is based on. It may be possible, for example, to attempt to limit the traumatising impact of cross-examination regarding alleged consent through strict application of the proposed amendments to the law of evidence and procedure. However, we argue that the introduction of a nebulous evidential burden as proposed in clause 2(2) will not contribute to meeting this objective.

We accordingly recommend that the three grounds referred to in this clause be included in the substantive definition of the offence of rape in Clause 2(1), and that Clause 2(2) be deleted in its entirety.

 

 

 

 

3. Deletion of Failure to Disclose Life-Threatening Sexually Transmissible Infection from Definition of 'False Pretences or Fraudulent Means'

Clause 2(4)(c) proposes that the notion of 'false pretences or fraudulent means' should include circumstances where 'a person intentionally fails to disclose to the person in respect of whom an act which causes penetration is being committed, that he or she is infected by a life-threatening sexually transmissible infection in circumstances in which there is a significant risk of transmission of such infection'.

The notion of 'false pretences or fraudulent means' as set out in clause 3(4) is largely a restatement of accepted South African law (subclauses 3(4)(a) and (b)). Subclause 3(4)(c) however is a new provision, and is aimed predominantly at penalising the intentional failure to disclose HIV infection.

The potential criminalisation of harmful HIV-related behaviour has been the subject of an extensive investigation by the SALRC. The Commission came to a final conclusion that the recommendation of legislative intervention would not be principled and noted, inter alia, that it is generally believed that the creation of HIV-specific statutory offences would be counter-productive to public health efforts to curb the spread of the disease, and will entrench further discrimination and stigmatisation of persons with HIV. In addition, it will drain away scarce resources from the most effective HIV prevention programmes such as targeted education campaigns, condom distribution initiatives, and the provision of voluntary, accessible testing, counseling and medical treatment.

In determining whether the intentional exposure of another person to a life-threatening infection such as HIV through sexual intercourse should be included in the context of this Bill, it is useful to consider the act that is being penalised. South African law does not punish persons who fraudulently convince others to have consensual sex with them, other than in the two instances already covered in the Bill, i.e. where the victim is defrauded about the nature of the act or the identify of the perpetrator. We argue that the essence of the act that is punished here is not the defrauding of the person who might not otherwise have been willing to have sex with the perpetrator, but rather the knowing exposure of another person to a life-threatening infection. This can be compared to other instances of such knowing exposure, for example, assaulting a victim by sticking them with a needle with infected blood. To the extent that it may be necessary to enact a statutory offence to punish such behaviour, we argue that the Sexual Offences Bill is not the vehicle to do so.

We also wish to point out that instances of rape committed by a perpetrator knowing that he is infected with HIV are included in the list of offences requiring the imposition of a minimum sentence of life imprisonment on conviction (in terms of the current legislation on minimum sentences).

We accordingly recommend the omission of this provision from the Bill. We also draw attention to the detailed submission in this regard prepared by the Women’s Legal Centre, which we endorse.

 

4. Deletion of Provision Regarding Common Law Defences

Clause 2(9) of the Bill states that nothing in this section may be construed as precluding any person charged with the offence of rape from raising any defence at common law to such charge, nor does it adjust the standard of proof required for adducing evidence in rebuttal. We submit that the inclusion of this provision is unnecessary. The first part of the clause restates trite law, especially since there is nothing in the preceding provisions to suggest that an accused person would be precluded from raising any defence. The second part of the clause is ostensibly aimed at clarifying possible uncertainty arising from Clause 2(2), which deals with prima facie unlawfulness. We argued above that this clause should be deleted; if this recommendation is followed, the second part of Clause 2(9) also becomes wholly redundant.

South African criminal law currently recognises three common law offences relating to sexual assault, namely rape, indecent assault and crimen iniuria.

The Discussion Paper notes that there are divergent opinions on the definition of indecent assault. These opinions can loosely be referred to as the ‘R v Abrahams’ definition (which requires an 'act of indecent physical assault') and the ‘S v F’' definition (which requires that the assault must be committed with intention to commit an indecent act).

The draft Bill proposes the enactment of new ‘penetrative’ offences, including rape, sexual violation and oral genital violation, as well as the offence of ‘compelling or inducing an indecent act’. At the same time, the Bill, while repealing the common law offence of rape, does not repeal or amend the common law offence of indecent assault. We therefore submit that the lines between the existing offences of indecent assault and crimen iniuria and the new statutory offence of compelling or inducing an indecent act are unclear, and we accordingly propose the enactment of a statutory offence of indecent assault.

We propose the following formulation:

The above definition includes situations where the perpetrator performs the indecent act on the victim, for example, where the male perpetrator touches the female victim’s breasts. However, there is a range of situations where the perpetrator may not be the person physically performing the indecent act, but where, for example, s/he coerces the victim to perform the act on him or her. The Bill attempts to address these situations through the provisions of Clause 6; however, the current formulation is cumbersome and unclear.

The acts that Clause 6 purports to penalise would in practice include: compelling, inducing or causing another person to engage in an indecent act with –

1. the person compelling, inducing or causing the act (i.e. the perpetrator), for example where the perpetrator compels the victim to manually stimulate the perpetrator;
2. a third person, for example where the perpetrator compels the victim to manually stimulate the third person; or
3. the other person himself or herself, for example, where the perpetrator compels the victim to masturbate;
4. an object, including any body part of an animal.

We accordingly recommend the reformulation of this provision to make it clear what is meant. Given that the interest that is to be protected here is the same as in the case of indecent assault as defined in the common law (and the redefinition we propose above), we recommend that these acts be included in the ‘new’ definition of indecent assault. We also recommend the inclusion of the three grounds that may render the act unlawful as included in the definition of rape.

We are concerned that the formulation of the offence of rape currently does not encompass a situation where the perpetrator [A] forces a second person [B] to have sex with the victim [C]. In this scenario, B would not be liable for rape (he would be able to rely on the defence of necessity). The question is therefore what A’s liability towards B and C respectively should be.

In terms of the proposed definition of rape in Clause 2(1), A would not be guilty of raping C, since the offence requires an act which causes penetration of the anus or genital organs of the victim by the genital organs of the perpetrator. For the same reason, A would not be guilty of raping B either.

We argue that the actions of A constitute a violation of the sexual integrity of both B and C, and accordingly we recommend the inclusion of a provision to address this scenario in the definition of rape. This provision should also be able to address situations where B is not liable due to fraud or false pretences on the part of A, or where B is a person unable to appreciate the nature of the act that causes penetration.

Our formulation as set out below would also incorporate a situation where A compels B to have sex with C, where C is willing. (B’s sexual autonomy is violated, while that of C is not.)

4. ADDITIONAL COMMENTS: ‘ABUSE OF POWER OR AUTHORITY’

The Bill lists, as one of the instances of coercive circumstances, ‘an abuse of power or authority to the extent that the person in respect of whom an act which causes penetration is committed is inhibited from indicating his or her resistance to such an act, or his or her unwillingness to participate in such an act’.

To the extent that it may perhaps be questioned whether the abuse of power or authority should be included as an instance of ‘coercive circumstances’, we would like to express our support for this provision to be retained.

Consider the following incident:

My name is Fikile. I have been looking for a house but could not get it as the councillor of the place said that I should have sex with him before he allocated a stand to me. After registering for a stand, I inquired about my application from the Local Councillor, because people who registered after me were being allocated stands. I then started working at the local offices as a volunteer thinking that I would get a house soon. Many old women complained to me that the councillor indicated that they would not get stands because they were ugly, and he did not enjoy sex with old women. If they needed his assistance they should bring their daughters in order to have sex with him. I kept quiet for I did not have proof of this. In 1996 I went to him again and he mentioned the first test, i.e. sex before getting a stand. He said that I would be on the waiting list for the rest of my life.

This case highlights an important aspect of women’s disempowerment that current legislation does not address. The type of coercion described in this case reflects the unequal power relations between women and men prevalent in much of South African society. Given the subordinated socio-economic position of women in South Africa, it is reasonable to argue that this case is not an isolated one. Women are often subject to different forms of sexual harassment that extends beyond their employment situation and permeates all aspects of their lives.

While it could be argued that coerced sex through abuse of power or authority could be addressed as sexual harassment where it occurs in the workplace (in terms of the Employment Equity Act) or as a form of discrimination through the Promotion of Equality and Prevention of Unfair Discrimination Act, neither of these Acts makes provision for penalising such conduct as a criminal offence. In terms of the current legal position, the only possibility would be to charge the perpetrator with crimen iniuria, which is generally not considered as a serious offence. If one agrees that the interest to be protected here is the victim’s sexual autonomy and integrity, the inclusion of abuse of power in the list of coercive circumstances becomes imperative.

In terms of international law, it is instructive to note that the definitions of the crimes against humanity of rape and sexual violence (as set out in the statutes of the International Criminal Court) recognise coercion through abuse of power as elements of these offences.

A person is guilty of the offence of rape if he or she -

1. unlawfully and intentionally commits an act that causes penetration, however slight, of –
   (a) the genital organs or anus of the complainant by the genital organs of the perpetrator or any other object used by the perpetrator;
2. the mouth of the complainant by the genital organs of the perpetrator; or
3. the genital organs or the anus of the perpetrator by the genital organs of the complainant;

1. a use of force against the complainant or another person or against the property of the complainant or that of any other person;
2. a threat of harm against the complainant or another person or against the property of the complainant or that of any other person; or
3. an abuse of power or authority to the extent that the person in respect of whom an act which causes penetration is committed is inhibited from indicating his or her resistance to such act, or his or her unwillingness to participate in such an act.

1. in respect of whom an act that causes penetration is being committed, is led to believe that he or she is committing such an act with a particular person who is in fact a different person; or
2. in respect of whom that causes penetration is being committed, is led to believe that such an act is something other than that act.

1. asleep;
2. unconscious;
3. in an altered state of consciousness;
4. under the influence of any medicine, drug, alcohol or other substance to the extent that the person’s consciousness or judgment is adversely affected;
5. a mentally impaired person; or
6. below the age of twelve years.

1. the irrebuttable presumption that a female person under the age of twelve years is incapable of consenting to sexual intercourse; and
2. the offences of rape and indecent assault, except where such offences have been committed prior to the commencement of this Act,

A person is guilty of the offence of indecent assault if he or she -

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