PEOPLE OPPOSING WOMEN ABUSE (POWA)
SUBMISSION TO THE PARLIAMENTARY PORTFOLIO COMMITTEE ON JUSTICE AND
CONSTITUTIONAL DEVELOPMENT THE SEXUAL OFFENCES BILL JUNE 2006
RESPONSE TO: PART 5: TRANSITIONAL PROVISIONS RELATING TO TRAFFICKING IN PERSONS
FOR SEXUAL PURPOSES
INTRODUCTION
People Opposing Women Abuse was established in 1979 as a response to the high
levels of violence against women experienced in the community. POWA was
primarily initiated by volunteers and offered services to women who experienced
domestic violence, sexual harassment, rape and adult survivors of incest. The
Organisation has a strong gender sensitive stance and seeks to empower women
through the process of counselling, education, advocacy and lobbying.
POWA is based in Berea, in the Johannesburg inner city area. We serve the
entire Gauteng, and have branches in Katlehong and Vosloorus in the East Rand,
Sebokeng in the Vaal and Soweto. Our clients are drawn mainly from the Magisterial
districts of Johannesburg, Pretoria, Vereeniging, Soweto, Wynberg, Randburg,
Germiston, Thokoza, Kempton Park and all the West Rand areas. Our helpline
takes calls nationally, although we deal mainly with women in the Gauteng
Province.
POW A was the first organisation in Gauteng to set up a shelter for abused
women in 1984. We currently run a shelter in the West Rand that accommodates 10
women and their children at a time, and have recently opened our second
shelter, with the same capacity, on the East Rand. Although abuse of women
happens across all sectors of society, our target is primarily women who come
from communities with limited or no resources at all, or those who cannot
afford alternative resources in their areas. These areas are some of those that
historically have poor infrastructure such as no street lighting, unsafe public
transport areas etc. This in turn encourages the increase in crime,
particularly crimes against women. These communities are also characterised by
limited employment opportunities, overcrowding, lack of educational facilities,
extensive HIV and Aids related issues and alcoholism. All these factors impact
very strongly on violence against women.
Recent research initiatives by POWA has been undertaken in the area of conflicts
in Africa and a case study of an undocumented woman has provided insight into
the particular vulnerabilities of individuals, namely those who are seeking
asylum in South Africa and whose "status is legally undetermined.
Similarly, vulnerability to physical and sexual violation is extended to the
categories of individuals, such as sex workers and trafficked victims.
POW A would like to make the following recommendations:
·
The chapter on trafficking be removed from the Sexual Offences Bill given
that comprehensive legislation is being drafted by the South African Law Reform
Commission (SALRC), and that trafficking of children is dealt with in depth in
the Children's Bill.
·
This chapter should be replaced by a section which makes provision not only
for, trafficked persons per se, but individuals that fall outside the ambit of
the law, such as undocumented persons and sex workers. It should be
acknowledged that such individuals are vulnerable to various forms of abuse,
including sexual exploitation. As such, they should not be liable for criminal
offences in these instances.
·
The new section should contain a framework to provide for such
individuals who have been physically and/or sexually violated by providing
access to the law in order to seek redress.
·
A human-rights approach should be emphasised in assistance rendered to
such victims. Provision should be made for these individuals currently defined
by the law as "illegal" with the necessary relief/assistance in such
situations where they have been physically and/or sexually violated. This
includes access to legal, medical and counselling resources. Protective and
preventive mechanisms need to be put in place to reduce their positions of
vulnerability.
It is stated at the outset that POW A does not endorse the inclusion of
"Part 5: Transitional provisions relating to trafficking in persons for
sexual purposes" of the Bill. Trafficking, as defined in the Bill, means
"the supply, recruitment, procurement, capture, removal, transportation,
transfer, harbouring, sale, disposal or receiving a person, within or across
the borders of the Republic of South Africa for use in sexual acts, including
sexual exploitation or pornography of a person".
The definition of trafficking only makes reference to the sexual exploitation
aspects of trafficking and therefore fails to acknowledge that trafficking can
take other forms, such as trafficking for the purposes of forced labour, forced
marriage, adoption and organ sale. Limiting focus to trafficking with respect
to the commission of sexual offences, sexual grooming, pornography or
prostitution further ignores migration, criminality and human rights issues.
Inclusion of the trafficking section with its narrow focus may impede the
passing of the more comprehensive legislation dealing with trafficking in its
myriad forms.
Criminality
The United Nations High Commissioner for Refugees (UNHCR) acknowledges that
persons entering a country through irregular channels are highly vulnerable to
exploitation and inhumane treatment in their country of destination. Both
trafficked and . undocumented persons are therefore classified as 'irregular
migrants'. While section 66(5) of the Bill recognises that trafficked persons
are not to be prosecuted for a criminal offence, POWA would like to emphasise
that undocumented persons should also be included in this provision.
Undocumented persons, given their lack of status, are highly vulnerable to
being exploited, both physically and sexually by border patrol guards,
government and immigration officials, police and ordinary citizens. Data
collected by POW A for the purposes of this submission revealed that such
individuals are often denied access to justice and legal protection in cases
where they have been violated.
Given their lack of status, they are unable to report such violations and are
criminalised thereby subjected to further victimisation.
Human Rights Approach
POW A endorses a rights-based approach to legislation. The section fails to
specify which particular protective mechanisms are in place to prevent further
victimisation of individuals. Issues of access relating to medical, counselling
and social services are also not provided.