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.”.