SWEAT [Sex Worker Education and Advocacy Taskforce]
20th June 2006
Jayne Arnott, Director
Anna Weekes, Legal Advocacy and Lobbying Coordinator
Recommendations
SWEAT respectfully recommends that:
Comment
SWEAT further wishes to give comment on the following issues:
3. The element of consent in the crime of rape
4. National policy framework
5. Rules of evidence and procedure
6. State support for survivors of sexual violence
7. Compulsory HIV testing of offenders
Preamble
In our Submission of 15 September 2003 to the Committee on Justice and Constitutional Development, we recommended that the phrase appearing in paragraph three of the preamble ‘including prostitution’ be removed and that the wording be as follows:
AND WHEREAS women and children are particularly vulnerable to sexual offences.
We fail to see why "prostitution" should be referenced here and the implications of including this reference have far reaching implications for those adults who are consensually selling sex. The Sexual Offences Act as it relates to adult sex work is currently under a separate review process, and the South African Law Reform Commission will set out recommendations to change certain sections of this act. At present sex workers are subject to criminal sanction for their work and these activities cannot therefore be described as a sexual offence or referenced as such. Should women be subject to coercion of any kind into sexual acts then this would be considered as sexual exploitation and a sexual offence, not " prostitution". Should a child be subject to any form of sexual exploitation then it should be the offence of sexual exploitation of a child and a sexual offence, not "prostitution".
2. Trafficking
The development of comprehensive legislation to address trafficking of adults and children is currently underway by the South African Law Reform Commission. An Issue Paper was released in 2004 and a Discussion Paper containing a Proposed Bill was issued in May 2006. We therefore strongly recommend that the proposed section on trafficking be removed from the Sexual Offences Bill. Trafficking of adults and children occurs into diverse forms of labour such as domestic work; farm labour, forced marriages as well as sex work. A comprehensive piece of legislation to deal with trafficking will allow for the optimum utilisation of resources and coordination of services and procedures to address this crime.
The element of consent in the crime of 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 is consistent with international legal developments.
SWEAT notes that this section has been altered in the draft bill, and that the bill details a number of different circumstances in which people can be deemed to have not freely agreed to sexual penetration. However, we submit that the element of consent in the offence of rape should be removed completely. Consent is not an element in any other crime. In all other crimes, like theft and assault, it is assumed that the victim did not want the crime to happen to him or her.
Notwithstanding the exhaustive list of different circumstances in which people can be deemed to have not freely agreed to sexual penetration, these are open to interpretation by individual magistrates, particularly in proving that a perpetrator used force against a victim or property of a victim; and "where there is an abuse of power or authority to the extent that B is inhibited from indicating his or her resistance to such an act, or his or her unwillingness to participate in such an act".
Even having to prove in court that one was asleep at the time of the commission of sexual penetration will simply continue the existing problem of the victim’s word against the perpetrator.
4. National policy framework
SWEAT submits that "The Minister for Justice and Constitutional Development must, after consultation with the Ministers of Safety and Security, Correctional Services, Social Development and Health" also consult with civil society organisations before developing "a national policy framework to ensure a uniformed and co-ordinated approach by all Government departments in dealing with sexual offence matters and to guide the implementation, enforcement and administration of this Act."
Rules of evidence and procedure
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.
Previous sexual history
SWEAT believes that the admission of previous sexual history "when relevant" does not offer protection to complainants since courts often do not understand that previous sexual behaviour has nothing to do with rape and use previous sexual history against complainants. We agree with the AIDS Legal Network (ALN) that "the very fact of the possibility of the victim/survivor’s prior sexual history being admissible as evidence suggests that there are circumstances within which rape, as one of the sexual offences, would be ‘less of a crime’, due to the complainant’s prior sexual history."
The limitation that complainants’ previous sexual history can only be admitted "with the leave of the court, which leave shall not be granted unless the court is satisfied that such evidence or questioning is relevant" is not really a limitation at all. Allowing the court to decide whether or not evidence relating to the complainant’s prior sexual history is relevant opens the possibility of prejudice and further victimisation of the complainant, as well as minimising the gravity of the offence, as the ALN has already pointed out.
SWEAT notes the Women’s Legal Centre’s statement that the spirit of this Bill is to "encourage reporting and to dispel the notion as it exists in communities that the law only protects sexual offenders as opposed to victims of violent crimes." It is quite clear that the admission of previous sexual history will discourage many survivors of sexual violence from reporting.
This will specifically be the case for sex workers, who are not seen by society or the system as persons engaged in a legitimate form of labour given the stigma attached to sex work as well as its continued criminalisation. There is ample evidence and case studies from a number of different sources to prove that sex workers are often raped. Allowing previous sexual history as admissible evidence will further discriminate against sex workers who want to report rape and clearly deter many victims from reporting. SWEAT also believes that since the South African Law Reform Commission is reforming the law that criminalises sex work, it is not fitting for other laws to contain clauses that will erode sex workers rights further.
b. Vulnerable Witnesses
SWEAT is concerned that the clause providing for complainants in sexual offence matters to be declared Vulnerable Witnesses (to improve equal access to protective measures) has been removed from the latest draft version of the bill. SWEAT believes that the law must compel prosecutors to inform the witness of the protective measure available and the court must be required to use at least one of four protective measures.
c. Provision for in-camera testimony from complainants
Many adult complainants find the experience of facing the accused and testifying about their experience in court extremely traumatic, which results in a poor standard of evidence being placed before the court. The SALRC recommended that the CCTV system (Section 158 of the CPA), which is currently under-utilised, be made more accessible to those adult complainants whose testimony would benefit from the use of this protective measure. This provision was removed from one of the draft versions of the Bill and must be reinstated.
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 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 latest draft version of the Bill and must be reinstated.
6. State support for survivors of sexual violence
Sexual violence causes both physical and psychological trauma. After a sexual offence the victim/survivor may require medical and psychosocial treatment for the following:
In recognition of these serious consequences, the South African Law Reform Commission (SALRC) recommended that the State provide psychological 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. SWEAT is very concerned that the Bill does not provide any free psychological support to the victim of sexual violence. Removal of this clause minimises the seriousness of the physical and psychological trauma resulting from sexual offences and ignores the currently differential availability of, and access to, services for wealthy and poor South Africans.
SWEAT concurs with the ALN that the Bill has limited survivor’s right to PEP, which should be universally accessible in all healthcare facilities in the country. SWEAT is further concerned that the Bill does not provide any other medical treatment for survivors of sexual violence such as treatment for possible transmission of other sexually transmitted infections, and treatment to prevent pregnancy. This is a serious oversight.
SWEAT urges the Committee to commit the State to providing services at its expense, as outlined above.
Compulsory HIV testing of offenders
SWEAT calls for the provisions related to compulsory HIV testing of sexual offenders to be removed completely from the Bill. We join a very wide range of organisations working on issues of rape, gender based violence and HIV/AIDS in calling for the removal of these provisions.
Compulsory HIV testing of offenders is a human rights violation to the person being tested. Furthermore, it is unscientific and ignores the existence of a long "window period" where tests for HIV might not give the correct result.
Compulsory testing also gives survivors a false sense of security whereas in reality, rape survivors can only protect themselves from contracting HIV through taking PEP for the recommended period of time.
SWEAT is very concerned that any person who ‘maliciously’ applies for a compulsory HIV testing of an accused can be charged with the crime of malicious intent. Given the extremely low conviction rates of sexual offenders, it seems pointless to encourage survivors to apply for compulsory HIV testing of their alleged rapist knowing that not all the cases will result in convictions, and that then the survivor could be prosecuted for malicious intent. This measure does not protect the survivor at all and SWEAT feels that the Bill would better serve survivors by ensuring that free psychological support and other State services are available universally, since these have proven positive effects.
[ends]