SUMMARY OF COMMENTS (as at 31
August 2006): REDRAFTED VERSION OF CRIMINAL LAW
(SEXUAL OFFENCES) AMENDMENT BILL
[B 50 — 2003]
Submissions by:
“ALN” — Aids Legal Network (SexOff 5) “HvN” —Hetta van Niekerk (Educational
Psychologist)(SexOff 16)
“Cline” — Childline (SexOff 6) “OLGBT” —Out LGBT Well-being (SexOff 17)
“CSVR” — Centre for the Study of Violence
and Reconciliation (SexOff 7) “ACVV” —Social Worker, Port Elizabeth (SexOff 18)
“CALS” — Centre for Applied Legal Studies
(SexOff 8 and 8A) “ALP” —Aids law Project (SexOff 20)
“RAPCAN” — Resources Aimed at Prevention of
Child Abuse and Neglect (SexOff 9) “HHG” —Hofmeyr Herbstein and Gihwala (SexOff 27)
acting for Print Media SA
“RCCTT” — Rape Crisis Cape Town Trust
(SexOff 10) "MS" —Molo Songololo (SexOff 28)
“SWEAT” — Sex Worker and Advocacy Taskforce
(SexOff 11)
“NWG” — National Working Group on the
Sexual Offences Bill (SexOff 12)
“POWA” — People Opposing Women Abuse
(SexOff 13)
"ACDP" —African Christian Democratic Party
(SexOff )
Clause |
Body |
Comment |
Preamble |
||
|
RAPCAN |
Bill does not deal with adult
prostitution. Delete words “including
adult prostitution” (4th paragraph of pre-amble). |
|
SWEAT |
Repeats
recommendation (“clsex83”, p1 of previous summary, delete words “including
adult prostitution”). |
Chapter 1: Definition and
Objects |
||
1 |
CALS |
“genital organs”: use of words “genital organs” may cause
confusion. Relevant organs should
rather be listed. “coercive circumstances” (clause
1(3)): None of the four existing
grounds address the problem of acquaintance rape (close to 50% of rape
survivors know their perpetrator).
Although list is not exhaustive it is imperative that problem be
recognised by Legislature.
Recommendation: insert an
additional provision dealing with “abuse of a relationship of trust, undue
influence” etc; and broaden “abuse of power or authority” to include “abuse
by the accused of his or her position of power or authority over, or other
trust in relation to, the complainant”. |
1 |
HvN |
“mentally disabled person”: paragraphs (c) and (d) of definition of
“mentally disabled person” may apply equally to persons with physical
(cerebral palsy) and sensory (blindness and deafness) disabilities. “sexual violation”: does “object resembling the genital
organs” include use of objects such as a lighter, bottle neck, stick etc. |
1 |
OLGBT |
“consent”: the paragraph (c)
fraud and false pretences requirement is too broad and “… could render
transgendered people vulnerable to a rape charge based solely on their gender
identity.” (p8 of submission). |
1 |
HHG |
"pornography": Definition is too wide and places an
unreasonable limitation on the right to freedom of expression. Certain advertisements and newspaper
articles of a general or medical nature which relates to sexual conduct will
qualify as pornography. General
articles of a sexual nature and many magazines "… are now classified as
pornography." Articles in the print media relating to
sexual conduct or advice will be "capable of being used for purposes of
sexual exploitation". The
relevant provision places an unjustifiable limitation on the right of freedom
of expression and will lead to unacceptable wide liability in respect of the
print media. Definition of "child pornography"
and provisions of Films and Publications Act, 1996, provides sufficient
protection for children as far as their involvement in pornography is
concerned. By incorporating
pornography the Bill does not strike an even balance between freedom of
expression and the rights of individuals.
Bill should therefore only provide for protection of children against
pornography and other provisions dealing with pornography should be deleted. Current definition makes it difficult to
draw a distinction between educational and pornographic material. Concern is expressed that sex educational
material may be criminalised. Since
publications are widely available the concern is that it will be difficult to
determine whether a person has in fact consented to being exposed to
pornography (clauses 8, 10 and 22). Definitions of "sexual act" and "sexual violation" are too wide. Questions the meaning of "… any object resembling the
genital organs or anus of a person and in the case of a female, her breasts
..". ”sexual conduct": It is not clear what "sexually
suggestive or lewd acts" or "the undue or inappropriate exposure or
display of genital organs, female breasts or of the anal region"
means. What is test for
"inappropriateness" and who will have to decide on the matter.
Definition is too wide and articles of a general or medical nature will
qualify as pornography. Definition is
too wide and will create confusion. |
Chapter 2: Sexual Offences |
||
3 |
CALS SWEAT CALS |
Consent as an element of rape should be
removed because it places too much of an emphasis on the actions and
behaviour of the complainant. Replace
“consent” with “coercive circumstances”. |
5 |
CALS NWG |
Term sexual “violation” is problematic, for
example, inspiring the belief that a complainant will be subjected to
unwanted sexual “contact” instead of sexually “violated” will be more
appropriate. Subclause (2): Inspiring the belief that a complainant will be subjected to
sexual penetration (rape) should also qualify as sexual assault. |
5 |
RAPCAN |
“Sexual contact” describes acts performed under
consent. If consent is absent then it
becomes sexual assault. Term “sexual
violation” is therefore not appropriate and should be replaced with “sexual
contact”. |
8 |
HHG |
It is unnecessary to criminalise exposure of
pornography to adults. Adults do not
qualify for the same protection as children do and adults should have the
right to decide what they see, hear and read. Explicit material is publicly available. The existence of "consent" will
therefore be difficult to determine. |
11 |
NWG ACVV |
Foster parents should form part of list of
proscribed relationships. |
Chapter 3: Sexual Offences
against Children |
||
14 |
Cline NWG |
Defence in respect of consensual sexual
violation (between children – clause 15) should be made applicable to
consensual sexual penetration. Term “consensual rape” is a contradiction in
terms and should be omitted from the heading. |
14 |
ACDP |
There is widespread public outcry against
lowering age of consent from 19 to 16 in respect of homosexual acts. SALRC conceded in its report that age
limits are set arbitrarily. In terms of equality argument the Bill
proposes to set the age of consent at 16 in respect of all. It is firstly pointed out that the present
age of consent for anal intercourse (19) applies equally to boys and girls. If it is found that a difference in age
between heterosexual and homosexual acts is not constitutionally permissible
then would not be to lower age but to increase the age to "18 years
across the board.". Teenagers
are vulnerable to sexual overtures from older people. Lowering age of consent will exacerbate
the problem. Since the Constitution
defines a child as a person under 18 years and the fact that the Children's
Act, 2005, is in line with the Constitution "… there is compelling
logic" to establish the age of consent at 18. Children remain children until they reach 18 and the Bill
therefore will allow adults to have sex with children. Practice of adults having sex with children
should be outlawed. The spiral of
sexual abuse of children requires certain intervention strategies (Report of
Special Parliamentary Task Team on Sexual Abuse of Children). Highlights submission by Doctors for Life
with special emphasis on fact that adult reasoning is a late feature and
abstract thinking commences at 18.
Adolescents believe that they are unlikely to suffer the negative
consequences of their actions (like infections and pregnancies). In view section 28(1)(d) of the
Constitution read with the Grootboom case (2001(1) SA 46 CC) it might be
argued that by reducing age of consent the state would be failing to fulfil
its responsibilities in terms of s28(1)(d) and will be contributing to sexual
abuse. Reducing the age of consent
will be a breach of international obligations. Best interest of the child principle contained in the
Children's Act, 2005, will not be served by reducing the age of consent. Medical dangers associated with anal sex
should also be kept in mind. Raising "… the age of consent would be
logical step in fighting child sexual abuse and addressing the unprecedented
challenges of HIV/AIDS …". |
17 |
Cline |
Paragraph (c) requirement “on at least two earlier occasions” is
illogical. An intention to commit a
sexual act with a child should be sufficient. |
22 |
ALP |
Clause, read with definition of pornography,
places parents and educators at risk of being prosecuted. It could be argued that this clause allows
for lawful exposure, but it should be expressly stated. Current wording of clause “could have the
effect of discouraging legitimate sex education in homes and schools”. Recommends narrow definition of
pornography and exclusion of “safer sex materials and educational
initiatives”. |
Chapter 5: Services for victims
of sexual offences and compulsory HIV testing of sexual offenders |
||
31 |
ALN |
Clause 31(1)(a)(i): Access to PEP is limited to designated
health establishments. Treatment
should be available and accessible in all healthcare facilities (consider
distances victims/survivors will have to travel). Clause 31(2): The potential
impact of limitation is that many victims/survivors who fail to report and/or
are not “ready to report” will have no access to the treatment (and may have
to face the compound trauma of HIV) which could be largely avoided with
immediate treatment. Recommends that immediate access to PEP, including HIV pre- and
post-test counselling be provided to victims/survivors in all healthcare
facilities, whether offence has been reported or not. |
31 |
RAPCAN |
Chapter should be deleted:
Negative test result of the accused (in the window period) will result
in some complainants discontinuing treatment. A positive test of the accused does not mean that the
complainant have contracted HIV and will add to unnecessary stress and trauma
of the complainant. |
31 |
NWG |
Compulsory HIV testing should not be considered as part of services
for complainants. This may reinforce
the belief that the HIV status of accused impacts on the decision making of
the complainant whether or not to access PEP. Compulsory testing should be removed from Bill. Any form of compulsory HIV testing is a
human rights violation. |
31 |
ALP |
Recommends that anti-pregnancy contraception and anti-biotic medicine
(to prevent STI) should form part of services to be offered to victims. PEP constitutes “emergency medical treatment” and should be made
available at all health care facilities (private and public) free of charge.
3-day starter packs should be provided at health care facilities with
capacity problems. Objects to
requirement of designated health care establishments, it limits the places
where PEP can be accessed and may frustrate access within 72 hours. Recommends deleting requirement of
designated health care facilities and the inclusion of provisions that
provide for access to “3 day starter packs” at all facilities together with
an approach of referrals. All
district and provincial hospitals should provide full packages free of
charge. |
33 |
ALN |
Recommends that HIV testing be removed from the
Bill. 60 day period may assist in establishing status of
the accused at the time of the test, but not at the time of the offence. Absence of pre- and post-test counselling may
impact negatively on the complainant’s ability to cope with the test result. |
33 |
Cline |
Provision should provide for pre- and post-test counselling of victims
and offenders (particularly for offenders whose response to a positive result
might be one which places further children and adults at risk). |
33 |
NWG |
Concerns regarding 60 day period.
It may establish the HIV test result of the accused at the time of the
test, but not status at the time of offence.
Accused may also test negative during window period which may create
false sense of security for complainant. |
33 |
ALP |
The PCR test (Polymerase Chain Reaction), as opposed to anti-body
tests, can detect HIV on average within 11 days of exposure. PCR tests should be made available, at
State expense, to victims within 12 days of sexual offence. PCR tests should also be used to test
offenders if compulsory testing provisions remain in Bill. |
34 |
ALN |
Evidence to be considered by a magistrate to grant
an order: This may limit the granting
of unnecessary orders but may also jeopardise the future criminal trial. |
34 |
NWG |
Prima facie evidence required to approve HIV testing “may jeopardise the future
criminal trial”. |
35 |
ALP |
Ratio behind application by police official is against principle
contained in HIV Testing Bill that test results would be inadmissible as
evidence in criminal or civil proceedings.
Evidence gathering envisaged by Bill is tenuous because test result
will not prove that offender knew about his status and widely-held view that
HIV positive persons deliberately try to infect others could result in tested
offender being subjected to discrimination by “and maltreatment from correctional service and judicial
authorities”. Bill does not provide sufficient safeguards on how test results should
be kept confidential by police and presiding officers (see subclauses (1),
(2)(a) and (3)(a)). It is recommended
that Part 3 be deleted from the Bill. |
41 |
ALN |
Low conviction rates in sexual offences cases, including withdrawn or
dropped charges and acquittals, may discourage victims/survivors to apply for
testing of the accused.
Victim/survivor may be held criminally liable for “malicious intent”
if case against accused does not lead to a conviction. |
41 |
RAPCAN |
It is likely that many accused persons who have been tested and whose
cases are not prosecuted will lay a complaint against the complainant. The effort to protect a few innocent
people who may be maliciously sent for testing will result in the
victimisation of a large proportion of victims who have been subjected to a
sexual offence. |
41 |
NWG |
Clause 41(1)(a) causes
concern. In face of dropped charges,
acquittals and no convictions the potential exists for malicious intent charges. Low conviction rates may further
discourage laying of charges. |
41 |
ALP |
Does not support provision in view of possibility that offenders may
use it to further traumatise victims. |
Chapter 6: National Register
for Sex Offenders |
||
44 |
Cline |
Register duplicates Children’s Bill register and should be omitted
especially in view of costs involved in duplication. Research indicates that registers are not
effective to protect children. |
44 |
CSVR |
Register provisions should be omitted from the Bill. Persons not convicted of sexual offences will not be reflected in the
register and will be able to gain employment that may put them in a position
of supervision and care of children.
Research indicates that registers are expensive to implement and
administer and are not effective in preventing sexual offences. Duplication with Children’s Bill register
will be unnecessarily costly. |
44 |
RAPCAN |
Provisions do not deal with persons convicted of sexual offences
against adults or persons who apply for work with other vulnerable groups
such as people with physical and intellectual disabilities. Provisions should, in view of duplication
with Children’s Bill, be omitted from Bill. |
44 |
HvN |
Question is raised whether spouse of an employee or employer should
also be required to disclose previous convictions and whether persons who
have not been convicted (as result of lack of evidence) should not be
included in register. |
47 |
Cline |
Chapter is silent i.r.o children who commit sexual offences against
children. Names of children under 14
years and children who are first offenders should not be included in
register. |
47 |
NWG |
Express concern that child offenders will be included in Register,
which is not in line with rehabilitative focus of the Bill. |
47 |
CSVR |
Names of adult offenders should not be removed from the register. |
48 |
Cline |
Powers of Registrar with regard to removing names from register are
not sufficiently conditional on training, expertise and expert advice. |
Chapter 7: General Provisions |
||
57/58 |
Cline CSVR SWEAT NWG OLGBT |
Recommendations regarding
participation by NGO’s and criteria to be stipulated in NPF (similar to
recommendations summarised in previous summary, pp 37 to 39). |
61 |
RAPCAN |
Include provision requiring that instructions and directives should
include criteria for selection of persons designated to work with victims and
accountability mechanisms for non-compliance by civil servants with their
instructions/directives. |
65/66 |
SWEAT POWA NWG |
Provisions should, in view of proposed comprehensive legislation and
trafficking provisions in Children’s Bill, be omitted from Bill. |
65/66 |
HHG |
Concern is expressed on behalf of Print Media South Africa regarding
provision dealing with the facilitating of trafficking. It is submitted that newspapers and
magazines cannot be held responsible for the content of advertisements where
a human trafficker advertises adult services. Publications cannot be held responsible where they are not
aware of involvement of clients in trafficking. Advertisements are prepared by clients and frequently submitted
at short notice. Publications are not
under a legal obligation to scrutinise advertisements and do not have the
human or financial resources to do so. |
65/66 |
MS |
Supports provisions.
Provisions are, pending enactment of permanent legislation, regarded
as effective interim approach in combating Trafficking. |
Schedule 1: Proposed amendments |
||
Item 4 |
RAPCAN |
Section 170A is not applied consistently by courts and generally do
not apply measure i.r.o children older than 12 years. Prosecutors rarely lead expert evidence on
question of undue mental stress and suffering. Amend provision to ensure that intermediaries are available to
all child complainants. |
Item 6 |
ALN RCCTT SWEAT |
Recommendation regarding
previous sexual history (similar to recommendation summarised in previous
summary, “clsex 45”, p43). |
Item 6 |
OLGBT |
Proposed amendment of section 227 should also address the need to
eliminate bias towards persons with specific sexual orientation and “any
previous sexual experience or conduct, or the sexual orientation of any
person” should be inserted in subclause (2). |
General |
||
|
Cline RCCTT NWG ACVV |
Repeats recommendation (“clsex
94”, p32 of previous summary, support persons provision to be reintroduced). |
|
Cline RCCTT SWEAT NWG ACVV |
Vulnerable witnesses clause and the protective mechanisms applied to
vulnerable witnesses should be reinserted into the Bill (intermediary system
for children should be automatic, in many instances an intermediary is
refused resulting in children being intimidated by the presence of the
offender in the court room and unable to testify). |
|
Cline ACVV |
The cautionary rule relating to the evidence of complainants in sexual
offences cases should be abolished. Clause abolishing the cautionary rule relating to the evidence of
children should be reinserted – there is no evidence that the evidence of
children is less reliable than that of adults – research supports the
contrary. Competency test for children which is misunderstood and misapplied
should be abolished. The misuse of
this test has prevented the evidence of many victims from being heard. The use of assessors with experience in sexual assault should be
provided for in order to provide judicial officers with expert opinions in
sexual assault matters. |
|
SWEAT RCCTT NWG |
Provision dealing with section 158 of the CPA (CCTV system) should be
reinstated so that adult complainants may access protection. |
|
Cline RAPCAN SWEAT NWG ACVV |
Proposed amendment of section 166
of CPA, to prevent unrepresented accused persons from questioning a witness
directly, should be reinstated. |
|
RCTT |
Repeats recommendation regarding
guiding principles (“clsex 46”, p40, previous summary). |
|
ALN Cline CSVR RCCTT NWG ACVV |
Repeat recommendations regarding
“treatment clause” ( pp 34 to 47, previous summary)”. |
|
ALP |
Recommends comprehensive medical and support services for victims. Mentions, without motivating, that “a number of sections will fail to
pass constitutional muster”. |
|
ACVV |
Introduce compulsory rehabilitative programmes for all offenders which
will make a “… difference in the occurrence of these crimes.”. |