SUBMISSION TO THE PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL
DEVELOPMENT: THE SEXUAL OFFENCES BILL 20 June 2006
Submitted by: CENTRE FOR THE STUDY OF VIOLENCE AND
RECONCILIATION
We would like to thank the Portfolio Committee on
Justice and Constitutional Development for the opportunity to make comments on
the Sexual Offences Bill. We are pleased that the Bill has been tabled in
Parliament, and that civil society has been given the opportunity to engage
with the Bill before it is enacted. Our submission focuses on three areas that
we have concerns around, and makes recommendations in light of our concerns.
Effective legislation is cross-cutting in its impact on the victims and
perpetrators of the crime in consideration. In the case of sexual offences,
legislation needs to be particularly strong considering the heinous and
devastating nature of the crime. As such, the Sexual Offences Bill in South
Africa needs to address equally successfully the elements of . prevention, response, support and empowerment in
relation to sexual offences. CSVR's recommendations talk to what we perceive as
the gaps in the Sexual Offences Bill relating to these elements.
Centre for the Study of Violence and Reconciliation (CSVR): Gender Programme
CSVR is a non-profit, non-governmental organisation. CSVR's mission is to
develop and implement innovative and integrated human security interventions
based upon a commitment to social justice and fundamental rights for people who
are vulnerable or excluded. CSVR pursues these goals as essential to' our
aspiration of preventing violence in all its forms and building sustainable
peace and reconciliation in societies emerging from violent pasts - in South Africa, on the African continent and
globally.
The Gender Programme of CSVR addresses issues of gender-based violence. As
women and girls have such diverse experiences of gender-based violence, we work
with them in diverse ways, all of which are based on women' s rights. This
encompasses working with health care systems, the criminal justice system,
development interventions as well as initiatives promoting women's
socio-economic rights. Efforts to prevent such violence are key for us, and as
such, the Gender Programme has been actively involved in
advocating for public consultation around, and ultimate enactment of the Sexual
Offences Bill.
Summary of Recommendations
CSVR would like to strongly recommend the following
regarding the Sexual Offences Bill currently tabled in Parliament (a fuller
explication of these recommendations follows the summary):
Medical Treatment and Psychological Support
- We strongly endorse the SALRC's recommendations that the provision of
psychological support and comprehensive medical treatment be provided for in
the Sexual Offences Bill (thereby enhancing the enforceability of departmental
policies), and that the State bears the cost for psychological and healthcare
services to sexual offence victims (thereby ensuring that the availability of
services does not discriminate against the poor).
- Policies must allow for the treatment of victims who present at a health care
facility without a direct referral from the SAPS, and the provision of services
must be available in cases where no report is made.
- Medical treatment for sexual offence victims must be a priority and wherever
possible the victim must be attended to immediately.
- State partnerships with NGOs who provide short- and medium-term counselling
to victims/survivors must be established and enhanced, with the State making
financial
contributions to ensure services can be extended.
National Policy Framework
- The clause stipulating that the NPF must contain objectives, priorities and
strategies, performance indicators, a framework for co-operative governance,
allocation of roles and responsibilities and measures to ensure adequate
funding, has been removed from the latest draft of the Bill. We believe that
outlining in legislation what the NPF should contain is important to ensuring
the establishment of a comprehensive framework and is crucial in monitoring and
evaluating the efficacy of such a framework. We strongly recommend that this
clause be reintroduced to the Bill.
- We strongly recommend that the section providing for the establishment of a
NPF includes provisions to allow for consultation with and participation of
civil society organizations and NGOs in both the NPF and inter-
sectoral committee.
- The NPF must create an accessible mechanism to allow for complaints to be
addressed and misconduct to be penalized.
Management of Offenders
- Drug and alcohol treatment and testing must be ordered as part of the
offender's sentence. As drug and alcohol abuse are key contributing
factors in sexual offences as well as in other serious violent crimes,
treatment for this should form part of the correctional process, irrespective
of the offence committed.
- The supervision of dangerous sex offenders provides that under certain
circumstances a convicted offender would be declared a dangerous sex offender.
Once so declared, the offender would be placed under long-term supervision for
a further period of at least five
years after serving their sentence. Attendance of a rehabilitation programme would be part of this long-tern supervision. A person declared a
dangerous sex offender would also be limited in their options for employment,
and their freedom of movement could be limited in order to protect the
victim/survivor from further harm once the offender was released from prison.
It is strongly recommended that this provision be reinstated in the Bill, and
that the period of supervision is extended to 10 years.
- All convicted offenders must have equal access to
rehabilitation irrespective of .economic
means. The cost of sex offender rehabilitation programmes must be carried by
the State if the court is satisfied that the convicted person has no adequate
means to bear such cost, and must be provided through the Department of
Correctional Services in partnership with civil society organisations.
- It is imperative that offender rehabilitation programmes must be implemented
by those who have the appropriate skills and training, programmes be
accredited, and that the standards of these programmes are maintained through
the development of regulations and creation of an oversight body comprised of
experts in the field.
- Periods of imprisonment, correctional supervision, parole and presidential
pardon processes must allow for the completion of rehabilitation programmes.
Provision must be made for the treatment and supervision of those offenders who
have a fixed and compulsive pattern of behaviour.
- If an offender is sentenced to participate in a sex offence specific
accredited treatment programme, this should not minimise the punishment handed
down for the offence committed. .
- It is strongly recommended that the National
Register for Sex Offenders be contained within the National Child Protection
Register provided for in the Children's Bill. CSVR recommends that the names of
convicted adult offenders not be removed from the register under any circumstances.
We would also like to use this opportunity to call for the Portfolio Committee
on Justice and Constitutional Development to hold public hearings around the
Sexual Offences Bill. We feel that public hearings are essential, considering
that this version of the Bill has changed substantially since the last draft
seen by the public in February 2004.
For further information, please contact:
Romi Fuller
Researcher
Gender-based Violence Programme
Centre for the Study of Violence and Reconciliation Tel: 011 403 5650
Fax: 011 3396785
Cell: 083 257 2582
www.csvr.org.za
This submission is endorsed by the following
organisations: Childline South Africa Rape Crisis (Cape Town)
Medical
Treatment and Psychological Support
Medical Treatment
We are concerned that while the Bill promises to "afford complainants of
sexual offences the maximum and least traumatising protection that the law can
provide", it will only go so far as to provide «certain services to
certain victims of sexual offences". For our purposes, these services
refer to the free provision of Post Exposure Prophylaxis (PEP) and medical
advice surrounding the administering of PEP to victims of sexual offences only
ifs/he «(a) lays a charge with the South African Police Service in respect of
an alleged sexual offence; or (b) reports an incident in respect of an alleged
sexual offence in the prescribed manner at a designated health
establishment".
In other words, in this Bill health care is still viewed as secondary to the
criminal justice requirements of a case. Victims who fail to report to the
police are unable to access treatment. The impact of this, given the high rate
of HIV in South Africa which is compounded 'by the high rate of rape and the
fact that sexual violence increases the risk of HIV transmission, will be
extremely damaging to the victims of sexual offences. Many victims will
therefore be dealing with the compound trauma of extremely serious health
conditions that would to a large extent be avoidable with immediate treatment,
as well as the trauma of the rape itself
Furthermore, the Bill makes no mention of the provision of medical treatment
beyond that of PEP in certain circumstances. The victim of a sexual offence
will need fur more comprehensive medical treatment, including but not limited to:
- Treatment for the possible transmission of other sexually transmitted
infections;
- Treatment for injuries to any part of the body; and
- Treatment to prevent pregnancy, or for the termination
or management of pregnancy.
Psychological Support
The Sexual Offences Bill is completely silent on the provision of psychological
support for victims of sexual violence.
In order for these victims to regain some sense of control over their lives and
to cope after a profoundly damaging and life-changing experience, it is
imperative for them to seek psychological counselling, support, advice and
information. Experience has shown that victims who receive psychological
support are less likely to withdraw criminal cases or have them withdrawn by
the State, and are better able to testify in court because of the support and
information they receive. In other words, psychological support is not only
essential for the well-being of the victim, but contributes to the successful
outcome of a criminal case as well. However, due to the cost of long-term
counselling, the difficulty of accessing services in the rural areas, the fact
that children cannot access services without the intervention of adults and
that existing NGO counselling services are overwhelmed, the majority of victims
of sexual violence in South Africa do not have access to these crucial
services.
Recommendations
- We strongly endorse the SALRC’s recommendation that the provision of
psychological support and comprehensive medical treatment be provided for in the
Sexual Offences Bill (thereby enhancing the enforceability of departmental
policies), and that the State bears the cost for psychological and healthcare
services for sexual offences victims (thereby ensuring that the availability of
services does not discriminate against the poor);
- Policies must allow for the treatment of victims who present at a healthcare
facility without a direct referral from the SAPS, and the provision of services
must be available in cases where no report is made;
- Medical treatment foe sexual offence victims must be a priority and wherever
possible the victim must be attended to immediately;
- State partnerships with NGOs who provide short- and medium-term counseling to
victims/survivors must be estt and enhanced, with the State making financial
contributions to ensure services can be extended.
National Policy Framework
CSVR supports the inclusion of a National Policy Framework (NPF) in the Sexual
Offences Bill to provide a multidisciplinary, interdepartmental co-ordinating and
oversight body for the implementation of sexual offences legislation and policy
and for the clarification and monitoring of the implementation of the different
departmental responsibilities in respect of various aspects of the legislation.
Recommendations
We, however, have the following concerns pertaining to the formulation of the
NPF in the current Bill:
- The clause stipulating that the NPF must contain objects, priorities and
strategies, performance indicators, a framework for co-operative governance,
allocation of roles and responsibilities and measures to ensure adequate
funding, has been removed from the latest draft of the Bill. We believe that
outlining in legislation what the NPF should contain is important to ensuring
the establishment of a comprehensive framework and is crucial in monitoring and
evaluating the efficacy of such a framework. We strongly recommend that this
clause be reintroduced in the Bill.
· The SALRC, in their discussion
of the NPF, especially noted that “NGOs play an important role in the
management of sexual offence cases. Excellent services are provided by some of
these NGOS.' In short
= Civil society organisations are a crucial link in the chain that provides
services to survivors of sexual violence, and they are in a key position to
monitor the implementation of law and policy. Non governmental organisations
(NGOs) provide a facilitating and supportive role to the criminal justice
system and are usually well placed to provide the individualised and caring
services that are difficult for large bureaucracies to provide.
= They also provide an oversight role when complainants receive poor management
The degree of victimisation experienced by a person who has been sexually
violated and who may then be humiliated, disrespected or not protected from
further harm by the police, healthcare practitioners or the courts, is often so
high that these survivors are unable to fight for justice. Many complainants
turn to NGOs at this point In sexual offence matters, most State departments
poorly manage incidents of misconduct by members of the criminal justice
system. It is thus often up to service delivery NGOs to lobby for incidents to
be appropriately addressed.
We therefore strongly recommend that -the section providing for the establishment
of a NPF includes provisions to allow for consultation with and participation
of civil society organizations and NGOs in both the NPF and inter-sectoral
committee.
- The NPF must create an accessible mechanism to allow for complaints to be
addressed and misconduct to be penalized.
Management of Offenders
The treatment of sexual offenders is a long-term
preventative strategy and therefore integral to the fight against the high rate
of sexual violence in South Africa, as stated in the Preamble to the Sexual
Offences Bill:
"AND BEARING IN MIND THAT the prevalence of the commission of
sexual offences in our society is primarily a social phenomenon, which is
reflective of deep-seated, systemic dysfunctionality in our society, and that
legal mechanisms to address this social phenomenon are limited and are
reactionary in nature, but nonetheless necessary."
The rehabilitation of offenders through treatment
programmes is essential in minimizing the risk of recidivism (re-offending).
Research shows that many offenders leave prisons or other correctional services
where treatment is not offered with strong feelings of anger, resentment and
degradation, which can be aggravated by their own victimisation in prison or a
need to avenge themselves. As such, "Appropriate treatment programmes
would alleviate these strong feelings of anger and assist in the development of
insight into the impact of their abusive behaviour on victims and communities,
and will also help develop alternative behaviours and ways of managing sexual
and angry impulses. The SALRC therefore recommended that a range of
rehabilitative treatments be included as part of the sentencing of convicted
sex offenders and that the costs of this should be carried by the offender or
the State. However, not all these recommendations have been adopted by the
Department of Justice or the Portfolio Committee on Justice and Constitutional
Development, possibly due to the costs involved. The financial cost of
rehabilitating sexual offenders will, indeed, be high. However, the cost of not
providing this is even greater considering its impact on the lives of future
potential victims and communities, as well as the State resources that would be
required to address the further prosecutions and the impact of re-offending.
Sex Offence Treatment Programmes
The 2006 draft of the Sexual Offences Bill provides that when a person
convicted of any sexual offence is sentenced to correctional supervision, or
imprisonment from which such a person may be placed under correctional
supervision through the Commissioner's discretion, s/he will "if
practicable and if the convicted person demonstrates the potential to benefit
from treatment" attend and participate in a sex offence specific
accredited treatment programme, "the cost of which shall be borne by the
convicted person himself or herself'. The problem with this amendment to the
Criminal Procedure Act is twofold: it places the financial burden of the
rehabilitative programme squarely with the offender, and therefore discriminates
against those who are economically disadvantaged; and the inclusion in
sentencing that an offender attends a rehabilitation programme does not take
into account the length of time required to successfully complete the
rehabilitation programme.
Sex Offender Registers
Public sex offender registers were extensively discussed during the SALRC
process. The constitutionality of public registers of convicted offenders was
questioned and it was agreed that such a register would do more harm than good
to the offender as well as to the community, by creating a false sense of
security that people whose names do not appear on the register do not pose a
risk to children. Low reporting, prosecution and conviction rates in sexual
offences mean that the majority of offenders would not appear in such a
register. The SALRC was also concerned that people who have been convicted of a
sexual offence must not have access to employment which places that person in a
situation where they are in any position of authority over or care of children.
Although this will not protect children from unconvicted sex offenders, it will
provide some protection from those offenders who have been identified through
the criminal process.
The 2006 Sexual Offences Bill merges the creation of a sex offender register
with the prevention of any person who has been convicted of a sexual offence
having access to employment which places them in contact with children. The
Bill provides for the creation of a National Register for Sex Offenders, which
is not a public register but rather one that will prevent convicted sex
offenders (against children) from gaining any employment that puts them in
contact with children if their details are recorded in
the National Register for Sex Offenders.
There are a number of problems with the provision of this National Register for
Sex Offenders:
- People who have not been convicted of a sexual offence will not be on the
register and therefore their gaining employment where they are in any position
of authority over or care of children will not be regulated.
- Research in countries with existing registers indicates
that they are expensive to set up and maintain but are not effective in
preventing sexual offences against children. This register is a duplication of
an existing register and all aspects of this register are more adequately and
comprehensively addressed in the current National Child Protection Register
that fonns part of the Children's Bill. The duplication of these registers will
be costly, bQth monetarily and in human resources, and will unnecessarily
divert resources away from other areas that have been excluded from the Bill
due to their expense, such as psycho-social treatment for victims of sexual
offences and rehabilitative justice for perpetrators of sexual offences.
Recommendations
CSVR recommends the following in respect of the treatment of offenders:
- Drug and alcohol treatment and testing must be ordered as part of the
offender's
sentence. As drug and alcohol abuse are key contributing factors in sexual
offences as well as in other serious violent crimes, treatment for this should
form part of the correctional process, irrespective of the offence committed.
- It is strongly recommended that the provision allowing for the supervision of
dangerous sex offenders be reinstated in the Bill, and that the period of
supervision is extended to 10 years. This clause provides that under certain
circumstances a convicted offender would be declared a dangerous sex offender:
s/he would be placed under long-term supervision for a further period of at
least five years after serving their sentence. Attendance of a rehabilitation
programme would be part of this long-term supervision. Such a person declared
would also be limited in their options for employment, and their freedom of
movement could be limited in order to protect the victim from further harm once
the offender was released from prison.
- All convicted offenders must have equal access to rehabilitation irrespective
of economic means. The cost of sex offender rehabilitation programmes must be
carried by the State if the court is satisfied that the convicted person has no
adequate means to bear such cost, and must be provided through the Department
of Correctional Services in partnership with civil society organisations.
- It is imperative that offender rehabilitation programmes must be implemented
by those who have the appropriate skills and training, programmes be
accredited, and that the standards of these programmes are maintained through
the development of regulations and creation of an oversight body comprised of
experts in the field.
- Periods of imprisonment, correctional supervision, parole and presidential
pardon proces~es must allow for the completion of rehabilitation programmes.
Provision must be made for the treatment and supervision of those offenders who
have a fixed and compulsive pattern of behaviour. .
- If an offender is sentenced to participate in a sex offence specific
accredited treatment programme, this should not minimise the punishment handed
down for the offence committed.
- It is strongly recommended that the National Register for Sex
Offenders be contained within the National Child Protection Register provided
for in the Children's Bill.
CSVR recommends that the names of convicted adult offenders not be removed from
the register under any circumstances.
PMG note: Footnotes not included