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