"DRAFT REPORT

Report of the Portfolio Committee on Justice and Constitutional Development on the Criminal Law (Sexual Offences) Amendment Bill [B50 - 2003] (National Assembly - sec 75), dated 10 November 2006:

The Portfolio Committee on Justice and Constitutional Development, having considered the subject matter of the Criminal Law (Sexual Offences) Amendment Bill [B 50 2003] (National Assembly - sec 75), and the Compulsory HIV Testing of Alleged Sexual Offenders Bill [BI0 - 2003] (National Assembly - sec 75), referred to it and classified by the Joint Tagging Mechanism as section 75 Bills, agrees with the tagging of the Bill as a section 75 Bill and presents the Criminal Law (Sexual Offences and Related Matters) Amendment Bill [B50B-2003].

The Committee wishes to report further, as follows:
1. Public Participation:
In the light of certain media reports and representations received, the Committee deems it expedient to address allegations that there was not sufficient opportunity by role-players/stakeholders/individual members of the public to participate in the parliamentary process. The following is relevant in this regard:

1.1 The Committee, from the outset, took cognisance of the fact that-
* the Criminal Law (Sexual Offences) Amendment Bill (the Bill) emanated from an investigation of the South African Law Reform Commission (the Commission) into sexual offences; and

* the final recommendations of the Commission were based on, among others, a process of extensive public participation during the different stages of the Commission's investigation.

The Committee consequently made extensive reference to the Commission's report, which highlighted all relevant submissions made to it and the reasons why the Commission did not always follow the recommendations in some of the submissions or portions thereof.

1.2 After the Bill was introduced into Parliament in August 2003 and referred to this Committee, the Department of Justice and Constitutional Development (the Department) briefed the Committee comprehensively on the Bill. At the time of introduction, the Chairperson invited interested persons to comment on the Bill. One hundred and twenty eight written (128) submissions were received. Oral hearings were also held. During the public hearings a number of persons, many of whom participated in the consultative process of the Commission, made oral and written submissions. The persons presenting the various submissions were subjected to thorough questioning in order to clarify the many issues that arose. The Committee-
* being aware that the Commission, during its investigation, had consulted widely; and
* using the Commission's report as a point of departure,
among others, questioned the persons who made submissions for the amendment of the Bill on the feasibility and desirability of the proposed amendments generally, and more specifically where these recommendations were a repetition of issues already canvassed during the Commission's consultative process. The Department was also requested to summarise all oral and written submissions made.

1.3 At the end of January 2004 the Portfolio Committee resumed its deliberations on the Bill and, at that stage, the Committee considered at length all the submissions made. These submissions, to a large extent, informed the deliberations of the Committee which gave rise to numerous suggestions on how the Bill should be adapted. The Committee consequently instructed the Department to adapt the Bill in numerous respects for further debate, after which final decisions would be made.

1.4 Immediately before Parliament dissolved for the April 2004 elections the then Chairperson of the Portfolio Committee was requested and mandated by the Committee to engage with the drafters of the Bill, in an attempt to have the Bill ready in a format for consideration by the newly constituted Portfolio Committee after the elections, in line with the suggestions made by the Committee up until that stage.

1.5 After the elections, on 15 June 2004, the National Assembly adopted a resolution to the following effect:

"That the following bills be revived and consideration thereof be resumed from the stage reached with them in the Second Parliament before lapsing, namely that the bills were before committees of the National Assembly:
(1) …..
(6) Compulsory HIV Testing of Alleged Sexual Offenders Bill [B10-2003] (National Assembly - sec 75);
(7) Criminal Law (Sexual Offenders) Amendment Bill [B50 - 2003] (National Assembly -sec 75);".

1.6 Due to the changes suggested by the Committee, the newly appointed Minister for Justice and Constitutional Development requested that the Committee only resume its deliberations on the Bill after Cabinet had taken cognisance of the suggested changes. After the Bill had been considered by Cabinet, the Minister indicated by way of a letter, dated 10 May 2006, to the Speaker of the National Assembly and the Chairperson of the Committee that the adapted Bill had been submitted to Cabinet. The Committee resumed its deliberations on the Bill in June 2006.

1.7 Before resuming its deliberations, the Chairperson of the Committee again invited roleplayers/stakeholders/individual members of the public to comment on the adapted Bill, which was, in essence, the product of the Committee's previous deliberations, the Committee having suggested the amendments that were submitted to Cabinet in the first place. Again, numerous representations were received- fifty nine (59). Those received up until 31 August 2006 were distributed to all members of the Committee, summarised and considered formally by the Committee. Since it is custom to have oral hearings only at the beginning of the passage of a Bill through Parliament and since many of the submissions received on the adapted Bill, boiled down to a repetition of previous submissions made in 2003, no further oral hearings were held. Some of these written representations did, however, give rise to amendments. Representations received after 31 August 2006 were distributed to Committee members who were requested to raise any issues arising from these representations that required consideration. Some of the last amendments made by the Committee were as a direct result of these late submissions.

2. Provisions of the Bill which require specific mention in the report:

2.1 Prior to the elections in 2004, the Committee suggested the inclusion of a clause in the Bill criminalising a person's intentional non-disclosure of his or her HIV positive status when engaging in intimate contact with another person. A similar clause was suggested in the case of a person who has a sexually transmissible infection, other than HIV or AIDS. When the adapted Bill was before Cabinet, Cabinet expressed reservations about these provisions. The Committee took note of Cabinet's reservations in this regard and requests the Department to embark on further research, including comparative, international trends in this regard, with the view to addressing these reservations and to revert to the Committee as soon as possible.

2.2 Clause II which, in effect, confirms the existing legal position that persons who solicit the sexual services of persons older than 18 years are also guilty of an offence, as are the persons who sell these services, is intended to address the concerns raised by the Constitutional Court in its judgment in the case of S v Jordan and Others. When deliberating on this clause, the Committee raised the question why in practice only the seller of the services is charged and prosecuted. The Committee expressed concern that, in a constitutional democracy such as ours, there should not be a selective application of the law, where mainly women are prosecuted for selling sexual services while their clients, mainly men, who are equally guilty, go unpunished. The Committee consequently requests the Department to ensure that this very real concern is brought to the attention of the Commissioner of the South African Police Service and the National Director of Public Prosecutions who are requested to revert to the Committee in writing on this aspect, explaining, among others, why the clients who are, by all accounts, mostly men, are not arrested, charged and prosecuted.

2.3 When the provisions dealing with statutory rape were discussed (clause 15), the age of consent became a burning issue, around which there were heated debates.

The Committee finally settled on 16 years as the age of consent, as contemplated in clause 15, read with the definition of "child", in order to protect children under that age, but also to avoid the possibility of thousands of children 16 years and older being drawn into the criminal justice system and being prosecuted for engaging in sexual activities/for sexual experimentation, a reality from which there is no escape in virtually all societies across the globe. The Committee, however, noted an argument in favour of raising the age of consent to 18 years, namely that "age of consent offences" (acts of consensual sexual penetration and sexual violation with certain children, as proposed in clauses 15 and 16 of the Bill) offer (automatic) legal protection for both boys and girls against adult sex predators since the prosecution, in these cases, knowing the age of the child to be under the age of consent, is only required to prove that the sexual act in question took place. The Committee, recognising the need for continued discussions on this issue, pending further research, requests the Department to see how other jurisdictions have dealt with the two competing issues mentioned above and what protective mechanisms they have put in place.

2.4 Clause 17 of the Bill, similar to clause 11, criminalises the soliciting of a person under 18 years for sexual purposes, in other words, sexual exploitation of a child. A person who solicits the sexual services of a child under 12 years and in fact has sex with the child, can be prosecuted for soliciting (sexual exploitation) as well as for rape, since a child under 12 years can never consent to sex. In similar vein, a person who solicits the sexual services of a child between 12 years and 16 years and in fact commits a sexual act with the child, can be prosecuted for soliciting (sexual exploitation) as well as for statutory rape, since no person may have sex with a child under 16 years, even with the consent of the child. The Committee, however, expressed concern that a person who solicits the sexual services of a child between 16 years and 18 years, even with the consent of the child, can only be prosecuted for soliciting. The extra protection that children under 16 years enjoy in this regard, namely that the perpetrator (the "client") can be prosecuted for two offences, is not available to children between 16 and 18 years who are exploited for sexual purposes. The Committee, understanding that the Commission is investigating various aspects of adult prostitution, requests the Commission, in its investigation, to take cognisance of this legal position when making its final recommendations, notwithstanding the fact that the Commission's investigation only deals with adult prostitution, that is persons who are 18 years and older.

2.5 Clause 19 of the Bill, as introduced, reads as follows:

2.5.1 "Drug and alcohol treatment orders

19. A court may, upon conviction of a person having committed a sexual offence and if satisfied that the convicted person is dependent on or has the propensity to misuse alcohol or any drug and may benefit from treatment, grant an order in terms of section 296 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), and such an order may be made in addition to any sentence, including a sentence of imprisonment which is not suspended.".

2.5.2 While not wishing to express a view on the merits of this provision, the Committee was of the opinion that this provision, dealing with the sexual offender rather than sexual offences, which is the focus of the draft legislation, should be referred back to the Department for further consideration and investigation. The question was raised whether a provision of this nature, if it is to be enacted, would not be better placed in the Criminal Procedure Act, 1977 (Act No. 51 of 1977). The Committee also requested the Department to revisit this proposal in the context of sections 51 and 52 of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997), dealing with compulsory/minimum sentences. The Committee consequently decided to suspend this clause until the Department has reported back.

2.6 Clause 20 of the Bill, as introduced into Parliament, deals with the supervision of dangerous sexual offenders and provides, among others, that a court that has convicted a person of a sexual offence can declare such a person to be a dangerous sexual offender if that person has more than one conviction for a sexual offence, if the sexual offence in question was accompanied by violence or if the person has been convicted of a sexual offence against a child. In such a case the court can order, as part of the sentence, that when the offender is released from prison after serving part of his or her sentence, he or she be placed under long term supervision by an appropriate person for a period of not less than five years. The Committee raised a number of questions regarding this provision, among others, the following:

(i) What are the financial implications?
(ii) Are statistics available about recidivists?
(iii) Have the constitutional implications of this provision been addressed adequately?
(iv) Why is a clause of this nature necessary and what is the mischief it aims to address?

The Committee requests the Department to look into the issues raised and to revert to it as soon as circumstances permit.

3. Schedule to the Bill:
Schedule 2 to the Bill, as introduced into Parliament, effects amendments to numerous Acts of Parliament, as a result of the provisions in the Bill. The Committee decided to delete Schedule 1 of the introduced Bill which sets out guiding principles to be considered in the application of the legislation and the adjudication of sexual offences generally. The Committee was of the view that guiding principles of this nature would be better placed/reflected in the body of the legislation and more particularly in the provisions setting out the objects of the legislation and in the provisions dealing with implementation. The Bill approved by the Committee consequently only has one Schedule, containing consequential amendments to various Acts of Parliament.

3.1 In the Bill as introduced into Parliament, Item 8 of the amendments to the Criminal Procedure Act, 1977 (Act 51 of 1977), proposed the insertion of a new section 192A in the Criminal Procedure Act, 1977, after the existing section 192. Section 192 provides that every witness is competent and compellable to testify, unless expressly excluded. The aim of section 192A, as recommended by the Commission, was to provide expressly that all children (not only witnesses in sexual offences cases) are competent to testify in criminal proceedings. This was done so as not to create an artificial distinction between children in sexual offences matters and other child witnesses. The Committee decided to delete this provision from the Bill since it applies to all children and not just children who are victims of a sexual offence or who are witnesses in a sexual offence case.

The Committee requested the Department to consider this proposal outside the scope of the Bill and to revert to the Committee if an amendment of this nature is considered to be necessary.

3.2 Because of the many changes made to the Bill as introduced into Parliament, the Department was required to revisit the Schedule to the Bill containing consequential amendments to other Acts of Parliament. During this process the Department identified numerous provisions on the. Statute Book requiring synchronisation with the Bill under discussion. Many of the statutory provisions requiring amendment in order to bring them into line with the Bill are straightforward and can be amended without further ado and have in fact been amended, giving rise to a schedule considerably longer than the one contained in the introduced Bill. There is, however, another category of statutory provisions which were identified as possibly requiring amendments. These provisions, particularly those which are administered by Departments other than the
Department of Justice and Constitutional Development, require further investigation and consultation. Since the Bill can be finalised and implemented without effecting this particular category of amendments, the Committee has decided to keep them in abeyance pending further investigation. The Committee consequently requests the Department to-

(a) approach the Departments in question to revisit the statutes administered
by them and identified by the Committee with the view to aligning them, where necessary, with the legislation under discussion; and
(b) report back to the Committee on whether the provisions do in fact need to be amended in order to align them with the legislation under discussion.

3.3 One of the provisions that required synchronisation with the legislation under discussion is section 195 of the Criminal Procedure Act, 1977. This section deals with "evidence for the prosecution by the husband or wife of the accused, the aim of which is to protect the inviolability of the institution of marriage. It provides that the wife or husband of an accused person shall be competent but not compellable to give evidence for the prosecution in criminal proceedings, but is competent and compellable to give evidence for the prosecution in criminal proceedings in relation to certain offences. It is quite clear why some of the offences mentioned in the list are there, for instance any offence committed against the person of either of them or of a child of either of them. Some of the offences in the list, however, do not seem to have a similar clear cut rationale or connection, for instance the reference to offences contained in the Sexual Offences Act, 1957, which are prostitution-related offences. The Committee raised the question whether this list of offences should not be re-visited in the light of prevailing public mores and circumstances which have undergone changes since these provisions were enacted in 1977, and which, at the time of such enactment, were probably simply taken from the Act's predecessor, the Criminal Procedure Act of 1955. The Committee consequently requests the Department to undertake an investigation in order to determine whether adaptations in this regard are necessary and to report back to the Committee on its findings and to submit appropriate amendments, if necessary.

3.4 Another provision of the Criminal Procedure Act, 1977, that required synchronisation with the legislation under discussion is section 268. This section deals with "statutory unlawful carnal intercourse" and provides, among others, that if the evidence on a charge of unlawful carnal intercourse in contravention of any statute does not prove that offence but proves-
(a) the offence of indecent assault;
(b) the offence of common assault;
(c) the statutory offence of
(i) committing an immoral or indecent act with another person;
(ii) soliciting, enticing or importuning such other person to have unlawful carnal intercourse;
(iii) soliciting, enticing or importuning such other person to commit an immoral or indecent act; or
(iv) conspiring with such other person to have unlawful carnal intercourse,

the accused may be found guilty of the offence so proved.

Not only is the language of this provision archaic, the rationale behind the provision, in the opinion of the Committee, needs to be re-visited. This section has been amended in so far as it can be adapted in order to bring it in line with the Bill, as mentioned above. This section, dealing with prostitution-related issues is, however, of such a nature that it should form part of the Commission's investigation on adult prostitution. The Committee requests the Commission to ensure that this section is also given attention during the course of this investigation, in addition to the provisions dealing with adult prostitution, contained in the Sexual Offences Act, 1957.

4. Training:
The Committee recognises that the Bill, which is a comprehensive review of the existing law relating to sexual offences, will inevitably give rise to many questions by those who are required to implement and apply it in practice. In order to ensure that it is understood properly and is applied as uniformly as possible throughout the country, the Committee is of the view that the Department should initiate and, as far as possible and appropriate (in so far as the judiciary is concerned), co-ordinate a project which is aimed at the promotion and facilitation of training on the legislation and its implications. The Committee consequently requests the Department to revert to it with a detailed proposal, prepared in conjunction with all relevant roleplayers, on how this initiative should be undertaken, including, among others, the following:

(i) Aspects identified in the Bill that require attention, in general, as well as specific aspects that require attention by the various functionaries which will be responsible for the implementation of the legislation;

(ii) categories of persons or functionaries that will benefit from such training;
(iii) persons or institutions that should be approached for developing and providing the required training courses;
(iv) funding the training; and

(v) timeframes.

Report to be considered.".