NATIONAL WORKING GROUP ON THE SEXUAL OFFENCES BILL

FACT SHEETS ON THE SEXUAL OFFENCES BILL (2006)

FACT SHEET 1

TIMELINE

January 1998	The South African Law Reform Commission (SALRC) requested to investigate sexual offences by and against children and to make recommendations to the Minister of Justice and Constitutional Development for reform of the criminal law. The SALRC establishes an expert committee for this task.
1999	The SALRC mandate is extended to include sexual offences committed against adults, prostitution, and the development of policy directives for the management of sexual offences.
	The expert committee conducts research and consultations in the rural and urban areas of all provinces, with all sectors involved in the management of sexual offences and with all groups affected by sexual offences. The committee also consults with the Project Committee on the Children’s Bill to ensure coordination between the two drafts.
December 2002	The SALRC issues its final report. The report contains a draft Bill that embodies some progressive recommendations for the reform of the substantive and procedural law relating to sexual offences.
January 2003	The final report and draft legislation is handed over to the Minister of Justice and Constitutional Development by representatives of the SALRC.
July 2003	The Minister of Justice and Constitutional Development and other members of Cabinet consider the SALRC report and draft law. Thereafter, Bill 50-03 is introduced to the National Assembly. The Bill, unable to pass in its current form, is referred for further review to the Portfolio Committee on Justice and Constitutional Development of the National Assembly (Justice Committee). Bill 50-03 (and other bills) published in the Government Gazette, No. 25282 on 30 July 2003.
August/September 2003	The Justice Committee calls for written submissions on the Bill.
September 2003	The Justice Committee holds public hearings on the Bill, giving organisations one-business days’ notice. This prevents organisations outside the Western Cape from attending the public hearings.
December 2003 – February 2004	The Justice Committee considers changes to Bill 50-03. The committee recesses for national elections before finalising their work. The committee’s proposed changes are contained in a “Working Document”.
November 2005	A representative from the Justice Committee accepts a memorandum from civil society organisations and publicly states the intention of Parliament to finalise the Sexual Offences Bill early in 2006.
April – May 2006	As part of the national “Get on the Bus and Stop Violence against Women and Children” campaign, a second memorandum is submitted both to the Department of Justice and Constitutional Development as well as the Joint Monitoring Committee on the Improvement of the Quality of Life and Status of Women. In early May, the draft Bill once again appears before Cabinet for approval and is then sent to the Justice Committee. There is currently a call from the Justice Committee for written submissions around the Bill.

Working group member organisations include:

Aids Law Project; Childline SA; Centre for Applied Legal Studies; Centre for the Study of Violence and Reconciliation; Concerned People Against Abuse; Lawyers for Human Rights; Ngata Safety and Health Promotion; Nisaa Institute for Women’s Development; People Opposing Woman Abuse; Port Elizabeth Rape Crisis Centre; Rape Crisis Cape Town Trust; Resources Aimed at the Prevention of Child Abuse and Neglect; Save the Children Sweden; Sex Workers Education and Advocacy Taskforce; Thohoyandou Victim Empowerment Project; Tshwaranang Legal Advocacy Centre; Western Cape Network on Violence against Women

National Working Group on the Sexual Offences Bill

FACT SHEET 2

PROVISIONS RELATED TO CHILDREN

Introduction

The Bill contains a number of substantive and procedural provisions defining sexual crimes against children, and how these should be managed.

Substantive Law

The proposed definition of rape is more appropriate in relation to what children experience.

The crime of incest has been codified. It is, however, recommended that foster parents should be included in the list of proscribed relationships.

An entire chapter has been devoted to offences against children. These offences include:

Acts of sexual penetration with children aged 12-16. The age of consent is retained at 16 years for both sexes. Where two children are between the ages of 12 and 16, prosecution may not be instituted without the written instruction of the National Director of Public Prosecutions;

Sexual exploitation of a child;

Child prostitution;

Exposure or display of pornography or sexual acts to a child;

Grooming of a child to commit a sexual offence. However, “grooming of a child” currently provides that the perpetrator must have communicated with the child on at least two occasions prior to travelling to meet or meeting the child with the intention of committing a sexual offence. The prior communication with the child is an unnecessary feature of this offence as is the arbitrary number of communications.

Procedural Law

Children are specifically vulnerable when it comes to sexual assault.

Many victims/survivors of sexual assault report high levels of secondary victimisation when they come into contact with the legal system following the sexual assault. This can be ascribed, in part, to the unsympathetic, disbelieving and inappropriate responses that victims/survivors of sexual assault may experience both at the hands of society in general and at each stage of the criminal justice process. Secondary victimisation is usually unintentional and the result of a lack in the training of role-players who manage sexual offences, insufficient resources and/or a lack of debriefing and mentoring of those who work in the criminal justice system.

Children, because of their particular vulnerability, are even more susceptible to secondary victimisation than adults. The existing substantive and procedural law is widely considered inadequate in providing victims in general and children in particular with protection from both primary and secondary victimisation.

Child witnesses are still frequently brought into an alien, intimidating court

environment and expected to recount intensely personal experiences in front of strangers as well as the perpetrator who inflicted the sexual assault on them. They are confronted with a barrage of questions framed in language too advanced for them to understand and are forced to participate in a procedure that they can rarely make sense of.

This lack of legal protection and appropriate management contributes to the non-reporting of sexual offences against and by children and is in itself a violation of children's rights.

It is therefore crucial that the stated aim of providing child victims/survivors of sexual assault with “the maximum and least traumatising protection that the law can provide” should be adhered to in drafting legal reforms.

Protective Measures for the Child Witnesses

The stated aim of the Sexual Offences Bill – to provide “the maximum and least traumatising protection” – is of particular importance in relation to children. One of the strong points of the South African Law Reform Commission’s (SALRC) proposal was the consideration of the interests of the victim/survivor. However, there has been a significant shift away from this consideration.

The removal or modification of the following clauses is problematic:

The clause setting out the objectives of the legislation has been watered down – the new version is so broad as to be meaningless in relation to child victims and offenders.

The category of “Vulnerable Witness” into which children could be placed in order to afford them extra protections during the criminal justice process has been removed.

The provision of a support person for child/vulnerable witnesses has been removed.

The SALRC Bill acknowledged that the adjudication of cases involving child victims/survivors is a specialised area. However, this acknowledgment is currently in danger of being lost. For example, the clause providing for the use of assessors with expertise on child development has been removed.

The proposal for the expansion of the role of intermediaries (who act as a go-between between child witnesses and lawyers in court) and the use of the intermediary as a right of a child witness has been removed.

The abolition of the competency test for the younger child witness has been removed.

The clause abolishing the cautionary rules to be applied to the evidence of children in sexual offences has been removed.

The treatment clause has been removed. The focus on the provision of PEP and the neglect of other physical and psychosocial treatments which are vital for sexually abused and traumatized children is problematic.

The Rehabilitative Focus

The SALRC recommendations included provisions related to the prevention of offences and the treatment of offenders. These rehabilitative and preventive provisions are especially important for child sex offenders.

Indeed, this is particularly problematic in light of the following report:

“In her speech during the budget debate, National Assembly justice committee chairwoman Fatima Chohan-Kota expressed concern ‘about a very disturbing trend’ emerging from the specialized sexual offences courts. It is increasingly being reported that perpetrators of these offences are children of school-going age. This was reported to the portfolio committee during our visit a few years ago to the Protea Court in Soweto, where there are currently four dedicated sexual offences courts with an outstanding roll at the end of January 2005, of 759 cases.’ she said. MP’s had asked for the phenomenon to be monitored and for a report to be submitted.”[1]

It is recommended that rehabilitation programmes should be provided for all sexual offenders who are children, both in residential custody as well as those serving community based sentences.

The National Sex Offender Register

A number of problems exist with the sexual offender register in its present form. The utility of placing children convicted of sexual offences on the registry must be debated, as well as the appropriateness of having a register of persons unfit to work with children sited in the Sexual Offences Legislation and able only to capture sexual offences. It is recommended that the Part B of the Child Protection Register – a register of persons unfit to work with children – be retained in the Children’s Bill.

Working group member organisations include:

National Working Group on the Sexual Offences Bill

FACT SHEET 3

MEDICAL TREATMENT AND PSYCHOSOCIAL SUPPORT

Introduction

Sexual violence causes both physical and psychological trauma. After a sexual offence the victim/survivor may require medical and psychosocial treatment for the following:

HIV – including pre- and post-test counselling, and post exposure prophylaxis (PEP);

The possible transmission of sexually transmitted infections;

Injuries to any part of the body;

The prevention of pregnancy;

The termination or management of pregnancy;

Psychological shock (including post traumatic stress disorder, disturbed sleep and eating patterns, anxiety and depression); and

Disturbance in relationships, particularly in family and intimate relationships.

A traumatic incident may be completely overwhelming and undermine a person’s ability to cope with their world. Many victims/survivors live for years with the after-effects of sexual violence, and although s/he may be outwardly able to cope with the demands of daily living, the effects can be so pervasive that they permeate all aspects of her/his life, sense of self, intimate relationships, sexuality, parenting, studies or employment, and ability to cope. Repeated sexual abuse tends to have a more complex psychological impact, especially when this occurs within a close relationship in which there is a reasonable expectation of protection.

In recognition of these serious consequences, the South African Law Reform Commission (SALRC) recommended that the State provide psychosocial support and healthcare to victims/survivors of sexual offences. In spite of strong support for this in public submissions, the Department of Justice and Constitutional Development did not accept this recommendation and the provision was not included in the Bill introduced to Parliament in 2003. The recommendation remains excluded from the 2006 draft of the Bill. Removal of this clause minimises the seriousness of the physical and psychosocial trauma resulting from sexual offences and ignores the currently differential availability of, and access to, services for wealthy and poor South Africans.

Medical Treatment

Until recently, the health-related consequences of a sexual assault were not comprehensively addressed: policies only required the State to perform the forensic medical examination for the collection of case evidence, and the systematic treatment of victims/survivors was overlooked. Recent provincial and national health policies recognise the need to treat some aspects of the physical impact of the attack. However, the implementation of these policies has been erratic and slow, which has meant that many victims/survivors still do not have access to treatment. As of May 2005, the Minister of Health had not yet signed off the policy relating to the health examination and care of the child victim/survivor: the Department of Health says that the policy is still under consideration and consultation.

There is a high rate of HIV in South Africa, which is compounded by a high rate of rape and the fact that sexual violence increases the risk of HIV transmission. For instance, in the pre-pubescent girl, the lining of the vagina is only one skin cell thick, thus significantly increasing the risk of HIV transmission. This means that HIV pre- and post-test counselling and post exposure prophylaxis (PEP) are of extreme importance to many victims/survivors. Failure to immediately provide this and other treatment can result in long-term physical and psychosocial effects, which may be irreversible.

Currently, healthcare is still viewed as secondary to the criminal justice requirements of a case. Victims/survivors who fail to report to the police are unable to access treatment. Upon reporting, victims/survivors may experience delays at police stations and hospitals – or may even experience exclusion from services. Petty bureaucratic requirements are prioritised above the need for immediate access to comprehensive treatment. Many hospitals in South Africa still turn victims/survivors away if they have not first reported to the police. Hospitals are also not equipped to provide the services and medication that policies require.

The impact of this is that many victims/survivors of sexual offences in South Africa are dealing with the compound trauma of extremely serious health conditions that would to a large extent be avoidable with immediate treatment.

Psychosocial Support, Counselling and Therapy[2]

Counsellors provide critical support through offering advice, support and information. This assists victims/survivors to regain some sense of control over their lives and to cope after a profoundly damaging and life-changing experience. Counselling benefits victims/survivors in that:

It enables victims/survivors to speak about something unspeakable and to find words to describe their experience.

It gives them reassurance that they will heal from the experience.

It enables them to deal with feelings that, if not dealt with, might have long-term effects.

It can prevent suicide, drug abuse and the development of other serious mental illnesses.

Although an experience of abuse in childhood does not necessarily mean that the child will grow up to abuse, there are certain patterns of victimisation in which this is more likely. This can be mitigated by the provision of effective counselling and support close to the time of the experience and may thus prevent the perpetuation of the cycle of violence.

It empowers victims/survivors to take action towards bringing the perpetrator to justice.

It informs victims/survivors of their rights and legal responsibilities.

It offers support to the victim/survivor through the criminal justice process, which is often traumatic.

It gives access to other vital services.

Experience has shown that victims/survivors who receive counselling and 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.

At this time, statistics show that the criminal justice system fails to provide justice in the majority of sexual offence cases. The sense of hopelessness that many victims/survivors experience can be addressed to some extent through a counselling process.

Sexual offences have long-term effects on individuals, families and communities. Victims/survivors of childhood sexual abuse are more vulnerable to further abuse later in life.

Existing NGO counselling services are overwhelmed. Due to prohibitive costs, long-term counselling such as psychotherapy is unavailable to most South Africans. Services are weighted in urban areas and children cannot access services without the intervention of adults, which they often don’t have. Effectively, the majority of victims/survivors in South Africa do not have access to counselling or psychological support.

Summary and Recommendations

The National Working Group on the Sexual Offences Bill (Working Group) supports the demand for legislation providing psychosocial and medical care to victims/survivors of sexual offences; this will enhance the enforceability of departmental policies.

The Working Group calls upon the State to bear the cost for psychosocial and healthcare services to sexual offence victims/survivors; this will ensure that the availability of services does not discriminate against the poor. Wherever possible the offender should contribute to the cost of care and treatment. This contribution should be integrated into other appropriate sentencing options and not be seen as a substitute for these.

Policies must allow for the treatment of victims/survivors 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 for sexual offence victims/survivors must be a priority and wherever possible the victim/survivor must be attended to immediately.

In addition, the Department of Social Development should actively support community-led crisis support programmes at police stations and hospitals by providing project management, supervision and a stipend for volunteers.

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.

Through the Departments of Health and Social Development, and/or the support of NGO services, the State must provide for the long-term psychological counselling of those victims/survivors who would benefit from this.

Consideration should be given to providing additional funding for victim counselling through the levying of fines on perpetrators of sexual offences in addition to sentencing.

Working group member organisations include:

National Working Group on the Sexual Offences Bill

FACT SHEET 4

Certain Offences Defined in the Bill

Introduction

The definitions described below are of the offences criminalised in the most recent draft of the Sexual Offences Bill, dated March 2006. The draft is not finalised and is still subject to change by the Parliamentary Portfolio Committee on Justice and Constitutional Development (Justice Committee) and the National Council of Provinces Parliamentary process. Offences relating exclusively to children, HIV and trafficking are addressed in separate fact sheets.

Definitions

Rape: The draft Bill describes the crime of rape as one person unlawfully and intentionally committing an act of sexual penetration with another person without that person’s consent.

An act of sexual penetration has been defined as any act that causes the penetration to any extent by –

the genital organs of a person into another person’s genital organs, anus or mouth;

any other body part of a person, or any object, including any animal body part or object resembling the genital organs of a person or animal into another person’s genital organs or anus;

the genital organs of an animal into the mouth of another person.

Consent has been defined as “voluntary and uncoerced agreement.” Consent is lacking in certain circumstances. These include, but are not limited to the following –

where the alleged perpetrator (‘A’) uses force or intimidation against people or property;

where A threatens harm to people or property;

where A abuses a position of power or authority which inhibits the complainant from indicating his/her unwillingness;

where A obtains consent by fraudulent means;

where the complainant is incapable in law of giving consent (i.e. asleep, unconscious, altered state via substance use, mentally disabled, or a child under 12 years of age).

Compelled Rape: The draft bill defines this offence as the unlawful and intentional compelling of a third person to commit an act of sexual penetration against the complainant, without the complainant’s consent.

Sexual Assault: The draft bill defines sexual assault as an act of sexual violation against the complainant, without their consent. Inspiring the belief that a complainant will be sexually violated is also an act of sexual assault.

An act of sexual violation is defined as any act that causes –

contact between any genital organ or anus of one person, or in the case of females, the breast, and any other body part of another person, any object, or an animal body part;

contact between the mouth of one person and another’s genital organs, anus, female breasts, mouth, or any other body part that could be used in an act of sexual penetration, or cause sexual arousal or stimulation is also included in this definition;

contact between the mouth of the complainant and the genital organs or anus of an animal constitutes an act of sexual violation;

the bill also explicitly names, as additional acts of sexual violation, masturbation of one person by another, and the insertion of any object resembling genital organs into the mouth of another person.

Consent is defined above; see section 1(b).

Compelled Sexual Assault: The draft bill defines this offence as the unlawful and intentional compelling of a third person to commit an act of sexual violation against the complainant, without the complainant’s consent.

Compelled Self-Sexual Assault: The offence is defined as the unlawful and intentional compelling of a complainant, without his or her consent, to engage in sexual acts with himself or herself, or to cause the complainant to penetrate his or her own genital organs or anus in any manner, other than an act of sexual penetration.

Exposure or Display of Sexual Acts: The draft bill also criminalises the intentional exposure or display of sexual acts to an adult without their consent. Similarly, compelling an unconsenting adult to be exposed to genital organs, anus or female breasts (“flashing”) is included here as an offence. Exposing or displaying pornography to an unconsenting adult is also defined as a sexual offence.

Incest: With or without consent, a person is guilt of incest if s/he has committed a sexual act with someone they could not marry on account of blood relationship.

Bestiality: The definition of bestiality includes any act of penetration of an animal’s genital organs or mouth, or the penetration by the animal’s genital organs of a person’s genital organs or mouth. Also included is masturbation with an animal.

Sexual Act with a Corpse: The bill criminalises the commission of any sexual act with a corpse.

Summary and Recommendations

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. It bears recognition of the fact that perpetrators routinely employ different methods to ensure the submission or compliance of their chosen victim, ranging from using force and threats to less visible abuses of power such as emotional manipulation. During the public hearings, the Justice Committee received submissions in support of using the concepts of coercive circumstances and fraudulent means; no submissions suggesting that coercive circumstances should be changed to consent were made. However, consent has been reinstated. It is unacceptable that the actions and behaviour of rape complainants are interrogated to a greater extent than those of the accused. Questioning on the issue of consent is generally designed to humiliate and attack the dignity of the complainant, as well as reinforcing the false notion that the complainant is responsible for the attack against her/him. The National Working Group on the Sexual Offences Bill (Working Group) continues to support removing the element of consent as it is unnecessary in defining the offence of rape. We support the research and findings of the SALRC in regards to current international legal trends around this issue and the benefit this omission would afford victims of rape, particularly in the South African context of women’s greater economic and social vulnerability.

Sexual Assault: The Working Group finds the use of the term sexual violation to describe these acts under consensual 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 (or without consent). Inspiring the belief that a complainant will be subject to unwanted sexual contact would then also be an act of sexual assault.

NOTE: Inspiring the belief that a complainant will be subject to unwanted sexual penetration (‘rape’) should also be an act of sexual assault. This is an omission from the Bill.

NOTE: The language of the Bill in describing various offences is complex and requires simplification.

Working group member organisations include:

National Working Group on the Sexual Offences Bill

FACT SHEET 5

HIV/AIDS AND THE SEXUAL OFFENCES BILL

Introduction

In April 2001, after extensive research and consultation, the South African Law Reform Commission (SALRC) recommended that South Africa should not introduce new legislation that would create a specific criminal offence for the willful transmission of HIV. Instead, the SALRC recommended that those who believe that they have been knowingly infected or exposed to the virus should use the existing criminal or civil law.

However, in 2002, the SALRC produced a draft Sexual Offences Bill recommending that a failure to disclose HIV status in circumstances where there was a risk of transmission would constitute the crime of rape.

In 2003, Section 5 of the Sexual Offences Bill contained a provision that criminalised the intentional transmission of HIV and AIDS. The separate offence of “criminal exposure of another to HIV” has since been removed.

Chapter 5 of the latest draft of the Sexual Offences Bill (2006) provides for services for victims of sexual offenders and “compulsory HIV testing of sexual offenders”.

What the Bill Says

In terms of the Bill, a complainant, an “interested person” on behalf of the complainant, and/or the police can apply for “HIV testing of an alleged sexual offender”. Such an application must be made to a magistrate within 60 days of the date that the offence took place.

If the magistrate is satisfied that there is prima facie evidence, the order to test the alleged offender for HIV can be granted. The test result will be made known to the person applying for the test and the alleged offender.

The Bill also states that the person applying for the HIV test may be held criminally liable. The offence of “malicious intent” carries a fine and/or 3 years imprisonment. In addition, the intentional unlawful disclosure of the HIV test result is also made an offence.

Problems with the Bill

Any form of compulsory testing is a serious concern, as it violates a person’s fundamental human rights. For example, compulsory testing is a violation of one’s right to bodily autonomy and to make informed decisions about medical procedures (Constitution, Section 12(2c)), and of the right to privacy (Constitution, Section 14).

There are serious concerns that compulsory testing of alleged sexual offenders forms part of the chapter dealing with services for victims of sexual offences. This may reinforce the belief that the HIV status of the accused impacts on the complainant’s decision whether or not to access PEP. The complainant’s decision to access PEP should be made independently from the HIV test result of the accused.

There are concerns about the period of 60 days in which an application for compulsory testing can be made. This may establish the HIV test result of the accused at the time of the test. This, however, does not necessarily establish the HIV status of the accused at the time of the offence. There is also the possibility that the accused might test negative for HIV, due to the window period, which, in turn, may create a false sense of security for the complainant.

The application process raises concerns, in that the magistrate will have to be presented with prima facie evidence of the case in order to decide whether or not to grant an order of compulsory HIV testing. This may jeopardise the future criminal trial.

The created offence of “malicious intent” is a major concern. This means that in a situation where a charge is dropped or there is an acquittal or there is no conviction, there is the potential of a malicious intent charge. In light of the extremely low conviction rates in sexual offences cases, this may further discourage laying a charge. In addition, there already exist common law offences for malicious intent.

Summary and Recommendations

Services for victims of sexual offences need to be accessible and include not only access to PEP, but also access to psychosocial treatment.

Compulsory HIV testing of the accused should not be considered part of the services for complainants. Instead, compulsory testing should be removed from the Bill, since any form of compulsory HIV testing is a human rights violation.

Rather than putting energy and funding into the implementation of compulsory HIV testing provisions, the State should focus on the provision of comprehensive and accessible services for victims of sexual offences.

The offence of “malicious intent” should be removed from the Bill, since there exist common law provisions dealing with matters of malicious intent. Retaining this offence in the Bill may further discourage victims of sexual offences to lay a charge.

Working group member organisations include:

National Working Group on the Sexual Offences Bill

FACT SHEET 6

TRAFFICKING IN THE SEXUAL OFFENCES BILL

Introduction

The social purity movement, which began in Britain in the 1880s, influenced early anti-trafficking legislation. This movement was dominated by images of a “white sex slave trade”, and eventually led to the enactment of “White Slave Traffic” Conventions. Research into this period indicates that most of the “trafficking victims” were actually sex workers migrating, like other workers, in search of a better life. Critics have argued that the main purpose of legislation passed during the white slave traffic era was to control female travel and sexuality.

Since the 1980s, increasing attention has been paid to trafficking in women from “developing” nations. Women from developing nations are stereotypically portrayed as the passive and exploited victims of grinding poverty. While it is accepted that Western women may work as sex workers, an equal freedom of choice is not granted to women from developing nations. Concern has been expressed that the current focus on trafficking in women stems from views similar to those held in the white slave traffic era.

Recent Developments

In 2004, South Africa signed and ratified the UN Protocol to “Prevent, Suppress and Punish Trafficking in Persons”. Signing this Protocol committed South Africa to the eradication of trafficking in persons and to the enactment of anti-trafficking legislation. The Protocol has been criticised because it focuses on criminalising trafficking but does not require signatories to provide relief to victims.

In December 2003, the South African Law Reform Commission (SALRC) published its “Issue Paper on Trafficking in Persons”, initiating an evaluation of South Africa’s current legal responses to trafficking and possible reforms. The submission period for the Issue Paper was finalised in April 2004. The next step would be for the SALRC to develop a discussion paper and draft legislation.

Despite the fact that trafficking legislation is being developed and that trafficking in children is comprehensively dealt with in the Children’s Bill, the most recent draft of the Sexual Offences Bill also includes a transitional provision on trafficking. The inclusion of trafficking in the Bill is cause for concern because it was not addressed in the original Bill and has not gone through the public comment and hearing process. Civil society has not had an opportunity to address this important issue.

In the draft, trafficking is defined as follows:

“Trafficking”means “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;

(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”.

Part 5 of Chapter 7 of the most recent draft of the Bill addresses the offence of trafficking in persons as it relates to sexual purposes. However, the Bill does not address other forms of trafficking, or relief and protection for victims.

Concerns

While the National Working Group on the Sexual Offences Bill (Working Group) supports efforts to address the issue of trafficking in persons in South Africa, the Working Group has the following concerns about the inclusion of trafficking in the Sexual Offences Bill:

The SALRC has not completed its research process around the issue of trafficking in persons. In its Issue Paper, the SALRC noted that limited research has been done on the issue of trafficking in South Africa.

The definition of trafficking in the Sexual Offences Bill only addresses the issue of trafficking for purposes of sexual exploitation or pornography and does not address other forms of trafficking, such as for forced labour, marriage or organ sale. According to a report issued by the International Organisation for Migration (IOM), other forms of trafficking are prevalent in South Africa.

The issue of decriminalising sex work in South Africa is still unresolved and should be addressed prior to passing legislation on trafficking for sexual exploitation.

Organisations working with sex workers in other countries have found that laws focussing on the prosecution of trafficking for the purposes of sexual exploitation or prostitution have proved harmful for both victims of trafficking and sex workers. Both trafficking victims and sex workers have been arrested and deported instead of being protected. The fear of anti-trafficking raids has driven sex work further underground, making it more difficult for victims to access assistance.

Protection for victims needs to be included in legislation. It is not enough for the Bill to state that victims will not be “held criminally liable for any migration-related offence, prostitution or any other criminal offence that was a direct result of being trafficked”. Victims need to have access to immigration protections, medical and health services, safe housing and food.

Summary and Recommendations

The National Working Group on the Sexual Offences Bill (Working Group) recommends the following:

That further research is conducted so that a complete picture of the nuances of trafficking in South Africa informs any draft legislation.

That a comprehensive legal approach to the trafficking of adults be developed: this includes crime control, human rights considerations, immigration protection for victims, and consideration of foreign policy.

That the chapter on trafficking be removed from the Sexual Offences Bill once the SALRC has completed its process towards developing trafficking legislation.

Working group member organisations include:

National Working Group on the Sexual Offences Bill

FACT SHEET 7

NATIONAL POLICY FRAMEWORK

Introduction

The different State departments comprising the criminal justice system have a specific role to play in the processes of reporting, investigation, collection of evidence, prosecution, and physical/psychosocial care of complainants in sexual offence cases. A lack of co-ordination between these departments can lead to:

Complainants having to repeatedly relate details of their experience.

Loss of detailed information about the case due to poor communication.

The release on bail and inadequate bail conditions of suspects who should not be granted bail, and the subsequent intimidation of witnesses.

Inadequate investigation and collection of evidence leading to cases not being prosecuted or perpetrators being acquitted.

Compromised physical safety of complainants and other members of the public.

Loss of faith in the community regarding the effectiveness of the criminal justice system.

The perception that sexual assault is a risk-free activity.

Lack of, or inappropriate, referrals of complainants for preventive and treatment health and psychosocial care services.

Poor management of convicted or diverted offenders.

A National Policy Framework (NPF) will provide an interdepartmental co-ordinating and oversight body for the implementation of sexual offences legislation and policy. It will also clarify and monitor the implementation of the responsibilities of different departments for various aspects of the legislation.

In 2002, despite the South African Law Reform Commission (SALRC) proposing a relatively comprehensive NPF under the leadership of the Department of Justice and Constitutional Development, only a weak clause was retained and introduced to Parliament in 2003. The Parliamentary Portfolio Committee for Justice and Constitutional Development (Justice Committee) discussed these aspects. As a result, the 24 February 2004 unofficial draft Bill developed by the Justice Committee reintroduced many aspects of the SALRC proposal, including more detail regarding the development of policy directives. The chapter relating to the NPF has been retained in the 2006 Sexual Offences Bill. However, the provisions exclude civil society and Non-Governmental Organisations (NGOs) from participating in the NPF. The Bill states that:

The Minister of Justice and Constitutional Development is responsible for the management of the NPF’s implementation, and must consult with the Ministers of Safety and Security, National Department of Public Prosecutions, Correctional Services, Social Development, and Health.

The purpose of the NPF is to ensure a uniform and co-coordinated approach to the implementation, enforcement and administration of the Act.

It must be published in the Government Gazette, giving members of the public access to it.

An inter-sectoral committee must be established which includes Justice and Constitutional Development, Correctional Services, Social Development and Health, as well as SAPS and the National Director of Public Prosecutions. The purpose of this committee will be to monitor the implementation and delivery of the strategies of the NPF and of the Sexual Offences Act.

Provision for a NPF represents a desirable development compared to the version of this clause originally tabled in Parliament. However, it is notable that no civil society consultation or representation is included in the development of the NPF or in the inter-sectoral committee.

What Must be Covered within the Legislation and Why

The clauses related to 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. Without this level of depth, the implementation of these measures will be undermined.

Organisations in civil society are an important link in the chain of providing services to survivors of sexual violence, and they are in a key position to monitor the implementation of law and policy. 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. 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 may disempower victim/survivors’ fight for justice. Many complainants turn to NGOs at this point.

In sexual offence matters, many State departments manage incidents of misconduct by members of the criminal justice system poorly. It is thus often up to service delivery NGOs to lobby for appropriate accountability measures to be taken.

Without civil society input on the priorities and objectives, there is the risk that inappropriate measures be developed: for example, at a time when we have a severe rate of under reporting of sexual offences, the SAPS have developed a goal to reduce the reporting rate of sexual offences by 7%. This makes no sense given the poor rate of reporting; it makes more sense that the number of cases reported should increase as confidence in the criminal justice system increases, before we begin to see the desired decrease.

Summary and Recommendations

The National Working Group on the Sexual Offences Bill (Working Group) supports the clause contained within the 2006 Sexual Offences Bill.

The Working Group recommends the inclusion of provisions to allow for consultation with, and participation of, civil society in the development and implementation of the NPF and in the implementation committee.

The NPF must create an accessible mechanism by which to address complaints and misconduct.

Working group member organisations include:

National Working Group on the Sexual Offences Bill

FACT SHEET 8

NATIONAL INSTRUCTIONS, POLICY DIRECTIVES AND DUTIES

Introduction

The South African Police Service (SAPS), the Department of Health (DoH) and the National Prosecuting Authority (NPA) have developed national instructions and policy directives during the past eight years. The comprehensiveness of the existing policies varies and some allow for more discretion than others. Many officials are unaware of the existence and content of the directives and non-compliance is widespread. Thus, these directives are not having the intended impact.

Law reform will do little to improve access to the criminal justice system for the majority of sexual offence complainants if it does not reform the procedures for case management and put measures in place to enforce these procedures. The impact of changes to the definitions and procedures in court are very important, but they will only make a difference to those cases that are taken to trial. Research shows that only about 20% of cases reported to the police go to trial.

What has been Proposed?

The original Bill tabled in Parliament by the Department of Justice and Constitutional Development contained nothing with regard to these issues. However, the South African Law Reform Commission (SALRC) included recommendations for the management of sexual offences across all sectors, including the NGO sector, in their final report. During discussions in 2003/2004, the Parliamentary Portfolio Committee on Justice and Constitutional Development (Justice Committee) further developed the national instructions and policy directives. Some of these are contained within the 2006 version of the Bill.

The Bill includes national instructions and directives for the SAPS, the NPA and the DoH. The following directives are repeated for all three of the above departments:

The National Commissioner of SAPS, Director of Public Prosecutions and Director General of Health are required, when developing their respective policy directives and instructions, to consult with various relevant State role players such as the Commissioner of Correctional Services, DG Health, Social Services and the Director of Public Prosecutions, where applicable.

Directives for the management of sexual offence cases are to be tabled in Parliament and then published in the Government Gazette, making them accessible to the public; this improves options for monitoring service provision.

Training courses are to be developed by all to cover the following issues:

The national instructions or directives;

The social context of sexual offences;

The provision and promotion of uniform norms, standards and procedures.

In addition, the Sexual Offences Bill states that the directives for the various departments should cover the following issues:

The SAPS national instructions must set out the way in which reports and investigations are to be managed and the requirements for consultation with the prosecution.

The NPA directives must set out the general approach to managing cases, the circumstances for the withdrawal of a case, and when an application must be made for the use of protective measures for a complainant’s testimony.

The DoH directives must include procedures relating to the administration of PEP.

Summary and Recommendations

The National Working Group on the Sexual Offences Bill (Working Group) supports the developments reflected within the latest Bill. In particular, the Working Group supports the fact that the directives/instructions must be published in the Government Gazette, that appropriate training on the directives must be made available to officials, and the provision stating clearly that the social context must be included in the training. We support the reference in this section to section (2) and the Preamble of the Bill which refers to the constitutional rights of victims/survivors and the need to provide complainants with the maximum and least traumatising protection possible by the law.

We are concerned that the Bill focuses on the development of new policies where in some cases very good policies do exist. It is also disappointing to note that provisions in an earlier draft of the Bill referring to disciplinary steps for officials who fail to comply with instructions and directives have been removed. This is the area in which existing policy fails, and improving the directives without including elements of accountability and discipline leaves this key issue unaddressed.

Civil society organisations (CSOs) currently provide a significant proportion of services to complainants. This includes emotional support and counselling; assistance in accessing the criminal justice system, interfacing between complainants and state service providers, assisting with information dissemination and data collection, psychological support to state service providers, pre-trial information and trial support programmes. These CSO services significantly impact on access to services, the criminal justice system and justice for victims/survivors of these crimes. The Bill does not provide for including this sector in consultations on the development of the directives and instructions.

The legislation must place duties on officials regarding certain procedures that are imperative to the effective management of all sexual offences.

The role of the Department of Social Development must be considered in respect to providing psychosocial support to complainants.

The NPA directives must contain the procedures and content of pre-trial consultation with complainants (including the role of civil society service providers).

The Bill must state that directives for the DoH must include the policy and protocol for the collection of forensic medical evidence, which is not currently covered by the provision, as well as expand the directives to include psychosocial treatment of victims.

The policy directives/instructions must establish clear and accessible complaint mechanisms for members of the public and accountability structures and processes within departments.

The development of the directives must include consultation with relevant civil society organisations.

The budgetary implications of these provisions must be taken into account and provided for. Critical aspects must not be omitted simply because they cannot be accommodated within the existing budget. It must be acknowledged that existing procedures are inadequate and result in a failure of the justice system. To address this failure will consequently require additional spending in certain areas.

Directives that are developed need to be, at the very least, in line with the Victim Charter and with the Minimum Standards for Service Delivery.

Working group member organisations include:

National Working Group on the Sexual Offences Bill

FACT SHEET 9

RULES OF EVIDENCE AND PROCEDURE

Introduction

The experience of going to court and testifying in a sexual offence case is often profoundly distressing for survivors. The trial is often emotionally unsafe for the survivor/victim because of the psychological impact of the rape, the obligation to recount the events of the attack in detail, the frightening presence of the accused and the fact that the adversarial legal system means that the complainant has to undergo traumatic cross-examination by the defence. This is even more pronounced with children who, because of their age and development, are further disadvantaged in court.

The above factors mean that, in many cases, the full details of the incident are not brought to the court’s attention. This can result in a miscarriage of justice because the court cannot base its decision on all the relevant facts. Many survivors/victims report a deep sense of betrayal due to the fact that the courts added to the trauma of the rape, that they are not safe during and after the trial, and that they had to defend themselves in order to be believed by the court.

Current Situation

Currently, the Criminal Procedure Act 51 of 1977 (CPA) provides certain measures to mitigate the unsuitability of the court environment for sexual offence complainants. These include the following:

Section 153(3A) says that the public can be ordered to leave the courtroom while the complainant is testifying. The survivor will still need to speak in front of the accused and the other court role-players.

Section 154 prevents the media from publishing any details that would identify the survivor/victim.

Section 158 says that a Closed Circuit Television (CCTV) system can be set up for a complainant, regardless of age, where s/he can give evidence in a separate room linked to the court via the CCTV system.

Section 170(A) says that for complainants under the age of 18, an “intermediary system” can be used whereby the child is in a separate room with a court intermediary and they are linked to the court via the CCTV system. The child is questioned by the intermediary and does not hear the court proceedings directly.

However, for the latter two measures to be used, the court has to decide that the complainant will suffer undue trauma if s/he testifies in open court. This requirement often leads to a “trial within a trial” and often requires an expert assessment by a helping professional.

It is argued that these provisions undermine the accuser’s constitutional right to a fair trial. However, this is not the case: the accused is still able to see, question and cross-examine his accuser when using these measures. The constitutional rights of complainants to dignity, privacy, not to be treated in a cruel, inhuman or degrading way and to psychological integrity are not sufficiently weighed by courts in deciding on utilising these measures. So while members of the judiciary routinely claim that no harm is done to the complainant through testifying in court, victims/survivors, counsellors and psychologists continue to report that testifying in court not only causes harm but also undermines the quality of evidence that is rendered to the court by the complainant.

These protective measures make a significant difference to the levels of trauma experienced by complainants while testifying, and in the quality of evidence placed before the court by children and traumatised witnesses. However, there are problems with the implementation of all these provisions. Some of them are utilised routinely by certain courts but not by others, and many complainants have no access to these measures at all.

The South African Law Reform Commission (SALRC) attempted to address the many aspects of court procedure that have a negative impact on the evidence of sexual offence complainants in court. Some of these have been retained in the Sexual Offences Bill and others have been changed or removed from the Bill.

Summary and Recommendations

Complainants in sexual offence matters were to be declared Vulnerable Witnesses to improve access to protective measures. The prosecutor will have a duty to inform the witness of the protective measure available and the court was required to use at least one of four protective measures. Despite strong support for this provision, it has been removed from the latest version of the Bill. This provision must be reinstated with amendments to ensure that witnesses have access to any or all of the four protective measures listed.

Many adult complainants find the experience of facing the accused and testifying about their experience in court extremely traumatic. This results in a poor standard of evidence being placed before the court. Most courts fail to appreciate this impact on adult complainants. The SALRC recommended that the CCTV system (Section 158 of the CPA), which is currently underutilised, be made more accessible to those adult complainants whose testimony would benefit from the use of this protective measure. This provision has been removed from the Bill and must be reinstated so that adult complainants may access this protection.

At present, if the accused does not have defence council he may cross-examine the complainant directly in court. This undermines the dignity and psychological safety of the complainant and has a negative influence on her/his testimony. This form of intimidation of the complainant by the accused is equivalent to silencing the complainant and denies the court the benefit of the whole truth. It was proposed that section 166 of the CPA, which deals with cross examination, be amended so that an accused cannot cross examine the complainant directly but instead would need to pose his questions through the court. This has been removed from the Bill and must be reinstated.

Currently, the testimony of some child witnesses is excluded because the court believes the child unable to understand the concept of truthfulness. The SALRC recommended an amendment to section 192A of the CPA, which said that all children would be presumed competent to testify. An amendment is also proposed to section 154 of the CPA, which says that any person who does not understand the oath may testify if they have been told by the magistrate or judge to tell the truth. The National Working Group on the Sexual Offences Bill (Working Group) is concerned that presiding officers will continue to be confused about these two provisions and thus believe that the presumption of competence of children to testify must to be reinstated in the Bill.

Provision was made for witnesses to have support persons in court with them: a complainant could be seated next to a trusted person while s/he testified. The intention was to lessen the emotional trauma to the witness of testifying in court (for example, a young child could be seated on her/his mother’s lap or a counsellor could be seated next to the complainant). Research indicates that the presence of a support person has a significant impact on the ability of child witnesses to recount the details of their experience. This clause was removed because it was believed that it would increase costs because witness fees would need to be paid to support persons. However, these fees are already paid to parents and caretakers who bring their children to court to testify. The Working Group believes that this must be reconsidered and reinstated, especially for children.

A provision was recommended in which all child witnesses would automatically qualify for the intermediary system. This has been removed from the Bill and must be reinstated. However, an amendment to section 170 of the CPA has been made that gives witnesses over the age of 18 but who have a mental and/or emotional age of under 18, access to this system. The Working Group supports this provision.

Currently, provisions to protect survivors from being questioned about their previous sexual history in Section 227 of the CPA are inadequate. Courts often do not understand that previous sexual behaviour has nothing to do with rape and use previous sexual history against complainants. The latest draft version of the Bill makes amendments to this that set out in detail the circumstances in which this evidence can be raised. This offers more protection to complainants than before. However, this provision requires further amendment in order to ensure that it offers the intended protection to complainants. The Working Group believes that further developments must be made to this section.

Rules of evidence require that caution be applied to the testimony of certain witnesses because they are considered to be unreliable (i.e. single witnesses, children and sexual offence complainants). It is acknowledged that this discriminates against sexual offence complainants and the Supreme Court of Appeal has limited its use in rape cases. However, this cautionary rule may still be used. These rules set additional obstacles to justice for child complainants, who are typically the only witness. The SALRC recommended that the application of all cautionary rules, with the exception of the rule relating to single witnesses, be discontinued. They maintained that the normal process of the court establishing the truthfulness of any witness is sufficient. This amendment was removed in the latest Bill. This amendment must be reinstated.

Current court practice treats a delay in reporting as evidence that a claim is false. However, in many situations, especially those of child abuse and acquaintance rape, victims/survivors do not immediately disclose their experience. The Bill provides that courts may not view a delay in reporting in a negative light. In addition, it should not be used against the survivor/victim if s/he did not tell anyone else about the rape immediately. The Working Group supports this development.

Working group member organisations include:

National Working Group on the Sexual Offences Bill

FACT SHEET 10

THE AGE OF CONSENT

Introduction

The reform of the sexual offences legislation included an examination of the appropriateness of the age of consent to sexual intercourse and also dealt with the age of consent to “immoral and indecent” acts. It should be noted that the existing Sexual Offences Act does not define the terms “immoral or indecent acts”.

The South African Law Reform Commission (SALRC) researched this aspect of the law extensively, via questionnaire and extensive consultation during workshops held in both rural and urban areas in every province.

Results of the Research

The SALRC’s report noted that, historically, via the Sexual Offences Act 23 of 1957, the age of consent to sexual intercourse had been established at 16 years. There was general agreement that the age of consent to sexual intercourse should remain at 16 years, although a minority of discussants and respondents to the research suggested ages ranging from 12 years to 21 years as the age of consent. However, it was noted that “safer” sexual practices (non-penetrative sexual interaction) could fall under the provision of “indecent acts” in the Sexual Offences Act, for which the age of consent is 19 years. It was therefore recommended by the SALRC report that the age of consent for sexual interaction, both penetrative and non-penetrative sexual acts, should be 16 years.

The SALRC also heard evidence on the issue of whether or not to criminalise children between the ages of 12 and 15 who engage in consensual sexual behaviour. It was noted that charging these children with a criminal act would be unlikely to have a positive impact in developing responsible sexual behaviour, and would result in a criminal record for the children concerned, bringing them into contact with a criminal justice system that does not function in a child-friendly way.

It was therefore recommended by the Commission that:

There should be differentiation between penetrative and non-penetrative sexual acts regarding the age of consent.

The age of consent should remain at 16 years for both penetrative and non-penetrative sexual acts.

Children aged between 12 and 15 years who engage in non-penetrative sexual acts should not be charged if consenting and if the age difference between them does not exceed 3 years.

That the defences of reasonable belief that the child was over 16 years of age and/or that the accused was misled as to the age of the child should remain.

The age of consent to engage in any form of prostitution (if prostitution is decriminalised or regulated) is 18 years, as this form of sexual behaviour is so high-risk that it is believed that children require this extra protection.

What the Bill Says

The latest version of the Bill, with one exception, reflects the recommendations of the SALRC regarding the age of consent. The exception is that where two children between the ages of 12 and 15 years are involved in a consenting sexual relationship, prosecution will not be instituted unless authorised in writing by the National Director of Public Prosecutions if both A and B were children at the time of the alleged commission of the offence. Where prosecution is instituted, both children must be charged.

Valid defences include:

that the child deceived the accused person into believing that he or she was 16 years or older at the time of the alleged commission of the offence and the accused person reasonably believed that the child was 16 years or older;

that both the accused persons were children and the age difference between them was not more than two years at the time of the alleged commission of the offence.

The latest version of the Sexual Offences Bill thus:

retains the age of consent to sexual relationships at 16 years for both male and female children;

allows for specific defences to sex with a minor;

retains 18 as the age of consent with regard to involvement in commercial sexual relationships.

The National Working Group on the Sexual Offences Bill supports the above provisions in the Sexual Offences Bill.

We do not, however, support the description of such acts as “consensual rape”. This is a contradiction in terms and such acts would more accurately be described as “unlawful sex”.

Working group member organisations include:

National Working Group on the Sexual Offences Bill

FACT SHEET 11

MANAGEMENT OF OFFENDERS

Introduction

The South African Law Reform Commission (SALRC) made a broad range of recommendations relating to the management of convicted sex offenders based on the principle of restorative justice. The majority of these recommendations have been omitted from the latest draft of the Bill, resulting in the dire loss of the principle of rehabilitation and restorative justice. Furthermore, children accused of sexual offences are offered no extra measures to ensure access to diversionary and support services in this draft of the Bill. Increasingly, sex offences are committed by children under the age of 18:[3] 43% of reported rape is perpetrated by offenders who are under 18.[4] Locking these children away is proven to be entirely unreliable in preventing recidivism and does not represent a solution to the rate of sexual offences in South Africa.

Treatment of Sex Offenders

The rate of sexual offences continues to increase in South Africa. In order to ensure a preventative approach to sexual offences, it is critical that rehabilitation of offenders form an integral part of the management of offenders, as this will lower the risk of re-offending. The financial costs of this will 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. The SALRC recommended that rehabilitative treatment 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 the Department of Justice removed this from the Bill tabled in Parliament in July 2003.

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. Being sentenced to participate in a treatment programme of this nature should not minimise the punishment handed down for the offence committed.

Drug and Alcohol Treatment and Testing Orders

This provides for drug and alcohol treatment and testing to be ordered as part of the offender’s sentence. The 2003 Bill tabled in Parliament stipulated that this would be paid for by the offender and not by the State. Concerns were raised that this was discriminatory and that the cost of treatment should be borne by the State. The entire clause has subsequently been removed from the latest draft version of the Bill. 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. If an offender does not have the funds to pay for such an option, the cost must be carried by the State. Being sentenced to participate in a treatment programme of this nature should not minimise the punishment handed down for the offence committed.

Supervision of Dangerous Sex Offenders

The supervision of dangerous sex offenders was recommended by the SALRC and maintained by the Department of Justice but subsequently removed by the Justice Committee. This provided that under certain circumstances a convicted offender would be declared a dangerous sex offender. Once declared a dangerous sex offender, 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-term 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 recommended that this provision be returned to the Bill, and that the period of supervision is extended to 10 years.

Sex Offender Registers and Community Notification of Offenders

Public sex offender registers were extensively discussed during the SALRC process. The constitutionality of public registers of convicted offenders was questioned and research evidence indicates 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 SALRC subsequently recommended that any person seeking employment that involved working with children in any way would have to declare that they had been convicted of a sexual offence.

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 forms part of the Children’s Bill. The duplication of these registers will be costly, both 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 psychosocial treatment for victims of sexual offences and rehabilitative justice for perpetrators of sexual offences.

The registrar, who is not required to have training in the management and rehabilitation of sexual offenders, or to consult with experts who do, has powers related to the removal of offenders’ names from the register.

Diversion and Sentencing of (Alleged) Child Sex Offenders

The Sexual Offences Bill is silent on this issue. SALRC proposals included the principle of restorative justice within the guiding principles, noting that restorative and rehabilitative alternatives should be considered. Provision was also made for diversion of young people who had engaged in consensual sexual activity.

Summary and Recommendations

The National Working Group on the Sexual Offences Bill (Working Group) recommends that 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.

The provision for the supervision of dangerous sex offenders must be reinstated in the Bill.

The Working Group strongly recommends that the National Register for Sex Offenders be contained within the National Child Protection Register provided for in the Children’s Act (1975). The Working Group recommends that the names of convicted adult offenders not be removed from the register under any circumstances.

It is recommended that children who are convicted of a first sexual offence should not appear on the register.

Furthermore, children convicted of sexual offences should be registered under section A (Vulnerable Children) of the National Child Protection Register.

Diversion options must be available for children accused of sexual offences.

The minimum sentencing legislation (Criminal Law Amendment Act 195 of 1997) sets out minimum sentences for convicted sex offenders. The Working Group believes that it is inappropriate for minimum sentencing to be applied to convicted child offenders and that this is in opposition to the principles of restorative justice. The sentencing of convicted child offenders should be dealt with in the Child Justice and Sentencing Framework Bills.

Working group member organisations include:

National Working Group on the Sexual Offences Bill

FACT SHEET 12

MAKING SUBMISSIONS[5]

What is a Submission to Parliament?

A submission is an individual's or an organisation’s comments on a piece of draft legislation (or Bill) that is being discussed by a Portfolio Committee in Parliament. A submission expresses support or opposition to the Bill. It may also propose changes. A submission is usually a written document. However, a person or organisation may also ask to make an oral presentation to the Portfolio Committee. A submission can be a very simple document, like a letter or a short statement. It can also be much longer. It depends on the writer and what she or he wants to say.

Why make a submission?

Submissions are one of the ways citizens can make their voices heard in the law-making process. Members of Parliament (MPs) need to know whether or not the public supports a Bill. They also need suggestions from the public about how to improve Bills.

You may have suggestions that would help make the law better. By making a submission, you can raise matters of concern or suggest solutions that MPs might not have thought of.

It is a practical way to ensure good sexual offences legislation.

Let us raise our voices together

The National Working Group on the Sexual Offences Bill (Working Group) is encouraging organisations and individuals to act together to prepare submissions. We will keep in touch with you and let you know what we are doing. This is important because, if several groups make similar points and propose similar amendments, we are more likely to make an impact.

When should we make our Submissions on the Sexual Offences Bill?

The Sexual Offences Bill has been introduced in Parliament and it has been sent to the Portfolio Committee on Justice and Constitutional Development. They have asked for people to send them written submissions, but have not yet given a deadline.

Since there is no deadline, it is best to begin working on your submission as soon as you have a copy of the Bill and send it to the Committee once it is ready. Some of the organisations in the Working Group will look at your submission if you feel you need help with it.

It is best to send submissions during July 2006.

The name of the Committee Secretary is Ms Phumelele Sibisi. You can phone her on 021 403 3660 to find out if you can make an appointment to come and speak to the Committee.

How should we Write our Submissions?

There is no set format for a submission. It can be a simple letter of support or opposition, or it can be a longer document with suggestions for changes. The important thing is to say what you want to say clearly.

Usually, the shorter and simpler your submission, the better. MPs are busy people and will probably not have time to read very long, complicated submissions. Try to propose solutions to problems that you raise.

Know what the Bill Says

Read the Bill. Often, Bills are written in complicated legalistic language. You can contact someone from the National Working Group on the Sexual Offences Bill if you want a summary of the bill and some assistance in understanding what the bill says.

Name	Organisation	Telephone Cellphone	Email Address	Fax
Meaka Biggs	Rape Crisis CT	(021) 447 1467 083 383 0206	[email protected]	(021) 447 5854
Cookie Edwards	KZN Network on Violence	(031) 304 6928 083 637 0203	[email protected]	(031) 304 6930
Romi Fuller	CSVR	(011) 403 5650 083 257 2582	[email protected]	(011) 339 6785
Chloe Hardy	Aids Law Project	(011) 717 8628 083 310 1670	[email protected]	(011) 403 2341
Johanna Kehler	Aids Legal Network	(021) 447 8435 083 697 8419	[email protected]	(021) 447 9946
Judi Merckel	RRA	(011) 673 5370 082 921 1938	[email protected]	(011) 477 8872
Shereen Mills	CALS	(011) 717 8600 083 738 8778	[email protected]	(011) 403 2341
Sibongile Ndashe	Womens Legal Centre	(021) 421 1380 083 348 5509	[email protected]	(021) 421 1386
Nadira Omarjee	POWA	(011) 642 4345 072 512 3329	[email protected]	(011) 484 3195
Delphine Serumaga	POWA	(011) 642 4345 083 414 4999	[email protected]	(011) 484 319
Sally Shackleton	Womens Net	(011) 429 0000 082 330 4113	[email protected]	(011) 838 9871
Joan Van Niekerk	Child Line SA	(031) 563 5718 083 303 8322	[email protected]	(031) 563 5718
Karla Van Rensburg	TVEP	(015) 963 1222 084 075 0561	[email protected]	(015) 963 1973
Samantha Waterhouse	RAPCAN	(021) 712 2330 084 522 9646	[email protected]	(021) 712 2365

Begin with a Summary to make the Main Points

If your submission is long, write a summary. Your summary should briefly outline your main points and recommendations.

Say who you are

If you are making the submission as an individual, explain why you want to comment on the legislation. If you have training or experience that is relevant to the issue, say so.

If you are making the submission as an organisation, describe the organisation: Who are its members and who does the organisation work with? Why are they concerned about this Bill? Does the organisation have special expertise or experience in this issue? Establish your credentials for valid comment.

Explain your Point of View

This is the main part of your document. Start by saying whether you support or oppose the Bill or what parts of the bill you oppose and support. If you want to suggest changes, do so here.

Use the Language of your Choice

Use the language you feel most comfortable with. The main language used in Parliament is English. However, the majority of MPs speak Xhosa, Zulu or Sotho. They will enjoy reading submissions in any of these languages. But remember, the media probably do not understand many South African languages. So attach a one-page summary of your main points in English.

If possible support your submission and recommendations with research based evidence or references. Remember to state this in summary.

What to do when you have Finished your Submission

If you are in Cape Town, you can deliver your submission by hand to Parliament.

Otherwise, you can post it to:

The Committee Secretary

Portfolio Committee on Justice and Constitutional Development

Parliament

PO Box 15

Cape Town 8000

Make sure you post it in time to arrive before the deadline. Or, if your submission is short (five pages or less), you can fax it to:

The Committee Secretary

Portfolio Committee on Justice and Constitutional Development

021 403 8717.

You can email your submission to the Committee Secretary Ms Phumelele Sibisi: [email protected].

If you want to make an oral submission, request this in a cover letter. Phone the Committee Secretary on 021 403 3660 to find out if and when this will happen. Even if you are not making an oral submission, you may wish to attend the hearings.

The telephone numbers may change. You can look up the telephone number for Parliament in the telephone directory and request the telephone numbers for specific committee secretaries, who should be able to provide you with information.

GENERAL TIPS TO MAKE YOUR MESSAGE READ LOUD AND CLEAR

·        Make your submission readable. Use clear type and a large font. You want it to be read, so make it easy!

·        Use plain language and short words. Keep it simple.

·        If you state a problem, try to propose a solution.

·        Don’t assume knowledge. Give MPs some background on a problem you raise. Even if they have heard it all before, it won't hurt them to hear it again!

·        If you refer to a particular section of the Bill, give the number. Don’t force the reader to look it up. S/he probably won’t bother.

Tell them what it’s like out there. For example, talk about the way rape is affecting the people you live and work with. MPs don't always have enough time to go out and find out what is happening on the ground. They need and want to know what is happening.

Working group member organisations include:

[1] Published on the web by Daily News on May 23, 2005: “Minister to act on racist laws”.

[2] This includes emotional and psychological support through various forms of counselling or psychotherapy and at times even psychiatry

[3] Up to 20% of boys surveyed by CIET Africa in 2002 had perpetrated coercive sex with other children.

[4] Personal communication between Carol Bower and Superintendent Jan Swart of the (then) Goodwood Child Protection Unit./ Childline report 2002

[5] Material based on the document developed by the gun control alliance.