The above Bill refers as published in the Government Gazette on 15 September 2003 and currently before the Justice and Constitutional Development Parliamentary Portfolio Committee (hereinafter the Justice Committee) for deliberation.

We address this letter to the Joint Committee on the Status of Women in order to inform the Committee of some concerns in relation to the final format, that the proposed legislation may take with specific reference to the potentially adverse impact that some of the provisions may have on women in the country. We believe that co-operation between the Joint Committee on the Status of Women and the Justice Committee is essential in order to ensure that such negative impact be alleviated.

As a starting point we welcome the Bill and the process that has led up to the formulation of the current Bill. We see the Bill as a positive step towards reforming the common law and legislation relating to sexual offences and view this process as critical in addressing the high levels of gender based violence in South Africa. We hope that the process will result in a comprehensive and effective piece of legislation so as to re-enforce the State’s commitment to ending gender based violence. We further hope that strengthening sexual offences legislation will result in more Complainants reporting sexual offences and ultimately higher rates of conviction. We specifically endorse the preamble of the Bill, which sets out the purpose and objectives of the Bill bearing in mind the Constitutional framework. However, there are some aspects that are of concern, which we have canvassed in written and oral submissions to the Justice Committee.

We welcome the proposed revision of the common law definition of rape, which has for a long time been criticised and described as inadequate and discriminatory, particularly from the perspective of rape survivors. We also welcome the inclusion of other forms of penetration such as anal and oral penetration as well as penetration with objects. We also endorse the gender neutrality of the provision hereof.

We do, however, believe that to create three separate offences of penetration, as the Bill currently does, namely rape, sexual violation and oral genital sexual violation, is problematic. We argue that the grading of offences is unnecessary, as this aspect will be considered during the sentencing stage by Presiding Officers. A grading perpetuates the myth that only genital / anal rape is serious whilst oral violations are less serious.

We welcome the move away in the current Bill from "absence of consent" toward a definition, which incorporates coercive circumstances. It has been well documented in both the Law Commission’s discussion paper and in the submissions by various groups that the focus on consent in rape cases has to a large extent contributed towards the failure of the criminal justice system to secure higher conviction rates. The use of consent has proved to be problematic in terms of proving the offence of rape. We illustrate this by using the following example taken from a recent Cape High Court decision.

In the Wolfaardt case, widely reported in the media at the beginning of September 2003, the accused were acquitted because two 13-year-old girls had agreed to have sexual intercourse with the man concerned. They were both in the wife of the accused's Sunday school class and thus agreed when the couple lured them to have sex with the man. The court found that this did not amount to rape since the girls had consented and could only be found guilty of having consensual intercourse with children under the age of 16. Had the Court utilised "coercive circumstances" instead, the relationship between the girls and the wife and the coercion used would have been relevant and may have secured a conviction and appropriate sentence.

The Bill proposes including a subsection aimed at criminalising harmful HIV related behavior as part of the definition of rape. We believe that this will have an adverse impact on women in South Africa and that women will be disproportionately affected by including such a provision. The offence has been worded along the lines of intentional infection. This means that persons who do not know their HIV status cannot be held liable. It has been well documented that women tend to know their HIV status, as a result of attending at antenatal clinics and are therefore more likely to be prosecuted in terms of the proposed offence. Thus the purported provision runs counter to the entire object and purpose of the Act which aims to protect women as a vulnerable group exposed to sexual violence.

Not only will this adversely impact on women, this would also be contrary to current international best practice, which has moved away from criminalising HIV/AIDS and focuses on a de-stigmatisation. The creation of this specific offence will mean that provided a particular person has not been tested and does not know his/her status, he/she will not be liable for prosecution. The creation of this offence also creates problems in terms of the general duty, which could be said to exist on both parties engaging in sexual activity in terms of which both parties have a responsibility to adopt precautions to prevent transmission of HIV and other STDs. The implications for disclosure of one’s status and the role of medical records and potential invasion of one’s privacy and dignity pose further problems in terms of the creation of this offence.

We therefore argue that this provision should not only be removed from the definition of rape but should also not form of the Act at all. Over and above the aforegoing in our detailed submissions we alerted the Portfolio Committee to the difficulties in proving a criminal offence of this nature beyond a reasonable doubt.

We endorse the provisions included in the Bill, which aims at protecting complainants in sexual offence cases. However, we are concerned about the implementation and monitoring of these protective measures, so as to ensure that they in fact become a reality for the women concerned.

We endorse the provisions, which deal with evidence of previous consistent statements, the application of the cautionary rule, corroboration and evidence of surrounding circumstances. We do not foresee any difficulties in relation hereto.

We now wish to turn the Committee’s attention to some important aspects, that have been excluded from the Bill.

The Law Commission recommended that provision be made for the designation of support persons. This recognises that testifying in Court is an extremely traumatic event, particularly when giving evidence regarding sexual offences, which may result and often does result in secondary trauma for survivors of sexual offences or witnesses thereto. It appears as though the omission in the draft legislation has resulted from concerns about potential cost implications of providing for support persons. In our submissions we highlight that there are no cost implications to the state as often a support person refers to a family member, friend or counsellor who wishes to remain with the Complainant during her testimony. In practice, it has been found that family and/or friends are excluded from the Court during in-camera hearings and the provision was intended so as to allow for one support person to remain with the Complainant during her testimony. It is therefore necessary to distinguish between support persons who are employed by the Court to provide the necessary support and who require a salary and formal policies in order to ensure due process and accountability and such support persons who are friends and/or family of the Complainants. We argue that the legislation should at least make provision for the latter category of support persons.

The Bill refers to a national policy framework to guide the implementation, enforcement and administration of the Act, to ensure acceptable and uniform treatment of all sexual offence cases. In previous drafts detailed sections were included concerning the contents of such a national policy framework and the consultative process required for drafting purposes, so as to ensure accountability of organs of State and other organisations involved in the programs. However, the current version does not include these detailed accountability provisions. In order for such framework to have any meaningful impact on the lives of women and on the working of the Courts in sexual offence matters these further provisions setting out the context of the policy framework are essential.

Extensive submissions were made in relation to medical management of Complainants in sexual offence cases. We wish to express our concern at the absence of provisions relating to medico-legal services and the provision of treatment, including preventative treatment for HIV/AIDS. It appears that the arguments in relation to the non-inclusion of these provisions refer to the fact that such provision of treatment already exists in policy documents and guidelines for health professionals and thus there is no need for legislation, as this may impose positive duties on the State to provide the necessary treatment to Complainants in sexual offence cases.

Whilst we acknowledge that in provision of access to health care there is a limitation on the State’s duties in terms of the Constitution. However, when dealing with sexual offences the medical management of a sexual assault survivor should be regarded as "emergency medical treatment," and thus not subject to any limitations. For this reason we do believe that it is important to include access to treatment, including PEP in the legislation.

We also argue that victims’ rights should be included in the Bill in order to adequately take into account the secondary victimisation, which survivors of sexual assault have to endure at the hands of the criminal justice system. At present the State prosecutes an offence against the accused with limited participation on the part of the victim who is merely a witness in the case. Victims therefore have limited "due process" rights in relation to criminal trials whilst the rights of accused and detained persons are clearly articulated in the Constitution. At present the Bill does not include specific provisions concerning victims rights and we suggest that detailed provisions be included in this regard.

This legislation has the potential to improve the way that the legal system deals with sexual offences provided that it is not reduced to a fragmented, minimalist piece of legislation. We trust that the joint endeavors of this Committee and the Justice Committee will ensure that this does not happen. We believe that whilst in many respects the drafters believe that they are advancing the rights of women, the consequences and potential impact on the lives of women, as a vulnerable and marginalised group, have not been fully canvassed and considered.

The undersigned organisations have drafted and presented detailed submissions on the Bill to the Justice Committee and we are willing to make these available to this Committee if required. We are also available to assist the Committee in any other way around the Bill where necessary. The organisations involved in the joint submission specifically endorse the contents hereof confirming that the Women’s Legal Centre has been duly authorised to draft the aforegoing letter on their behalf:

We look forward to hearing of you.

Yours faithfully