CENTRE FOR APPLIED LEGAL STUDIES UNIVERSITY OF WITWATERSRAND SUBMISSION TO PARLIAMENTARY PORTFOLIO COMMITTEE ON JUSTICE

Re: the Sexual Offences Bill

The Centre for Applied Legal Studies ("CALS"), is an organisation based at the University of the Witwatersrand, in the Faculty of Commerce, Law and Management, that conducts research and engages in academic writing, advocacy, litigation and training for the promotion and protection of human rights in South Africa.

CALS has a Gender Research Programme, established in 1992, that specifically focuses on issues of women's human rights and gender equality, with its stated objective being the promotion of equality for disadvantaged groups of women. It has engaged in extensive socio-Iegal research, academic writing, advocacy, and test case litigation on gender based violence, including sexual violence. In particular it has engaged in research on the vulnerability of women and children to sexual violence, specifically rape in the South African context; the difficulties victims of sexual violence face when reporting cases to the police and in the prosecution of those cases in court (often resulting in their secondary traumatisation) and indeed the challenges faced by police and role players in the criminal justice system in effectively investigating and prosecuting rape and other sexual violence cases. CALS has previously made a number of submissions to Parliament on a range of issues affecting women, including the Child Support Grant, the customary law of succession customary marriages, traditional leadership, communal land rights, and employment equity. CALS believes that it has a useful perspective to offer on the Sexual Offences Bill, based on its research and experience in the field of women's human rights and the constitutional right to gender equality, in particular gender based violence and sexual violence, and its field work with women rape survivors, police, prosecutors, and magistrates at some of the most under resourced areas in Gauteng and other provinces.

It has come to our attention that there is a question of whether or not oral submissions on the Sexual Offences Bill will be heard. Given the extent of this problem in South Africa and the necessity of enacting comprehensive legislation., we strongly urge the committee to hold oral hearings in addition to their acceptance of these written submissions. The issues addressed in the Sexual Offences Bill are of such importance that they" should be discussed with the maximum amount of public participation. The new draft of the bill is substantially different to the draft upon which the previous round of hearings was held, thus requiring further discussion and debate. Additionally, no date has been set as a deadline for submissions. In order for organizations to make submissions in a timely manner and to afford the Committee" enough time to consider all of the submissions with equal attention setting a deadline would provide very helpful guidance.

The current draft of the bill has made some much needed changes to the existing law governing sexual offences. We fully support the adoption of provisions ensuring the law's gender-neutrality, the broadening of the definition of sexual penetration and sexual violation and more generally, the obvious meticulousness with which the bill has been drafted.

However, much still needs to be done to ensure that this bill, when passed, secures the constitutional right of the victims and the' accused, as well as conforming to the evolving standards of international human rights.

South Africa has been deemed to hold the "undisputed first place" in the world for incidence of rape and sexual violence. In one year, the estimates range from 900,000 to 1.7 million rapes in this country.} However, only 5% are reported to the police. Of those reported, an estimated 7% result in a conviction. Studies also show that an overwhelming number of young South African men deem coercion to be part of normal sexual interaction?

Because of attitudes such as these, the extreme incidence of poverty and gender inequality in South Africa, women here are particularly vulnerable to sexual violence. The Sexual Offences Bill must recognize this and put in place the provisions that will provide the utmost protection for the women of South Africa. "The criminal law has an important role to play in defining how sexual relationships should be conducted in our community, not simply in reflecting and perpetuating established, 'male' standards of conduct. The current draft of the bill defines rape as "an act of sexual penetration without the consent" of the complainant. Consent is further defined as the "voluntary and uncoerced agreement." The bill also identifies "circumstances in respect of which a person does not voluntarily and without coercion agree to an act of sexual penetration," i.e. coercive circumstances where consent is vitiated.

We want to address two major points, first we propose removing consent as an element of rape and sexual assault, replacing it instead with 'coercive circumstances.'

Retaining consent requires the prosecution to prove, 1) an act of sexual penetration and 2) the absence of consent. Under a 'coercive circumstances' model, the definition of rape would be changed to "an act of sexual penetration under coercive circumstances." This definition would again require the prosecution to prove two elements: 1) an act of sexual penetration and 2) coercive circumstances. As such the enumerated coercive circumstances in section (3) of the definition of "this Act" remain relevant whether consent is omitted or retained.

However, the circumstances included in the current bill leave a troubling gap in that they do not accurately reflect women's most common encounter with sexual coercion. None of the current 'coercive circumstance' speaks directly to victims of acquaintance rape and their specific experiences with coercion. We propose an additional provision that would specifically provide protection to victims of acquaintance rape.

The element of consent was originally excluded from the definition of rape by the South African Law Reform Commission (SALRC). This fundamental shift in the definition was consistent with international legal developments and provided additional necessary support to victims of sexual violence. During the public hearings the Justice Committee received submissions in support of using the concept of coercive circumstances and fraudulent means; no submissions suggesting that coercive circumstances should be changed to consent were made. Despite nationwide support for the exclusion of consent, and the absence of dissenting voices, consent has been reinstated as an element of rape.

The removal of consent from the definition of the crime does not wholly exclude it from rape trials. Consent would still be available as a viable affirmative defense. The omission of consent from the definition would simply shift the initial evidential onus to the defendant. It is crucial to note that this would not constitute an unconstitutional shift of the burden of proof to the defendant, but simply an evidentiary one. The defendant would need only provide sufficient evidence to show that it is "reasonably possibly true" that the act of sexual penetration was in fact consensual. At this point, the burden would shift back to the prosecution to prove beyond a reasonable doubt that there was no consent. This approach has been described as a way to "ensure that a judgment is based upon objective circumstances put before the court rather that the court's appraisal of the subjective intention of the complainant.

With consent still available as an affirmative defense, the actual evidence presented at trial would differ little under a 'consent' definition and a 'coercive circumstances' definition of rape. However, the omission of consent from the definition is representative of a symbolic shift that could have powerful positive social ramifications.

Omitting consent as an element would first require the defense to provide some evidence that consent did exist. This shifts the focus from the victim's behavior to the behavior and actions of the perpetrator, where it properly belongs. As the SALRC stated, this shift "represents a shift of the utmost importance from the subjective state of mind of the victim to the imbalance of power between the parties on the occasion in question.

Victims of sexual assault have traditionally been subject to severe secondary victimization at the hands of the criminal justice system and society at large. They are continuously blamed for the occurrence of the crime perpetrated against them. The SALRC described this, "[Victims of rape] are ignored, dismissed, questioned and shamed by the very people meant to support them-their families, communities, the criminal justice system and civil society in general.

Requiring women to first prove lack of consent is a manifestation of these victim-blaming attitudes and assists in subjecting victims to severe secondary victimization by the criminal justice system.

Alarmingly, as many as 95% of incidents of rape go unreported every year. Many of the studies cite these attitudes of shame, embarrassment, self-blaming, and victim-blaming by third parties as some of the reasons why these crimes so frequently go unreported.

As is often the case, a shift in the law can help to encourage and facilitate a shift in the attitudes of civil society. This legal shift could help civil society start to also take the blame off of the victim and to look first at the perpetrator's actions and the surrounding coercive circumstances.

Further on the issue of consent, the introduction of evidence regarding the victim's prior sexual history has routinely been admitted in South African rape trials as purportedly relevant on the issue of consent. The current draft deems evidence of prior sexual history inadmissible, "unless the court has granted leave to adduce such evidence.

We want to reiterate our strong opposition to this evidentiary question being left to judicial discretion as it has clearly prejudiced rape victims in the past. Having to first prove absence, of consent, and then being forced to answer to her sexual history in front of an entire room of strangers are two prominent factors of rape trials that have contributed to their characterization as a forum which the victim is on trial.

For additional information on the need to abolish the judicial discretion as to admission of prior sexual history, please see the submission from RAPCAN.

We agree with the arguments and reasoning presented by RAPCAN and fully support their submission.

The current bill also defines consent as 'voluntary and uncoerced agreement. It establishes four specific instances of circumstances where consent is deemed to be lacking, in other words, circumstances where coercion is deemed to exist to the extent that it negates consent. Close to 50% of rape survivors know their perpetrator in some form, making acquaintance rape a particularly relevant problem that must be addressed through this legislation. One author commented, "for rape law to comport with societal norms, it must reflect the concept that victims of acquaintance rape need protection. . . .,,

Often the circumstances surrounding incidents of rape, and specifically acquaintance rape, do not involve -force or threats, but are rather marked by the abuse of trust, emotional manipulation and the taking advantage of the woman's particular vulnerability, be it social, economic or psychological. Given the high incidence of extreme poverty among women in South Africa, we must be particularly sensitive to the fact that such poverty is often a circumstance that can make women more vulnerable to economic and social coercion and manipulation. Currently, not one of the four enumerated instances of coercion speaks to the very real and prevalent problem of acquaintance rape.

The abuse of power or authority is perhaps the closest, but we predict that this will be interpreted to apply to institutional relationships, i.e. student/teacher, employer/employee, doctor/patient, etc. While we acknowledge that the list is not exhaustive, we think it imperative that the problem of acquaintance rape be recognized by the legislature and specifically addressed in the new bill. In response to this problem, we propose the following potential solutions:

1. A separate provision stating: "Abuse of a relationship of trust, undue influence, existing social, economic, psychological pressures, persistence in response to resistance, and promises, suggestions or allusions to economic, social or psychological benefits if the complainant concedes are all evidence of coercive circumstances. "

2. Broaden the definition of Abuse of power or authority to include breach and abuse of a relationship of trust and emotional or psychological manipulation. Consent would

be invalid or vitiated where obtained, "by the abuse of the accused of his or her position of power or authority over, or other trust in relation to, the complainant. In addition to our two major concerns, we would like to briefly address some more minor points for your consideration:

· Sexual Assault: We find the use of the term sexual 'violation' to describe these acts under uncoercive circumstances problematic. The term sexual 'contact' would be more appropriate. It should become a crime of sexual assault when these acts are committed under coercive circumstances. Chapter II, Part 2, § 5(2) is an example of where the use of the term 'violation' is problematic. Inspiring the belief that a complainant will be subject to unwanted sexual contact instead of 'sexually violated’ (which, as defined now makes no reference to consent) would then also be an act of sexual assault.

· Please note that the Bill has omitted, as an offense of sexual assault, inspiring the belief that a complainant will be subject to unwanted sexual penetration ('rape').

· Genital Organs: the use of' genital organs' in the definition of genital organs may cause confusion. Perhaps listing the relevant organs would be more descriptive.

· Complex Language: The language used in. describing and defining the offences is quite complicated and a more simplified version may help to make the bill more accessible.

Thank you for your time and attention to these suggestions. We also agree and support the submissions of the other members of the national working group on the Sexual

Offences Bill (please see list. below), and they have likewise indicated their support for this submission.

Sincerely,

Shereen Mills Meredith Strong

Shereen Mills and Meredith Strong: Gender Research Programme Centre for Applied Legal Studies

On Behalf of the Sexual Offences Bill National Working Group:

· Aids Law Project

· Aids Law Network

· Centre for Applied Legal Studies, University of Witwatersrand (CALS)

· Centre for the Study of Violence and Reconciliation

· Childline South Africa

· KZN Network on Violence

· People Opposing Women Abuse (POWA)

· Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN)

· Reproductive Rights Alliance (RRA)

· Rape Crisis Cape Town

· Sex Worker Education and Advocacy Task Force (SWEAT)

· Tshwaranang Legal Advocacy Centre

· Women's Legal Centre

· Women's Net