Hd010206CC(SOB)
BRIEFING:
PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT
19 JUNE 2006
REDRAFTED
CRIMINAL
LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT BILL, 2006
1. Purpose
of briefing:
To provide the Portfolio Committee with a comparison between the—
(i) the draft Bill
(“recommended Bill”) proposed by the South African Law Reform Commission
(“SALRC”) as contained in the
Report on Sexual Offences;
(ii) Criminal
Law (Sexual Offences) Amendment Bill, 2003, as introduced (“the introduced
Bill”); and
(iii) provisions of the redrafted Bill, namely the Criminal Law
(Sexual Offences and Related Matters) Amendment Bill, 2006 (“the redrafted
Bill”).
The emphasis in this document is, however, on the differences between
the Bill as introduced into Parliament and the redrafted Bill, since the
redrafted Bill is, in essence, the outcome of the deliberations of the
Committee. In other words, it contains
the suggestions of the Committee.
2. Reason for a comprehensive
briefing: long time since members of
the Portfolio Committee discussed the Bill, and new members have also joined
the Committee.
PART I
SALRC REPORT ON SEXUAL OFFENCES
3. Background
information: SALRC Report on Sexual
Offences
In 1996
the SALRC was requested to investigate the reform of the criminal justice
system in relation to sexual offences by and against children. The SALRC's initial mandate was expanded, at
the request of the then Deputy Minister and the Portfolio Committee on Justice
and Constitutional Development, to include¾
* sexual
offences against adults; and
* the
formulation of non-legislative recommendations with regard to the reform of the
criminal justice system.
The SALRC
submitted its report, which was accompanied by a draft Bill, to the Minister
for Justice and Constitutional Development in December 2002.
4. Bill
recommended by SALRC
The Bill that was introduced in Parliament, namely the Criminal Law
(Sexual Offences) Amendment Bill, 2003 (“Introduced Bill”), differed in a few
respects from the draft Bill recommended by the SALRC. These differences can be summarised as
follows:
(iA) Draft Bill
Contained an objectives clause which was aimed at reflecting—
the
normative values that underpin the draft Bill and serve as indicators as to
how, and in which context, the
Bill should be interpreted and applied.
The clause highlighted
the rights of complainants (victims of sexual offences), the vulnerability of
children and the consequences thereof in respect of the prosecution of sexual
offence cases, appropriate sanctions for the commission of sexual offences and
the need for training of all professionals who are involved in sexual offence
cases.
(iB) Introduced Bill
The Department was of the opinion that so-called "objectives” were
more in the nature of guiding principles relating to the adjudication of sexual
offences and recommended that the objectives clause should rather be included
in a Schedule to the Bill, under the heading Guiding principles to be
considered in the application of this Act and the adjudication of sexual
offences generally.
(iiA) Draft Bill
The SALRC pointed out that children and victims of sexual offences are
potentially more vulnerable than other witnesses, due to the nature of the
offence and recommended the inclusion of a provision whereby—
(i) any complainant or
child witness will automatically be declared vulnerable; and
(ii) other witnesses may be
declared vulnerable by the court on account of age, intellectual impairment, trauma, cultural
differences or the possibility of intimidation.
The court will then be in a position to order that certain protective
measures should be applied in respect of a vulnerable witness, among others, by
appointing a support person to accompany the witness. The purpose of a support person would be to
strengthen and encourage a witness emotionally by his or her physical presence.
(iiB) Introduced Bill
The clause
dealing with vulnerable witnesses was not omitted from the Introduced Bill
entirely and will be highlighted in Part II of this briefing. The Department was concerned that it would
not be in a position to fund such a service dealing with the appointment of
support persons. CABINET APPROVED THAT THE PROVISION DEALING WITH THE APPOINTMENT OF
SUPPORT PERSONS SHOULD BE OMITTED FROM THE BILL.
(iiiA) Draft Bill
The draft Bill contained a clause to the effect that the State must, in
respect of all complainants who sustained physical, psychological or other
injuries in sexual offence cases, provide appropriate medical care, treatment
and counselling. It read as
follows:
21. (1) Where
a person has sustained physical, psychological or other injuries as the result of an alleged sexual offence, such person shall,
immediately after the alleged offence,
receive the appropriate medical care, treatment and counselling as may be
required for such injuries.
(2) If a person has been exposed to the
risk of being infected by a sexually transmissible
infection as the result of a
sexual offence, such person shall, immediately after the reporting of the alleged offence to the South African Police
Services or to a health care facility—
(a) be advised by a medical practitioner
or a qualified health care professional of the possibility
of being tested for such
infection; and
(b) have access to all possible means of
prevention, treatment and medical care in respect of possible exposure to a sexually transmissible
infection.
(3) The State shall bear the cost of the
care, treatment, testing, prevention and counselling
as referred to in this section.
However, it was noted prior
to introduction of the Bill that this clause is not restricted to victims of
sexual offences. The word ‘person’ is
used which includes family members of victims.
‘Injuries’ are broadly defined to include physical, psychological or
other injuries. This clause provides
that appropriate medical care, treatment and counselling should be provided.
Treatment is not limited to medical treatment.
It was clear that the above
provision would lead to substantial financial expenditure for the State
(especially the provision of medical care and counselling to complainants)
which required further consultation with the departments concerned and Cabinet
was informed accordingly. CABINET APPROVED THE OMISSION OF THE CLAUSE
FROM THE BILL. (It should be noted
that the redrafted Bill contains a
clause that flows from the so-called treatment clause and will be discussed in
Part II of this briefing.).
(iiiA) Draft Bill
The draft
Bill also contained four clauses dealing with the implementation of the proposed
legislation. These provisions
envisaged—
(i) implementation of the proposed
legislation by organs of State in the national, provincial and local spheres of government;
(ii) placing an obligation on the Minister
to prepare a national policy framework
to guide the implementation,
enforcement and administration of the Act to ensure acceptable and uniform treatment of sexual offence matters;
(iii) prescribing the content of the national policy framework; and
(iv) requiring the Minister to consult with
all organs of State, the public and non-governmental organisations.
(iiiB) Introduced
Bill
The view
was held that the proposed provisions dealing with the national policy framework could give rise to delays and
difficulties in implementing the legislation.
CABINET THEREFORE APPROVED
THAT PROVISIONS OF THIS NATURE SHOULD
BE FAR LESS ELABORATE. A LESS DETAILED
PROVISION, GIVING THE JUSTICE MINISTER THE RESPONSIBILITY TO IMPLEMENT THE
LEGISLATION WAS THEREFORE INCLUDED IN THE introduced
Bill.
PART
II
CRIMINAL LAW (SEXUAL OFFENCES)
AMENDMENT BILL, 2003
5. Background
Information: Passage of Introduced Bill
Passage of the Bill through the Parliamentary process—
* Bill introduced —
towards the end of 2003;
* the Portfolio Committee
— considered oral and written representations, deliberated on the Bill and instructed the Department to prepare
a working document;
* the working document —
submitted to the Committee shortly before the April 2004 elections; and
* the Committee mandated
the then Chairperson to interact with the Department in order to develop a redrafted version of the Bill for
further deliberations after the elections.
6. Overview
of introduced and redrafted Bills
6.1 Introduced Bill—
* roughly
divided into two parts;
* first part (clauses 2 to 13): substantive provisions dealing with rape,
sexual violation, oral genital sexual violation, compelled or induced indecent
acts and a number of offences in respect of children and mentally impaired
persons such as the commission of sexual acts within the view of children and
mentally impaired persons, sexual acts in a broader sense with certain
children, the prostitution of children and mentally impaired persons and the
proposed extension of common law incest;
* second part (clauses 14 to 27): procedural provisions dealing with witnesses
to be notified of protective measures, vulnerable witnesses, evidence of
previous consistent statements, evidence of surrounding circumstances,
application of caution and the requirement for corroboration, drug and alcohol
treatment orders, supervision of dangerous sexual offenders, decisions
regarding police investigations, extra-territorial jurisdiction, non-disclosure
of conviction of sexual offence, national policy framework, regulations,
amendment and repeal of laws, application of Act in relation to Sexual Offences
Act, 1957.
6.2 Redrafted Bill—
* divided
into 7 Chapters (each Chapter is subdivided into a number of Parts);
* chapter
1: Definitions and Objects;
* chapter
2: “sexual offences” generally;
* chapters
3 and 4: are devoted to sexual offences
against children and mentally disabled persons, respectively;
* chapter
5: services for victims and the
compulsory HIV testing of sexual offenders;
* chapter
6: National Register for Sex Offenders;
and
* chapter
7: general provisions.
PROVISIONS
OF THE INTRODUCED AND REDRAFTED BILLS
7. Long
title and pre-amble
Introduced Bill:
7.1 Long title indicated
that the Bill aims to—
(i) amend the law relating
to certain sexual offences; and
(ii) provide for the
amendment and repeal of certain laws.
7.2 The preamble reflected
the following—
(i) the rights of all
people enshrined in the Constitution, as far as they relate to sexual violence;
(ii) South
Africa’s international legal obligations towards the eradication of violence
against women and children;
(iii) the vulnerability of
women and children; and
(iv) the
need to strengthen the State’s commitment to address the pandemic of sexual
offences committed in the country.
Redrafted Bill:
7.3 Since the redrafted Bill
contains more clauses than the introduced Bill the long title and preamble are
more comprehensive. Provisions of Bill
will be discussed first before highlighting the contents of the long title and
preamble, suffice to say that they provide a brief overview of the contents of
the Bill.
8. Chapter
1: Definitions and Objects:
Introduced Bill:
8.1 All the definitions in
clause 1 of the introduced Bill, with the exception of the definition of an “act which causes penetration”
(definition was replaced with the definition of “sexual penetration”), are repeated in the redrafted Bill.
Redrafted Bill:
8.2.1 Chapter 1 consists of 2
clauses, namely the definitions (clause 1) and objects (clause 2) clauses,
respectively. Clause 1 of the
redrafted Bill, dealing with “Definitions
and interpretation of Act”, contains a number of new definitions that were
not in the introduced Bill, for example, definitions of—
* "HIV";
* “body fluid”;
* "pornography";
* “sexual act”;
* "sexual
conduct";
* “sexual penetration”;
and
* “sexual violation”.
The definitions are generally self-explanatory and will be highlighted,
where necessary, during the course of the discussions on the provisions of the
redrafted Bill.
8.2.2 Since most of the
offences created in the Bill deal with the issue of consent or the lack
thereof, it was deemed necessary to include in clause 1, two additional
subclauses, elaborating on the question of consent that apply throughout the
Bill. Clause 1(2) consequently provides that “consent” means voluntary or
uncoerced agreement. Clause 1(3) sets out the circumstances
in which a person does not voluntarily or without coercion agree to an act of
sexual penetration, sexual violation or any other act which is criminalised in
the Bill. These circumstances are not
intended to be a closed list and include circumstances, for instance, where the
complainant submits or is subjected to a sexual act as a result of—
* force or intimidation;
* a threat of harm;
* where there is an abuse
of power or authority;
* where the sexual act is
committed under false pretences or by fraudulent means; and
* where
the complainant is incapable in law of appreciating the nature of the sexual
act, eg being asleep, unconscious, a
mentally disabled person or a child below the age of 12 years.
In order to make the interpretation of the legislation user-friendly,
clause 1(3) also identifies the different possible roleplayers in the
commission of the sexual offences contained in the Bill, by referring to the
accused person as "A", to the complainant as "B", to a
third person as "C" and to another person as "D".
9. Objects
9.1 Introduced Bill:
No objects clause.
9.2 Redrafted Bill:
Objects clause reflected in Clause 2 (clause highlights the need to criminalise
all forms of sexual abuse or exploitation, the plight of victims and the
promotion of service delivery in the criminal justice system).
10. Chapter 2: Sexual offences:
Chapter 2 of the redrafted Bill, dealing with sexual offences in
general, is divided into four Parts. The
provisions of the introduced Bill that are relevant in this regard can be found
in clauses 2 to 6 of that Bill.
10.1 Part
1: Rape and compelled rape:
Introduced Bill:
10.1.1 Clauses 2 to 4 of the Introduced Bill aimed to introduce offences that are characterised
by penetration of some form or another.
10.1.2 Clause
2 of the introduced Bill,
dealing with the offence of rape,
was included in the Bill on the basis that the common law offence of rape
reflects certain shortcomings, namely—
(i) it is
gender specific (only a male can commit the offence and the victim can only be
a female);
(ii) it
excludes anal or oral penetration or the insertion of foreign objects into
bodily orifices; and
(iii) an
irrebuttable presumption exists that a girl under the age of 12 years is
incapable of consenting to sexual intercourse while no similar presumption
exists in the case of boys.
10.1.3 In terms
of subclause (1) a person will be
guilty of rape if that person—
unlawfully and intentionally commits
an act which causes penetration to any extent whatsoever by the genital organs
of that person into or beyond the anus or genital organs of another
person.
This clause addresses the gender specific nature of
common law rape in terms of which it is possible for a man to be convicted of
the rape of another man. Subclause (2)
represents a move away from the requirement of "the absence of valid
consent to intercourse by a female" by placing the emphasis on the fact
that an act which causes penetration will be prima facie unlawful if it is committed¾
* in
any coercive circumstance;
* under
false pretences or by fraudulent means; or
* in
respect of a person who is incapable in law of appreciating the nature of an
act which causes penetration.
10.1.4 Coercive
circumstances, in terms of subclause (3), include any circumstances where there
is any use of force, or any threat of harm, against the complainant or another
person or against the property of the complainant or that of any other
person. An abuse of power or authority
to the extent that the person in respect of whom an act of penetration is
committed, is inhibited from indicating his or her resistance to such an act,
or his or her unwillingness to participate in such an act, also constitutes
coercive circumstances.
10.1.5 Subclause
(4) aims to regulate those circumstances which constitute false pretences or
fraudulent means, namely, where a complainant is led to believe that he or she
is committing an act which causes penetration with a particular person who is
in fact a different person or that the act is something other than that
act. Subclause (5) enumerates the
circumstances in which a person is incapable of appreciating the nature of the
act that causes penetration. These are,
for example, where the person is, at the time of the commission of the act,
asleep, unconscious, mentally impaired or below the age of 12 years.
10.1.6 Subclause
(6) confirms that a marital or other relationship is not a defence to a charge
of rape (clause 55 of the redrafted Bill) and subclause (7), among others,
repeal the irrebutable presumption that a female person under the age of 12
years cannot consent to sexual intercourse.
10.1.7 Clause 3 of the introduced Bill aimed to introduce the crime “sexual violation” which amounted to the penetration of the genital
organs or anus of a person with any object (other than the genital organs of
the transgressor). Clause 4 of the introduced Bill aimed to regulate the oral genital sexual violation which
amounted to the penetration of the mouth of the complainant by the genital
organs of the transgressor or those of an animal.
10.1.8 The aim
with clause 5 of the introduced Bill was to ensure that the
provisions of clause 3 (the rape clause) that deal with those circumstances
pointing to the prima facie
unlawfulness of certain acts and defences at common law are made to apply in
respect of clauses 3 (sexual violation) and 4 (oral genital sexual violation).
10.1.9 WHEN CONSIDERING THE PROPOSED THREE SEPARATE OFFENCES THE
PORTFOLIO COMMITTEE WAS OF THE OPINION THAT THESE CLAUSES DREW AN ARTIFICIAL
DISTINCTION BETWEEN ACTS THAT CONSTITUTE SEXUAL PENETRATION. REGARDING THE ATTEMPT TO MOVE AWAY FROM THE
LACK OF CONSENT REQUIREMENT IT WAS NOTED THAT CONSENT STILL REMAINS A DEFENCE.
Redrafted Bill:
10.1.10 The Department was
consequently requested to combine the three proposed crimes into a single
crime. This necessitated the inclusion
of a definition of “sexual
penetration” in clause 1 which is defined as including any act which causes
penetration to any extent whatsoever by—
(a) the genital organs of one person
into or beyond the genital organs,
anus, or mouth of another person;
(b) any other part of the body of one person
or, any object, including any part of the body of an animal or any object
resembling the genital organs of a person or an animal, into or beyond the
genital organs or anus of another person; or
(c) the genital organs of an animal into
or beyond the mouth of another person.
10.1.11 Another
important definition which was included in the redrafted Bill is that of
“consent”. Clause 1(2) consequently provides that “consent” means voluntary or
uncoerced agreement. Clause 1(3)
builds on this, by setting out the circumstances in which a person does not
voluntarily or without coercion agree to an act of sexual penetration, sexual
violation or any other act which is criminalised in the Bill. These circumstances are not intended to be a
closed list and include, for instance, when the complainant submits or is
subjected to a sexual act as a result of—
* force
or intimidation;
* a
threat of harm;
* where
there is an abuse of power or authority;
* where
the sexual act is committed under false pretences or by fraudulent means; and
* where the complainant is incapable in
law of appreciating the nature of the sexual act, eg being asleep, unconscious, a mentally disabled person or a child
below the age of 12 years.
10.1.12 Clause
3 of the redrafted Bill, dealing with rape, consequently provides that—
A person
(“A”) who unlawfully and intentionally commits an act of sexual penetration
with a complainant (“B”) without the consent of B, is guilty of the offence of
rape.
10.1.13 Proposed new clause 4 deals with compelled rape
and aims to criminalise those actions where a perpetrator compels a third
person to rape another as rape. It was agreed that the Department should
draft a provision that will make it
possible to convict a person who compels another person to rape a third person,
as a perpetrator and not as an accomplice to rape, as is currently the approach
being followed in certain cases. Clause 4 of the redrafted Bill, dealing with compelled rape, consequently
provides that—
Any
person (“A”) who unlawfully and intentionally compels a third person (“C”),
with or without the consent of C, to commit an act of sexual penetration with a
complainant (“B”), without the consent of B, is guilty of the offence of
compelled rape.
10.2 Part
2: Sexual assault, compelled sexual
assault and compelled self-sexual assault:
Introduced Bill
10.2.1 Clause
6 of the introduced Bill aimed
to regulate compelled or induced indecent acts. An "indecent act"
is defined in clause 1 as any act which causes—
* direct
or indirect contact between the anus or genital organs of one person, or in the
case of a female, her breasts and any part of the body of another person or any
object, including any part of the body of an animal;
* exposure or display of the genital
organs of one person to another person; or
* exposure or display of any
pornographic material to any person against his or her will or to a child.
Clause 6 of the introduced Bill therefore provides that—
A person who unlawfully and
intentionally compels, induces or causes another person to engage in an
indecent act with—
(a) the
person compelling, inducing or causing the other person to engage in the act;
(b) a
third person;
(c) that
other person himself or herself; or
(d) an object, including any part of the
body of an animal,
in circumstances where that other
person—
(i) would
otherwise not have committed or allowed the indecent act; or
(ii) is
incapable in law of appreciating the nature of an indecent act, including the
circumstances set out in section 2(5),
is guilty of the offence of having
compelled, induced or caused a person to engage in an indecent act and is
liable upon conviction to a fine and imprisonment for a period not exceeding
five years.
10.2.2 IT WAS AGREED THAT THIS DEFINITION SHOULD BE EXTENDED TO COVER ALL
ASPECTS OF THE COMMON LAW CRIME OF INDECENT ASSAULT AND TO THEN REPEAL THE COMMON
LAW CRIME OF INDECENT ASSAULT.
Redrafted Bill:
10.2.3 Clause 5(1) of the redrafted
Bill consequently provides that—
A
person (“A”) who unlawfully and intentionally sexually violates a complainant
(“B”), without the consent of B, is guilty of the offence of sexual
assault.
The term “sexually violates” is defined in clause 1 as including “any act
which causes—
(a) direct
or indirect contact between the –
(i) genital organs or anus of one person or, in the
case of a female, her breasts, and any part of the body of another person or an
animal, or any object, including any object resembling the genital organs or
anus of a person or an animal;
(ii) mouth of one person and –
(aa) the genital organs or anus of another person
or, in the case of a female, her breasts;
(bb) the mouth of another person;
(cc) any other part of the body of another person,
other than the genital organs or anus of that person or, in the case of a
female, her breasts, which could –
(aaa) be used in an act of sexual penetration;
(bbb) cause sexual arousal or stimulation; or
(ccc) be sexually aroused or stimulated thereby; or
(dd) any object resembling the genital organs or
anus of a person, and in the case of a female, her breasts, or an animal; or
(iii) the mouth of the complainant and the genital
organs or anus of an animal;
(b) the
masturbation of one person by another person;
or
(c) the
insertion of any object resembling the genital organs of a person or animal,
into or beyond the mouth of another person,
but does not
include an act of sexual penetration and 'sexually violates' has a
corresponding meaning.”.
10.2.4 Clause 5(2) of the redrafted Bill deals with the situation where A
unlawfully and intentionally inspires the belief in B that B will be sexually
violated, similar to the current position in our common law in respect of
assault common (sexual assault is a form of assault and all principles
applicable to assault common are also applicable to the specific forms of
assault, in this case sexual assault).
10.2.5 Clause 6 of the
redrafted Bill, dealing with compelled sexual assault, is similar to the
offence of compelled rape and requires no further explanation.
10.2.6 Clause 7 of the
redrafted Bill deals with compelled self-sexual assault and is intended to
cater for the situation where a complainant (“B”) is compelled by the accused
(“A”) to sexually assault himself or herself, for instance by self–fondling of
breasts or by inserting his or her own fingers into his or her genital organs
or anus, an act that would currently constitute indecent assault. Clause 7(a),
for instance, caters for the situation of compelled self-breast fondling; it is
important therefore to refer to the new definition of “sexual conduct”,
particularly paragraphs (a) and (e) thereof, which refer to
“masturbation” and “sexually suggestive or lewd acts”, respectively. Clause 7(b),
dealing with compelled self-penetration of the anus or genital organs,
expressly excludes an act of sexual penetration, simply because sexual penetration
in the definition clause pre-supposes penetration by one person of another
person.
10.3 Part 3:
Exposure or display of or causing exposure or display of sexual acts or
genital organs, anus or female breasts (“flashing”) or pornography to an adult
(persons 18 years or older):
Introduced Bill:
10.3.1 Paragraphs (b) and (c) of the
definition of “indecent act” in the introduced Bill, among others, defined the
“exposure or display of the genital organs of one person to another person” and
“exposure or display of any pornographic material to any person against his or
her will or to a child” as an indecent act.
10.3.2 THE DEPARTMENT WAS
REQUESTED TO CONSIDER THE DELETION OF PARAGRAPH (C) FROM THE DEFINITION AND TO
REDRAFT IT AS A SEPARATE OFFENCE.
Redrafted
Bill:
10.3.3 Clause 10 of the
redrafted Bill consequently aims to criminalise the unlawful and intentional
exposure or display of or causing exposure or display of pornography to another
person who is 18 years or older without his or her consent and provides as
follows:
Exposure or display of or causing exposure or display of pornography to
person 18 years or older
10. A
person (“A”) who unlawfully and intentionally, whether for the sexual
gratification of A or of a third person (“C”) or not, exposes or displays or
causes the exposure or display of any pornography to a complainant 18 years or
older (“B”), without the consent of B, is guilty of the offence of exposing or
displaying or causing the exposure or display of pornography to a person 18 years
or older.
10.3.4 The Committee also agreed
to insert a clause to deal with the exposure or display or causing exposure or
display of a sexual act to an adult against his or her will. It is important to note that “sexual act” is
defined to include both acts of sexual penetration and sexual violation. Clause
8 of the redrafted Bill gives effect to this and reads as follows:
Exposure or display of or
causing exposure or display of sexual act to person 18 years or older
8. A person (“A”) who unlawfully and
intentionally, whether for the sexual gratification of A or of a third person
(“C”) or not, exposes or displays or causes the exposure or display of, a
sexual act to a complainant 18 years or older (“B”), without the consent of B,
by causing or compelling B to watch A or another person (“D”) engaging in a
sexual act, is guilty of the offence of exposing or displaying or causing the
exposure or display of a sexual act to a person 18 years or older.
10.3.5 A similarly worded clause 9 of the
redrafted Bill deals with “flashing”.
10.4 Part
5: Incest, bestiality and sexual acts
with corpse:
Introduced Bill:
10.4.1 Clause 11 of the introduced Bill
encapsulated the recommendation that the common law offence of incest should be
extended to include the different forms of sexual penetration as opposed to the
common law offence that only applies to penetration of the genital organs. The proposed extension of the common law
offence of incest was contained in clause
13 of the introduced Bill.
Redrafted Bill:
10.4.2 Clauses 11, 12 and 13 of the redrafted Bill deal with “incest”,
“bestiality” and “sexual act with corpse”, respectively. These provisions are self-explanatory and,
to a large extent, constitute a repetition of the relevant common law crimes
and do not require any further clarification.
However, it should be noted that—
(i) clause 11 extends the common law crime of incest to all
instances of sexual penetration and sexual violation as opposed to sexual
intercourse between a man and a women which is currently the common law
position[1];
(ii) the common law crime of “bestiality”
will now be extended by clause 12 to include the penetration, to any extent
whatsoever, by the genital organs of a person ("A") into or beyond
the mouth, genital organs or anus of an animal or the penetration of the
genital organs of an animal into or beyond the mouth, genital organs or anus of
A, as well as the masturbation of an animal[2];
and
(iii) since the ambit of the Bill is limited
to sexual offences only the “sexual element” of the common law crime of the
“violation of a corpse” will be repealed once clause 13 is enacted (read with
clause 63(1)(b))[3].
11. Chapter 3: Sexual offences against children:
In line with the suggestion of the Committee, Chapter 3 is intended to
be a chapter containing specific sexual offences against children. It is divided into two parts.
11.1 Part
1: Consensual sexual acts with certain
children:
Introduced Bill:
11.1.1 Clause 9 of the introduced Bill is intended to replace the existing section 14 of
the Sexual Offences Act, 1957. Section
14 of the Sexual Offences Act, 1957, provides for the following:
* 16
years is the minimum age below which the law does not recognise the consent of
either a boy or girl to (heterosexual) intercourse;
* 19 years
is the minimum age for both male and female persons to be able to consent to
immoral or indecent acts;
* it is
an offence to solicit or entice such boy or girl to the commission of an
immoral or indecent act;
* it is
a defence to the above offences if, at the time of the commission of the
offence the boy or girl was a prostitute and the person charged with the
offence was under the age of 21 years and it is the first time on which he or
she is so charged; or
* the
person was deceived into believing that the boy or girl was over the age of 16
years at the time.
11.1.2 A number of
inconsistencies exist in section 14 of the Sexual Offences Act, 1957, namely—
(i) the age of consent to
homosexual (19 years) as opposed to heterosexual acts (16 years);
(ii) the
age of consent to heterosexual "intercourse" is 16 years, but the age
of consent to an "immoral or indecent act" (whether homosexual or
heterosexual) is 19 years.
The Commission pointed out that the relevant section "therefore
requires a higher age of consent to an act that may not be as intimate or
disturbing as sexual intercourse".
11.1.3 In terms of clause 9 of the introduced Bill it is an offence to have sexual intercourse (in the
wider sense), or to commit an indecent act, with a consenting child below the
age of 16 years. In cases of
penetrative sexual acts with a consenting child only one defence is available,
namely, that the accused was deceived into reasonably believing that the child
was over the age of 16. When an
"indecent act" is committed with a consenting child (between the ages
of 12 and 16 years) the same defence is available, as well as the additional
defence that both parties are younger than 16 years of age, and the age
difference between them is not more than three years (the three year age
difference is provided for as a direct result of the fact that teenagers
experiment sexually).
Redrafted Bill
11.1.4 Clause 9 of the Introduced Bill dealt with acts of
penetration by a person with children older than 12 years but below 16 years
with their consent and indecent acts with children below 16 years with their
consent. IN LINE WITH THE DISTINCTION SUGGESTED BY THE COMMITTEE TO BE DRAWN
BETWEEN ACTS OF SEXUAL PENETRATION AND SEXUAL VIOLATION, THE DEPARTMENT HAS
DRAFTED—
(i) clause 14, which criminalises acts of
sexual penetration with children under 16 years or older than 12 years (see
definition of “child”); and
(ii) clause 15 of the Bill, which
criminalises acts of sexual violation against children in the same age group,
all with their consent.
11.1.5 In terms of clause 14
of the redrafted Bill it is an
offence for a person (“A”) to commit an act of sexual penetration with a child
(“B”), despite the consent of B. In
similar vein, clause 15 of the Bill makes it an offence for a person (“A”) to
commit an act of sexual violation with a child (“B”), despite the consent of B.
11.1.6 Clause 53, dealing with
defences, however, provides in subclause (2)(c)
thereof that it is a defence to contend, in both the case of clauses 14 and 15
offences, that the child (“B”) deceived A into believing that he or she was 16
years or older and A reasonably so believed.
However, in respect of a charge contemplated in clause 15 of the Bill
(consensual sexual assault) the accused person can allege that there is only an
age difference of two years between them which can constitute a defence if the
accused person is also below 16 years, allowing for the reality of teenage
“sexual experimentation”.
11.1.7 In the case of acts of consensual sexual penetration with children
under 16 years or older than 12 years, the National Director of Public
Prosecutions must authorise the institution of a prosecution. In the case of acts of consensual sexual
violation against children in the same age group, the relevant Director of
Public Prosecutions must authorise the institution of a prosecution (See
clauses 14 and 15 of the Bill, respectively).
The National Director of Public Prosecutions must, however, in terms of
clause 61(2)(b)(vi)
of the Bill issue national directives, setting out the circumstances and manner
in which Directors of Public Prosecution should authorise and institute
prosecutions contemplated in clause 15(2) with the view to ensuring
uniformity.
11.2 Part 2: Sexual exploitation and sexual grooming of
children, engaging in sexual acts in presence of children and exposure or
display of or causing exposure or display of genital organs, anus or female
breasts (“flashing”) or pornography or sexual acts to children:
Introduced Bill
11.2.1 Clause 11 of the introduced Bill
contains the Commission's recommendations regarding the phenomenon of child
prostitution. The relevant
recommendations are that—
* a
complete ban be placed on child prostitution and that anyone involved in the
sexual exploitation of children should face severe criminal sanction;
* the
child prostitute should be regarded as a victim in need of care and protection
and should not be prosecuted;
* living
off or benefiting from the earnings of child prostitution should be penalised;
and
* sex tourism
involving children should be criminalised.
Redrafted Bill
11.2.2 Clause 16 of the redrafted
Bill deals with the sexual exploitation of a child and subclause (1)
provides that—
a person (“A”) who unlawfully and
intentionally engages the services of a child complainant (“B”) (under the age
of 18 years), or offers the services of B to a third person (“C”), with or
without the consent of B, in order to perform a sexual act with B, for
financial or other reward, favour or compensation to B, A (when offering the
services of B) or to another person (“D”), among others, by –
(i) committing
a sexual act (that is acts of sexual penetration and sexual violation) with B;
(ii) inviting,
persuading or inducing B to allow C to commit a sexual act with B;
(iii) participating in, being involved in,
promoting, encouraging or facilitating the commission of a sexual act with B by
C;
(iv) making available, offering or engaging C
for purposes of the commission of a sexual act with B by D; or
(v) detaining B, whether under threat,
force, coercion, deception, abuse of
power or authority, for purposes of the commission of a sexual act with B by C
or D,
is guilty of the offence of being
involved in the sexual exploitation of a child.
11.2.3 Subclause (2)
provides that a person who intentionally allows or knowingly permits the
commission of a sexual act by a third person ("C") with a child
complainant ("B")—
(i) while
being a primary care-giver defined in section 1 of the Social Assistance Act,
1992;
(ii) while
being a parent or guardian of B; or
(iii) who owns, leases, rents, manages or
occupies or has control of any movable or immovable property used for purposes
of the commission of a sexual act with B by C,
is guilty of the offence of furthering the sexual exploitation of
a child.
In similar vein, subclause (3) places an obligation on those persons who
are aware of a child being sexually exploited to report such knowledge to the
South African Police Service. Failure
to do so is an offence. Subclause (4)
provides that any person ("A") who intentionally receives financial
or other reward, favour or compensation from the commission of a sexual act
with a child complainant ("B") by a third person ("C"), is
guilty of the offence of benefiting from the sexual exploitation of a
child. Subclause (5) provides that any
person ("A") who intentionally lives wholly or in part on rewards,
favours or compensation for the commission of a sexual act with a child
complainant ("B") by a third person ("C"), is guilty of an
offence of living from the earnings of the sexual exploitation of a child. Lastly, subclause (6) provides that a person
("A") who makes or organises any travel arrangements for or on behalf
of a third person ("C") with the intention of facilitating the
commission of any sexual act with a child complainant, irrespective whether the
act is committed or not, or prints or publishes any information that is
intended to promote or facilitate conduct that would constitute a sexual act
with a child ("B"), is guilty of the offence of promoting child sex
tours.
11.2.4 Certain other practices
exist in terms of which sex offenders "groom" a child prior to
committing a sexual offence with such child.
The process of "sexual grooming" includes the provision or display
of articles used to perform sexual acts with children. Clause
17 of the redrafted Bill aims to
prohibit, among others, the following criminal activities:
(i) The manufacturing, distribution or
activities that are aimed at facilitating the manufacture or distribution of an article that promotes or is intended
to be used in the commission of a sexual act with or by a child complainant
("B");
(ii) supplying or displaying to a child
("B") an article which is intended to be used in the performance of a
sexual act with the intention of encouraging or enabling B to perform such
sexual act,
(iii) having met or communicated with a child
("B") by any means from, to or in any part of the world, on at least
two earlier occasions, intentionally travels to meet or meets B with the intention
of committing a sexual act, during or after the meeting; and
(iv) arranging or facilitating a meeting or
communication with a child ("B") by any means from, to or in any part
of the world with the intention that that person ("A") or a third
person ("C") will commit a sexual act with B during or after such
meeting.
Introduced Bill
11.2.5 The commission of an act
of sexual penetration or an indecent act in the presence of a child or mentally
impaired person constitutes indecent assault, crimen iniuria or public indecency in terms of the common law. Clause
8 of the introduced Bill gives
effect to the Commission's recommendation that the intentional commission of
these acts within the view ("in the presence") of a child below the
age of 16 years or a mentally impaired person should be criminalised. The relevant provision aims to address those
instances where sexual acts are committed in the presence of children and
mentally impaired persons "with the purpose of grooming that child or
mentally impaired person for possible abuse later".
Redrafted Bill
11.2.6 Clauses 18, 19, 20 and 21 of the redrafted Bill aim to protect children from other more subtle, but
equally harmful, forms of exploitation.
Clause 18 of the Bill
provides that—
a person (“A”) who unlawfully and
intentionally, whether for the sexual gratification of A or a third person
(“C”) or not, exposes or displays or causes the exposure or display of a sexual
act to a child complainant (“B”), with or without the consent of B, by causing
or compelling B to watch A or another person (“D”) engaging in a sexual act, is
guilty of the offence of exposing or displaying or causing the exposure or
display of a sexual act to a child.
11.2.7 Using similar wording as
in clause 18, clauses 19 and 20 provide that a person who unlawfully
and intentionally engages in an act of sexual penetration or sexual violation,
respectively, in the presence of a child is guilty of an offence. Clause
21 criminalises the unlawful and intentional exposure or display or causing
exposure or display of genital organs, anus or female breasts to a child
(“flashing”) and clause 22
criminalises the unlawful and intentional exposure or display or causing
exposure or display of pornography to a child.
12. Chapter
4: Sexual offences against mentally
disabled persons:
Introduced Bill
12.1 Section
15 of the Sexual Offences Act, 1957, makes it an offence for any person to
commit or attempt to commit, to entice or solicit any sexual act with an idiot or imbecile (provided that the person knew that the other person was
an idiot or imbecile). The introduced
Bill aimed to introduce the term "mentally impaired person" which
is defined as a person affected by any mental impairment irrespective of its
cause, whether temporary or permanent, to the extent that he or she, at the
time of the alleged commission of the offence, was—
* unable
to appreciate the nature and reasonably foreseeable consequences of an indecent
act or an act which causes penetration;
* able
to appreciate the nature and reasonably foreseeable consequences of such an act
but unable to act in accordance with that appreciation;
* unable
to resist the commission of any such act; or
* unable
to communicate his or her unwillingness to participate in any such act.
12.2 The aim
of clause 7 of the introduced Bill is not only to
eliminate the derogatory technical terms "idiot" and
"imbecile" but also to increase the "protection of persons who
are particularly vulnerable because of mental impairment". However, it should be recognised that
mentally impaired persons have sexual rights.
It should therefore be noted that the definition does not refer to all
forms of mental impairment, but only to those that are considered to be severe
enough to exclude consent. Clause 7
also creates a defence to a charge of an indecent act or an act which causes
penetration with a person who is mentally impaired. The defence is based on two elements, namely, that a mentally
impaired person who was over 18 years at the time of the relevant act, induced the
commission of the act and, secondly, that the accused reasonably believed that
the person concerned was not mentally impaired and that the person concerned
was above the age of 18 at the time of the act.
12.3 Clause 12 of the introduced Bill regulates the prostitution of mentally impaired
persons, and is similar in content to clause 11.
Redrafted Bill
12.4 IN LINE WITH THE SUGGESTION OF THE COMMITTEE, THIS IS INTENDED TO BE A
CHAPTER CONTAINING SPECIFIC SEXUAL OFFENCES AGAINST MENTALLY DISABLED PERSONS. It is divided into two parts. The term “mentally disabled person” is
defined in clause 1 as a person affected by any mental disability including,
any disorder or disability of the mind, to the extent that he or she, at the
time of the alleged commission of the offence in question, was—
(i) unable
to appreciate the nature and reasonably foreseeable consequences of a sexual
act;
(ii) able
to appreciate the nature and reasonably foreseeable consequences of such an act
but was unable to act in accordance with that appreciation;
(iii) unable to resist the
commission of any such act; or
(iv) unable to communicate
his or her unwillingness to participate in any such act.
Clauses 23 to 29 of
the redrafted Bill are, with the
exception of acts of consensual sexual penetration and violation with certain
children, a duplication of the provisions of Chapter 3.
Chapter
5:
13. Services
for victims of sexual offences and compulsory HIV testing of sexual offenders:
13.1 Chapter 5 is divided into
five Parts and deals with two distinct services for victims of sexual offences,
the one being the provision of Post Exposure Prophylaxis (PEP) to certain
victims of sexual offences and the other being the compulsory HIV testing of
sexual offenders. The provisions
contained in this chapter do not flow from the introduced Bill.
13.2 Part 1: Definitions and
services for victims of sexual offences:
13.2.1 Clauses 31 and 32 were included in the redrafted
Bill as a direct result of the treatment clause originally recommended by
the SALRC. The recommendation entailed
the following:
21. (1) Where
a person has sustained physical, psychological or other injuries as the result
of an alleged sexual offence, such person shall, immediately after the alleged
offence, receive the appropriate medical care, treatment and counselling as may
be required for such injuries.
(2) If a person has been exposed to the
risk of being infected by a sexually transmissible infection as the result of a
sexual offence, such person shall, immediately after the reporting of the
alleged offence to the South African Police Services or to a health care
facility—
(a) be advised by a medical practitioner or
a qualified health care professional of the possibility of being tested for
such infection; and
(b) have access to all possible means of
prevention, treatment and medical care in respect of possible exposure to a
sexually transmissible infection.
(3) The State shall bear the cost of the
care, treatment, testing, prevention and counselling as referred to in this
section.
13.2.2 The
clause, as proposed by the SALRC, was omitted from the introduced Bill pending
further discussions with the Department of Health. The "treatment clause" of the SALRC was, during the
redrafting process, referred to the Department of Health for comments. Discussions with the Department of Health
were held on a high level. In
principle, agreement was reached that provision should be made only for the
provision of PEP to the victim at State expense within 72 hours after the
alleged commission of the offence, the 72 hour limit being set to give
recognition to the medical fact that the provision of PEP to a victim is only
effective when it is administered within 72 hours after a person has been
exposed to the HIV. The Department of
Health indicated that it did not have the resources to fund all types of
medical treatment as originally recommended.
13.2.3 Clause 31(1)(a) of the redrafted Bill entitles a victim who
has been exposed to the risk of being infected by HIV as the result of a sexual
offence, to—
(i) receive
PEP for HIV infection at a public health establishment designated by the
Minister of Health at State expense;
(ii) be given free medical
advice surrounding the administering of PEP prior to the administering thereof;
and
(iii) be supplied with a
list of public health establishments which provide these services.
13.2.4 Clause 31(2) of the redrafted
Bill limits this entitlement to a person who reports the alleged offence
within 72 hours of its commission and clause 31(3)(a) of the Bill obliges a police official or medical person to whom
such an offence is reported to inform the victim of these entitlements.
13.2.5 Clause 32 of the redrafted
Bill requires the Minister of Health to designate public health
establishments by notice in the Gazette
for the purposes of providing PEP and it requires the Director-General: Justice
and Constitutional Development, the National Commissioner of the South African
Police Service and the National Commissioner of Correctional Services to ensure
that the lists of such designations are made available to the relevant
role-players within their Departments.
13.3 Part 2: Compulsory HIV testing
of sexual offenders:
13.3.1 During 2003 the Department
introduced the Compulsory HIV Testing of Alleged Sexual Offenders Bill
("the HIV Testing Bill") in Parliament. This Bill emanates from an investigation and report of the SALRC,
which investigation was instigated at the request of the Committee. In short, this HIV Testing Bill entitles a
victim of a sexual offence who may have been exposed to the body fluids of the
alleged sexual offender, to apply to a magistrate for a court order directing
that the offender be tested to determine his or her HIV status. The main purpose hereof is to afford the
victim an opportunity of knowing as soon as possible whether he or she might
have contracted the HIV. It is argued
that the benefit to such victims of this knowledge is not only immediately
practical in that it enables them to make life decisions and choices for
themselves and people around them but it is also beneficial to their
psychological state to have even a limited degree of certainty regarding their
exposure to a life-threatening disease.
13.3.2 THE PORTFOLIO COMMITTEE DEBATED THE HIV TESTING BILL AND REQUESTED
THE DEPARTMENT TO CARRY OUT SOME FURTHER RESEARCH ON A FEW ASPECTS AND TO
REVERT TO IT. THE DEPARTMENT WAS ALSO
REQUESTED TO EXPLORE THE POSSIBILITY OF INCORPORATING THE HIV TESTING BILL INTO
THE CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT BILL. THE
LATTER BILL HAD NOT BEEN INTRODUCED INTO PARLIAMENT WHEN THE HIV TESTING BILL
WAS DISCUSSED. PARTS OF THIS CHAPTER
UNDER DISCUSSION ALSO GIVE EFFECT TO THIS REQUEST.
13.3.3 Clause 30 of the redrafted
Bill contains a number of self-explanatory definitions, most of which have
been taken from the HIV Testing Bill.
13.4 Part 2: an application by the
victim to a magistrate for an order that the alleged offender be tested for HIV
Clauses 33 and 34 of
the redrafted Bill are taken largely verbatim from clauses 3 and 4 of the HIV
Testing Bill.
13.4.1 Clause 33 of the redrafted
Bill envisages a simple prescribed application procedure before a
magistrate in chambers for an order that the alleged offender be tested for HIV
and that the test results be made available to the victim and to the alleged
offender. The application can be
brought by the victim or an "interested
person", the latter being defined in clause 30 as—
"any person who has a material
interest in the well-being of a victim, including a spouse, same sex or
hetero-sexual permanent life partner, family member, care giver, counsellor, medical practitioner, health
service provider, social worker or teacher of such victim.".
The application must, among others, set out the grounds on which it is
alleged that a sexual offence was committed against the victim and must also
state that less than 60 days have lapsed from the date of the commission of the
offence. This 60 day limit has been
introduced on medical evidence that it takes approximately 60 days before a
person who has been exposed to the HIV will show, on the strength of tests done
on himself or herself, whether he or she has been infected with the HIV or not
(the so-called "Window Period").
After the expiry of this 60 day period, the justification for infringing
on the alleged offender's constitutional rights, among others, to bodily and
psychological integrity by being subjected to HIV testing with limited
opportunity to oppose the same, is reduced since it is argued that the victim
can have herself or himself tested for HIV infection, the results of which will
be more certain.
13.4.2 Clause 34 of the redrafted
Bill deals with the consideration of the above application by a magistrate
in chambers. It requires the magistrate
to consider the application as soon as possible and allows the magistrate to
call for such additional evidence as he or she deems fit, including oral
evidence or evidence by affidavit.
Whereas the original HIV Testing Bill completely prohibited the presence
of the alleged offender at such proceedings and did not envisage any evidence
on his or her behalf, the redrafted Bill (clause 34(2)) allows the magistrate
to "consider evidence by or on behalf of the alleged offender if, to do
so, will not give rise to any substantial delay". This subclause, however, empowers the
magistrate to allow the evidence of the alleged offender in the absence of the
victim if he or she is of the opinion that it is in the best interests of the
victim to do so. This deviation from
the original Bill is motivated on the strength of the submission of the
Commission on Gender Equality which was heard by the Committee during the
public hearings in respect of the HIV Testing Bill (the relevant portions of
this submission are included in the footnote hereunder.[4]) Clause 34 also requires a magistrate to
issue an order for testing if he or she is satisfied that there is prima facie evidence that a sexual
offence was committed by the alleged offender against the victim, that the victim
may have been exposed to the body fluids of the alleged offender and that no
more than 60 days have lapsed since the commission of the offence.
13.5 Part 3: An application for
compulsory HIV testing of an alleged offender by a police official:
13.5.1 There was no such
provision in the original HIV Testing Bill.
Motivation for the inclusion of such a provision is, among others,
rooted in the fact that the Criminal Law Amendment Act, 105 of 1997, provides
for the imposition of a minimum sentence in those cases where an HIV positive
person is convicted of rape. This
provision will place an investigative tool in the hands of the police to enable
them to place a case before the prosecuting authority that has been
comprehensively investigated. The ambit
of the chapter is not limited to the investigation of sexual offences and may
also be applied by the police where the HIV status of the offender may be
relevant for the investigation or prosecution of any other offence. Clause
35 of the redrafted Bill
consequently envisages a similar application procedure as in clause 33, by a
police official. Although this clause
is based on clause 33, some of its features have also been taken from section
43 of the Criminal Procedure Act, 1977, which sets out the manner in which a
prosecutor or police official can obtain a warrant of arrest in respect of an
accused person from a magistrate or judge.
13.5.2 In short, clause 35 allows
a police official to apply to a magistrate in chambers for an order that an
alleged offender be tested for HIV. The
magistrate hearing the application must order that the alleged offender be
tested for HIV if he or she is satisfied, on the strength of information taken
on oath or by way of solemn declaration, that an offence was committed against
the victim, and that HIV testing would appear to be necessary for purposes of
investigating or prosecuting the offence.
The results of the tests in this case are only made available to the
investigating officer and alleged offender.
(Clause 33(1)(a)(ii), dealing
with an application by the victim, takes cognisance of the possibility of the
police, during their investigation, already having had the offender tested and
having obtained the test results which can then be made available to the victim.).
13.6 Part 4: Execution of Court
orders:
13.6.1 Clauses 36 and 37 of the redrafted Bill
(Part 4 of the Chapter under discussion) deal with the execution of court
orders for compulsory HIV testing and the issuing of warrants of arrest, as
well as the results of HIV tests.
Clause 36 is modelled largely on clause 5 of the HIV Testing Bill.
13.6.2 Clause 36 of the redrafted
Bill provides that an order for HIV testing must be executed within 60 days
of the commission of the alleged offence, failing which the order lapses. (This period is linked to the 60 day window
period mentioned above). It also
empowers a magistrate to issue a warrant of arrest in respect of an offender
who is likely to avoid compliance with the order. This clause is self-explanatory
and requires no further elaboration.
13.6.3 Clause 37 of the redrafted
Bill deals with the use of HIV test results and differs from the original
HIV Testing Bill. While clause 7 of the
HIV Testing Bill provided that HIV test results are not admissible as evidence
in criminal or civil proceedings, clause 37 sets out the circumstances in which
the HIV test results can be used, namely –
(i) to
inform a victim or interested person whether the alleged offender is infected
with HIV with the view to making informed personal decisions or using them in
any ensuing civil proceedings as a result of the sexual offence in
question; or
(ii) to
enable an investigating officer to gather information with the view to using
the results as evidence in ensuing criminal proceedings.
THE COMMITTEE WAS OF THE VIEW THAT
THE TEST RESULTS SHOULD NOT ONLY BE CONFINED TO USE BY THE VICTIM FOR PURPOSES
OF PERSONAL DECISIONS BUT SHOULD ALSO BE
USED IN THE CASE OF ENSUING CRIMINAL AND CIVIL PROCEEDINGS. THE COMMITTEE, HOWEVER, STRESSED THE
IMPORTANCE OF ENSURING THAT THE ISSUE OF CONFIDENTIALITY IS ADDRESSED
ADEQUATELY ELSEWHERE IN THE BILL (NAMELY, CLAUSE 40).
13.7 Part 5: Miscellaneous matters:
13.7.1 Clauses 38, 39 and 40 of the redrafted Bill
deal with confidentiality issues. Clause 38 requires the National
Commissioner of the South African Police Service to cause all applications made
and orders granted for HIV testing in terms of this Chapter to be recorded and
kept in the manner determined by regulation.
It envisages that access to this information will be prescribed by
regulations. Clause 39 prohibits the communication of the outcome of an
application for a testing order, except to the victim or an interested person,
the alleged offender, the investigating officer and the persons required to
execute the order and clause 40(1)
prohibits the communication of the test results, except to the victim or
interested person, the alleged offender and investigating officer. Clause 40(2) has been inserted to strengthen
the confidentiality provisions and gives the court the power to make any order
it deems appropriate in order to ensure confidentiality, including the manner
in which such HIV test results are to be kept confidential and the manner in
which the court record is to be dealt with.
The origin of these provisions can be traced back to clauses 8 and 10 of
the HIV Testing Bill, respectively.
13.7.2 Clause 41 deals with offences and penalties and provides that any
person who, with malicious intent, lays a criminal charge or makes an
application with the intention of ascertaining the HIV status of an alleged
sexual offender, is guilty of an offence.
It also criminalises the intentional disclosure of the HIV test results
in contravention of clause 41, and makes it an offence for an offender to avoid
compliance with the court order that he or she be tested for HIV. Clause
42 empowers the Minister for Justice and Constitutional Development to make
regulations giving effect to this Chapter.
Similar provisions can be found in clauses 11 and 12 of the HIV Testing
Bill.
14. Chapter
6: National Register for Sex Offenders
Chapter 6 of the Bill deals with the National Register for Sex Offenders
("the Register"), which was inserted pursuant to the deliberations of
the Committee on this aspect.
14.1 Clause 43 of the redrafted
Bill is intended to prohibit the employment of persons who have been
convicted of sexual offences against children and who intend to work with
children in any manner. For instance,
clause 43(1) prohibits any person who has been convicted of a sexual offence
against a child, whether before or after the commencement of this Chapter and
whether committed in or outside the Republic, and whose particulars have been
included in the Register, from working with children in any circumstances
whatsoever. Clause 43(2) prohibits any
employer who provides services to or for children from employing a person with
a conviction for a sexual offence against a child and whose particulars have
been included in the Register and clause 43(3) requires any person whatsoever
who seeks such employment to disclose such conviction, irrespective of whether
his or her particulars have been included in the Register or not. Failure to comply with this clause is
criminalised. (Clause 43(4)). Clause 43(5) provides that any contract of
employment in respect of a person who fails to disclose a conviction of a
sexual offence against a child may be terminated upon discovery of such
conviction or at any time when such person’s employer becomes aware of such
conviction, irrespective of whether such person has committed any sexual
offence during his or her period of employment or not.
14.2 Clause 44 of the redrafted Bill provides for the establishment of
the Register and provides that it will be established and maintained by the
cabinet member responsible for the administration of justice. This cabinet member must designate a fit and
proper person to carry out this function, to be known as the Registrar of the
National Register for Sex Offenders.
14.3 Clause 45 sets out the objects of the Register, namely –
(i) to
have a record of all persons who are convicted of a sexual offence against a
child, whether they are committed before or after the commencement of this
Chapter and whether they are committed in or outside the Republic; and
(ii) to
use that information solely for purposes of providing persons (employers) who
intend to employ persons who will work with children or provide services for
children, with a certificate on whether any particular potential employee
mentioned in the application by the employer has a conviction for a sexual
offence against a child and whose particulars are included in the Register.
14.4 Clause 46 sets out what information must be included in the
Register, namely, the—
(i) names and surnames of
sexual offenders;
(ii) their last known
physical and postal addresses;
(iii) their identification
numbers;
(iv) passport and
driver’s licence particulars;
(v) sexual offence in
respect of which they have been convicted, their sentences; and
(vi) their dates and places
of conviction and any other particulars as may be prescribed by regulation.
14.5 Clause 47(1) sets out the persons whose particulars must be
included in the Register, namely—
(a) a person who, after the commencement of this Chapter, has
been convicted of a sexual offence against a child;
(b) a person who is alleged to have committed a sexual offence
against a child in respect of whom a court, whether before or after the
commencement of this legislation, has made a finding and given a direction in
terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1997 (dealing
with mental capacity to understand criminal proceedings and criminal
responsibility, respectively);
(c) a person who, at the commencement of this legislation, is
serving a sentence of imprisonment as the result of a conviction for a sexual
offence against a child;
(d) a person who, at the commencement of this legislation, has a
previous conviction for a sexual offence against a child; and
(e) any person who, in any court in any foreign jurisdiction –
(i) has
been convicted of any offence equivalent to the commission of a sexual offence
against a child; or
(ii) has
been dealt with in a manner equivalent to that contemplated in paragraph (b),
whether it was committed before or after the
commencement of this Chapter.
14.6 Clause 47(2) and (3)
sets out a court's responsibilities when it has sentenced a person for a
conviction of a sexual offence against a child regarding the inclusion of the
offender's particulars in the Register or when the court has given a direction
in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1977. Clause 47(4) and (5) sets out how the
Commissioner of Correctional Services and the National Commissioner of the
South African Police Service must ensure that the particulars of persons who
are serving prison sentences or who have previous convictions for sexual
offences against children must be forwarded to the Registrar. In similar vein, clause 47(6) regulates how
the Director-General: Health must
ensure that the particulars of persons who are subject to a direction in terms
of section 77(6) or 78(6) of the Criminal Procedure Act, 1977, at the
commencement of this legislation, are forwarded to the Registrar. Clause 47(7) places an obligation on all
persons whose particulars have been forwarded to the Registrar, to ensure that
the Registrar is kept informed of any change of address and it criminalises the
intentional failure to do so.
14.7 Clause 48 of the redrafted
Bill deals with the removal of a person's particulars from the Register. A
person who—
(a) receives a prison sentence of longer than eighteen months or
who has more than one conviction for a sexual offence against a child may not
have his or her particulars removed from the Register;
(b) has been convicted of a sexual offence against a child and is
sentenced to imprisonment for a period between six months and eighteen months
may only have his or her particulars removed from the Register after a period
of ten years has lapsed since he or she has been released from prison;
(c) has been convicted of a sexual offence against a child and is
sentenced to imprisonment for a period up to six months may only have his or
her particulars removed from the Register after a period of seven years has
lapsed since he or she has been released from prison; and
(d) receives any other form of punishment may have his or her
particulars removed from the Register after a period of five years has lapsed
since his or her particulars were included in the Register.
A person who qualifies to have his or her particulars removed from the
Register must apply to the Registrar to have those particulars removed.
14.8 Clause 49 of the redrafted
Bill sets out the categories of persons who are entitled to apply for a
certificate from the Registrar, stating whether or not the particulars of a
person mentioned in the application are
recorded in the Register, before –
(a) employing any person who is to work with children; or
(b) applying for a position to work with children.
The certificate will be prescribed
by regulation.
14.9 Clause 50 deals with the confidentiality and disclosure of
information contained in or obtained from the Register, prohibiting the
unnecessary disclosure thereof. Failure
to comply with this prohibition is criminalised.
14.10 Clause 51 empowers the Minister to make certain regulations
relating thereto, for instance, the manner and format in which the Register is
to be established and maintained, the manner in which persons may apply to the
Registrar for a certificate stating whether a particular person's name is
included in the Register, the period within which a certificate must be
provided to any applicant, access to the Register and the safe-keeping and disposal
of records. Clause 54 contains a number of self-explanatory definitions which
are required for purposes of this Chapter.
14.11.1 It should be mentioned that the Children's Bill, which was approved
by Parliament at the end of 2005, also has provisions creating a register, the
aim of which is to protect children.
Part A of that Register aims to regulate the creation of a record, among
others, to reflect information regarding the abuse or deliberate neglect of
children, the use of information concerned to protect children from further
abuse and information sharing between certain role players. Part B of the Register is intended to
establish a record of persons who are unsuitable to work with children.
Registers: There are a number of important similarities
between Chapter 6 of the redrafted Bill [the establishment
of a National Register for Sex Offenders (“Offender Register”)] and Chapter 7
of the Children’s Bill dealing
with a National Child Protection Register (“Protection Register”). These may be summarised as follows:
(i) Purpose:
Offender Register
- provide potential employers with information to determine whether persons who
intend
working with children have been convicted of sexual offences against children,
Protection Register
- use of information to protect children in general against abuse from
unsuitable persons;
(ii) Consequences:
Offender Register
- a convicted person, whose particulars have been included in the Register, may
not work with children in any manner that places him/her in a
position of authority, supervision or care of children and must disclose the fact
that he/she was convicted of a sexual offence against a child when applying
to work with children. Potential
employers may not employ or make use of the services of persons
whose names appear in the Register,
Protection Register - a person
whose name appears in Part B of the Register may not work with children in
any manner that places him/her in a position of authority, supervision or care
of children. Affected persons
may also not become foster parents, kinship care-givers or adoptive parents of
children; and
(iii) Disclosure:
Offender Register
- a person who has been convicted of a
sexual offence against a child must disclose such conviction when applying for
employment that will place him or her in a position of authority or care
of children,
Protection
Register - a person whose name has been entered in Part B of the
Register must disclose the fact to his or her potential employer
if that person intends “working with children”.
A number of differences
exist between the two sets of provisions, namely—
(i) Establishment:
Offender Register
- established and maintained by the Justice Minister who must designate a fit
and proper person as Registrar of the Register,
Protection Register
- the Director-General: Social
Development must keep and maintain the Register;
(ii) Affected persons:
Offender Register
- persons who, before or after commencement of the Act, have been convicted of sexual
offences against children,
Protection Register
- inclusion of a person’s particulars is dependent on a finding of
unsuitability to work with children which may be made by a
children’s court, any other court in any criminal or civil proceedings or
any disciplinary forum in proceedings concerning a person’s conduct in relation
to a child. However, a criminal
court must find a person unsuitable to work with children if that person is
convicted of murder, attempted murder, rape, sexual abuse
or assault with the intent to do grievous bodily harm with regard to a
child;
(iii) Notification:
Offender Register
- the Registrar or clerk of the court, Commissioners of SAPS and Correctional
Services and the Director-General: Health must forward the particulars of
relevant persons to the Registrar,
Protection Register - Registrar
of the relevant court, the relevant administrative forum or person who brought
an application for a finding that a person is unsuitable to work with children
must notify the Director- General: Social Development of any finding of unsuitability and of any
appeal or review lodged by an affected person;
(iv) Removal of particulars:
Offender Register - an affected person’s name may be removed from the
Register after a certain period has lapsed, but the particulars of a
person who has—
* been
sentenced for a conviction of a sexual offence against a child to a term of
imprisonment without
the option of a fine for a period exceeding 18 months; or
* more
than one conviction of a sexual offence against a child,
may not be removed from the Register,
Protection Register - an application on the ground that the affected
person has been rehabilitated, may only be made after at least five years have lapsed since the
relevant particulars have been included in the Register. The particulars of a person with more than
one conviction may not be removed from the Register.
15. Chapter 7: General Provisions:
This Chapter contains five Parts.
15.1 Part 1:
Defences, evidentiary matters and extra-territorial jurisdiction:
15.1.1 Clause 53 contains defences to some of the offences created in the
Bill. Clause 53(1) provides that it
is not a valid defence for an accused person to contend that a marital or other
relationship existed between him or her and the complainant in respect of
offences of—
(a) rape (clause 3);
(b) compelled rape (clause
4);
(c) sexual assault (clause 5);
(d) compelled sexual
assault (clause 6); and
(e) compelled self-sexual
assault (clause 7),
created in the Bill.
15.1.2 Clause 53(2) sets out a number of valid defences in respect of some
offences created in the Bill, for instance –
(i) in
the case of a mentally disabled complainant, where the accused person reasonably
believed that the complainant was not mentally disabled and was over 18 years;
(ii) in
the case of a child complainant, that the child deceived the accused person
into believing that he or she was 16 years or older and the accused person
reasonably so believed; and
(iii) in the case of a charge involving the sexual violation of a
child, that both persons involved in the commission of the offence were below
16 years and the age difference between the two of them was less than two
years.
15.1.3 Clause 53(4) provides
that a person may not be convicted of an offence contemplated in section 16(3),
(4) or (5) or section 23(3), (4) or (5) if the accused person is a child. These provisions deal with the sexual
exploitation of children and mentally disabled persons, respectively. Clauses 16(3) and 23(3) criminalise the
intentional failure of a person to report their "knowledge" of the
sexual exploitation of a child or mentally disabled person. Clauses 16(4) and 23(4) provide that any
person who intentionally receives financial or other reward, favour or
compensation from the commission of a sexual act with a child or mentally
disabled person by another person is guilty of an offence. Clauses 16(5) and 23(5) criminalise living
from the earnings of the sexual exploitation of a child or mentally disabled
person.
Introduced Bill
15.1.4 Statements that
were made by witnesses prior to testifying in criminal proceedings are
prohibited in terms of the common law rule against
"self-corroboration". One of
the exceptions to this rule includes the admission of evidence that the
complainant in a sexual case made a complaint soon after the alleged offence,
the so-called "first report".
The SALRC pointed out that where the complainant did not make a
statement at "the first reasonable opportunity, the defence usually
advances the argument that a negative inference should be drawn about the
credibility of the complainant". Clause 17 of the introduced
Bill clearly states that a negative inference may not be drawn only from
the absence of a previous consistent statement relating to the offence, or from
a delay in reporting the alleged offence.
Redrafted Bill
15.1.5 Clauses 54
and 55 of the redrafted Bill deal with “evidence of previous consistent
statements” and “evidence of delay in reporting”, respectively. Statements that were made by witnesses prior
to testifying in criminal proceedings are prohibited in terms of the common law
rule against "self-corroboration".
One of the exceptions to this rule includes the admission of evidence
that the complainant in a sexual case made a complaint soon after the alleged
offence, the so-called "first report". It should be pointed out that where the complainant did not make
a statement at "the first reasonable opportunity, the defence usually
advances the argument that a negative inference should be drawn about the
credibility of the complainant".
Clauses 54 and 55 therefore clearly state that a negative inference may
not be drawn on account of the absence of a previous consistent statement
relating to the offence, or from a delay in reporting the alleged offence.
Introduced Bill
15.1.6 Clause 22 of the introduced
Bill deals with extra-territorial jurisdiction. Currently the jurisdiction of our courts is limited to the South
African territory and does not extend to offences committed by South Africans
in other jurisdictions. The SALRC
pointed out that children and adults are in need of increased protection on a
local as well as on an international level as far as sexual offences are
concerned. Customary international law
permits every state to apply its jurisdiction against its own citizens even
when they are situated outside its boundaries.
However, as there is a presumption against the extra-territorial
operation of criminal laws, clause 22
contains a provision expressly conferring jurisdiction on the South African
courts in these circumstances.
Redrafted Bill
15.1.7 Clause 56 of the
redrafted Bill aims to clarify the jurisdiction of a court of the Republic in
respect of the alleged perpetrator and victim as well as the place where the
crime was committed. This provision is
similar to section 35 of the Prevention and Combating of Corrupt Activities
Act, 2004 (Act 12 of 2004), and section 4 of the Implementation of the Rome
Statute of the International Criminal Court Act, 2002 (Act 27 of 2002).
15.2 Part 2:
National Policy Framework:
Introduced Bill
15.2.1 The SALRC recommended the
inclusion of special provisions regarding the implementation of the legislation
to deal with the creation and maintenance of a national policy framework to
guide the implementation, enforcement and administration of the Bill. It was felt that too elaborate provisions in
this regard could give rise to delays and difficulties in implementing the
legislation. The provisions of the
SALRC draft Bill, dealing with the establishment and maintaining of a national
policy framework were reduced and simplified substantially in the Introduced
Bill. A simple provision giving the
Justice Minister the responsibility for the implementation of the legislation,
including a policy framework, was therefore inserted in the Introduced Bill in
the form of clause 24.
Redrafted Bill
15.2.2 Clauses 57 to 60 of the redrafted Bill
purport to regulate the National Policy Framework. The provisions of the Introduced Bill were therefore redrafted at
the request of the Portfolio Committee to give effect to the following:
(i) the
adoption of a national policy framework to ensure a uniform and co-ordinated
approach by all Government departments in dealing with sexual offences matters
and to guide the implementation, enforcement and administration of the Act (clause 57 of the redrafted Bill); and
(ii) the
establishment of an Intersectoral Committee that will be responsible for
developing and compiling a draft national policy framework (to be submitted to
the Minister for adoption) that will, among others, facilitate the
implementation of the Act and the monitoring of the implementation of the Act (clauses 58 to 60 of the redrafted Bill).
15.3 Part 3:
National instructions and directives, regulations and repeal and
amendment of laws:
Introduced Bill
15.3.1 Clause 15 deals with vulnerable witnesses, and is aimed at
improving the quality of the evidence given by witnesses, improving witnesses'
experience of testifying in court and encouraging witnesses to come
forward. The SALRC pointed out that
children and victims of sexual offences are potentially more vulnerable than
other witnesses, due to the nature of the offence. In terms of this clause any complainant or child witness will
automatically be declared vulnerable.
Other witnesses may be declared vulnerable by the court on account of
age, intellectual impairment, trauma, cultural differences or the possibility
of intimidation. The court may
determine that protective measures should be applied in respect of a vulnerable
witness, that may include¾
* giving of evidence by
way of closed circuit television as provided for in section 158 of the Criminal
Procedure Act, 1977;
* giving of evidence
through an intermediary as provided for in section 170A of the Criminal
Procedure Act, 1977;
* proceedings taking
place in camera as provided for in section 153 of the Criminal Procedure
Act, 1977; and
* prohibiting the
publication of any information as provided for in section 154 of the Criminal
Procedure Act, 1977.
Redrafted Bill
15.3.2 Part 3 of Chapter 7 of the
redrafted Bill is intended to
replace the provisions recommended by the SALRC, dealing with protective
measures for witnesses and vulnerable witnesses.
15.3.3 THE COMMITTEE WAS OF THE OPINION THAT THE AIM OF THESE ORIGINAL
PROVISIONS COULD BE ACHIEVED BY MEANS OF NATIONAL INSTRUCTIONS OF THE NATIONAL
COMMISSIONER OF THE SOUTH AFRICAN POLICE SERVICE AND DIRECTIVES OF THE NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS SINCE THE PROSECUTING AUTHORITY AND THE POLICE
ARE TRADITIONALLY RESPONSIBLE AND BETTER PLACED TO LOOK AFTER THE INTERESTS OF
WITNESSES. Such an approach will
also ensure that witnesses are treated the same, in terms of centralised
(national) prescripts and will not be dependent on the possible varying
decisions of the different courts.
These national prescripts will also take into account cost implications
and feasibility considerations.
15.3.4 Clause 61(1) of the redrafted Bill deals with National Instructions
required to be issued by the National Commissioner of the South African Police
Service and envisages National Instructions, for instance, on the manner in
which the reporting of an alleged sexual offence is to be dealt with by police
officials and the manner in which sexual offences cases are to be investigated
by police officials, including the circumstances in
which an investigation in respect of a sexual offence may be discontinued.
15.3.5 Clause 61(2), in similar vein, deals with Directives required to be
issued by the National Director of Public Prosecutions, namely—
(i) The
manner in which sexual offence cases should be dealt with in general, including
the circumstances in which a charge may be withdrawn or a prosecution stopped;
(ii) the
circumstances in which the prosecution must apply to court for an order that a
witness give evidence by means of closed circuit television as provided for in
section 158 of the Criminal Procedure Act, 1977;
(iii) the
circumstances in which the prosecution must request the court to consider
appointing a competent person as an intermediary as provided for in section
170A of the Criminal Procedure Act, 1977;
(iv) the
circumstances in which the prosecution must request the court to consider
directing that the proceedings may not take place in open court as provided for
in section 153 of the Criminal Procedure Act, 1977;
(v) the
circumstances in which the prosecution must request the court to consider
prohibiting the publication of the identity of the complainant in the case as
provided for in section 154 of the Criminal Procedure Act, 1977, or of the
complainant's family, including the publication of information that may lead to
the identification of the complainant or the complainant's family;
(vi) the
circumstances and manner in which Directors of Public Prosecution should
authorise and institute a prosecution contemplated in clause 15(2), dealing
with consensual sexual assault with the view to ensuring uniformity;
(vii) the
information to be placed before a court during sentencing, including
pre-sentence reports and information on the impact of the sexual offence on the
complainant; and
(viii) the
manner in which prosecutors must ensure that an order contemplated in clause
47(2)(a) (dealing with an order of a
court to include the accused's name in the Register) is forwarded to and
received by the Registrar of the National Register for Sex Offenders.
15.3.6 Both the National
Commissioner and National Director are required, in terms of this clause, to
develop relevant training courses with a view to building a dedicated and
experienced pool of trained and specialised functionaries who are able to deal
with sexual offences cases in an efficient and sensitive manner. Similar provisions have been included in
respect of health officials (See clause 61(3)). Lastly, provision has been made in this clause for these
prescripts to be submitted to Parliament.
15.3.7 Clause 62 empowers
the Minister to make regulations which give effect to the Bill and clause 63 deals with the repeal and
amendment of laws.
15.3.8 Clause 63(1) aims to repeal the—
(a) irrebutable presumption
that a female person under 12 years is incapable of consenting to sexual intercourse; and
(b) common law crimes of rape, indecent assault, incest,
bestiality and violation of a corpse (insofar as it relates to the commission
of a sexual act with a corpse).
15.3.9 Clause 63(2) refers to the Schedule to the Bill which deals
primarily with consequential amendments to certain Acts as a result of the
provisions of the Bill, for example, the—
(i) repeal
of certain statutory offences contained in the Sexual Offences Act, 1957 (Act
23 of 1957);
(ii) amendment
of certain provisions of the Criminal Procedure Act, 1977 (Act 51 of 1977), in
order to ensure compliance with the provisions of the Bill where necessary; and
(iii) amendment of the Criminal Law Amendment Act, 1997 (Act
105 of 1997), by ensuring that certain offences are subject to the imposition
of minimum sentences.
15.4 Part 4:
Transitional provisions:
Clause 64, containing transitional provisions, aims to clarify
the position that all criminal proceedings relating to common law offences (to
be repealed by the Act) which are instituted prior to the commencement of the
Act and which are not concluded before the commencement of the Act, must be
continued and concluded as if the Bill had not been passed. The clause provides that —
(i) All
criminal proceedings relating to the common law crimes referred to in clause
63(1) which were instituted prior to the commencement of this Act and which are
not concluded before the commencement of this Act must be continued and concluded in all respects as
if this Act had not been passed;
(ii) an
investigation or prosecution or other legal proceedings in respect of conduct
which would have constituted one of the common law crimes referred to in clause
63(1) which was initiated before the commencement of this Act may be concluded,
instituted and continued as if this Act had not been passed; and
(iii) despite the repeal or amendment of any provision of any law by
this Act, such provision, for purposes of the disposal of any investigation,
prosecution or any criminal or legal proceedings contemplated in subclause (1)
or (2), remains in force as if such provision had not been repealed or amended.
15.5 Part 5:
Transitional provisions relating to trafficking in persons for sexual
purposes:
Introduced Bill
15.5.1 IT WAS AGREED IN THE COMMITTEE THAT THE DEPARTMENT SHOULD INSERT A NEW
PROVISION IN THE BILL DEALING WITH THE TRAFFICKING OF PERSONS. This emanated from clause 11 of the
Introduced Bill which aimed to criminalise the activities of the various
role-players involved in “Child Prostitution”.
Subclause (1)(d) provided that
a person is guilty of an offence if he or she, in relation to a child, for
financial or other reward, favour or compensation to such child or to any other
person, intentionally—
(d) supplies, recruits, transports,
transfers, harbours or receives such child, within or across the borders of the
Republic, for purposes of the commission of indecent acts or acts which cause
penetration with such child by any person;
Redrafted Bill
15.5.2 SINCE THIS PARAGRAPH RELATED TO TRAFFICKING, BUT WAS LIMITED TO THE TRAFFICKING
OF CHILDREN, THE COMMITTEE AGREED THAT THE DEPARTMENT SHOULD REDRAFT THE
PARAGRAPH AS A NEW SEPARATE PROVISION DEALING WITH TRAFFICKING OF PERSONS. The aim of this clause, in contrast to
clause 11(1)(d) of the introduced
Bill, is to¾
* elevate “Trafficking”
to a separate and substantive offence;
* recognise
that persons generally, but especially women and children, fall victim to
“Trafficking”; and
* bring
South Africa partially within the purview of the provisions of the Protocol to
Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children.
15.5.3 THE COMMITTEE RECOGNISED THAT THE AMBIT OF THE CLAUSE WOULD BE
LIMITED TO SEXUAL OFFENCES, BUT HIGHLIGHTED THAT AN APPARENT PRESSING NEED
EXISTS TO AFFORD PROTECTION TO VICTIMS IN THIS REGARD. THE PROVISION IS THERFORE REGARDED AS AN
INTERIM MEASURE, PENDING THE FINAL OUTCOME OF THE INVESTIGATION BY THE SALRC
INTO THE TRAFFICKING IN PERSONS.
15.5.4 Because of the
interim nature of these provisions, the two clauses dealing with trafficking
have been placed at the end of the Bill under the heading of transitional
provisions. The following is
highlighted regarding these two clauses:
(i) Clause 65 deals with the application
and interpretation of this Part. Clause
65(1) provides that pending "the adoption of legislation in compliance
with the United Nations Protocol to Prevent, Suppress and Punish Trafficking in
Persons, especially Women and Children, Supplementing the United Nations
Convention against Transnational Organized Crime and the repeal of this Part,
the transitional provisions in this Part relating to the trafficking in persons
for sexual purposes are provisionally provided for in partial compliance of our
international obligations and to deal with this rapidly growing phenomena
globally.".
(ii) "Trafficking"
has been defined as follows in clause 65:
"'trafficking' includes the
supply, recruitment, procurement, capture, removal, transportation, transfer,
harbouring, sale, disposal or receiving of a person, within or across the
borders of the Republic, by means of—
(a) a
threat of harm;
(b) the
threat or use of force, intimidation or other forms of coercion;
(c) abduction;
(d) fraud;
(e) deception
or false pretences;
(f) the abuse of power or of a position of vulnerability,
to the extent that the complainant is inhibited from indicating his or her
unwillingness or resistance to being trafficked, or unwillingness to
participate in such an act; or
(g) the
giving or receiving of payments or benefits,
for the purpose of any form or
manner of sexual exploitation, grooming or abuse of such person, whether
committed in or outside the borders of the Republic, including for the purpose
of the commission of a sexual offence or sexual act, or sexual exploitation or
sexual grooming as contemplated in this Act, or exploitation for purposes of
pornography or prostitution, with, against or of such person, and 'trafficks'
and 'trafficked' have a corresponding meaning.".
(iii) Clause 66(1)
provides that a person ("A") who trafficks any person
("B"), without the consent of B, is guilty of the offence of
trafficking in persons for sexual purposes.
Clause 66(2) and (3) deal with the issue of consent in similar vein to
the manner consent is dealt with in clause 1 of the Bill, with a few
adaptations where required.
(iv) Clause 66(4) provides that a person who
–
(a) orders,
commands, organises, supervises, controls or directs trafficking;
(b) performs any act which is aimed at committing,
causing, bringing about, encouraging, promoting, contributing towards or
participating in trafficking; or
(c) incites, instigates, commands, aids, advises,
recruits, encourages or procures any other person to commit, cause, bring
about, promote, perform, contribute towards or participate in trafficking,
is guilty of an offence.
(v) Clause 66(5) is intended to protect a
person who has been trafficked from being prosecuted for certain criminal
offences, for instance any migration-related offence or prostitution.
(vi) Clause 66(6) provides that a commercial
carrier (which is defined in clause 65) commits an offence if the carrier
brings a person into or removes a person from the Republic if the person does
not have the travel documents required for lawful entry into or departure from
the Republic. It, however, spells out
certain circumstances in which the carrier will not be so guilty, for instance
if the carrier had reasonable grounds to believe that the travel documents of a
person were in order. This subclause
also makes the carrier liable to pay the costs of the trafficked person's care
and safekeeping and return from the Republic, in addition to being convicted of
the offence.
15.5.5 It should be noted that the Children’s Bill also contains provisions
dealing with trafficking: In
comparing the two sets of trafficking provisions it becomes apparent that
clauses 281 to 291 of the Children’s Bill aim to criminalise the trafficking in
children for purposes of exploitation (i.e all forms of slavery, sexual
exploitation, servitude, forced labour or services, child labour and the
removal of body parts). The ambit of the provisions contained in the
Children’s Bill is wider than that of the provisions in the redrafted
Bill. The relevant provisions of the
Children’s Bill aim to deal, among others, with assistance to children who are
victims of trafficking, reporting of child victims of trafficking, child
victims of trafficking found in the Republic and the repatriation of child
victims of trafficking. However, the
relevant provisions only deal with the trafficking of children (i.e persons under the age
of 18 years),
whereas the trafficking provisions in the redrafted Bill aim to criminalise the
trafficking of any person (i.e children and adults) for the purpose of any form or manner of sexual exploitation.
15.6 Clause 67 is the short title and commencement clause.
PART
III
SCHEDULE TO THE REDRAFTED BILL (LAWS
AMENDED OR REPEALED)
16. Schedule to the Bill
It should be noted that there are no material differences between the
Bill as proposed by the SALRC and the Introduced Bill. What follows is an indication of differences
between the Introduced Bill and the Redrafted Bill.
16.1 Proposed
amendments of the Sexual Offences Act 23 of 1957:
Introduced Bill
Proposed repeal of sections –
* 9 (Parent
or guardian procuring defilement of child or ward);
* 11 (Conspiracy
to defile);
* 13 (Abduction);
* 14 (Sexual offences with youths);
* 15 (Sexual offences with idiots or imbeciles);
* 18 (Use of drugs, etc, for purposes of defilement of
females);
* 18A (Manufacture,
sale or supply of article which is intended to be used to perform an unnatural
sexual act); and
* 20A
(Acts committed between men at a party and which are calculated to
stimulate sexual passion or to give sexual gratification, prohibited),
is as a direct result from the substantive provisions contained in the
introduced Bill.
Redrafted Bill
Is similar to the above but a new amendment is proposed whereby a
definition of “person” is to be inserted in Act 23 of 1957 so as to ensure that
the remaining provisions are only applicable in respect of adults.
The
definition reads as follows: ‘“person”
means a person of 18 years and older;’
The Bill
decriminalises the actions of child prostitutes in regard to the act of
prostitution. A child is defined as a
person below the age of 18 years. The
purpose of the amendment is to clarify that the remaining provisions in the
Sexual Offences Act are only applicable to adult prostitution, i.e. persons
older than 18. Adult Prostitution is
not dealt with in terms of the Bill and is the subject of an investigation at
the SALRC.
16.2 Proposed
amendments of the Criminal Procedure Act 51 of 1977
16.2.1 Section 18: Prescription of right to institute prosecution
Introduced Bill
Item 1 contains a proposed amendment to section 18 of Act 51 of 1977
(Prescription of right to institute prosecution) so as to include “oral genital
sexual violation” and “sexual violation” under list of offences in respect of
which the right to institute a prosecution never prescribes.
Redrafted Bill
In keeping with the new definition of rape the references to “oral
genital sexual violation” and “sexual violation” have been removed. The proposed amendment has been extended to
include the offences contained in clauses 3 (rape), 4 (compelled rape), 5 (sexual assault), 6 (compelled sexual assault), 7 (compelled self-sexual assault) and 16 to 29 (offences in
respect of children and mentally disabled persons).
16.2.2 Section 145
Introduced Bill
The
proposed amendment to section 145 of Act 51 of 1977, reflected in Item 2, is
aimed at ensuring that a presiding officer may be assisted by an assessor in a
sexual offence case who has knowledge or experience of child development, the
impact of sexual offences on victims and the characteristics of sexual
offenders. A similar amendment is
introduced into section 93ter of the
Magistrates' Courts Act, 1944, which also deals with assessors (see Item 14 of
the Schedule).
Redrafted Bill
This has been deleted. As this provision would be applicable to sexual
offences outside the ambit of the Bill, for example in relation to adult
prostitution, it was felt that this provision was undesirable and should
therefore not be enacted. It was also
felt that the amendment set too high a standard for one to qualify as an
assessor in a sexual offence case.
16.2.3 Section 154
Introduced Bill
The SALRC pointed out that details of victims of sexual offences, and in
particular children, and of persons alleged to be the accused, but not yet
formally identified as such or charged, are regularly published contrary to the
prohibition contained in section 154 of Act 51 of 1977. The proposed amendment represents a
recommendation that the prosecuting authority should focus its attention on
prosecuting recalcitrant publishers and media houses and that the penalty
provided in sections 154 and 335A should be increased. Furthermore, section
300 of the Criminal Procedure Act is made applicable in order to assist those
victims who have suffered damages as a result of their personal details being
published in contravention of section 154 of the Criminal Procedure Act. Section 300 regulates compensatory awards.
Redrafted Bill
The proposed amendment has been retained but the proposed penalties have
been increased. The penalty for unauthorised disclosure of the
identity of a victim of sexual offences is increased to a fine or imprisonment
for a period not exceeding three years (as opposed to two years) or to both
such fine and imprisonment and where the victim is under the age of 18 to a
fine or to imprisonment for a period not exceeding five years (as opposed to
three years) or to both such fine and such imprisonment.
The
reference to “indecent act” is replaced with “sexual act”.
16.2.4 Section 158
Introduced Bill
In S v F 1999 (1) SACR 571 at 578j,
section 158(3) was read cumulatively, which meant that the factors listed in
the subsection had to co-exist before the court could order that a witness or
accused may give evidence by means of a closed circuit television or similar electronic
device. In legal drafting the word
“and” is usually used when the paragraphs are cumulative and “or” is used when
they are disjunctive. The placing of
“and” and “or” is a matter of custom, but can lead to uncertainty. The Commission elected to resolve the
uncertainty pertaining to subsection (3) by making it clear that the existence
of any one of the criteria is sufficient to justify the making of an order for
closed-circuit television to be used.
The word “either” was inserted to bring this about.
Redrafted Bill
The proposed amendment has been omitted. It was felt that a proper reading of the
section would not bring about any uncertainty.
16.2.5 Section 164
Introduced Bill
Section 164 is used principally for receiving the
unsworn evidence of children but it is also intended to be used by persons
without the intellectual capacity to understand the nature of the oath. Frequently a child is found to be an
incompetent witness on the basis that the child does not understand the oath
or, when questioned, is not able to explain the difference between telling the
truth and a lie. This decision is made
despite the fact that the witness may be able to tell the court quite
accurately what happened to him or her, understand questions put to him or her
and answer these questions intelligibly and honestly. The threshold which a
potential witness has to meet in order to be found competent to testify often
acts as an exclusionary measure. The
proposed amendment is aimed at ameliorating the exclusionary nature of the
existing provision by allowing all evidence subject to the admonishment of the
presiding officer that the truth be told.
The proviso that the person needs to be found not to understand the
nature and import of the oath or the affirmation is deleted.
Redrafted Bill
The proposed amendment has been amended to retain the
proviso that the person must first be found not to understand the nature and
import of the oath or the affirmation before being admitted to give
evidence. The proposed proviso that
evidence be allowed where the person is able to understand the questions put to
him or her and to respond to such questions in a manner which is intelligible
has been deleted.
16.2.6 Section 166
Introduced Bill
Section
166 is amended by the addition of subsection (4) to provide that an
unrepresented accused may only question a vulnerable witness through the
presiding officer.
Redrafted Bill
This
amendment has been omitted. It was felt
that it is the responsibility of the presiding officer to monitor conduct in
court and that this provision is therefore superfluous.
16.2.7 Section 170A
Introduced Bill
Section
170A was amended to regulate the role of an intermediary in relation to
vulnerable witnesses. It was also
amended to ensure the attendance and accountability of an intermediary in court
in order to address the present tardiness and non-accountability of some
intermediaries.
Redrafted Bill
As the
substantive provision allowing for vulnerable witnesses has been deleted, the
proposed insertion of subsection (7) regulating the role of an intermediary in
relation to vulnerable witnesses has also been
deleted. The concern was raised that
currently only witnesses under the age of 18 may be assisted by an intermediary
despite the fact that although they are older than 18 years, their mental age
may be below 18 years of age. For this
reason subsection (1) has been amended to provide that an intermediary may
assist a witness who is under the biological or mental age of eighteen years
where such witness will be subjected to undue mental stress or suffering if he
or she testifies at such proceedings.
The provision ensuring the attendance and accountability of an
intermediary to the court remains as is.
16.2.8 New section 192A: Children competent to testify in criminal proceedings
Introduced Bill
Section
192 provides that every witness is competent and compellable to testify unless
expressly excluded. Section 192A was
inserted to expressly provide that all children (not only witnesses in sexual
offence matters) are competent to testify in criminal proceedings. This was done so as not to create an
artificial distinction between children in sexual offence matters and other
child witnesses.
Redrafted Bill
This
provision has been omitted. It was referred
to the Department of Justice in the form of a resolution as this section
applies to all children and not just children who are victims or witnesses of a
sexual offence. The Portfolio Committee
was concerned that the extension of this provision to all children fell outside
of its mandate in respect of this Bill.
16.2.9 Section 195
Introduced Bill
In terms of section 195 the wife or husband of an accused is competent
and compellable to give evidence for the prosecution where the accused is inter alia charged with any offence
committed against the person of either of them or of a child of either of
them. The amendment includes the words
‘a child that is in the care of either of them’. This amendment reflects the reality that a non-biological child may
be in a spouse’s care and that the wife or husband should also be compellable
to testify under those circumstances.
Redrafted Bill
This proposal remains unchanged.
16.2.10 Section 227
Introduced Bill
Section 227 has been amended to delineate the circumstances
in which evidence of previous sexual history may be adduced. The amendment is aimed at tempering the
unfettered discretion of presiding officers to determine the admissibility of
such evidence on the broad and subjective basis of relevance.
Redrafted Bill
The proposed amendment has been amended slightly, primarily to bring it
in line with a similar provision in Canada and changes brought about in the
text of the Bill. In subsection (1)
reference to “any offence of an indecent nature” has been substituted with
reference to “a sexual offence as contemplated in the Bill”. Subsection (2) has been amended to extend
the reach of section 227 beyond questions relating to sexual conduct to
evidence or questions in cross examination in order to ensure that the
prosecution is allowed to adduce evidence in this regard. Subsection (5) has been amended by deleting
the prohibition against granting an application to introduce sexual history
where it relates to the sexual reputation of the complainant where it is
intended to challenge or support the credibility of the complainant. This would bar the prosecution from leading
such evidence in favour of the complainant.
16.2.11 Section 238
Introduced Bill
The
existing section 238 creates a statutory presumption in respect of incest. The proposed amendment aims to bring section
238 into line with the “gender neutral” approach adopted in the introduced Bill
regarding incest. It also expands the
reach of the offence to non-penetrative sexual abuse.
Redrafted Bill
The proposed amendment has been retained. In addition, the word “incest” has been replaced with reference
to the relevant clause in the redrafted Bill.
16.2.12 Section 276A
Introduced Bill
Section 276 was amended by providing that a person convicted of any
sexual offence shall, if practicable and if the convicted person demonstrates
the potential to benefit from treatment, include the attendance of and
participation in a sex offence specific accredited treatment programme, the
cost of which shall be borne by the convicted person or the State if the court
is satisfied that the convicted person has no adequate means to bear such
cost. To address the shortness of the
period for which correctional supervision may be imposed, the period of
correctional supervision has been extended from three to five years.
Redrafted Bill
In essence the proposal has been retained. The only amendment is the deletion of the obligation on the State
to bear the cost of such treatment.
16.2.13 Section 335A
Introduced Bill
The penalty provision in section 335A for publication of information in
contravention of this section has been revised upwardly. Provision is also made
in section 300 for a compensatory financial order in this regard.
Redrafted Bill
This provision remains unchanged.
16.3 Proposed
amendment of the Magistrates’ Courts Act 32 of 1944
Section 93ter
Introduced Bill
The proposed amendment which is identical to the amendment proposed to
section 145 of the Criminal Procedure Act is aimed at ensuring that a presiding
officer may be assisted by an assessor in a sexual offence case who has
knowledge or experience of child development, the impact of sexual offences on
victims and the characteristics of sexual offenders.
Redrafted Bill
This proposal has been deleted. As this provision would be applicable to sexual offences outside the
ambit of the Bill, for example adult prostitution, it was felt that this
provision was undesirable and should therefore not be enacted. It was also felt that the amendment set too high
a standard for one to qualify as an assessor in a sexual offence case.
16.3 Proposed
amendment of the Prescription Act 68 of 1969
Section 12
Introduced Bill
Section 12 is amended to provide that the basic limitation period does
not run while a person who has a claim is incapable of commencing proceedings
because of his or her physical, mental or psychological condition and that the
person who has a claim based on sexual abuse is presumed to have been incapable
of commencing the proceedings earlier than it was commenced.
Redrafted Bill
The rebuttable presumption that a person who has a claim is unable to
institute proceedings earlier than he or she actually instituted the claim is
deleted.
16.4 Proposed
amendment of the Business Act 71 of 1991
Amendment
of Item 2 of Schedule 1
Introduced Bill
This proposal aims to address a gap in the proposed child prostitution
offence by regulating sex-on-site or recreational sex venues. These venues fall outside the traditional
definition of brothel as patrons do not have sex with each other in return for
money. Where neither alcohol nor adult
material is sold these venues are not governed by any laws or regulations and
admit persons of any age. Examples of
such venues include so-called darkrooms and cruise bars found at some places of
entertainment. As most of these venues
do not have Turkish baths or offer massages or escort services, these venues
need not register under Item 2 of Schedule 1 of the Business Act, 71 of 1991
and are therefore not subject to any form of licensing or regulation. In other jurisdictions these venues are
regulated stringently, have strict health regulations, prohibit entrance to
children and often prohibit the sale of alcohol.
Redrafted Bill
This provision has been deleted as it was felt that
such businesses are already illegal and that there was therefore no need for
this provision
16.5 Proposed
amendments of the Criminal Law Amendment Act 105 of 1997
Schedule 2
Introduced Bill
(i) Act 105 of 1997 prescribes the
punishment of offenders found guilty of indecent assault (sodomy), bestiality
or rape. The SALRC proposed that oral
genital sexual violation of a person below the age of 16 years and sexual
violation involving the infliction of grievous harm should be added as offences
qualifying for a sentence of life imprisonment. It further recommended that (ordinary) sexual violation and
oral genital sexual violation where the victim was 16 years of age or older
should qualify for the terms of imprisonment currently imposed for offences
referred to in Part III of Schedule 2 to the Criminal Law Amendment Act,
1997. It should also be noted that
Schedule 2, in some instances, makes a differentiation based on gender. The proposed amendment, among others, aims
to make sexual offences gender neutral.
(ii) The SALRC also recommended that the
reference to "grievous bodily
harm" in relation to some of the sexual offences reflected in Schedule
2 should be amended to read "grievous
harm" which will provide for those instances where the infliction of
bodily harm may be absent, or may be present but co-existing with psychological
trauma suffered by the victim.
Redrafted Bill
The proposed amendment has, in essence, remained the same except for the
following:
* Proposed amendment to
replace "grievous
bodily harm" with "grievous harm" has been omitted;
* reference to “rape” in Part I has been replaced with
reference to “rape” (clause 3) and “compelled rape”
(clause 4) as contemplated in the redrafted Bill;
* reference to “indecent assault” has been replaced
with reference to “sexual assault”
(clause 5), “compelled sexual assault” (clause 6)
and “compelled self-sexual assault”
(clause 7) of the redrafted
Bill; and
* references
to “sexual exploitation of child”
(clause 16), “sexual grooming of child” (clause 17), “sexual exploitation of mentally disabled person” (clause 23) and “sexual grooming of mentally disabled
person” (clause 24) have been included in the proposed amendment of Part
III of the relevant schedule.
16.5 Proposed
amendment of the Prevention of Organised Crime Act 121 of 1998
Introduced Bill
No proposals were made.
Redrafted Bill
PART
IV
DRAFT COMMITTEE REPORT
17. THE COMMITTEE ALSO REQUESTED THE DEPARTMENT TO PREPARE A DRAFT
COMMITTEE REPORT BASED ON THE DELIBERATIONS OF THE COMMITTEE PRIOR TO THE 2004
ELECTIONS. THE FOLLOWING DRAFT REPORT
IS TABLED FOR CONSIDERATION:
“DRAFT REPORT
Report of
the Portfolio Committee on Justice and Constitutional Development on the Criminal Law (Sexual Offences) Amendment
Bill [B50 - 2003] (National Assembly – sec 75), dated XXX 2006:
The
Portfolio Committee on Justice and Constitutional Development, having
considered the subject matter of the Criminal
Law (Sexual Offences) Amendment Bill [B 50 – 2003] (National Assembly – sec
75), referred to it and classified by the Joint Tagging Mechanism as a section
75 Bill, endorses the classification of the Bill and reports the Bill with
amendments [B-2003].
The
Committee wishes to report further, as follows:
1. Clause 18 of the Bill, as introduced, reads as
follows:
“Application
of caution and requirement for corroboration
18. Despite the provisions of the common law, any
other law or any rule of practice, a court must not treat the evidence of a
witness in criminal proceedings pending before that court with caution and must
not call for corroboration of evidence solely on account of the fact that the
witness is –
(a) the
complainant of a sexual offence; or
(b) a
child.”.
While
not wishing to express a view for or against the provision at this stage, which
confines itself to sexual offences and children, the Committee raised the
question that if the “cautionary rule” is to be removed, should the scope of
the removal not be broader. The
Committee consequently requests the Department of Justice and Constitutional
Development to investigate this aspect and to report back to it as soon as
possible, with amending legislation preferably in the Criminal Procedure Act,
1977 (Act 51 of 1977), if necessary.
2. Clause 19 of the Bill, as introduced,
reads as follows:
“Drug and alcohol treatment orders
19. A court may, upon conviction of a person having
committed a sexual offence and if satisfied that the convicted person is
dependent on or has the propensity to misuse alcohol or any drug and may
benefit form treatment, grant an order in terms of section 296 of the Criminal
Procedure Act, 1977 (act No. 51 of 1977), and such an order may be made in
addition to any sentence, including a sentence of imprisonment which is not
suspended.”.
Again,
while not wishing to express a view on the merits of this provision, the
Committee was of the opinion that this provision, dealing with the sexual
offender rather than sexual offences, which is the focus of the draft
legislation, should be referred back to the Department of Justice and
Constitutional Development for further consideration and investigation. The question was raised whether a provision
of this nature, if it is to be enacted, would not be better placed in the
Criminal Procedure Act, 1977 (Act No. 51 of 1977). The Committee also requested the Department to revisit this
proposal in the context of sections 51 and 52 of the Criminal Law Amendment
Act, 1997 (Act No. 105 of 1997), dealing with compulsory/minimum
sentences. The Committee consequently
suspends this clause until the Department has reported back.
3. Clause 20 of the Bill as introduced into
Parliament deals with the supervision of dangerous sexual offenders and
provides, among others, that a court that has convicted a person of a sexual
offence can declare such a person to be a dangerous sexual offender if that
person has more than one conviction for a sexual offence, if the sexual offence
in question was accompanied by violence or if the person has been convicted of
a sexual offence against a child. In
such a case the court can order, as part of the sentence, that when the
offender is released from prison after serving part of his or her sentence, he
or she be placed under long term supervision by an appropriate person for a
period of not less than five years. The
Committee raised a number of questions regarding this provision, among others,
the following:
(i) What are the financial implications?
(ii) Are statistics
available about recidivists, bearing in mind that approximately 58 000 rape
cases are reported each year?
(iii) Have the constitutional implications
of this provision been addressed adequately?
(iv) Why is a clause of this nature
necessary and where does it come from?
The
Committee decided to suspend this provision until the Department reports on
these questions and requests the Department to report back immediately after
the new Parliament commences after the elections.
Report
to be considered.”.
[1] . Common law definition of “incest”: “unlawful and intentional sexual intercourse between two persons who on account of consanguinity, affinity or adoptive relationship may not marry one another”.
[2] . Common law definition of “bestiality”: “unlawful intentional sexual intercourse with an animal per vaginam or anum”.
[3] . Common law definition of “violation of a corpse”: “unlawful and intentional physical violation of a dead human body”.
[4] "The
SALRC has examined in detail various measures, which might produce a lesser
invasion of the rights of the alleged offender. Subject to one qualification, there seems to be no suggestion for
a less invasive measure, which would promote the rights of the alleged
victim. The qualification is this: In the immediate post-exposure period, there
is a very high level of urgency if a PEP intervention is to be undertaken
successfully. It seems to me that if
the alleged offender is given a hearing at this stage, it is likely to lead to
delays, which will make an effective PEP intervention impossible. At that time, there is no less restrictive
means available, other than that which is proposed in the Bill (to exclude a
hearing by the alleged offender).
However, once that immediate period has passed, although urgency
remains, it is reduced in its intensity.
The damage caused by a delay of a few days would be limited. It seems to me that at that stage, it is
possible to have a less invasive measure, which achieves the desired result, by
giving the alleged offender the opportunity to respond to the application for
compulsory testing. It should be
possible to construct a procedure which is quick, which is conducted only on
paper, which does not provide for oral argument, and which does not allow the
complainant to confront the offender, but which nevertheless enables the
alleged offender to answer the application.".