INFORMATION SERVICES: RESEARCH

6 September 2006

Summary and Analysis: Criminal Law (Sexual Offences) Amendment Bill [B 50 - 2003]

1. Background

The Bill forms part of efforts to address the high incidence of sexual violence in South Africa by improving access to justice and the efficiency of the criminal justice system in responding to rape and other sexual offences. Sexual violence in South Africa has been described as being a problem of epidemic proportions, affecting all South Africans but, most especially, women and children. Furthermore, in light of the HIV and AIDS epidemic, sexual violence can be a death sentence. Certainly, the possibility of contracting HIV and AIDS is an added trauma for those who are sexually assaulted.

The sources of existing law relating to sexual offences are found both in the Common Law offences of rape, indecent assault, sodomy, incest, unnatural sexual acts and in various Acts, including the Sexual Offences Act 23 of 1957 and the Child Care Act 74 of 1983. In 1996, the South African Law Reform Commission (SALRC) was requested to investigate sexual offences by and against children and to make recommendations to the Minister of Justice on reforms to the law relating thereto. During the course of its investigation, it became apparent that any proposed changes would affect not only children but adults as well, At the request of the parliamentary Portfolio Committee on Justice and the then Deputy Minister of Justice, the scope of the Law Commission's mandate was widened accordingly.

The Commission published two discussion papers. The first dealt with the substantive law relating to sexual offences, while the second dealt with matters relating to process and procedure. A report on both the substantive and procedural law relating to sexual offences followed, containing the Commission's final recommendations and a draft Bills The report contains recommendations, not all of a legislative nature, regarding changes to the criminal justice system, the intention of which being to strike a balance the rights of the accused and the victim.

In 2003, the Minister of Justice and Constitutional Development introduced the Criminal Law (Sexual Offences) Amendment Bill [B 50 - 2003] in the National Assembly as a Section 75 Bill, and was referred to the Portfolio Committee for Justice and Constitutional Development for consideration and report. Flowing from the Portfolio Committee's deliberations, the Bill has been extensively revised since it was introduced. This paper provides a summary and analysis of the Bill in its redrafted form. In doing so, the paper sketches some of the major issues that characterise this area of the law, as well as some of the concerns that have been raised in connection with the Bill.

2. Summary and Analysis of Criminal Law (Sexual Offences) Amendment Bill

2.1. Introduction

The Long Title to the Bill indicates. that the Bill intends to comprehensively review and amend all aspects of the laws relating to sexual offences, as well as their implementation in a single piece of legislation by, inter alia:

· Repealing the common law of rape, indecent assault, incest, bestiality and a sexual act with a corpse and replacing them with new statutory offences.

· Creating new statutory offences that criminalise certain compelled sexual acts and the non-consensual exposure or display of persons to sexual acts, pornography, and certain parts of the human anatomy.

· Creating new sexual offences against children and mentally disabled persons. Although these are the same as those for adults, they aim to address the particular vulnerability of children and mentally disabled persons

· Eliminating the discriminatory differentiation between boys and girls with regard to the age of consent in respect of consensual sexual acts

· Providing services to certain victims of sexual offences, including the right to apply that the alleged perpetrator be tested for his or her HIV status, and to receive post exposure prophylaxis (PEP).

· Providing law enforcement agencies with new investigative tools when investigating sexual offences.

· Establishing and regulating a national register for sex offenders.

· Regulating the manner in which all Departments must deal with sexual offences, including provision for the issue of national directives and instructions to be followed by law enforcement officials

· Making interim provision for trafficking in persons for the purpose of sexual exploitation

2.2. Chapter 1: Definitions and Objects

The definitions provided include the following:

· Child' means a person below the age of 18 years. For the purpose of sections 14 and 15 (consensual (statutory) rape and consensual sexual assault), child is a person older than 12 years of age but below the age of 16 years.

· 'Genital Organs' - this includes, whether in whole or in part, the genital organs of both males and females, as well as surgically reconstructed genital organs.

· 'Mentally disabled person' means a person affected by any mental disability, to the extent that he or she, at the relevant time, was unable to appreciate the nature and reasonably foreseeable consequences of a sexual act, or is able to appreciate the nature and reasonably foreseeable consequences of such an act, but is unable to act in accordance with that appreciation or is unable to resist the commission of any such act or is unable to communicate his or her unwillingness to participate in any such act, he or she is to be regarded as mentally impaired.

· 'Sexual conduct' includes masturbation; male genital organs in a state of arousal or stimulation; any form of arousal or stimulation of a sexual nature of the female breast; the undue or inappropriate exposure or display of or causing exposure or display of genital organs, female breasts or of the anal region; sexually suggestive or lewd acts; or bestiality.

· 'Sexual penetration' includes any act which causes penetration to any extent whatsoever by:

- The genital organs of one person into or beyond the genital organs, anus, or mouth of another person.

- Any other part of the body of one person or, any object, including any part of the body of an animal or any object resembling the genital organs of a person or an animal, into or beyond the genital organs or anus of another person.

- The genital organs of an animal, into or beyond the mouth of another person

· 'Consent' - The Bill defines consent as meaning voluntary or unforced agreement, and sets out circumstances where consent to an act of sexual penetration, sexual violation or any other act that is an offence in terms of the Bill would be lacking. Such circumstances include, but are not limited to, circumstances where the victim submits or is subjected to a sexual act as a result of:

- The genital organs of an animal, into or beyond the mouth of another person

- Force or intimidation or the threat of harm.

- The perpetrator abusing his or her power or authority, hereby inhibiting the victim from indicating his or her unwillingness or resistance to the sexual act, or unwillingness to participate in such a sexual act.

- False pretences or by fraudulent means.

- A lack in the necessary capacity to appreciate the nature of the sexual act, including where the victim is asleep, unconscious, in an altered state of consciousness, is a mentally disabled person or is a child below the age of 12 years.

2.2. Sexual Offences

The Bill repeals the common law crimes of rape, indecent assault, incest, bestiality and violation of a corpse, creating in their stead the statutory offences of rape, sexual assault, incest, bestiality and sexual acts with a corpse. It should be noted that as the ambit of the Bill is limited to sexual offences, only the sexual element of the common law crime of violation of a corpse is repealed.

2.2.1. Rape and Compelled Rape

Rape is where any person unlawfully and intentionally commits an act of sexual penetration with the victim, without his or her consent. Compelled rape is where any person unlawfully and knowingly compels another person to rape a third person. Thus, this clause allows for the conviction of a person who compels another to rape a third person as a perpetrator and not as an accomplice.

It should be noted that these offences are gender neutral and not limited to vaginal penetration, as is the case in terms of the common law. The Bill provides that any act of sexual penetration, where consent is lacking, is rape. However, it should be noted that the element of consent or, more specifically, the lack thereof, still remains a requirement for rape.

Comment: The common law offence of rape

The common law offence of rape is defined as intentional unlawful sexual intercourse with a woman without her consent. This definition has been criticised for a number of reasons, including:

· Gender Specificity - At present, the crime of rape is by definition gender specific - only a man can commit rape and the victim must be female. Thus, the law does not recognise that it is possible for men to be raped or for women to be rapists.

· Sexual intercourse - The requirement that there is sexual intercourse presupposes vaginal penetration - oral or anal penetration or penetration where a foreign object is used is indecent assault but not rape.

· Without consent - This requirement of the common law crime has been criticised as placing too great an emphasis on the complainant's behaviour rather than the coercive nature of an accused person's conduct. The Bill, as initially introduced, moved away from this requirement by emphasising the fact that any act which causes penetration is prima facie unlawful if it is committed in coercive circumstances, under false pretexts or by fraudulent means or in respect of a person who lacks the capacity to appreciate an act that causes penetration. The Bill in its redrafted form retains the requirement of .absence of consent, although the circumstances where consent is absent are spelt out and appear to encompass the not on of coercive circumstances. As noted above, circumstances where consent is absent include, but are not limited to, circumstances where the victim submits or is subjected to a sexual act as a result of: force or intimidation or the threat of harm; abuse of power or authority; false pretences or by fraudulent means; a lack in the necessary capacity to appreciate the nature of the sexual act.

2.2.2. Sexual Assault, Compelled Sexual Assault, and Compelled Self-Sexual Assault

The common law crime of indecent assault is repealed and is replaced by the crimes of sexual assault, while the statutory crimes of compelled sexual assault, and self sexual assault are introduced. Indecent assault is defined as an unlawful and intentional assault, which is or is intended to be indecent. The common law crime of Indecent assault, as it stands, is a broad offence that protects the sexual autonomy and bodily integrity of a person, whether male or female, and is often used to prosecute crimes that would otherwise go unpunished. The South African Law Reform Commission concluded that indecent assault is a flexible and dynamic concept adequately suited to the changing needs of society, covering a wide variety of acts, is a competent verdict in a number of offences and is gender neutral. However, at present, there is no specific provision that addresses a situation where a person administers drugs to another with the intention to induce that person to perform sexual acts, nor is there any provision for the prosecution of a person who forces another to engage in sexual acts with a third person or to commit sexual acts upon themselves.

The Bill replaces indecent assault with the offence of sexual assault. Sexual assault is -where a person unlawfully and intentionally sexually violates a complainant without his or her consent. Sexual violation always refers to the situation where there is sexual contact that stops short of sexual penetration. Compelled sexual assault and compelled self-sexual assault are intended to provide for the prosecution of a person who forces another to engage in sexual acts with a third person or to commit sexual acts upon themselves.

2.2.3. Other Sexual Offences

The Bill criminalises other sexual acts, including the exposure or display of a sexual act to a complainant without his or her consent. Flashing or the exposure of display of genital organs, anus or female breasts is also criminalized. Similarly exposure or display of pornography is a criminal offence.

2.2.4. Incest, Bestiality and Sexual Acts with a Corpse

The Bill repeals the common law crimes of incest, bestiality and violation of a corpse, making them statutory offences. To a large extent the Bill's provisions are a repeat of the common law. However it should be noted that:

· The common law crimes of incest is extended to include all instances of sexual penetration and sexual violation, as opposed to sexual intercourse between a man and a woman as is currently the common law provision.

· Bestiality is extended to include the penetration to any extent by the genital organs of a person into or beyond the mouth, genital organs or anus of an animal or the penetration of the genital organs of an animal into or beyond the mouth, genital organs of a person, or the masturbation of an animal.

2.3. Sexual Offences Against Children

2.3.1. Consensual sexual acts with certain children

At present, section 14 of the Sexual Offences Act, 1957 contains a number of inconsistencies relating to consensual sexual acts with children:

The age of consent for homosexual intercourse is 19 years as opposed to the age of consent for heterosexual intercourse, which is 16 years.

The age of consent to an immoral or indecent act (whether homosexual or heterosexual) is 19 years whereas the age of consent for heterosexual intercourse is 16 years.

The Bill criminalises acts of sexual penetration and sexual violation with children under the age of 16 years or older than twelve years, regardless of consent. The Bill, however, does permit an accused to contend that the child deceived him or her into believing he or she was above the age of consent. In the case of an act of consensual sexual violation with a child who is between the ages of 12 and 16 years, an accused can also raise the defence that the age difference between them is no more than two years.

2.3.2. Sexual exploitation of children


The offence of sexual exploitation places a ban on child prostitution. The provision targets. those who engage the services of child prostitutes (the client), as well as those who benefit from the sexual exploitation of a child. The Bill also makes it an offence for a primary care-giver, parent or guardian to intentionally allow a third person to commit a sexual act with a child complainant.

The Bill also obliges persons, who have knowledge of the sexual exploitation of a child, to report their knowledge to the police. In should be noted that the Children's Act 38 of 2005 contains a similar provision compelling a number of persons - mostly those who would come into contact with children in their professional capacity such as doctors, teachers, religious ministers or 'predikante', etc. - to report abuse, which includes sexual abuse, exploitation and neglect.

The Bill creates the offences of sexual grooming of children, engaging in sexual acts in the presence of children and flashing or the display or exposure of pornography or sexual acts to children.

2.4. Sexual offences against mentally disabled persons

The provisions relating to sexual offences against mentally disabled persons in the Bill are, with the exception of acts of consensual sexual penetration and violation with certain children, a duplication of the provisions relating to sexual offences against children.

Comment

The general offences of rape indecent assault and incest apply to all persons, including those with impaired mental functioning. Of concern, however, is the fact that mentally impaired persons are at increased risk of being sexually exploited as they may not understand what has happened to them, may be unable to communicate their experiences and/or may not have ready access to persons outside their home or residential facility where the abuse takes place.

The prohibition contained in section 15 of the Sexual Offences Act is problematic for a number of reasons. Firstly, the terms 'imbecile' and 'idiot' are not only derogatory but have specific technical meanings, and the margins into which mentally impaired persons may be classified are not clearly defined (Even among experts there may well be disagreement as to the level of a. person's mental impairment): As such, it would be difficult for a layperson to establish whether or not a person falls into either of these categories, thereby hampering the State's case in proving that a victim is sufficiently impaired and that the accused was aware of this fact.

Secondly, the prohibition on any sexual relations interferes with the right of mentally disabled persons to personal autonomy and privacy. In this respect, it is important for the law not to over regulate and to recognise that mentally disabled persons have rights to make decisions relating to reproduction and to have security and control of their bodies.

3. Services for Victims

3.1. Provision of Post Exposure Prophylaxis (PEP)

The Bill allows for the provision of Post Exposure Prophylaxis (PEP) to certain victims of sexual offences. The South African Law Reform Commission recommendations contained a treatment clause, providing for the appropriate medical care, treatment and counselling of victims. Furthermore, it recommended that if a person had been exposed to the risk of infection by a sexually transmissible disease as the result of a sexual offence, such person must be advised of the possibility of being tested for such infection; and have access to all possible means of prevention, treatment and medical care in respect of possible exposure to a sexually transmissible infection. The Commission recommended that the State bear the cost of such care, treatment, testing, and prevention and/or counselling.

The clause, as proposed by the SALRC, was omitted from the introduced Bill pending further discussions with the Department of Health. This 'treatment clause' was, during the redrafting process, referred to the Department of Health for comments. Discussions with the Department of Health were held on a high level. In principle, agreement was reached that provision should be made only for the provision of PEP to the victim at State expense within 72 hours after the alleged commission of the offence, the 72 hour limit being set to give recognition to the medical fact that the provision of PEP to a victim is only effective when it is administered within 72 hours after a person has been exposed to the HIV. The Department of Health indicated that it did not have the resources to fund all types of medical treatment as originally recommended.

Accordingly, the Bill entitles a victim who has been exposed to the risk of being infected by HIV as the result of a sexual offence, to:

· Receive PEP for HIV infection at a public health establishment designated by the Minister of Health at State expense;

· Be given free medical advice surrounding the administering of PEP prior to the administering thereof; and

· Be supplied with a list of public health establishments that provide these services.

This entitlement is limited to a person who reports the alleged offence within 72 hours of its commission. The Bill requires the Minister of Health to designate public health establishments by notice in the Gazette for the purposes of providing PEP. In addition, it requires the Director-General: Justice and Constitutional Development, the National Commissioner of the South African Police Service and the National Commissioner of Correctional Services to ensure that the lists of such designations are made available to the relevant role-players within their Departments.

3.2. Compulsory HIV testing of sexual offenders

3.2.1. Background

In 1998, the Portfolio Committee on Justice and Constitutional Development approached the South African Law Reform Commission to investigate the need for legislation with regard to the compulsory HIV testing of sexual offenders. Accordingly, the Commission addressed the issue, noting that there is overwhelming support from the public, experts and interested parties for the proposed intervention. The Commission concluded that the most effective intervention would be legislation and recommended that section 37 of the Criminal Procedure Act be amended to allow for, court authorised, mandatory testing of an alleged sexual offender at the request of the victim of the offence under certain conditions.

Subsequently, on 26 February 2003, the Compulsory HIV Testing of Sexual Offenders Bill [B 10-2003] 'was tabled in Parliament, and referred to the Portfolio Committee on Justice and Constitutional Development for discussion and report. The Bill sought to provide a speedy procedure whereby victims of an alleged sexual assault could apply for the alleged perpetrator to be tested for HIV and for the results of such tests to be disclosed to them. The Portfolio Committee requested that the possibility of incorporating the Bill into the Criminal law (Sexual Offences and Related Matters) Amendment Bill be investigated, which has been done.

In the past, mandatory testing programmes have been used to combat certain communicable and sexually transmitted diseases, such as tuberculosis and syphilis.Accordingly, in debating how best to address the spread of HIV and AIDS, it has been suggested that compulsory testing of entire populations or alternatively of certain population groups (such as pregnant women, prisoners, prostitutes, immigrants and persons accused or convicted of sexual assault) be implemented. Despite the fact that HIV and AIDS testing does not fulfil all of the conditions stipulated by the World Health Organisation for mandatory testing programmes, mandatory screening is still being mooted because of the disease's implications. Although testing of entire populations does not appear feasible, the proposal to test certain targeted populations is often justified by one (or more) of the following:

· The target population group is perceived as being at high-risk

· The target population group is perceived as being at high risk of infecting others.

· The target population is alleged or is in fact involved in criminal activity

· That some use can be made of the test results

Advocates of mandatory testing maintain that the coercive nature of sexual assault makes compulsory testing of those persons accused of sexual assault distinguishable from other situations involving potential exposure to HIV. In the case of sexual violence, mandatory testing is argued as being a justifiable infringement of the right to bodily integrity and privacy as well as the rights of due process, as 'survivors of sexual assault in no sense consented to the behaviour that caused the potential exposure. Its non-consensual nature sharply differentiates sexual assault form many other potential exposure to HIV. Because the survivor's exposure starts in the wrong, the accused is duty bound to limit the harm caused by the assault.

Arguments for mandatory testing of a perpetrator in the context of sexual assault are also typically justified as protecting the victims' health, protecting the health of third parties and providing assistance to the survivor. Proponents also point to the psychological benefits to the victim. Victims frequently worry about contracting a sexually transmitted disease (STD) from their assailant. 'Generally, the fear of contracting an STD, particularly HIV infection, following rape appears to be a significant stressor adding to the incidence, prevalence, and severity of psychiatric morbidity in rape survivors' . Thus, testing can ease the psychological burden and can assist survivors in making educated decisions regarding their health, sexual behaviour, reproduction, breast feeding, and parenting.

However, opponents of mandatory testing argue that the potential harm of mandatory testing far outweighs any good that it might do. The information that testing provides is uncertain and of limited usefulness, is unlikely to lead to changes in behaviour necessary to curb the spread of HIV and AIDS and, furthermore, is potentially undermining of basic civil rights. The information that testing provides does not protect the victim's health in the event that a false negative result is obtained. Testing can confirm that an accused is infected with HIV, but during the window period before HIV antibodies are present it cannot reliably indicate that the accused is infected and, therefore infectious. In any event, the victim should be tested for HIV, receive counselling and that Anti-Retroviral Treatment (ART) should, be administered as soon after the assault as possible.

3.2.2. Current legal position regarding consent to. medical treatment (including HIV testing) and confidentiality of medical information

Currently, South African law does not provide .for the testing for HIV of persons arrested for allegedly committing a sexual offence, nor for the subsequent disclosure of such information to the victim. The proposed intervention changes this by allowing HIV testing without the consent of the alleged offender and for disclosure of the test results in accordance with the prescribed requirements.

Both the Constitution and the common law support the right to privacy and bodily integrity. This means that a person must consent to all forms of medical treatment, including the drawing of blood, and that a person has the right to refuse medical treatment. Although there are some exceptions to the requirement that a person must give his or her consent prior to medical treatment, they are limited (For example, where medical treatment is necessary for survival and the patient is unable to consent because he or she is unconscious).

Furthermore, consent must be informed, which means that the patient must be given adequate information regarding the medical intervention about to be performed. In C v Minister of Correctional Services, the Court held that 'there can only be consent if the person appreciates and understands what the object and purpose of the test is, what an HIV positive test result entails and what the probability of AIDS occurring thereafter is. Members of the medical profession and others who have studied and worked with people who have tested HIV positive and with AIDS sufferers have developed a norm or recommended minimum requirement necessary for informed consent in respect of a person who may undergo such a blood test. Because of the devastation which a positive test result entails, the norm so developed contains as a requirement counselling both pre and post testing, the latter in the event of a positive result'

Thus, taking blood where the patient does not give his or her informed consent may well amount to an invasion of the right to bodily integrity and may result in the responsible parties being held liable both in terms of criminal and civil law. It follows that taking blood from an arrested person without consent is more than likely an invasion of his of her right to bodily integrity.

People, who are HIV positive or have AIDS, are entitled toprivacy regarding their medical condition. Although the right to privacy is not absolute, disclosure of a person's HIV status to a third party is only permissible in limited circumstances. However, none of these circumstances presently permit disclosure of an arrested person's HIV status in a sexual offence case to the victim. Thus, disclosure of an alleged perpetrator's HIV status to the victim more than likely amounts to a violation of the right to privacy.

In the South African context, legislative intervention to permit mandatory HIV and AIDS screening of the alleged perpetrator in the case of a sexual assault is argued to be necessary as women and children are particularly vulnerable to sexual violence. Accordingly, it is suggested that there is a compelling argument' for curtailing the alleged offender's rights to privacy and bodily integrity to the limited extent necessary to enable his or her accuser to know speedily whether he or she has been exposed to HIV during the attack.

The benefit to victims of this knowledge is not only practical in that it enables them to make life decisions for themselves and people around them, it is also beneficial to their psychological state to have a limited degree of certainty regarding their exposure to a life threatening disease.

3.2.3. Application

The Bill creates a mechanism whereby a victim of a sexual offence may apply to a magistrate for an order that the alleged offender be tested for HIV and that the results of the test are disclosed to the victim. An application can also be made by an interested person on behalf of the victim where the victim is unable to do so. Where an application is brought on behalf of a victim, the written consent of such a victim must be obtained but can be dispensed with in certain circumstances, such as where a victim lacks the legal capacity to give his or her consent.

The application must be made at the earliest possible opportunity after a charge has been laid and may be made before or after the arrest of the alleged offender. The victim hands the application to the investigating officer, who, in turn, is responsible for submitting the application to a Magistrate with jurisdiction to hear the matter. The basis for the application is the victim's statement' on oath that a sexual offence, in which exposure to the body fluids (not saliva) of the alleged offender may. Have occurred, has been committed against him or her.

A -Magistrate considers the application in chambers. The alleged offender and/or his or her legal representative may not be present. The purpose of this is to ensure an uncomplicated and speedy process and to protect the victim from contact with his or her assailant, which could lead to further trauma.

For a Magistrate to make an order for HIV testing of the alleged offender, the following requirements must be met:

· There must be prima facie evidence that a sexual offence has been committed by the alleged offender against the victim.

· There must be prima facie evidence that the victim may have been exposed to the body fluids (not saliva) of the alleged offender.

· Not more than sixty calendar days have lapsed from the date of the alleged offence.

If the Magistrate is satisfied that these requirements are present, he or she must issue an order for HIV testing of the alleged offender and disclosure of the test results to the victim, or interested person, and the alleged offender. The investigating officer must inform the victim, or the interested person, of the outcome of the application, as well as the alleged offender.

The Bill also provides for a police official to apply to a magistrate in chambers for an order that an alleged offender be tested for HIV. The magistrate hearing the application must order that the alleged offender be tested for HIV if, he or she is satisfied, on the strength of information taken on oath or by way of solemn declaration, that an offence was committed against the victim, and that HIV testing would appear to be necessary for purposes of investigating or prosecuting the offence. The results of the tests in this case are only made available to the investigating officer and alleged offender.

There was no such provision in the original HIV Testing Bill. Motivation for the inclusion of such a provision is, among others, rooted in the fact that the Criminal Law Amendment Act, 105 of 1997, provides for the imposition of a minimum sentence in those cases where an HIV positive person is convicted of rape. This provision will place an investigative tool in the hands of the police to enable them to place a case before the prosecuting authority that has been comprehensively investigated. Thus, the ambit of the chapter is not limited to the investigation of sexual offences and may also be applied by the police where the HIV status of the offender may be relevant for the investigation or prosecution of any other offence.

3.2.4. Confidentiality

The Bill provides that if an order for HIV testing of an alleged offender has been granted, this fact may be communicated only to the victim or the interested person, the alleged offender, the investigating officer and the persons required to execute the order. In addition, the results of the HIV test performed on the alleged offender may only be disclosed to the victim (or interested person) and. the alleged offender.

Comment

Barday & Meerkotter of the Gender Project at the Community Law Centre, University of the Western Cape conclude that compulsory testing of accused is not a solution and could burden the health care and criminal justice systems to the detriment of rape survivors themselves.21 They argue as follows:

· Statistics indicate that an estimated 4,8 million South Africans are infected with HIV and AIDS. Most of the men and women, who are infected, are unaware of their HIV status. Stigma and fear of discrimination further discourages access to voluntary counselling and HIV testing. In this context, any measure that could add to the stigma around people living with HIV and AIDS should be discouraged. Mandatory testing of specific groups like commercial sex workers, prisoners, asylum seekers and accused in sexual offence cases could have serious human rights and public health implications and would set a dangerous precedent, further marginalising people living with HIV/AIDS and discouraging openness.

· Viewed from the perspective of the majority of rape survivors, the Bill offers little comfort. The Bill also does not assist the vast number of women, who do not report the rape, nor is it helpful in those instances where no arrest has been made. The authors also note the additional problem should there be a lack of communication between the investigating officer and complainant. Unless the complainant is informed that a suspect has been arrested, it is impossible for the complainant to access the right to have the suspect tested in time to make an informed decision whether or not to take post-exposure prophylaxis measures.

· The Bill also requires prima facie evidence that the suspect has committed a sexual offence against the complainant and that there is a possible risk of infection. Introducing the requirement of producing prima facie evidence at this stage is impractical as investigating officers are often not in a position to give much evidence at the first court appearance of the accused and matters are subsequently postponed. Also, in the event that such evidence is available, it could potentially impinge on other legal issues when the matter eventually reaches trial stage (For example, where the trial Magistrate becomes aware that a decision has already been made as to whether prima facie evidence exists or not). Staff shortages at court would also pose potential problems, as the same

· Magistrate, who presided over the hearing where prima facie evidence is presented, should not preside over the eventual trial. As many courts already experience problems in respect of bail hearings, this would only present added burdens on the criminal justice system.

· At a glance, it is unlikely that the Bill will achieve its purported aims of enabling survivors to make immediate practical life decisions or give them a limited degree of certainty to a life threatening disease. Immediate' practical life decisions that victims of sexual assault must make include:

- Counselling.

- Post-exposure prophylaxis (PEP) for the survivor to stop HIV from replicating, practicing safer sex with her partner.

- If she is at a late stage of pregnancy, using treatment to prevent mother to child transmission of HIV.

- Depending on the context, using medicines to prevent the onset of opportunistic infections like PCP pneumonia and TB.

- Generally living a healthy lifestyle.

· In the case of PEP a decision must be taken within 72 hours of the incident and, therefore, arresting the accused and any application for compulsory HIV testing of the accused is unlikely, within this short period, to influence the decision whether or not to take PEP. The window period could also apply to the accused, so that an HIV negative test result might not be an accurate reflection of the accused' HIV status.

· The fear and uncertainty of whether or not a survivor has been infected with HIV will unfortunately only really be over once she tests negative after the window period has expired. An adequate response to the immediate needs of rape survivors requires a renewed commitment to providing rape survivors with access to adequate, comprehensive health care services. In addition, the reluctance of rape survivors to report rape should be addressed by ensuring efficient investigation and prosecution of rape cases. Compulsory HIV testing of accused is not a solution and could burden the health care and criminal justice systems to the detriment of rape survivors themselves.

4. National Register of Sex Offenders

In terms of this provision, a person who has been convicted of a sexual offence is prohibited from working with children. Not only must a convicted sex offender disclose his or her conviction when applying for employment, which will place him or her in the position of working with children in any circumstances, an employer who provides services to or for children is prohibited from employing such a person.

The Children's Act 38 of 2005 also has provisions creating a register aimed at protecting children. Part A of that Register aims to regulate the creation of a record to reflect information regarding the abuse or deliberate neglect of children. Part B is intended to create a record of persons.

Comment: Community Notification and Sex Offender Register

Neither the Sexual Offences Act, nor the Criminal Procedure Act makes provision for identifying dangerous sex offenders and their long-term supervision.. The Criminal Procedure Act does provide .for imprisonment together with a period of correctional supervision. Correctional supervision, however, can only be imposed for a fixed, and relatively short, period. Accordingly, the Law Commission proposed that section 276A of the Criminal Procedure Act is amended to extend the maximum period of correctional supervision from three to five years. This proposal is adopted in Schedule 1 of the Bill.

The issue of tracking sexual offenders is controversial as it involves weighing the right to privacy against other fundamental rights such as children's rights. At present in South Africa, sex offenders are not tracked after their release.

5. Trafficking for the Purposes of Sexual Exploitation

The provisions contained in the Bill relating to trafficking for the purposes of sexual exploitation are intended to be transitional measures aimed at:

· Elevating trafficking to a separate and substantive offence.

· Recognising that persons generally, but especially women and children, fall victim to trafficking.

· Bringing South Africa partially within the purview of the provisions of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo' Protocol).

Although the ambit of the provisions are limited to sexual offences, these transitional measures aim at affording protection to victims in this regard, pending the outcome of the South African Law Reform Commission's investigation into trafficking in persons (The South African Law Reform Commission has released a draft Bill for comment).

Trafficking is defined as including the supply, recruitment, procurement, capture, removal, transportation, transfer, harbouring, sale, disposal or receiving of a person, within or across the borders of the Republic, by means of the following:

· A threat of harm.

· The threat or use of force, intimidation or other forms of coercion.

· Abduction

· Fraud

· Deception or false pretences.

· The abuse of power or of a position of vulnerability, to the extent that the complainant is inhibited from indicating his or her unwillingness or resistance to being trafficked, or unwillingness to participate in such an act.

· The giving or receiving of payments or benefits.

For the purpose of any form or manner of sexual exploitation, grooming or abuse of such person, whether committed in or outside the borders of the Republic, including far the purpose of the commission of a sexual offence or sexual act, or sexual exploitation or sexual grooming as contemplated in this Act, or exploitation for purposes of pornography or prostitution, with, against or of such person.

The Bill also addresses the position of commercial carriers. Accordingly, a commercial carrier commits an offence if it brings a person into or removes a person from the Republic if the person does not have the travel documents required for lawful entry into or departure from the Republic.

The Children's Act 38 of 2005 also contains provisions dealing with trafficking. These provisions, however aim to criminalise the trafficking in children for purposes of exploitation (all forms of slavery, sexual exploitation, servitude, forced labour or services, child labour and the removal of body parts). The ambit of the provisions contained in the Children's Act is wider than that of the provisions in this Bill.

6. General

6.1. Evidence of Previous Consistent Statements and Delays in Reporting

These provisions address a number of evidentiary issues relating to sexual offences that have proved problematic. The Common Law rule against self-corroboration prohibits the admission of statements made by witnesses prior to their giving evidence in a criminal trial. An exception to this rule is the admission of evidence that the complainant in a sexual case made a complaint soon after the alleged offence. Where there is a delay, the defence usually argues that a negative inference should be drawn as complainant's credibility. In accordance with the Commission's recommendations in this regard, the Bill provides that no negative inference may be drawn from the fact that there is a delay in reporting the alleged offence or that no previous consistent statements are made.

6.2. Extra-Territorial Jurisdiction

The Bill provides that South African citizens or residents, who commit sexual offences in other countries, should be liable for prosecution in South Africa.

Comment

At present, the jurisdiction of a court is limited to the South African territory and does not extend to offences committed by South African's in other jurisdictions. However, the notion of 'universal jurisdiction' or extra territorial jurisdiction allows any nation to prosecute offenders of certain crimes even where the State lacks a traditional connection to the crime, the alleged offender or the victim. In short, extra territorial jurisdiction vests inherent jurisdiction in a court. In the area of sexual offences, the issue of extra territorial jurisdiction has received legislative attention as part of measures aimed at curbing sex tourism, child pornography and trafficking of persons for the purposes of commercial sexual exploitation.

7. National Policy Framework

The Bill provides that the Minister for Justice and Constitutional Development must create a national policy framework to:

· Guide the implementation, enforcement and administration of the legislation to ensure the acceptable and uniform treatment of all sexual offence matters.

· Establish an Intersectoral Committee that will be responsible for developing and compiling a draft national policy framework (to be submitted to the Minister for adoption) that will, among others, facilitate the implementation of the Act and the monitoring of the implementation of the Act

8. National Guidelines and Directives

These guidelines and directives are to ensure protective measures for witnesses and vulnerable witnesses. Thus, the National Commissioner of the SAPS must issue national instructions and the National Director of Public Prosecutions must issue national directives to ensure that witnesses are treated according to national prescripts. Thus, the National Instructions that the National Commissioner of SAPS is required to issue address the manner in which police officials should deal with the report of .an alleged sexual offence, the manner in which the police investigate sexual offence cases and the circumstances in which an investigation of a sexual offence can be discontinued.

Similarly, national directives would address matters relating to the conduct of sexual offence cases in general, the circumstances in which various protective measures could be employed (such as closed circuit television, evidence through an intermediary, proceedings taking in place in a closed court).

9. Concluding Comments

The Constitution, together with South Africa's international obligations, imposes certain duties on the State to address violence against women? These duties not only include enacting appropriate legislation but also the allocation of sufficient State resources to address the problem. In addition to its recommendations regarding legislation, the Law Commission made several proposals, both preventative and protective, to combat sexual violence in South Africa including:

· There is urgent need for a comprehensive strategy for multi-disciplinary intervention. The National Policy Framework is intended to guide the implementation, enforcement and administration of the legislation to ensure the acceptable and uniform treatment of all sexual offence matters. Such a framework should address both primary (preventative) and secondary (protective) measures. Specifically, the role of national government should be to ensure compliance with the national framework so that all relevant public bodies and Non Governmental Organisations (NGOs) deliver their services in such a way that the potential for secondary trauma is avoided. Furthermore, financial provision should be made at all levels of government for the implementation of operation of the legislation. The Law Commission's recommendation stressed the importance of the framework being multidisciplinary - involving not only the justice and safety and security cluster but also the Departments of Health and Social Development. It recommended further that a multidisciplinary committee be established to monitor the implementation of the framework on an ongoing basis.

· The Commission emphasised the importance of public education initiatives. Awareness campaigns in schools and local government structures can assist in facilitating an environment where those who have experienced sexual violence feel able to speak out. Life skills programmes should be an integral part of the school curricula. There should be extensive campaigns to inform the public about what to do and where to go if a person is sexually violated

· Extensive training of all officials, who encounter sexual offence cases on an ongoing basis, is vital. In the South African Police Service, care should be taken to ensure that those officials who work with sexual offences are regularly debriefed. In the Department of Health, the demise of the district surgeon system has exacerbated the loss of valuable skills. Accordingly, medical personnel should receive ongoing training on how to deal with sexual offence cases, as well as with regard to the collection of evidence. In the Department of Justice, relevant officials should receive extensive and ongoing training. Prosecutors handling sex offence cases should receive extensive training on plea-bargaining and innovative sentencing options aimed at community protection.

· Keeping the complainant informed of developments in .his or her case is also important. The Commission recommended that prior to an alleged sexual offender's first appearance in Court, SAPS should be responsible for ensuring that the complainant receives all necessary information. However, the Office of the Director of Public Prosecutions should assume responsibility for ensuring that the complainant receives all necessary information once the accused has appeared in Court.

· In April 2002, Cabinet committed itself to providing anti-retroviral drugs to survivors of sexual violence as part of a comprehensive package of support that included counselling, treatment for sexually transmitted infections and testing for and prevention of HIV transmission as a result of rape. Despite the Bill purporting to 'afford complainants of sexual offences the maximum and least traumatising protection that the law can provide, to introduce measures which seek to enable the relevant organs of State to give full effect to the provisions of this [legislation] and to strengthen the State's commitment to eradicate the pandemic of sexual offences occurring in the Republic or elsewhere by its citizens', the Law Commission's recommendation that the State bear the cost of the medical treatment and counselling of survivors of sexual violence was excluded from the Bill. The exclusion of this clause has provoked much criticism. Activists argue that not only is the provision of medical treatment and counselling to survivors of sexual offences a legal duty in terms of the Constitution and international law but is also amora duty. Accordingly, the allocation of resources to ensure the successful implementation of the legislation should be regarded as a priority. As it stands, the Bill does not introduce anything beyond existing policy commitments

Sources

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Jurgens, R. HIV Testing and Confidentiality: http://www.aidslaw.ca/maincontentlissues/test

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