SUMMARY OF COMMENTS

SUMMARY OF COMMENTS ON CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL

[B 50 - 2003]

*Clause No.*	Name of person or body	Comment
Pre-amble	Institute of Criminology (UCT) and Adv B Pithey (clsex 64)	1. Paragraph 3: Refers to "particular disadvantageous impact" of sexual offences on vulnerable persons. The phrase does not adequately emphasise the context of sexual offences as acts which violate the sexual autonomy, privacy, dignity or physical integrity of the victim. The following paragraph should be inserted: WHEREAS sexual offences fundamentally violate the sexual autonomy, privacy, dignity and physical integrity of the victim. 2. Paragraph 4: The words "including prostitution" should be deleted. Inclusion of "prostitution" seems inappropriate in the context of the criminalisation of offences which violate the sexual autonomy of another person. Although the Bill deals with child prostitution which may warrant emphasis, the current formulation of the paragraph does not give regard to the differences between child and adult prostitution. Child prostitution falls under the category "sexual offences" and does not need to be re-stated. 3. Paragraph 6: It should be emphasised that one of the aims of the Bill is "to encourage victims of sexual violence to approach the system for assistance".
Pre- amble	Sex Worker Education and Advocacy Taskforce (SWEAT) (clsex 83)	The words "including prostitution" in paragraph 4 must be deleted. Clauses dealing with child prostitution and prostitution of mentally impaired persons deal with a number of aspects and prostitution should therefore not be singled out in the pre-amble. Paragraph 4 should be redrafted as follows: AND WHEREAS women and children are particularly vulnerable to sexual offences;
1	NICRO (clsex 84)	"Sexual harassment" which is defined as "unwanted conduct of a sexual nature ... and may include unwelcome physical, verbal or non-verbal conduct" in the Labour Relations Act, 1995, should also be referred to in the Bill [recommendation was not motivated].
2	Women Demand Dignity (clsex 38)	All acts of forced penetration (i.e penetration of penis or object into a person's anus or vagina and penetration of genital organs into another person's mouth) should constitute rape.
2	Gender and Health Group (clsex 43)	1. Objects to the distinction between "rape", "sexual violation" and "oral genital sexual violation". Trauma experienced when penis or broken bottle is thrust into a vagina is the same. Given the general cultural aversion to oral genital sex activity, some women may find the violation of their mouths to be even worse. Categories of sexual offences should be treated as equally serious in terms of the legislation. 2. Subclause (4)(c): Supports intention to legislate against the deliberate spread of infection. Women who are pregnant or have very young children are more likely than any other group of people to be aware of their HIV status. Many women fear that they will lose their economic support if they disclose their HIV-status. They find it difficult to ask their partners to use condoms (experience domestic abuse and accusations of infidelity if they do so). Proposed amendment: [intentionally] fails to disclose to the person in respect of whom an act which causes penetration is being committed, that the 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 to that person and with the intention to transmit the infection.
2	NADEL Human Rights Research and Advocacy Project (clsex 45)	Failure to disclose should not be regarded as an act of rape under the false pretences or fraudulent means-provision. The inclusion of such behaviour in the offence of rape does not only strongly undermine the seriousness and severity of rape as a sexual offence, but also subsequently, minimises the adequate protection of rape survivors, as well as the prosecution of rape offenders. Failure to disclosure should be criminalised as a separate offence.
2	Rape Crisis Cape Town Trust IDASA (clsex 46) (See clsex 86 for organisations which endorsed the relevant submission)	1. Objects to distinction between "rape", "sexual violation" and "oral genital sexual violation". From perspective of survivor the penetration itself is the core issue and not the object that is used. All forms of unwanted penetration cause profound trauma and an extreme sense of violation. The use of objects, other body parts or animals sometimes display a greater degree of cruelty and may result in a greater degree of physical injury to the victim. Victims of oral penetration express a deep sense of violation. 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 a victim. 2. Subclause (4)(c): Failure to disclose a life threatening sexually transmittable infection should be omitted from the Bill. 3. Subclause (9): Is unnecessary to insert this provision because defences such as mistaken identity and consent will be raised regardless of the provisions of the Bill. Subclause (9) should be deleted.
2	Western Cape Network on Violence Against Women (clsex 57)	All penetrative acts, whether it happens with an object or with the genital organs, should be defined as rape, because the victims still experience the same type of trauma and pain. The example of the sexual violation of a 15 year old girl who was forced to perform sexual acts with an animal qualifies as rape and should be defined as such.
2	Centre for the Study of Violence and Reconciliation (clsex 60)	1. Subclause (4)(c). Concerned about its potential negative consequences for women in abusive relationships. Women are more likely to know their status because ante-natal testing remains the most common way of establishing HIV-status. Fearing how their partners may respond, some women do not disclose the results of their tests. Retention of the clause may result in the prosecution of a vulnerable group of women. Paragraph should be deleted or redrafted to create an offence where persons have the intention to transmit the infection. 2. "Sexual violation" and "oral genital sexual violation" should be included under clause 2 as rape. Forced sexual penetration is rape, regardless of the object or body part used to achieve penetration.
2	Women's Legal Centre (clsex 61) Additional submission (clsex 92)	1. Recommends broadening of definition of "rape" so as to encompass "oral genital violations" and "sexual violations" without creating separate offences (see second last page of summary for draft provision). Recommends repeal of common law "indecent assault" and incorporation into Bill (see last page of summary for draft provision). 2. Subclause (3): Coercive circumstances should be defined in a manner that does not create a closed list by inserting the words "includes but is not limited to" in the introductory part of the subclause. 3. Subclause (4)(c): Opposed to inclusion of subclause3/4 * cases of HIV-postive persons who deliberately infect others, or intentionally or recklessly put others at risk of contracting HIV, are extremely rare; * in general, both partners engaging in sexual or drug injection activity have a responsibility to adopt precautions to prevent transmission of HIV and STD's; and * women will be disproportionately affected by the provision. Subclause (4)(c): Statutes outlawing sodomy, prostitution, drug abuse and transmission of veneral diseases did not and have not deterred these activities and thus there is little reason to believe that another statute targeting consensual sex for criminal penalties would change this. It is highly unlikely that criminal penalties will stop people from engaging in potentially risky sexual behaviour. Threatening people with criminal penalties where they expose others to HIV may create a false sense of security among HIV-negative people. Sexual activity with any partner always carries some risk of lesser or greater harm, whether it is unwanted pregnancy or disease. Criminal law should therefore only deal with high-risk activity and coercive sexual acts (rape) which result in HIV-infection whilst exercising caution and restraint when dealing with consensual sexual acts bearing in mind that unprotected sex always carries a significant risk of harm to both parties. The duty to disclose and Canadian jurisprudence In most cases the issue will not be about wilful deceit or withholding of information but rather simple non-disclosure of one's status. One is in effect criminalising mere silence and a failure to disclose where there is no legal duty to disclose one's status. In the Canadian decision of Cuerrier it was held that there was a legal duty to disclose where there was "significant risk of harm". More recently, the Supreme Court of Appeal in Canada in the case of S v Williams found that even where there is no significant risk of harm, if there is a reasonable possibility of infection one could be found guilty of attempted aggravated assault. The court rejected the appeal in relation to the accused's argument that since the complainant had consented to unprotected sex this had not been vitiated by his deception and deliberate lie in relation to the result of his test. In this regard the Court accepted that the complainant had not subjectively consented to have sexual intercourse with an HIV-positive person and thus consent was vitiated by fraud. On the aspect of aggravated assault the court however upheld the appeal and reversed the decision to one of attempted aggravated assault. The latter aspect is considered further hereunder. Evidentiary hurdles The argument raised by the Portfolio Committee in relation to simplifying and alleviating evidentiary hurdles currently faced by the State in relation to proving the elements of a crime is one which cannot be sustained for the following reasons: * the State has to prove all crimes beyond a reasonable doubt and not every difficulty of proof faced by the prosecution justifies new legislation to circumvent an evidentiary requirement; * Difficulties in proving a causal link between an accused person's conduct and the HIV infection of a complainant will not be alleviated. Even if all other factors are proved an accused who has engaged in criminal conduct can avoid liability simply because the nature of the infection is such that the State will have difficulties proving beyond a reasonable doubt that it was the accused who was responsible for the infection of the complainant, particularly where an accused disputes that he or she infected or even had sexual intercourse with the complainant; * Furthermore, proving the accused had knowledge of his or her status will be particularly difficult to prove conclusively. An HIV test result only establishes an accused person's status at the time of the test and not at the time of sexual act. It will often be impossible to prove beyond a reasonable doubt that the complainant was HIV negative prior to and at the time of sexual intercourse with the accused; * Window periods and false-negative tests in relation to infection also pose problems, as will anonymous testing and confidential medical records. Evidentiary hurdles and the recent Williams decision In most of the decisions in Canadian jurisprudence where an accused has been found guilty of intentionally infecting someone with HIV the evidentiary hurdles have been overcome only because the accused has pleaded guilty to the offence. In the early decisions of R v Summer the accused pleaded guilty where he engaged in unprotected sex with a number of persons knowing he was HIV-positive. In R v Thornton the accused pleaded guilty where he had donated blood knowing he was HIV-positive. The Supreme Court of Canada upheld the conviction and sentence by finding unanimously that Thorton had breached his duty of care by not disclosing his HIV status, thereby endangering the life, safety and health of the public. Similarly, in the case of R V Kreider the accused pleaded guilty facilitating a guilty finding. Significantly, in the case of R v Napora where Napora was charged with two counts of common nuisance for engaging in consensual anal intercourse with other men without using a condom whilst knowing he was HIV-positive he was found not guilty. The evidence established that there was some doubt as to whether his partner may well have been infected at the time when they had unprotected intercourse. The more recent case of S v Williams referred to above elaborates on this and deals with the difficulties in proving a case beyond a reasonable doubt, as illustrated hereunder" * In the case the accused conceded that the had infected the complainant and the matter was disposed of on an agreed set of facts, which will generally not be the case; * The Court acknowledges, for example, that the State would have had great difficulty with the fact that the accused tested positive on 15 November 1991 and failed to disclose this to the complainant. She then had herself tested on 20 November 1991 and tested negative. The relationship broke up soon thereafter and she again had herself tested in spring 1994, when she tested positive. The case was to a large extent proved based on the admissions and concessions by the accused, as the Court noted that there was no conclusive medical evidence causally linking the sexual acts and the transmission. The Court a quo noted that it was impossible to prove beyond a reasonable doubt that the complainant was not infected with HIV prior to November 1991 or after the break-up of the relationship and stated as follows: * On appeal it was held that there was "reasonable doubt when she was first infected with HIV.". At most the evidence showed that it was likely that she was infected prior to her tests in November 1991 but this was not critical according to the Court due to the agreed statement of facts and the admission from the accused. In other cases this will be critical; * On appeal the accused argued that the State had not proved that actus reus for the offence (i.e that his sexual conduct after knowing he had tested positive endangered the complainant's life); * The Court upheld his appeal in this respect substituting the conviction for aggravated assault with one of attempted aggravated assault finding that an accused who fails to disclose his HIV-positive status cannot be convicted of an aggravated assault endangering life in circumstances where the complainant could already have been HIV-positive. In these cases, an accused can at most be convicted of attempted aggravated assault since the State will not be able to prove intentional endangering of the complainant's life, which is an essential element of the offence; * Flowing from this it is important to note that the point at which infection occurs is not conclusively medically ascertainable in most cases and in these cases there will be no risk of harm if there was a reasonable possibility that the infection had already occurred on some previous occasion; * In closing the Court deals with medical evidence in future cases and clearly states that the case was decided based on the specific set of agreed facts and could not be used to predict future cases where conflicting medical opinions are produced regarding date of infection, window periods and re-infection, as in this case the medical evidence had been unchallenged and agreed upon. Medical evidence and proving a case beyond a reasonable doubt: Based on current medical evidence it is not possible to know when a complainant has been infected, unless the person is tested within the first six weeks of transmission. Thereafter it is not possible to find the critical date. This would also depend on how often the complainant has been tested in the past and at what intervals. At present the window period is 2 to 3 weeks meaning that the first 2 to 3 weeks immediately following infection are usually silent both clinically and serologically. The issue in criminal law and the creation of a new offence will relate to proving when a complainant was infected and showing that a particular accused infected the complainant, bearing in mind that there will be a delay between the sexual act, the test and the charge. Sequencing of the virus is possible but as with all DNA tests this is not 100% effective or conclusive. The more advanced PCR test is used as opposed to the normal anti-body test which one would use to determine HIV status. When sequencing the virus one assesses whether the complainant and the accused have the same strand of the virus as there are different strands. However, in certain areas and communities one finds an entire group of the population being infected with the same strand and thus the advanced test can only exclude persons and exclude an accused. The exclusionary process means that the result will either definitively exclude an accused person or it would mean that further tests are required to narrow the range of people. The test works by simply excluding people and never definitively shows that the accused has infected the complainant. The simple analysis in order to sequence the virus at the first stage to exclude the accused costs R10 000 with the further tests that are needed if an accused is not excluded at the first stage costing R50 000 at an academic hospital (not private) at present. These tests take a period of three months and require expert evidence. If specialists are required to give expert evidence the cost would escalate. As illustrated above, since the test can only exclude people and state that there is a 1 in a million chance that the accused infected the complainant, it can never show that this particular accused admits that he is HIV-positive but avers that the complainant may have slept with someone else who is HIV-positive and was perhaps infected by someone else. Sexual history evidence then becomes relevant with all the inherent difficulties associated therewith. Based on the foregoing figures it is apparent that the cost to the State in order to prove a criminal case, outweighs its questionable benefits. The cost to the public health system and justice system will be increased significantly and resources, which could be channelled toward other avenues, such as the provision of anti-retrovirals to rape survivors, will be diminished significantly. The creation of a new offence thus in no way deals with the medical and evidentiary problems currently faced by the prosecution. Lessons for South Africa: SA will need to clearly establish the degree of mental culpability required for liability and the issue of the reasonable possibility of infection (the Williams decision) and the significant risk of transmission (the Cuerier decision) will need to be defined and expanded upon. In particular, the draft Bill does not in any way deal with issues such as: * when will conduct be considered significantly risky; * what degree of risk is unjustifiable; * what role does gross negligence play; * what about the situation where an accused without disclosing his or her HIV status explains that he has had more than 20 sexual partners and never practiced safe sex with any of these partners? Is this sufficient disclosure to place a duty on the partner to enquire about an accused person who has no knowledge regarding the ways in which HIV/AIDS is transmitted and thereby has no or limited knowledge that the sexual conduct carries a risk of harm to another, even though he is aware of his HIV status? * every single individual has a responsibility to engage in safe sex and prevent the transmission of HIV/AIDS and thus not only the "infector" has this responsibility. Bearing in mind the statistics in relation to the number of South Africans infected any person who engages in unsafe sex can be said to have assumed the risk and the assumption of risk doctrine will then be applicable. At the same time a number of public policy considerations suggest that invoking the criminal law should only be done with restraint. In the event that the Portfolio Committee, notwithstanding the above, deems it fit to create a separate and new offence (which is submitted to be unwarranted) the guidelines proposed in the UNAIDS Policy Paper should be borne in mind: * if resort is had to criminal law, then preventing HIV transmission must be the single most important objective of doing so. HIV prevention should not be sacrificed in the pursuit of other goals such as retribution; * the parameters on the use of criminal law should be set out to avoid over-extension; * decisions regarding the scope of criminal law's application should be based on the best available evidence regarding modes of transmission and levels of risk involved; * prosecutorial guidelines/regulations should be formulated bearing in mind that selective prosecution will not be desirable and could result in bias and discrimination; * safeguards should be in place to prevent misuse and adverse consequences for vulnerable groups, such as women; * the confidentiality of medical/counselling information should be dealt with; * only the most serious and most harmful conduct should be punished bearing in mind however that coercive measures will be of limited utility in responding to HIV transmission as in most instances of transmission/exposure consensual sexual intercourse takes place rather than coercive sexual intercourse; * where coercive measures are utilized they should be done on the principle that the least intrusive measures possible to achieve a demonstrably justified objective is always to be preferred, so as to minimally impair valuable rights and interests; * a policy will need to be developed carefully considering the bigger, broader social context of HIV/AIDS with such policy at all times respecting the human rights and dignity of all. Women's Legal Centre endorses an approach, which accords with the approach taken by the International Criminal Tribunals for Rwanda and the former Yugoslavia. In this regard it is suggested that the definition focus on the coercive circumstances of the act in question bearing in mind the over-riding framework of protecting the dignity and sexual autonomy of the complainant. It is also recommended that the definition of rape should accord with the statutory rape provision dealing with children. In this regard we recommend that the use of coercive circumstances be the guiding principle in offences involving children as well. Therefore, one needs to ensure that the children's provisions are subject to the coercive circumstances definition. The focus should therefore be on the coercive nature of the sexual offence and not artificial age limits and gaps.
2	Sarah Baartman Legal Advice and Training Project (clsex 69)	1. "sexual violation" and "oral genital sexual violation" should be consolidated into the offence of rape on the basis of the following3/4 (i) Penetration by an object other than a penis and forced oral penetration are just as violent as penetration by a genital organ; (ii) 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; and (iii) SALRC's recommendation for the creation of a layered scheme of penetration based offences is related to sentencing purposes. It is, however, not necessary to introduce a layered scheme. 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. 2. Subclause (1): Concerned that the wording of the subclause does not encompass a situation where perpetrator [A] forces a second person [B] to have sex with the victim [C]. The question is what A's liability towards B and C should be? It is submitted that the actions of A constitute a violation of the sexual integrity of both B and C. The following formulation is recommended: Unlawfully and intentionally compels, induces or causes another person to commit an act that causes penetration, however slight, by the genital organs or any other object used by such other person of the mouth, genital organs or anus of a third person under coercive circumstances, under false pretences or by fraudulent means or where such other person is incapable in law of appreciating the nature of an act that causes penetration. 3. Subclause (2): The question is raised whether the provisions is necessary at all. At the outset of the trial, "in tandem with the burden of proof" the sate must also discharge an evidential burden. This will be done 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. 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 pretences 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 then 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 or proving such a defence. The burden of proof to "disprove" the accused's defence of consent remains on the State. It is therefore submitted that the subclause takes the matter no further than would have been the case if coercive circumstances, false pretences or the victim's lack of capacity were recognised as elements of the offence that the State has to prove. This subclause is unnecessary and 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. In view of the above it is recommended that the grounds referred to in subclause (2) must be included in the definition of the offence in subclause (1) and that subclause (2) be deleted. 4. Subclause (4)(c): The essence of the act that is punished 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 him or her with a needle with infected blood. To the extent that it may be necessary to enact a statutory offence to punish such behaviour, it is argued that the Bill is not the vehicle to do so. 5. Subclause (9): The first part of the subclause restates trite law and the second part is included at clarifying any possible uncertainty arising from subclause (2). If the recommendation regarding subclause (2) is followed then subclause (9) becomes redundant.
2	Africa Christian Action (clsex 70)	1. Subclause (4)(c): The failure to disclose an STI to a willing partner trivialises the crime of rape. Sexually promiscuous people live risky lives and cannot be equated to people who choose a chaste life and are violated. Failure to disclose an STI should be a crime separate from rape. Concern is expressed that the use of a condom may excuse a person from disclosing his/her HIV status. A condom reduces the risk of transmitting HIV but it does not eliminate it. 2. Subclause (6): Marriage is a unique relationship which places an obligation on the spouses to be faithful and provide each other with sexual intercourse and should therefore not be rejected as a defence. However, marriage should never be a defence against a charge of penetration of the anus.
2	Transformative Human Rights Unit and Southern African Media and Gender Institute (clsex 71)	Subclause (4): The Cape High Court recently ruled that a woman and her husband did not conspire to commit and then committed rape against her 13 year old sister and friend as the children had understood the nature of the act they were embarking upon and the consequences thereof. Taking advantage of the women's 9 year old sister in a similar way only became rape because a 9 year old cannot consent to sexual intercourse. The judgment illustrates the inability of the common law to remain abreast of research and a deeper understanding of the modus operandi of paedophiles. The children in this case had their naivety and lack of knowledge or sexual awareness exposed by the fact that they believed the couple's barrenness would be "cured" if the husband had sexual intercourse with children. Following paragraph should be inserted under subclause (4): (d) abuses their power or authority over a- (i) child under the age of 16 years; (ii) person with a mental impairment; or (iii) other person deemed by a court to be rightly regarded as an otherwise vulnerable person, having taken all relevant circumstances into account, to secure the submission of that child, person with a mental impairment or other vulnerable person to an act of sexual penetration.
2	SA Council of Churches (clsex 72)	Subclause (4)(c): Broad language of paragraph creates potential problems, namely- (i) It is not clear whether the phrase "the person in respect of whom an act which causes penetration is being committed" applies equally to both sexual partners. If there is a duty to disclose, this must be a shared responsibility. (ii) Term "life-threatening sexually transmissible infection" is not defined. What about other STD's, most of them are now treatable but can be just as dangerous if left untreated. Will obligation to disclose remain when AIDS treatments become more effective? Will it matter how affordable and accessible such treatment is? What criteria must courts use in applying this provision? (iii) What constitutes a "significant risk of transmission"? If an HIV positive man fails to disclose but makes careful use of a condom, has he reduced the risk of transmission sufficiently in order not to be subject to the obligation to disclose? What criteria must courts apply in determining a significant risk of transmission? (iv) The word "intentionally" is associated with "disclosure" and not with the infection. A person may be reluctant to disclose his or her HIV status based on the enormous social stigma attached thereto. Current formulation does not distinguish between those who hide their status due to fear of rejection and those who do so in an intentional and reckless effort to infect others. (v) Medical practitioners encourage people to undergo testing so that they know their status. The law should reinforce this message, but a person who suspects that he or she is HIV positive might be dissuaded from being tested if a positive result imposes a legal obligation to disclose one's status to all future sexual partners. The obligation will undermine the capacity of vulnerable groups, such as women, to insist that their sexual partners use condoms or other preventative measures at all times.
2	Commission on Gender Equality (clsex 76)	Subclause (4)(c): Women are more likely to be tested for HIV/AIDS. Many women are infected by their husbands or partners who have acquired the infection outside the relationship, but remain heedless of the risk of infection until the woman's HIV status is known. These women are known to suffer abandonment, rejection and violence on disclosing their HIV status. A number of factors, such as the husband being the breadwinner and also cultural, religious and social constraints, may impact on the decision by a woman to refrain from negotiating the use of a condom. The obligation to disclosure will further victimise these women. There are, however, a need to punish those persons who intentionally infect others with HIV/AIDS.
2	SWEAT (clsex 83)	Sublcause (4)(c): Since many clients of sex workers prefer to have unprotected sex it is possible that clients could use the relevant provision against sex workers.
2	SA Human Rights Commission (clsex 85)	The acts referred to in clauses 3 and 4 should also constitute rape which will be in line with the international trend to broaden the definition of rape. This trend is based on the underlying principle of dignity that is central to human rights. "The International Tribunals of the former Yugoslavia and Rwanda have developed the international law with regards to the definition of rape. In the Anton Furundzija Case, International Tribunal Former Yuguslavia, 10 December 1998, the court drew on the International Criminal Tribunal for Rwanda case of Ayekesu and developed it further. One of the specific points to be decided in the Furundzija case was whether oral penetration of the vagina constituted rape. The court came to the conclusion that based on fundamental principles of dignity that underlie the entire international humanitarian law and human rights law system, that forced oral penetration is a form of rape and not sexual assault. In so deciding, that court favoured the approach of broadening the definition of rape.".
2	Human Rights Watch and Amnesty International (clsex 87)	Sexual violation (clause 3) and oral genital sexual violation (clause 4) should be included in the definition of rape. By creating separate offences they may be regarded as lesser crimes in comparison to rape but they may be as damaging and traumatic as "genital" rape. Subclause (4)(c): As a practical matter, this provision, read with clause 2(1) is likely to increase women's vulnerability to a charge, largely due to circumstances beyond their control. In so far as "life-threatening infection" refers to HIV, women are more likely than men to know their HIV status due to testing which is conducted through antenatal clinics. Many HIV-positive women, who were themselves infected by their husbands or partners who acquired HIV outside of the relationship, risk violence or other serious consequences if they reveal their status, or if they insist on condom use or refuse sex. As a result, this provision will likely only further victimize women, who already are suffering disproportionately from the epidemic. Intentional HIV transmission may in certain circumstances be covered by common law crimes such as assault or attempted murder. The provision should be removed from the Bill.
2	Childline SA (clsex 94) 15/09/03	The exclusion of oral sexual penetration from the definition of rape and its inclusion as a separate crime does not give adequate recognition of the fact that victims of this crime suffer as much if not more trauma than victims of rape as it is defined in the draft legislation. Child (and adult) victims of oral rape suffer intense shame, humiliation and lasting psychological trauma both during and after oral rape that is more difficult to psychologically defend oneself against oneself. Many rape victims who have suffered multiple sexual penetrative assaults in more than one body orifice experience oral sexual penetration the most traumatic. The inclusion of oral sexual penetration under coercive circumstances is also congruent with modern developments in other countries of the world in which this has been included in definitions of rape.
3	Commission on Gender Equality (clsex 76)	Concerned that offences provided for in clauses 3 and 4 might be interpreted in a lower hierarchy of crimes and could lead to a lesser sentence being imposed.
6	Sarah Baartman Legal Advice and Training Project (clsex 69)	1. The common law recognises three offences relating to sexual assault, namely, rape, indecent assault and crimen iniuria. The lines between the existing offences of indecent assault and crimen iniuria and the new offence of "compelled or induced indecent acts" are unclear. It is therefore recommended that a statutory offence of indecent assault should be introduced. 2. The current formulation of clause 6 is cumbersome and unclear. It is recommended that a provision be included in the proposed offence of indecent assault. The following formulation is proposed: Indecent assault A person is guilty of the offence of indecent assault if he or she3/4 unlawfully and intentionally commits an indecent act with another person under coercive circumstances, under false pretences or by fraudulent means or where such other person is incapable in law of appreciating the nature of such an act; or unlawfully and intentionally compels or induces the complainant to engage in an indecent act with3/4 (i) the perpetrator him or herself; (ii) the complainant himself or herself; or (iii) a third person, under coercive circumstances, under false pretences or by fraudulent means or where the complainant is incapable in law of appreciating the nature of such act.
6	SA Council of Churches (clsex 72)	Definition of "indecent act" assumes that the exposure of genitals is inherently sexual (and therefore indecent) in intent. This may not always be the case. A father who takes his 10 year old son with him to a public toilet might expect that the child may be exposed to the genitals of others. A 10 year old child is incapable of appreciating the nature of such "indecent" exposure, the father would technically be in violation of clause 6. Confusingly he would also be in breach of clause 9(4).
7	WCape Violence Against Women (clsex 57)	Replace the term "mentally impaired" with "mentally disabled" in clauses 7 and 8.
7	IDASA (clsex 62)	Paragraph (a): provides a defence where a mentally impaired person is over the age of 18 years. The clause leads to unfair discrimination as provided for in section 9(3) of the Constitution. An accused will be charged with rape where a mentally impaired person has induced an act which causes penetration, but if the complainant is above the age of 18 years the opposite is true. The legislature should provide a basis for the assumption that a mentally impaired person who is above the age of 18 years deserves to be treated differently from those below the age of 18 years.
8	Centre for the Study of Violence and Reconciliation (clsex 60)	Current wording will allow for the prosecution of adults who need to share sleeping quarters with children. Clause should be reworded.
8	SA Young Sex Offenders Programme (clsex 66)	It is recommended to explicitly state that the clause applies to cases where the accused had the intention to sexualise or groom a child or mentally impaired person for later abuse. This will deal with the concern that the clause could lead to prosecution where the commission of acts of penetration or indecent acts were primarily committed in front of children as a result of socio-economic circumstances. It is an offence if a person intentionally commits an act which causes penetration or an indecent act, and, for the purpose of obtaining sexual gratification, engages in it in the presence of a child below the age of 16 years or a person who is mentally impaired, knowing or believing that such child or mentally impaired person is aware, or intending that such child or mentally impaired person should be aware, of the commission of the act. The words "for the purpose of obtaining sexual gratification" are inserted in order to make it clear that the clause is aimed at criminalizing those acts where adults obtain sexual gratification from performing sexual acts in front of children.
8	Transformative Human Rights Unit and Southern African Media and Gender Institute (clsex 71)	Provision ignores the fact that many families live in overcrowded homes. To ensure that all sexual activity occurs in another room, for example, is impossible to achieve. The purpose of the clause is to prevent children from sustaining harm from sexual abuse and should therefore be redrafted.
8	Commission on Gender Equality (clsex 76)	Most South Africans live in one-bedroom houses and the concern is that these people might be contravening the clause. If the aim with the clause is to combat sexual offences with children then it should be stated to avoid unintended results. It is recommended that the clause should be inserted in clause 10 so as to contextualise the intention thereof.
8	SA Human Rights Commission (clsex 85)	It is not clear whether the legislator intends criminalising sexual acts that occur in front of children due to poor and cramped socio-economic conditions. The clause should be reworded to state unambiguously the intention of the legislator.
9	Individual Concerned Citizens (Submissions: 7, 9, 10, 12, 13A & B, 14 to 35, 39, 42, 48 to 55, 73, 79, 79A to D, 82, 97) Concerned citizens (Submissions: 40 to 40T, 41, 42, 82) Christian Liberty Books (clsex 81)	A large number of individuals objected to the reduction in the "age of consent". Concerns raised were, among others, the following: * New age of consent will, in view of incidence of HIV/AIDS, have life threatening consequences; * RSA will become tourist destination for paedophiles; * "aids orphans and street children will be particularly at risk"; * rate of teenage pregnancies and STD's will rise sharply; * children should be protected against sexual harassment, abortions and teenage pregnancies; * before the age of 17, young people are not mentally mature enough to handle the risks and responsibility that sex brings; * it will encourage adults to use children for prostitution for monetary gain; * having sex at a younger age can cause cancer of the cervix; * the younger you start, statistically the more partners you have, increasing the risk of STD and AIDS. A large number of individuals objected to the reduction in the age of consent in respect of homosexual activities. Opposed to lowering the age of consent for "sodomy" to 16 years. Apart from health and other risks, there is the concern that young people may be targeted for homosexual activity, especially for prostitution, high rate of paedophilia amongst people practising homosexuality, that homosexual behaviour forms a very large part of child abuse. It is proposed that "sodomy must be made completely illegal" in view of the massive explosion of HIV and other STD's and the part that "sodomy" plays in the spread of these diseases. All sexual behaviour outside of marriage must be proscribed with penalties.
9	Chairman: Federal Council of Provinces (ACDP) (clsex 11)	Subclause (1): Opposed against reduction in the age of consent for sexual intercourse from the present 19 years to 16 years for boys and reducing the age for consensual sexual "experimentation" for children (homosexual or heterosexual) to between 12 and 16. Minors may not enter into binding contracts without parental guidance. It is furthermore illegal to sell liquor or cigarettes to children under 18, as these are deemed harmful to children's health. Age of 18 should be minimum age that children are allowed to consent to sex, particularly in view of the HIV/AIDS pandemic. Rejects reduction of the age of consent for anal intercourse from 19 to 16, and even to 12, between consenting children. There is no doubt that boys need to be protected from homosexual acts during their formative years. It is significant that Child Justice Bill recommends that the rebuttable presumption that a child cannot distinguish between right and wrong be maintained at 10 to 14 years of age. Thus certain pieces of legislation presume that a child over the age of twelve can consent to sexual relations, can have an abortion and be given contraceptives without parental consent, whilst the Child Justice Bill presumes that a child between the ages of 10 and 14 cannot tell the difference between right and wrong. The only inference that can be drawn is that the decision on moral issues, such as participating in sexual activities (heterosexual or homosexual) is not seen as deciding between right and wrong.
9	Baptist Union of Southern Africa (cl: sex 37)	1. Recommends that age of consent should be 18 (or alternatively 17) which will promote purpose of Bill i.e to protect children at a time when they are vulnerable more realistically. 2. Subclause (4). Strongly opposed to "experimentation" defence based on social consequences, namely, provision can be abused by older children (3 years can be a significant age difference); will result in more and earlier sexual experimentation; will contribute to HIV/AIDS pandemic and moral disintegration of society.
9	Doctors for Life International (clsex 47)	Following concerns are expressed: (i) Lowering the age of consent to homosexual activity from 19 to 16 years; (ii) Allowing for sexual experimentation for children between the ages of 12 and 16 years, provided that the age gap is not more than 3 years; and (iii) The position of homosexual offences in contrast with heterosexual offences. The cognitive ability of children to make sexual decisions: A child's ability to make choices depends on his or her level of cognitive development, and this is not related physiologically or anatomically to the maturation of the reproductive processes. The nervous system does not mature as early as the gonads and psychology shows us that mature, adult reasoning is a late feature. Formal operational thought is the method of thinking that allows abstract thought and problem solving. Research has shown that this type of thinking commences at an age of 18 years and over, not 12 years as previously thought. It has been shown scientifically that adolescents do not function like adults and cannot be expected to always make logical decisions. This research also leads to the conclusion that adolescents are not sufficiently cognitively developed to allow logical decision-making or to use formal operational thought regarding sexual activity. Adolescents have not fully reached the stage of operative thinking. At this stage people are able to imagine the future in such a way as to be able to foresee what might happen far ahead in time as a result of the present situation, and in such a way as to be able to take action based on these potential future situations. Formal operational thought is obviously needed when considering the risks and benefits of a particular course of action. If someone is not sufficiently cognitively developed to think in a formal operative way, he or she is not sufficiently cognitively developed to give fully informed consent to a procedure. Adolescents have been shown scientifically to be deficient in- * imagining risks and future consequences; * appreciating the need for independent professional opinions in certain situations; and * recognising the potential vested interests of health care professionals in providing certain information. To complicate matters, adolescents who do employ formal thought may do so effectively in one area, but clumsily in another. There are several characteristics of teenage thought that result in deficient reasoning abilities, and so a difficulty in predicting outcomes. 16 year olds consider themselves to be unique. Adolescents believe that they are unlikely to suffer from the negative consequences of their actions, and hence take risks that others would not. Teenage girls engage in emotional reasoning, they employ effective logic. For them, what they feel to be right is true. The adolescent believes he/she is invulnerable and that the laws of probability does not apply to them. When the individual is emotionally charged, this belief becomes even stronger and is amplified even more when narcissistic gratification is on the line. Coupled with this is the belief that negative consequences will not accrue from sexual activity. His or her activity will not result in AIDS, sexually transmitted infection or pregnancy. Adolescents believe themselves immune to natural consequences. The ability to present an argument, to impartially analyse the data on which it is based, and to consistently draw accurate inferences from the data is a late-adolescent, young-adult phenomenon. It is seen sparingly during the earlier years of adolescence. Thus an adolescent who is involved in sexual activity will not be able to conceptualise the effects of such sexual activity. It is outside of his/her experience, and as a rule adolescent thinkers cannot think in abstract terms. Studies that have been done on the ability of children to make their own health care decisions compared to younger adolescents (12 to 14 years) with older adolescents (18 to 21 years). The studies showed that adolescents between 16 and 21 years of age function in the same way as the younger adolescents. That is, they were equally incompetent. There is no evidence to indicate that decisions regarding sexual activity, be it heterosexual or homosexual activity, suddenly allows adolescents to marshal extraordinary abilities. Sexual practices of homosexuality and the health risks involved: Anal sex contains various health hazards that vaginal sex does not contain, even in the case of adults: Whereas the mucosa of the vaginal wall has several layers of squamous epithelium the anal mucosa only has one layer and small tears in the mucosa are caused by anal intercourse. Furthermore semen contains enzymes, which also erode the mucosa and decreases the barrier effect of the mucosa. The anus ultimately becomes a mixing bowl for semen and stools. The most common form of sexual activity amongst homosexuals is made more dangerous than ordinary vaginal sex. It is further a fact that repetitive receptive anal intercourse, cause incompetence of the anal sphincter muscles leading to incontinence of stools. This danger is amplified in the case of receptive anal sex in younger people because the sphincter is smaller and penetrative sex does more damage. Thus, the decision of a child to get involved in homosexual activities has greater health implications in contrast to heterosexual activities and are consequently of greater gravity in general. This should be seen in the context of the inability of children to make cognitive decisions. It is recommended that age of consent for homosexual activities should not be lowered from 19 to 16, nor should the proposed amendments allow sexual experimentation between the ages of 12 and 16.
9	Children's Rights Project (UWC) (clsex 59)	Clause 9 results in the situation where if the parties are both 15 years of age or where one party is 15 years and the other is 17 years and have consented to an act of penetration, this will amount to rape in terms of subclause (1). However, the same act which occurs between the child who may be under 16 years of age and his/her spouse who may be 30 years old, where a marriage existed, will not. In terms of the Marriages Act, 1961, no boy under the age of 18 years and no girl under the age of 15 years is capable of contracting a valid marriage except with the written permission of the Minister of Home Affairs. It is recommended that some protective measure be included to protect those children who are forced into early marriages without their consent or where certain marriages involving young children are not registered. Subclause (7) should be redrafted as follows: (a) Conduct by a person which would otherwise be an offence against a child referred to in this section is not an offence if a marriage existed between such person and the child unless the child concerned is under 12 years at the time when that offence in terms of this section was allegedly committed. (b) In proceedings for such an offence, such person must prove that a valid marriage existed between such person and the child referred to in this section.
9	IDASA (clsex 62)	1. Subclause (2) read with subclause (3): Defence should also not apply where the accused is the person under whose care the child was at the time of commission of the offence. This will cover the situation where the abuser is, for example, a school teacher. 2. Subclause (6)(b): Courts should be guided with regard to the factors that have to be taken into consideration to establish the intellectual development of a child. Factors such as the child's intelligence, experience in life, general standard of education and social background must be taken into consideration.
9	SA Young Sex Offenders Programme (clsex 66)	Subclause (2): If the rationale for providing a defence to an accused under 16 years of age (who commits an indecent act under subclause (4)) is to avoid criminalisation of non-coercive teenage experimentation, then there appears to be no reason for excluding such defence from subclause (2) with regard to an act which causes penetration.
9	Africa Christian Action (clsex 70)	Objects to lowering the age of consent for any "homosexual sex" from 19 to 16. A progressive lowering of the age of consent sends a strong message of "open season on children".
9	SA Council of Churches (clsex 72)	1.Teenagers are vulnerable to sexual overtures from older people. Lowering the age of consent will exacerbate the problem where 16 or 17 year old children may now be pursued without the threat of criminal sanction. The Constitution defines a person under the age of 18 years as a child and the Children's Bill proposes to set the age of majority at 18. Recommends that "18" replaces "16" in clauses 8 and 9 except in clause 9(5)(a). 2. Clause 9(5)(a): The current wording give rise to a technical concern, namely, that it provides a defence for an indecent act committed by a child of 15 with a child of 12, but it would provide no defence to a child who, on his or her 16^th birthday commit an indecent act with another child a day younger. Paragraph (a) should be amended as follows: *(5) (a)* It is a defence to a charge under subsection (4) if the age of the accused does not exceed the age of such child by more than three years; or**
9	Commission on Gender Equality (clsex 76)	Subclause (5)(a)(ii). Three years is a big gap in teenage years especially with regard to development i.e there exists a huge power imbalance between a 13 and a 16 year old.
9	SA Human Rights Commission (clsex 85)	Sexual acts with consent among children within a 3-year age difference cannot be criminalised. However, sex with a minor must be a criminal offence and that should mean sex with any one under the age of 16 particularly in light of the pandemic and myths around sex with virgins being curative.
9	Islamic Forum Azaadville (clsex 86)	The word "consent" needs to be clearly defined. Consent in practical terms and in reality does not only mean to "agree". When consenting to any matter, consent can only be deemed to have taken place when the consequence of that consent is not only understood, but the responsibility of such consequences should also be fully understood. The majority of 16 year olds are not in a position to make that definite and responsible decision. According to psychiatrists factors such as peer pressure, lack of knowledge of the consequences of their consent, insecurity and misunderstanding of the concept of social acceptability will cloud the judgment of people in that age group generally. The age group for consent should be raised as it will afford more protection to a group that will be made extremely vulnerable by the reduction of this age group. It is recommended that age of consent be increased to 18 years.
9	John Smyth, QC (clsex 89)	Subclause (5)(a): The defence of "sexual experimentation" should be deleted for the following reasons: * It is unnecessary in that no prosecuting authority would authorize the prosecution of a child under 16 except for a flagrant case of a mature 15 year old procuring indecent acts with an immature younger child after a warning had been given, and in such a case prosecution would be warranted. * It provides a charter for those who wish to incite children to begin sexual experimentation at a very young age. In particular it opens the door to gay activists who wish to encourage children as soon as they reach puberty, particularly boys, to experiment with mutual masturbation, leading in due course to full homosexual intercourse. Although such incitement would constitute an offence under clause 6 of the Bill, it will be very difficult to obtain convictions under clause 6. * It has illogical and incongruous consequences that will bring the law into disrepute. A child under 16 who has formed a lawful relationship involving sexual activity with a younger child will be placed in the position where his activity becomes illegal on the day of his 16th birthday. * Legislating for "sexual experimentation" defences for children has not found favour in western world countries. The age of consent for homosexual acts should be lowered to 18, but not 16. An enormous amount of evidence was presented to Parliament in Britain when this matter was debated in 2002, the overwhelming weight of which was that a substantial proportion of adolescent boys are too immature at 16 to make an informed choice about sexuality and sexual orientation. Lowering the age of consent to 16 provides a charter for gay activists who wish to seduce immature boys.
9	Rhema Ministries (clsex 91) C Best et al	As supporters of the Moral Regeneration Movement it is not understandable how the Government could consider such a proposal that will not only weaken the morality of the youth, but put them at greater risk to the HIV/AIDS scourge. It is recommended that the age of consent for heterosexual sex should be 18, the age when marriage is permitted, and that the age of consent for homosexual acts should remain at 19. It is illegal for children under 18 to purchase alcohol, and it is submitted, particularly in view of the HIV/AIDS epidemic in South Africa, that reducing the age of consent can have life threatening consequences.
9	Childline SA (clsex 94)	Supports the maintenance of the age of consent at 16 years and in particular the decriminalisation of sexual acts between consenting children.
10	Gender and Health Group (clsex 43)	Paragraph (b): Concerned that people who are engaged in HIV prevention and sexual health promotion activities with children could be construed as contravening the provisions of the clause. Proposed amendment: (b) who supplies or displays to a child an article which is intended to be used in the performance of a sexual [act] offence with the intention to encourage or enable that child to perform such sexual act
10	Centre for the Study of Violence and Reconcialiation (clsex 60)	Paragraph (b). Concerned that wording may open the way for the prosecution of those who undertake sex education with children.
10	Transformative Human Rights Unit and Southern African Media and Gender Institute (clsex 71)	Concerned that informed discussion or educational measures could be criminalised. Insert a subclause to ensure that a more enlightened approach to sexual education is not stifled. Proposed amendment: *(2) Nothing in this section should be taken to limit the bona fide* provision of response ble sexual education.**
11	NADEL Human Rights Research and Advocacy Project (clsex 45)	In order to provide maximum and all encompassing protection to children who are prostituted, mandatory reporting and a legal obligation to report knowledge of child prostitution has to be included in clause 11. Failure to create a legal obligation is potentially perpetuating the prostitution of children.
11	Molo Songololo (clsex 67)	Subclause (1)(d): Fails to acknowledge that the offence of trafficking for purposes of sexual exploitation is not a child specific offence, but also committed against adults. A number of international human rights instruments (CEDAW, UN Convention of the Rights of the Child and the African Charter of the Rights and Welfare of the Child) call on state parties to take all appropriate measures to protect women and children from all forms of sexual exploitation and abuse and to suppress all forms of traffic in women. Paragraph (d) should be redrafted as a separate clause dealing with trafficking which is not limited to children only.
11	ANEX CDW (clsex 68)	Subclause (1)(d): should be redrafted as a separate clause in order to make a clear distinction between child prostitution and trafficking in children.
11 and 12	Transformative Human Rights Unit and Southern African Media and Gender Institute (clsex 71)	1. Objects to the use of the word "prostitution". It creates a negative connotation towards the child or a mentally impaired person because the clauses aim to create a protective environment. It also suggests a limitation to the scope of the clauses which is not borne out by their content, for example, paragraphs dealing with trafficking. Clauses 11 and 12 should be renamed as "Sexual Exploitation of Children" and "Sexual Exploitation of mentally impaired persons", respectively. 2. Clauses 11(1)(f) and 12(1)(f): Concerned about strict liability being placed upon the owners of property within which alleged sexual exploitation is taking place. Proposed amendment: (f) owns, leases, rents, manages, occupies or has control of any movable or immovable property knowingly used for purposes of the commission of indecent acts or acts which cause penetration with such child by any person; Above amendment will ensure that innocent property owners are not held criminally liable for the actions of others.
11 and 12	SWEAT (clsex 83)	Replace the word "prostitution" in clause 11 with "commercial sexual exploitation" which will be in line with the United Nations definition of sexual acts for reward with children. A similar amendment should be introduced into clause 12.
13	Commission on Gender Equality (clsex 76)	Definition should be extended to children in foster care, it is important that they are afforded the same protection as other children.
14	SA Human Rights Commission (clsex 85)	This information should automatically be given to all witnesses and not just vulnerable witnesses as most rape victims are vulnerable.
15	Women's Legal Centre (clsex 61) Additional submission (20/10/03)	1. Subclause (1): automatic declaration as a "vulnerable witness" should be extended to witnesses to the offence being tried. 2. Sublcause (2): the words "one or more of the following factors" should be included in the introductory part of subclause (2) and paragraph (c) should be re-phrased to reflect that trauma may result from recounting the evidence and/or testifying in front of the accused or others. A further paragraph, namely, "risk of further harm" should be inserted in subclause (2). 3. Subclause (3): Summoning of a knowledgeable person should be mandatory when doubt exists. Guidelines as to who qualifies as a "knowledgeable" person should be inserted in subclause (3), specifying that any person with knowledge of one or more of the factors listed in subclause (2) is a knowledgeable person. Witnesses in sexual offence proceedings should be provided with the right to challenge the non-appointment of an intermediary prior to testifying. 4. Subclause (6): emphasis should be placed on the factors listed in paragraphs (a) and (b) as a court is required to direct that a vulnerable witness be protected by "one or more" of the listed measures. In practice this may mean little more than prohibiting the publication of the complainant's identity which offers little protection from the trauma associated with testifying in open court. Paragraphs (c) and (d) should be deleted. It should be accepted that these needs exists in respect of all vulnerable witnesses and that the rights enjoyed by an accused are not unlimited and need to be balanced with those of a vulnerable witness in sexual offence proceedings. 5. Subclause (7): Guidelines should be inserted as to what circumstances may justify the prosecution making a request for revocation or variation. These guidelines should be that a court must be satisfied that it would be in the interests of justice to vary its initial direction and that such variation or revocation is likely to improve the quality of evidence. A provision dealing with support persons should be included in the Bill. In line with Committee's concern that term "vulnerable witness" will contribute to categorizing women it is recommended that the term should be replaced with "witness in need of protection". The Committee requested evidence of the international best practice in respect of witnesses in need of protection. All witnesses in sexual offence proceedings should be accepted as being in need of protection which will obviate the need for a declaration process and ensure the automatic application of one or more of the protective measures listed in clause 15, unless the witness expressly waives his or her entitlement. Support for this construction finds expression in article 68 of the Rome Statute of the International Criminal Court. It is suggested that a complainant, a child witness and a witness to the offence being tried in sexual offence proceedings always be afforded the protection of an in camera hearing and the prohibition of publication of his or her identity in addition to one or more of the other measures currently listed in clause 15(4), and subject to a witness waiving his or her right to such further protection. Should the relevant suggestion not be accepted then it is suggested that the original submission of the Rape Crisis Cape Town Trust in this regard be endorsed. The Trust suggested that a new subsection be inserted in clause 15(4) as follows: Where the protective measure referred to in subsection (4)(d) is implemented the court must direct that at least one other protective measures referred to in subsection (4) is implemented. In respect of the current subsection (4)(e) the words "bearing in mind the purpose of this section" should be inserted at the end of the sentence. Progressive realization of protective measures With regard to the Committee's concern regarding Courts that lack the facilities to provide certain of the protective measures it is suggested that a positive duty should be placed upon the NDPP to develop and implement a plan for the training and use of closed circuit televisions and court appointed intermediaries in sexual offence matters. Furthermore, the Directorate should be given a specific time frame within which to implement this plan. It is recommended that the following subclauses be inserted at the end of clause 15: (7) If in criminal proceedings involving the alleged commission of a sexual offence the court is of the opinion that a witness should give evidence by means of closed circuit television or similar electronic media and such facilities are not readily available or obtainable, the court must order that the criminal proceedings be transferred to another court which has such facilities after the approval of such other court has been obtained and subject to the provisions of subsection (8). (8) When considering whether a transfer as referred to in subsection (7) should be effected, the court shall take into account- (a) the need to protect the person who is to give evidence by means of closed circuit television or similar electronic media from traumatisation; and (b) the wishes of the person who is to give evidence by means of closed circuit television or similar electronic media. Reference to "cultural differences", "race", "religion" and "language" should be deleted from the list of factors in subclause (2) as they confuse rather than elucidate the trauma or circumstances that may render a witness in need of protection. Support persons In light of the seemingly conflicting submissions to the Committee from the Women's Legal Centre and Adv Pithey regarding support persons, accountability and the cost implications in relation thereto, it is necessary to distinguish between children's' support persons, support persons employed by the Court and other (informal) support persons such as friends and/or family members of the complainant. As a point of clarification, the Women's Legal Centre's submission is intended to deal solely with the latter category and, accordingly, should not be viewed as conflicting with that of Adv Pithey. The proposed legislative enactment, originally set out in clause 16 of the Bill as recommended by the SALRC should be re-inserted with or without the original subclause (9). The rationale for this submission is the common practice on the part of courts to employ in camera hearings as protective measure in sexual offence cases and to use this as a basis for excluding support persons from the courtroom. This often leaves an extremely traumatised complainant alone in a room of men, including the accused, and may result in secondary trauma and/or negatively impact on the complainant's ability to testify.
15	Rape Crisis Cape Town Trust IDASA (clsex 46)	1. 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. Protective measures contained in subclause (4) all currently exist in Act 51 of 1977 ("the CPA"), but the implementation thereof is problematic, most notably the implementation of section 158 of the CPA. Supports the proposal that measures should be used in sexual offence cases irrespective of qualifying criteria set out in CPA. 2. Subclause (4): Wording make it possible for those courts that show a reluctance to implement the provisions of the CPA to sidestep those protective measures, for example, the prohibition against the publication of the identity of the complainant could be the only protective measure utilised in a particular case. Subclause (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. 3. Subclause (6): Paragraph (d) requires that the question as to whether the protective measure are likely to prevent the evidence given by the witness from being effectively tested by a party to the proceedings must be considered. It is submitted that paragraph (d) should relate only to paragraph (e) which allows the court to implement "any other measure which the court deems just and appropriate" and not to the other provisions in subclause (4). The particular provisions contained in subclause (4) that would be affected by the clause are paragraphs (a) and (b). These provisions have been sufficiently tested in case law to establish that they do not prevent the evidence from being effectively tested. 4. Support persons: It is recommended that the provision relating to the payment of witness fees be omitted in order to retain the clause dealing with support persons. 5. Clause 15(6)(d) should be amended as follows: 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. 6. Clause 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 a support person as a protective measure to the complainant in a sexual offence matter should be reinstated into section 15(4). [Section 17 of the Bill as proposed by SALRC relating to the appointment of support persons should be reinstated into the Bill with the exclusion of subsection (9).]
15	RAPCAN (clsex 36)	Subclause (4): Calls for re-introduction of provision dealing with support persons.
15	Women Demand Dignity (clsex 38)	Protective measures for complainants while they testify in court must be strengthened to ensure they are used in all cases where they are necessary. Provision must be included for a support person to accompany complainant.
15	NADEL Human Rights Research and Advocacy Project (clsex 45)	Subclause (2): Concerned that clause allows for defence witnesses to be declared vulnerable. Failure to define categories, such as cultural differences and how they may impact on a person's vulnerability, allows for abuse. Define age category by stating the circumstances under which age becomes a criterion for vulnerability. Trauma category needs to be specific identifying clearly whether it is the trauma that was caused as a direct result of the offence or the trauma that is likely to be caused during the trial. Strongly recommend clear definitions of the categories describing the eligibility criteria to be declared a vulnerable witness, which would minimise the possible abuse subsequently impeding on the adequate prosecution of offenders, as well as maximising the benefit of the protective measures available to vulnerable witnesses, such as reducing secondary victimisation. Support persons will decrease the stress/trauma associated with testifying in sexual offences cases, support persons are imperative.
15	Centre for the Study of Violence and Reconciliation (clsex 60)	Subclause (4): The presence of a support person during the trial reduces some of the trauma of testifying in court. Relevant subclause should be amended to make provision for support persons.
15	Childline SA (clsex 94)	Objects against removal of subclause (4)(a) and provision dealing with the appointment of support persons. Many child victims of sexual offences are easily intimidated by the criminal justice process and by the offender. It is recommended that the provision dealing with support persons as recommended by the SALRC should be inserted in the Bill.
16	Women's Legal Centre (clsex 61)	The clause should be strengthened by not preventing a court to take a previous consistent statement into account but rather to clarify that no negative inference may be drawn by a failure to make such a statement or by the length of delay between reporting the rape and the rape itself.
17	Women's Legal Centre (clsex 61)	Hearing of evidence on the impact of sexual offences should be made mandatory.
17	Institute of Criminology (UCT) And Adv B Pithey (clsex 64)	Service-providing organisations expressed the concern that prosecutors are reluctant to use them as experts and the use of experts in general. The benefit of such witnesses, unlike paid experts witnesses, is that the witness has no real incentive in biasing his or her testimony in favour of one side or another. It is recommended that written reports in addition to providing oral evidence is used more frequently in sexual assault cases. Proposed amendment: 17. Evidence of the surrounding circumstances and impact of any offence upon a complainant may be adduced by way of affidavit, expert report or oral evidence at criminal proceedings where such offence is tried in order to prove-
17	Childline SA (clsex 94)	The omission of subclauses (2), (3) and (4) providing the Court to order that the complainant be assessed by a suitably qualified person in order to establish the impact of the offence being tried upon the complainant is regretted, particularly in relation to child complainants, who may themselves be unable to access such a service, as well as unable to give such evidence themselves. It is recommended that the relevant subclauses be included in the Bill.
19	NADEL Human Rights Research and Advocacy Project (clsex 45)	Supports alcohol and drug abuse treatment for sexual offenders. Giving due recognition to the need to provide treatment to offenders it is recommend that the needs of victims of sexual offences for treatment be given the same recognition and that the cost thereof should be covered by the State.
20	Rape Crisis Cape Town Trust IDASA (clsex 46)	1. Supports clause. Many survivors fear reprisals and declaration of dangerous sexual offenders will provide further protection and some peace of mind to survivors. 2. Subclause (4)(c): an independent evaluator should evaluate proposed rehabilitation programmes in order to ascertain the relevant programme's effectiveness. Expressed concern that many rehabilitation programmes do not live up to the claims of effective rehabilitation. Rehabilitation should never replace or minimise punishment for the crime.
20	Children's Rights Project (clsex 59)	1. Subclause (1): The test for being declared a dangerous sexual offender is very broad. Paragraph (a) may result in scenario where a person could be convicted of two sexual offences without them having been committed or accompanied by violence or other aggravating circumstances. A proviso should be included to attach violence or aggravating circumstances to the commission of the crime. Concerned that only paragraph (c) excludes a child offender but paragraphs (a) and (b) do not, for example, a 15 year old child with two convictions for indecent assault where he pinched a fellow learner's behind may be declared a dangerous sexual offender. There should be a further requirement that evidence is led regarding the accused's propensity to commit sexual offences under paragraph (a) and (b). 2. Paragraph (b): wording of the paragraph suggests that sexual offences do not contain an element of violence and does not recognise the aggressive nature of the offence. Proposed amendment of paragraph (b): ... a sexual offence which was accompanied by additional violence or threats of violence 3. Subclause (3): Read with subclause (2) do not provide for a rehabilitation programme to form part of the actual sentence of imprisonment. The Department of Correctional Services has no rehabilitative programmes for sex offenders. It is illogical that rehabilitation could potentially only start once the offender is released from prison. The provision will be difficult to implement. Redraft provision to require rehabilitation programmes for sex offenders in prisons. 4. Subclause (6)(c): Mentions a specific form of monitoring but it is unclear what this entails. Subclause should spell out the purpose for which the monitoring is intended i.e to ensure that the offender does not come into contact with certain family members (if original offence was committed within the family). Provision should also balance monitoring with the right to privacy of the victim and the offender. Monitoring should be effective and not simply a correctional official contacting offender every two months. [see pages 7 and 8 for criticism against community notification] 5. Subclause (12): Creates an automatic offence for failure to comply with an order while there may be valid reasons for non-compliance. Subclause (12) should be combined with (10) and the court should be given discretion to convict the offender for failing to comply after an inquiry into the reasons for non-compliance.
20	Childline SA (clsex 94)	Supports clause. The provision should also be applied to sexual offenders who may not be sentenced to imprisonment, particularly young sexual offenders, who for reasons of youth and immaturity, are not suitable candidates for a prison sentence and yet may have already established or begun to establish an aberrant pattern of sexual behaviour and thus require and benefit from supervision and rehabilitation.
21	Institute of Criminology (UCT) and Adv B Pithey (clsex 64)	Submits that clause 21 is not unconstitutional based on the following: It is imperative that the prosecution is involved at all stages of an investigation in relation to decisions that need to be made regarding prosecution. The criterion that is used to decide on whether to close a docket or to continue with an investigation is whether there is a reasonable prospect for a successful prosecution. Prosecutors must therefore be placed in a position where they have knowledge of the contents of a docket even where no arrest has been affected and the docket has not been referred to court. There is a continued interaction between the prosecution and investigating officers, where an arrest has been affected. Instructions are given on a daily basis by prosecutors to the police for further investigation. At this stage, no docket may be closed by a police officer, the decision lies with the prosecutor. It is acknowledged that both structures have specific and separate roles but, belonging to the criminal justice cluster, maintain the same objectives. The functions of both the police and the prosecution should not be seen as mutually exclusive. Section 24(1)(c) of the National Prosecution Authority Act, 1998, provides that Directors and Deputy Directors of Public Prosecutions have the power to "... supervise, direct, and coordinate specific investigations.". It is submitted that the supervision, direction and coordination of investigations may include police investigations.
21	Human Rights Watch and Amnesty International (clsex 87)	Clause could include provision for a review process where a case may have been wrongly closed. The provision should also encourage formal consultations between the police and the office of the DPP at an earlier stage in the investigation of sexual offences cases.
23	Women Demand Dignity (clsex 38)	Clause should be strengthened to ensure that employers can access information.
23	Rape Crisis Cape Town Trust IDASA (clsex 46)	Concerned that responsibility of disclosure should not lie with the convicted person alone but that provision should be made for the prospective employer to have access to this information.
23	Children's Rights Project (UWC) (clsex 59)	Provision merely deals with failure to disclose. Recommends the inclusion of a positive duty on the offender to disclose and a possible provision requiring a confidential sex offender register with restricted access thereto in order to inform employers who wish to employ persons coming into contact with children. The Children's Bill proposed a National Child Protection Register to have a record of person's unsuitability to work with children. Clause 23 should- * be linked to the provisions of the Children's Bill; or * a separate register (along same confidential and limited access lines as Children's Bill) could be included in Bill and can later be aligned with the Children's Bill.
23	Transformative Human Rights Unit and Southern African Media and Gender Institute (clsex 71)	An obligation should be placed on employers to ask prospective employees whether they have been convicted of any sexual offence. Following amendment is proposed: (2) Any employer seeking to employ a person who will be placed in a position of authority or care of children must ask the employee to declare any conviction for a sexual offence. Above amendment will allow for survivors of attacks to have a means of civil redress against an employer who failed to enquire about a prospective employee.
23	SA Human Rights Commission (clsex 85)	Supports the removal of the Register of Sexual Offenders from the Bill, there are registers already in place that deal more broadly with child abuse issues.
23	Childline SA (clsex 94)	Welcomes the provision requiring offenders to declare their offence if they apply for a position working with children as well as support the register for persons considered unfit to work with children as described in the Children's Bill. Supports the lack of a provision for a sexual offender register and community notification for sexual offenders. It is clear from international research into these provisions in other countries that these provisions are not effective and even create a sense of false security to the extent that these provisions are now becoming known internationally as "feel good legislation". Childline further expressed concern about the negative consequences of such legislation for sexually abused children in that it has offered psychological treatment for three children, who as a result of community vigilante activism have been forced to participate in the killing of the person who has offended against them. The resulting trauma to these children outweighs the original trauma of the sexual assault. "Naming and shaming" of offenders may thus have serious negative consequences for the child as wall as cancel out any possibility of offender reintegration into the community.
24	RAPCAN (clsex 36)	National Policy Framework (NPF) provision does not bind all organs of State; does not give guidance with regard to required content thereof. This could potentially undermine the Act, in that different departments will not be required to engage with other departments and organisations providing services to victims. Consultative process
24 and 25	SA Gender-based Violence and Health Initiative (clsex 44)	Should not be sole responsibility of the Minister of Justice but should be joint responsibility between Ministers of Health, Safety and Security and Social Development. Mechanisms should be put in place to ensure that intersectoral collaboration at all levels are better coordinated. Develop indicators to monitor the implementation of the National Policy Framework so as to place government departments in a position to determine where gaps exist in order to ensure that they are addressed.
24	Rape Crisis Cape Town Trust IDASA (clsex 46)	Procedural guidelines relating to the management of sexual offences cases exist within some of the departments in the criminal justice system. Implementation of existing guidelines is erratic and standards are inconsistent, thus undermining the intended impact of these measures. It is recommended 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 must accommodate thorough standardised training for all criminal justice officials. Provisions dealing with the NPF (clauses 28 to 30 in SALRC Bill) should be included in the Bill.
24	H Louw Clinical Social Worker (clsex 46A)	Highlighted the need for a NPF with binding guidelines and steps to be taken by all role-players in order to improve a victim's experience of the criminal justice process. Also highlighted the need for compulsory sensitivity training all role-players.
24 and 25	Centre for the Study of Violence and Reconciliation (clsex 60)	The NPF should not only be the responsibility of the Minister of Justice but also the Ministers of Safety and Security, Health, Correctional Services and Social Development. To ensure intersectoral co-operation the clause must provide that the policy and regulations bind all organs of State, nationally, provincially and locally. Any proposed amendments of the policy and regulations should take place on the basis of consultation with various stakeholders including representatives of civil society.
24	SA Human Rights Commission (clsex 85)	Clause should be amended to require the Minister to develop policy "in consultation" with relevant government departments and stakeholders.
24	Sarah Baartman Legal Advice and Training Project (clsex 69)	The NPF, as proposed by the SALRC, is aimed at providing an integrated, coordinated and uniform approach by organs of State in all spheres of government and civil society. Clause 24 is not adequate to achieve the objectives of the NPF because it does not contain sufficient guidance on the purpose and contents of the framework. Recommends that the provisions proposed by the SALRC should be included in the Bill.
24	Childline SA (clsex 94)	The original clause in the Bill proposed by the SALRC provided for the contents (core components) of such a national policy framework and emphasised the importance of an integrated, co-ordinated and uniform approach to the management of sexual offences which would be binding on all role-players. It also provided for a consultation process in the development of the NPF. Despite the existence of policy guidelines for the management of sexual offences across all sectors dealing with sexual offences, these are not always followed by the various sectors involved in management. The development of a NPF, supported in law and contributed to by all sectors, would do much to ensure that sexual offences were appropriately and humanely dealt with by the criminal justice system in SA.
25	IDASA (clsex 62)	In view of the problem of sexual abuse which is experienced in our schools it is recommended that the Minister of Education should be included in the list of Ministers who must be consulted by the Minister of Justice.
25	Sarah Baartman Legal Advice and Training Project (clsex 69)	An enabling clause should be included that requires the relevant government departments to develop and enforce binding, uniform standards for management of sexual assault cases by police, prosecutors and health care workers. These standard setting documents should include mechanisms to ensure accountability and to address instances of non-compliance, and should be promulgated in the form of regulations.
25	SA Human Rights Commission (clsex 85)	Clause should be amended to require Minister to consult with further role-players other than those listed in the clause when drafting regulations. These role-players would include civil role-players with expertise or knowledge in the handling of victims of sexual offences.
Sch 1	RAPCAN (clsex 36)	Placing objectives in a schedule at the end of the Bill defeats the aim of ensuring that those with the responsibility of implementation are aware of the objectives the Bill aims to achieve.
Sch 1	Women Demand Dignity (clsex 38)	Guiding principles should be moved to front of Bill. Stronger language must be used. Word "should" is used throughout, replace with "must".
Sch 1	SA Gender-based Violence and Health Initiative (clsex 44)	Guiding principles will be better placed at front of Bill so as to ensure that subsequent sections are read with relevant principles in mind. Principles aim to promote rights of survivors in the courts, but should be expanded to include all contact that survivors have with health, social development, police and courts.
Sch 1	NADEL Human Rights Reasearch and Advocacy Project (clsex 45)	1. Inclusion of guiding principles in a schedule suggests that they are not a core element of the Bill. They should be inserted in beginning of Bill. 2. Concerned about wording, it seems to be more suggestive in nature and optional in adherence to it, than a matter of principle. It implies the discretionary application of these principles. The language should be strengthened and the suggestive nature of the principles be removed, so as to ensure the maximum protection of these rights, as well as adequate application of the provisions within the sexual offences legislation.
Sch 1	Rape Crisis Cape Town Trust IDASA (clsex 46)	1. Concerned that guiding principles have been inserted as an afterthought which suggests that they are not a core factor in the intent of this Bill. Will lead to the inference that service providers may use their discretion as to whether or not to adhere to them. Language used gives the impression that discretion can be used when taking these rights into account. Language must be strengthened to convey that consideration of these rights is imperative to a fair trial process. 2. The critical nature of certain aspects of the guiding principles are highlighted, namely: participation of the complainant in the process: lack of effective inclusion of the complainant in trial and pretrial processes undermines the process of seeking justice in sexual offence cases in a number of ways- * when not given a copy of statement, not informed of case number or given details of the investigating officer can result in a sense of being unsupported by the system; * by not being informed of the bail hearing critical evidence is often omitted from the hearing which may result in an accused being granted bail where this should not have happened, intimidation by accused often goes unreported because victim does not have information on how to respond; * inadequate notification of the trial date results in complainants not being able to prepare for the psychological impact of the process which results in incomplete evidence being placed before the court; * where reasons for deciding not to prosecute is poorly communicated it results in the perception that her experience was insignificant or unimportant; * in many cases the prosecution fails to consult with the complainant prior to the trial which may result in the fact that the prosecution is inadequately prepared for the case. Recommend that guiding principles should be included after clause 1 of the Bill. The wording of the guiding principles must be compelling, replace the word "should" with "must" and other appropriately binding language where relevant.
Sch 1	Western Cape Network on Violence Against Women (clsex 57)	Guiding principles are particularly important because of the treatment of sexual assault survivors. Guiding principles should be incorporated into the beginning of the Bill. These principles are what will guide the implementers of the legislation through the process and should always be on the forefront of their minds.
Sch 1	Centre for the Study of Violence and Reconciliation (clsex 60)	Guiding principles should follow preamble. Replace the word "should" in principles (a) to (e) with "must" to reflect and emphasise the peremptory nature of these principles.
Sch 1	Women's Legal Centre (clsex 61)	"Guiding principles" which are an affirmation of Constitutional rights should form part of the preamble. Where a positive duty is to be placed on the State it should form part of the body of the Bill and should not be termed "Guiding principles". Terminology is problematic since it does not place a positive duty on the State. Finer details in relation to the positive duties should be included in substantive provision of the Bill or the regulations to allow for flexibility in the management process and regular review and amendment where necessary.
Sch 1	IDASA (clsex 62)	Since schedules do not carry the same weight as the provisions of an Act the guiding principles should form part of the core of the Bill as an objects clause.
Sch 1	SA Young Sex Offenders Programme (clsex 66)	Item (l)(iv): Deliberations on the Child Justice Bill indicated that certain sexual offences committed by children would be subject to diversion. This principle should be reinforced in the Schedule. Recommends insertion of the word "diversion" before the words "sanctions and rehabilitation".
Sch 1	ANEX CDW (clsex 68)	Guiding principles should be moved to the front of the Bill so as to give it more force. Terms "victim" and "complainant" are used interchangeably throughout the Bill. Recommends that "victim" be replaced with "complainant" in order to eliminate any confusion.
Sch 1	Sarah Baartman Legal Advice and Training Project (clsex 69)	Recommends that the rights of victims should be included as a substantive clause in the Bill based on the fact that the limited role of the victim implies that she does not have the right to3/4 * 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 bail hearings; and * appeal against an acquittal or, in the event of conviction of the accused, against the sentence imposed. Victim participation (active or passive) is important for the victim's conception of fairness and psychological healing. Recommends that paragraphs (a) to (g) of Schedule 1 should be included in a substantive clause (see p 14 of submission for proposed wording of clause).
Sch 1	SA Human Rights Commission (clsex 85)	By relegating the guiding principles (which are in fact objectives) to a Schedule in the Bill, victim's rights are minimised. A clear message needs to be sent to victims that they are protected and supported by the relevant legislation. Guiding principles should be placed back in main body of the legislation.
Sch 1	Childline SA (clsex 94)	1. Placing the objectives, as recommended by the SALRC, as guiding principles at the back of the Bill will have the effect that the objectives are unlikely to be afforded the importance that they deserve. The objectives should be inserted in the the text of the Bill after the pre-amble. 2. The removal of subsection (h) of the objectives as contained in the original SALRC draft Bill is also of concern as this removes the principle of entitlement of complainants and their families to receive such therapeutic assistance as is necessary to restore and promote healthy functioning. To remove from the legislation the entitlement to remedies that relieve or obviate distress is inhumane and contrary to SA's commitment to implementing the United Nations Convention on the Rights of the Child. 3. The removal of the second sentence of subsection (h) of the objectives as contained in the original SALRC draft Bill "where possible the offender should make a financial or material contribution to such assistance" is also difficult to understand and contrary to the principle of restorative justice. Offenders who do not have the means should be encouraged in every way to make amends their criminal and abusive behaviour. This provision not only has the potential to promote the healing of the victim but also promotes the assumption of responsibility for the crime for the offender which is a first step in offender rehabilitation.
Sch 2 (Item 8)	Children's Rights Project (UWC) (clsex 59)	The phrase "as it deems fit" in subclause (2) of the proposed new section 192A should be replaced with the words "in accordance with the age and/or maturity of the child" to offer some guideline to the court on what weight should be attached to the evidence of a child. Amendment of this nature will be in line with article 12(1) of the UN Convention on the Rights of the Child.
Sch 2 (Item 10)	NADEL Human Rights Research and Advocacy Project (clsex 45)	The possibility of prior sexual history being admissible as evidence suggests that it has a bearing on the occurrence of the rape. This implication is unacceptable and it minimises the seriousness of rape. Limiting the criteria for admissibility as provided for in the proposed amendment of section 227 of Act 51 of 1977 gives recognition to the fact that prior sexual history is often used to establish promiscuity which leads to the misconception that the victim "asked for it", also leads to the misconception that a female sex worker cannot be raped by virtue of being a sex worker. Admissibility may lead to prejudice and further victimisation of the complainant. Prior sexual history can never be relevant in any sexual offence case. It should be made inadmissible under all circumstances.
Sch 2 (Item 10)	Rape Crisis Cape Town Trust IDASA (clsex 46)	Supports proposed amendment. By providing clear guidelines regarding admissibility unnecessary goading and harassment of complainants by the defence will be 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.
Treatm clause	RAPCAN (clsex 36)	Calls for re-introduction of clause. The provisioning of appropriate medical treatment for children is important because of the increased vulnerability of pre-pubertal children to HIV transmission due to immaturity of the genital track. Children should be able to receive timely medical treatment to reduce possibility of infections.
Treatm clause	Women Demand Dignity (clsex 38)	Insert clause dealing with health care and psychological treatment for survivors. State must be responsible for costs.
Treatm Clause	Gender and Health Group (clsex 43)	Treatment needs of survivors should be prioritised and the State should bear the cost of psychological support for survivors.
Treatm Clause	SA Gender-based Violence and Health Initiative (clsex 44)	Treatment should be regarded as part of broader patient-centered rape management. Referral and treatment of survivors are provided in a consistent and standardised manner. Including rape management in the sexual offences legislation will ensure that the health providers take responsibility for providing comprehensive and sensitive management after sexual assault.
Treatm clause	Rape Crisis Cape Town Trust IDASA (clsex 46)	1. The risk of HIV infection is significantly increased during sexual assault and survivors should have access to appropriate treatment. Provision must be made in the Bill to ensure that victims have access to treatment for health related impact of these crimes and the responsibility to ensure that treatment is available should rest on the State. 2. 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. Few survivors are able to afford psycho-social support services and the majority of survivors are left without the option of counselling. It is recommended that provision must be made for victims to have access to State funded counselling and psychological care in order to address the effects of the sexual violence on that individual.
Treatm clause	Western Cape Network on Violence Against Women	Supports the introduction of a treatment clause and strongly believes that there is a link between rape and the spread of HIV. The Bill should therefore promote prevention of HIV infection.
Treatm clause	LifeLine Pietrmaritzburg (clsex 58 and 80)	Opposed to the omission of the treatment clause from the Bill and is concerned that withholding medical treatment may be a violation of constitutional rights of victims.
Treatm clause	Centre for the Study of Violence and Reconciliation (clsex 60)	Provision should be made for the effective medical treatment of rape victims.
Treatm clause	IDASA (clsex 62)	Calls for introduction of the relevant clause.
Treatm clause	Division of Forensic Medicine and Toxicology and the Institute of Criminology University of Cape Town (clsex 63)	Recommends that a clause referring to medical management be included in the Bill. SALRC recommended a clause that focused broadly on the "treatment" of rape victims, rather than the "medical management" of victims. Medical management involves not only treating the rape victim for sexually transmissible infections but involves a detailed medico-legal examination, which includes documentation of all injuries, both physical and genital and the collection of all potential forensic evidence from the body of the complainant, including trace evidence and biological evidence. It also includes the assessment of the patient's risk for falling pregnant and an assessment for the risk of psychological complications as well as the provision of treatment thereof. Placing a legal duty on the State to provide this service would ensure that the Department of Health provided specifically designated health care practitioners to perform these duties that were accessible to all patients. The following provision is recommended: Medical Management of Rape Survivors (1) Where a person has been the victim of an alleged sexual offence, such person shall, immediately after the alleged offence or as soon as possible thereafter, be offered a medico-legal examination, where deemed appropriate, at a designated health care facility. (2) Where a person has been the victim of an alleged sexual offence, such a person shall immediately after the alleged offence or as soon as possible thereafter, receive the appropriate medical management, by a designated health care practitioner. The above clause will necessitate the inclusion of a definition of "Designated Health Care Facility" in clause 1 of the Bill. 'Designated Health Care Facility' is a health care facility that has been designated as able to manage sexual assault complainants based on a set of defined criteria as set out in the Regulations of this Act; It is further recommended that the duties of the health care practitioner, including duties with regard to the forensic examination, should be included in the regulations to the Bill.
Treatm clause	Transformative Human Rights Unit and Southern African Media and Gender Institute (clsex 71)	Recommends that the treatment clause should be included in the Bill. In order to reduce the financial burden on the State it is recommended that a provision should be included in the treatment clause providing that "if a person is unable to afford it, the State shall bear the cost of the care, treatment, testing, prevention and counseling" of the person concerned.
Treatm clause	SA Council of Churches (clsex 72)	Recommends that victims of rape and sexual assault be provided with a statutory right to counselling and medical treatment through the public health system, including access to post-exposure prophylaxis where clinically indicated.
Treatm clause	SWEAT (clsex 83)	Supports the recommendation by Rape Crisis (that survivors be afforded comprehensive health and psychological treatment and that the relevant provisions be re-introduced into the Bill.
Treatm clause	NICRO (clsex 84)	The Bill fails to include the need for counselling programmes and support services for the victim prior to and after the trial, that should be paid for by the perpetrator or in the case that the perpetrator cannot be in a position to pay for this that the State takes the responsibility.
Treatm Clause	SA Human Rights Commission (clsex 85)	Provisions should be included in the Bill that require the Minister of Justice to liaise with the Minister of Health regarding the coordination of and provision of medical services including the provision of PEP to rape survivors.
Treatm clause	Human Rights Watch and Amnesty International (clsex 87)	The availability of treatment at policy level will remain meaningless without measures to ensure its availability and accessibility to all sexual assault survivors on a non-discriminatory basis. Sexual assault survivors cannot exercise their right to treatment if they are not informed of this option and are barred by third parties or by lack of means to access it. Policy documents, directives and similar guidelines are in general not known or easily accessible to members of the public. The exposition of the nature and extent of state duties in sexual offences legislation serves the important function of informing victims and service providing NGO's of the right to treatment as well as the obligations of state officials. The inclusion of the duties of state agencies or service providers in national legislation, as opposed to instructions/directives/guidelines only, will help ensure that the state officials are aware of their obligations and that they will be publicly accountable for conforming with them.
Treatm clause	Childline SA (clsex 94)	Removal of the clause from the Bill is seen as a serious and negative move that compromises the mental and physical health of children, as well as adult victims of sexual assault. The cost of the long-term sequalae of sexual assault is incalculable and Childline SA regards the removal of the clause as short sighted. The long-term cost of non-provision seriously outweighs the cost of short-term preventive and emergency provision. Non-provision of treatment services also compromises South Africa's commitment to the UN Convention on the Rights of Children. According to the UN Committee on the Rights of the Child: Measures should also be taken to ensure ... the physical and psychological recovery and social reintegration of the victims of rape, abuse, neglect, ill treatment, violence or exploitation, in accordance with Section 39 of the Convention; and the Committee recommends that the State Party (South Africa) undertake studies with a view to designing and implementing appropriate policies and measures, including care and rehabilitation, to prevent and combat the sexual exploitation of children The removal of this clause violates South Africa's ratification and commitment to the Convention on the Rights of the Child.
Duties	Commission on Gender Equality (clsex 76)	Recommends the inclusion of a clause dealing with certain obligations on the first state official to whom an offence is reported. This official should be required to hand a notice containing certain information to the victim. The notice should, among others, contain the following information: * the right to the compulsory HIV testing of an alleged offender; * how HIV and other STD's are transmitted; * HIV testing and window periods associated with the different tests; and * the morning after pill and from which State clinics it is available. This obligation should only be discharged if the contents of the notice are explained to the victim. Sanctions for non-compliance should be provided for.
Duties	Institute of Criminology (UCT) and Adv B Pithey (clsex 64)	If rape law reform is to be effective it must address the basic procedural issues such as the case processing and police investigations. This will be best achieved through the imposition of positive duties. Imposing positive duties on police will reduce discretion, improve the evidentiary standards of investigations and instil "quality control" of the information imparted to the prosecutor. It is recommended that guidelines in the National Instructions for Police on Sexual Offences (No. 22/1998) should be included in the Bill. The relevant duties relate to the following: (i) steps to be taken by the first reporting member of SAPS where a complainant reports a case of rape; (ii) the obligation to inform the complainant of his or her rights regarding statements; (iii) steps to be taken in the investigation of rape cases; or (iv) factors which may not be taken into account when deciding whether or not to proceed with an investigation. (see pages 30 to 32 of submission). It is further recommended that a clause that clarifies the issue of jurisdiction should be included in the Bill. xx. Where the complainant falls outside the jurisdiction of the station at which the crime was reported, the investigating officer shall nevertheless be obliged to open a docket, take a preliminary statement and refer the complainant for a medical examination before forwarding the matter to the station having jurisdiction. xx. Unless the ICD directs otherwise in any specific case, the South African Police Service must institute disciplinary proceedings against any member who allegedly failed to comply with an obligation referred to in paragraph xx. The Bill should also include the following provisions: Failure by a member of the South African Police Service to comply with an obligation imposed in terms of this Act or the National Instructions, constitutes misconduct as contemplated in the South African Police Service Act, 1995, and the Independent Complaints Directorate, established in terms of that Act, must forthwith be informed of any such failure reported to the South African Police Service.
Bail	Sarah Baartman Legal Advice and Training Project (clsex 69) Additional submission	Section 60 of the Criminal Procedure Act, 1977: 1. Subsection (7) should be amended by inserting the following paragraph: the view of any person against whom an offence was allegedly committed regarding their safety; 2. Subsection (10) should be amended as follows: (10) 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. 3. Subsection (12) should be amended as follows: (12) 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 interpreted to include, but not be limited to, the safety of any person against whom the offence has allegedly been committed. The above recommendation is based on the result of research during 2000 to 2003 on the granting of bail in sexual assault cases. The main research findings were, among others, the following- (i) The safety of the victim should be made more prominent in the court's consideration of whether the release of the accused will be in the interests of justice. (ii) The determination of bail conditions should be made with a clear awareness of the victim's need for protection against further violence, intimidation and harassment. (iii) Investigating officers concentrate on information relevant to whether or not the accused will stand trial during the bail investigation. Intimidation and harassment of the victim It is recommended that the documents setting out the standards for case management should impose a duty on the police to inform the victim of the outcome of the bail hearing, of the nature of bail conditions and what should be done 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. This recommendation is based on the fact: Victims who participated in the research reported high levels of harassment by the perpetrator. Court records reflected that no instances of applications to cancel an accused's bail due to non-compliance with bail conditions. Three possible explanations have been identified for the aforementioned discrepancy, namely- (i) it could be that bail conditions prohibiting the accused from making contact with the victim are not imposed in all relevant cases; (ii) it could be that victims are not informed of the bail conditions and what they should do in the event of a breach; or (iii) it is possible that where victims report alleged breaches that officials do not take action to intervene. It is argued that the medical management of sexual assault survivors constitutes "emergency medical treatment" as envisaged in the Constitution, accordingly legislation should contain a specific section dealing with this aspect, analogous to the clause on "Provision of Treatment" contained in an earlier version of the Bill. There are two components to medical management of sexual assault survivors, i.e the medico-legal examination (for purposes of gathering forensic evidence) and the broader clinical management of the survivor (which inter alia includes treatment of injuries, emergency contraception and syndromic and post-exposure STI management). These two components are indivisible, and both should be provided as comprehensive emergency medical management of sexual assault survivors. Why provisions regarding treatment should be set out in legislation (as opposed to policy): Policy guidelines are not always adhered to, either by individual health care practitioners or by provincial health managers. Since the drafting of the Uniform National Guidelines for Dealing with Survivors of Rape and Other Sexual Offences in 1997 (which included detailed guidelines for health care practitioners), little has been done be health managers to ensure that all health care workers are familiar with and comply with these standards. Existing policy documents do not provide for complaints mechanisms or sanctions against health care workers who fail to implement and adhere to the guidelines. Similarly, the policy guidelines do not impose a duty on provincial or national health managers to make programmatic and budgetary provision for the implementation of the guidelines. If nothing is contained in the proposed Bill to impose duties on the health sector to perform specific functions in relation to the medical management of rape complainants, it will maintain the fragmentation between criminal justice and health service provision. The Bill should therefore include a provision regarding the medical management of rape survivors.

Women's Legal Centre (clsex 61)

Draft proposal:

Rape

XX. 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;

(b) the mouth of the complainant by the genital organs of the perpetrator; or

(c) the genital organs or the anus of perpetrator by the genital organs of the complainant

when committed under coercive circumstances, 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 that causes penetration.

(2) Unlawfully and intentionally compels, induces or causes another person to commit an act that causes penetration, however slight, by the genital organs or any other object used by such person of the mouth, genital organs or anus of a third person under coercive circumstances, under false pretences or by fraudulent means or where such other person is incapable in law of appreciating the nature of an act that causes penetration.

(3) Coercive circumstances, referred to in subsections (1) and (2), includes but is not limited to any circumstances where there is-

(a) a use of force against the complainant or another person or against the property of the complainant or that of any other person;

(b) a threat of harm against the complainant or another person or against the property of the complainant or that of any other person; or

(c) 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 to his or her resistance to such act, or his or her unwillingness to participate in such an act.

(4) The circumstances in which a person is incapable in law of appreciating the nature of an act that causes penetration referred to in subsection (3)(b) include circumstances where such person is, at the time of the commission of such act-

(a) asleep;

(b) unconscious;

(c) in an altered state of consciousness;

(d) under the influence of any medicine, drug, alcohol or other substance to the extent that the person's consciousness or judgment is adversely affected;

(e) a mentally impaired person; or

(f) below the age of 12 years.

(7) The common law relating to-

(a) the irrebuttable presumption that a female person under the age of 12 years is incapable of consenting to sexual intercourse; and

(b) the offence of rape and indecent assault, except where such offences have been committed prior to the commencement of this Act,

is repealed.

(8) Subject to the provisions of this Act, any reference to "rape" in any law must be construed as a reference to rape committed before the commencement of this Act, which must be construed to be a reference to the common law offence of rape.

Women's Legal Centre (clsex 61)

Draft proposal

Indecent Assault

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

(1) unlawfully and intentionally commits an indecent act with another person under coercive circumstances, under false pretences or by fraudulent means or where such other person is incapable in law of appreciating the nature of such an act; or

(2) unlawfully and intentionally compels or induces the complainant to engage in an indecent act with-

(a) the perpetrator himself or herself;

(b) the complainant himself or herself;

(c) a third person,

under coercive circumstances, under false pretences or by fraudulent means or where the complainant is incapable in law of appreciating the nature of such act.