CHILDLINE SOUTH AFRICA
Our comments on the Bill and related matters are as follows:
1. The new definition of rape: is welcomed. The inclusion of both sexes as well as various forms of sexual penetration in the definition is considered appropriate, closer to the experiences of child victims and more child friendly.
2. The chapter on sexual crimes against children is welcomed and the inclusion of several new statutory offences. However the language in this chapter, especially the section on child sexual exploitation (Section 16) is complex. It is recommended that this and other sections of the Bill are translated into more user friendly language.
3. Section 13: The retention of the age of consent to sexual penetration and sexual violation at 16 years is welcomed as well as the defence related to consensual violation between children who are between the ages of 12 and 15 and where there is no more than two years difference in age. However it is recommended that
4. Section 17 ( c ) – it is illogical to apply a provision "on at least two earlier occasions" to this offence – if there is an intention to commit a sexual act with a child then this should be sufficient.
5. Section 31 – it is inadequate to focus only on the provision of PEP and ignore other essential preventive and remedial services. The risk of infection with other sexually transmitted infections, pregnancy as well as physical injuries should be included in treatment clauses, as well as treatment for psychological trauma. Children are usually deeply affected by sexual abuse, and the resultant trauma may put their appropriate psycho-social development at risk, producing adults who may in turn abuse or be unable to contribute meaningfully to our country’s development.
6. Childline also wishes to express concern about the omission of provisions relating to the supervision and treatment of sexual offenders, particularly child offenders.
7. The section on HIV testing of offenders should include provisions that provide for pre and post test counselling for both victims and offenders – particularly for offenders whose response to a positive result might be one which places further children (and adults) at risk.
8. Chapter 6 – The National Register for sex offenders
i. this is a duplication – but not as adequate or comprehensive as that contained in the Part B of the Child Protection Register of the Children’s Bill (Section 75) and it is strongly recommended that this be omitted from the Sexual Offences Bill and retained in the Children’s Bill. It is inappropriate, given the constant reminders of resource constraints in the provision of services to victims, to duplicate such an expensive provision. It is also of note that research into the effectiveness of registers with regard to the protection of children from sexual exploitation is dubious at best. (International Congress of the Society for the Prevention of Child Abuse and Neglect, Denver, Colorado, USA 2002 and the International Conference on the Treatment of Sexual Offenders, Vienna, Austria, 2002).
ii. The powers of the registrar with regard to removing names from the register are not sufficiently conditional on training, expertise and expert advice.
Iii. The Chapter is silent on the inclusion or exclusion on the register of children who commit sexual offences against children. It is recommended that children under 14 years and children who are first offenders are not included on the register.
9. Section 54 is welcomed, as is Section 55 as the sexual abuse of many children occurs in the child’s own home and is by family members who are in a position of authority to the child, thus preventing prompt reporting and sometimes entrapping children into abusive relationships over periods of months and years.
10. Section 56 on extra territorial jurisdiction is welcomed.
11. Part 2 of the Bill: The National Policy Framework: The concept of a national Policy Framework and Inter-sectoral Committee is enthusiastically welcomed by Childline. However the inter-sectoral committee for the management of sexual offences and the National Policy Framework lacks participation by civil society and NGO’s. This is cause for great concern as the NGO sector provide a range of services to the victims and perpetrators of sexual offences. Their inclusion would make the often spoken of "partnership" between government and civil society more of a reality and would also provide for mutual sharing of resources, and mutual monitoring of the effectiveness of the policy and the role-players involved.
OMMISSIONS IN THE PRESENT VERSION OF THE BILL
1. The category of "Vulnerable Witness" was contained in the SA Law Reform Commission version of the Bill and provided for the declaration of witnesses/victims of sexual assault as "Vulnerable Witnesses" which then enabled the court to apply a range of protective provisions. The need for this provision was identified through a country-wide consultation process across all nine provinces in both rural and urban areas.
The vulnerability of child victims of sexual assault and the secondary trauma they experience when they are not protected during criminal justice processes is well documented. This lack of protection inhibits the reporting of offences against children as parents and caregivers anticipate the secondary trauma to the child and are reluctant to proceed.
The protective provisions included:
i The provision of a support person – it is strongly recommended that this be returned to the Bill as many children are unable to testify clearly and with confidence without the support of someone to whom they feel close.
ii The automatic use of the Intermediary system for children – at present the use of the intermediary is based on the possibility of "undue trauma" to the child if s/he testifies in open court. This necessitates an (expensive) assessment process, which delays the court process, and even then the decision as to whether the child will experience undue trauma is left to the presiding officer in the court who, with respect, often have little understanding of children, child development and children and trauma. While supporting children through their court process as victims of sexual assault, Childline has experienced many refusals of the intermediary system, resulting in children being intimidated by the presence of the offender in the court room and unable to testify. Apart from the obvious trauma to the child, this has a marked impact on the psychological well being of the child. Recommendation: The vulnerable witness clause and the protective mechanisms applied to vulnerable witnesses should be reinserted into the Bill.
2. The clause abolishing the cautionary rule relating to the evidence of children should be reinserted – there is no evidence that the evidence of children is less reliable than that of adults – in fact research supports quite the contrary position.
3. The cautionary rule relating to the evidence of complainants in sexual offences cases should be clearly abolished.
4. The competency test for children which is misunderstood and misapplied should be clearly abolished in law. The misuse of this test has prevented the evidence of many child victims from being heard.
5. The use of assessors with experience in sexual assault should be provided for in order to provide judicial officers with expert opinions in sexual assault matters.
6. It is regrettable that the clause prohibiting the direct cross examination of a victim – child or adult – by the accused in a sexual offence matter has been removed. This provision is essential to the wellbeing of children. Contact with the offender is often experienced by children as intimidating and stressful.
Thank you for this opportunity to comment on the Bill. It is sincerely appreciated.
Please contact me if any further research or case studies are required in order to support the above recommendations and comments.
Joan van Niekerk
National Coordinator.