A summary of this committee meeting is not yet available.
TASK GROUP ON THE SEXUAL ABUSE OF CHILDREN
11 March 2002
SEXUAL ABUSE OF CHILDREN: PUBLIC HEARINGS
Chairperson: Mr E Saloojee (ANC)
Documents handed out:
Community Law Centre at the UWC (see Appendix 1)
Submission by Ms J Van Niekerk (see Appendix 2)
Department of Health Presentation (see Appendix 3)
Department of Justice and Constitutional Development Presentation
South African Law Commission
Department of Social Development Presentation
Department of Home Affairs Presentation
Department of Safety and Security Presentation
Department of Education Presentation
Executive Summary: Review of the Child Care Act
The Departments of Social Development, Home Affairs, Safety and Security, Justice and Constitutional Development, the Department of Education and the Department of Health addressed the Task Group. The Departments outlined the work they are doing around child care.
Testimony was heard from a primary school teacher from Kwazulu-Natal.
The Task Group heard submissions from the South African Law Commission (SALC) and from the Community Law Centre at the University of Western Cape (UWC). Recommendations were made to the Task Group on ways of fighting the sexual abuse of children.
The aim of the public hearings is to allow those South Africans who are directly affected by the problem with the sexual abuse of children to address Parliament. The Task Group on the Sexual Abuse of Children (the Task Group) will consider these various inputs, and compile a report, which would then be presented to Parliament itself for scrutiny. It is hoped that these steps would assist the relevant role-players in dealing with this problem as a matter of urgency.
Department of Social Development
Ms Angela Bester: Director General, presented the submission, and invited questions from Members.
Ms J Chalmers (ANC) contended that the Child Protection Units (CPU) at police stations are very important, and expressed dismay at allegations circulated during 2001 that these CPU's were to be closed down or integrated into the South African Police Services (SAPS). What is the current status of these CPU's?
Ms Bester said that the other government Departments scheduled to address the Task Group during this session would perhaps be better placed to answer this concern.
Secondly, the South African press has recently been portraying pre-primary and nursery schools as popular sites of child sexual abuse incidences. Did the Department have any plans in place to monitor these venues to detect and deter these crimes?
Ms Bester responded that guidelines have to be developed to assist those involved here. In this regard, the Department of Social Development regularly consults with the Department of Education, and the discussion paper recently delivered by the South African Law Commission on this subject has to be considered in great detail here.
Mr M E George (ANC) stated that the presentation highlighted the need to focus on the prevention of sexual abuse of children, and agreed that this is an important factor in the commission of social crimes. Ms Bester is asked to explain the plans of the Department of Social Development in addressing this issue.
Ms Bester replied that this concern has been highlighted on page nine of the submission, and suggested that there are so many different factors that come into play here that other Departments have become increasingly involved in addressing the problem of the sexual abuse of children. These would include the Department of Education.
Dr E E Jassat (ANC) referred to the "40 volunteers" on page four of the presentation, and encouraged the Department to ensure these persons do not also commit these heinous crimes. Furthermore, these volunteers should be used to spread the message against the sexual abuse of children to a much wider audience.
Ms Bester replied that this is not the full amount, as the presentation does state that 3000 personnel will be trained for such posts.
Ms S V Kalyan (ANC) asked how many "one stop centres" there are within the Republic. Secondly, Ms Bester is requested to explain whether an integrated plan has been agreed to by the SAPS, the Department of Education and the Department of Social Development to achieve this objective. Finally, has a time frame been set by which this project would be delivered?
Ms Bester replied that the "one stop centre" project has already been piloted in the Eastern Cape and Mpumalanga provinces through a joint effort by the Department of Social Development and the SAPS. The most significant parties in this regard are the Provincial Departments of Social Development. They are currently evaluating this project in terms of fixing an appropriate time frame for it, as well as the need for cost-effective means by which this could be achieved. The medium-term expenditure framework is being used here, and the aim is to have at least one centre per province within the following two years in those provinces that illustrate the most number of incidences of sexual abuse of children.
Ms N M Tsheole (ANC) requested Ms Bester to explain the attempts made by the Department of Social Development to interact with the Government Communication and Information Services (GCIS) to assist in the research being conducted and investigations into the problem of the sexual abuse of children.
Ms Bester said that the Department is indeed actively involved in the provision of this service, and does consult other Departments in this endeavour. The Council for Scientific and Industrial Research (CSIR) has been assisting the Department of Social Development in this regard, and research services have been contracted out.
Ms P Govender (ANC) contended that the shelters or safe havens provided for victims are important. To what extent is the Department of Social Development involved in providing these shelters and havens? How many of these shelters are currently being financed or resourced by the Department of Social Development? Secondly, is any legislation being drafted to deal with the problems posed by trafficking in women and children, as well as the recent decriminalisation of sex workers?
Ms Bester suggested that Mr Ashley Theron, Chief Director of Welfare and Transformation Services, would be better placed to answer this matter.
Mr Theron informed Ms Govender that there are presently 47 operational "one-stop centres" in South Africa, and 30 of these are subsidised by the Department of Social Development.
In response to the second question, Ms Bester explained that Government has commenced a process of specifically addressing this issue, and the results of its study will be made available to Members later.
Ms S K Mnumzana (ANC) asked which body or person is responsible for "assessing the capabilities of these volunteers", and whether they are properly trained to better manage their case-loads.
Ms Bester replied that this depends largely on the relevant local child protection committee, as the functioning does differ slightly. The volunteers are trained in identifying the type of abuse, as well as recognising the next steps and procedures to be followed to provide adequate support to the victim and the family.
Ms P W Cupido (DP) referred to the constraints placed on human resources in the Department and suggested that the ridiculously low salaries of the social workers have to be reconsidered. How did the Department plan to overcome this problem?
Ms Bester replied that a concrete proposal is on the table, and the Council of Social Service Professionals has been instructed to look into this matter as part of the broader package on offer.
Ms E Gandhi (ANC) feared that the child protection register, proposed in the presentation, would stigmatise the victims of sexual abuse rather than the perpetrators, as there would be a lasting record of their violation.
Ms Bester replied that every discussion of this issue results in a heated debate. She referred the Member to the recent South African Law Commission report, which contains a detailed discussion of this issue.
Ms C Dudley (ACDP) requested Ms Bester to clarify the confusion regarding the problems with the reporting of incidences of the sexual abuse of children, and possible measures to overcome this problem. Secondly, how exactly are the services of these volunteers procured by the Department?
Ms Bester answered the second question by stating that this is done via set co-ordinating structures in each of the Provinces and the national Department, but the primary organiser here is the provincial structure.
Department of Home Affairs
Deputy Minister Charles Nqakula conducted the presentation and invited questions.
Ms Govender asked the Deputy Minister whether, in the opinion of the Department of Home Affairs, the existing South African legislation is sufficient to address the problem with the sexual abuse of children, or whether legislative reform is needed.
Deputy Minister Nqakula replied that it is evident that South African legislation is simply not capable of dealing with all instances of the peddling of child pornography. It is therefore hoped that this matter would at least be partially resolved by amending the Films and Publications Board Act by the end of 2002. The Constitutional Court is currently hearing a case on the precise definition of "child pornography", and once this matter has been decided further discussion on this issue will be resumed.
Secondly, the heart of this matter is the value attached to the life of children, and the Department of Home Affairs is responsible for the registration of South African births. The problem here, however, is the fact that far too many children cannot access welfare grants because they have not been properly registered. How is the Department of Home Affairs geared towards addressing this issue?
The Deputy Minister responded that there is a call within the Department of Home Affairs to accelerate the registration programme for all South African births. It is hoped that this initiative would go a long way in addressing this concern.
Thirdly, Ms Govender pointed out that the street kids populating South African streets are especially vulnerable to sexual abusers, as those struck by poverty are most susceptible to accept lures in the form of objects they cannot afford themselves. Have any measures been put in place by the Department of Home Affairs to address this issue?
Deputy Minister Nqakula acknowledged that this is a pressing concern, and the Department of Home Affairs has recognised that poverty levels have to be alleviated.
Ms Dudley inquired whether the Deputy Minister has considered the link between pornography and all forms of child abuse.
The Deputy Minister responded that the current South African legal position is that only three types of sexual activity has been expressly outlawed: child pornography, bestiality and violent sex. Adult pornography has, however, not been "banned" under South African law.
Ms Gandhi reminded the Group of an incident reported approximately two years ago in which a highly-profile public official was found to have a wealth of pornographic images on his computer, and, if this is not bad enough, that official was not formally charged. This clearly illustrates the gap in South African law on this issue, and the Deputy Minister is requested to clarify this matter.
Ms Tsheole thanked the Deputy Minister for addressing the problem with child pornography, as the Portfolio Committee on Social Development is grappling with this same issue. The Films and Publications Board Act has planned to restrict the influence and effect of the media here, but how does the Department of Home Affairs intend to effectively balance the constitutionally guaranteed rights to press freedom, on the one hand, and the rights of the child on the other?
The Deputy Minister replied that South African law is not designed to serve as a muzzle for Section 16 of the Constitution, but the balance here weighs the violation of the rights of the child to protection, which is paramount under the new Constitutional dispensation, against that of the press.
Dr Jassat inquired about the court procedures employed to ensure those children who appear in court are adequately protected.
Deputy Minister Nqakula assured Dr Jassat that our law is clear on who children and minors are. The Childrens Act of 1966 is still relevant to contemporary South Africa, despite the fact that it was passed as far back as 1966, and the Child Care Act will be strengthened by the Law Commission finding and recommendations. Furthermore, the laws relating to the delivering of evidence by children in a court of law within the Republic are specifically designed to assist them to deliver evidence in a manner that the courts will accept. This process is also presently being strengthened.
Mr D V Bloem (ANC) contended that the CPUs lack the requisite skill and experience to properly execute their duty, and suggested that the National Commissioner of Police play a more active role in empowering these units.
The Deputy Minister replied that the few CPUs that are functioning in South Africa are highly skilled, and have been internationally recognised for the exceptional work they deliver. The problem is that these CPU's are not sufficiently resourced to provide and train such personnel. The Peninsula CPU, for example, has an amazing success rate, despite the fact that it is significantly under-resourced. There is a desperate need to increase the number of CPU's as well as the material resources available to the Department of Home Affairs.
Ms Govender asked the Deputy Minister to explain whether the Department of Home Affairs has devised plans to implement a campaign to educate people to put in place the blocks on the internet in respect of child pornography, suggested during its presentation.
The Deputy Minister responded that the Department will engage in such a campaign, and the assistance of other Departments and relevant role-players will also be enlisted here, so that this issue may be brought to the attention of all South Africans. Members of Parliament would also be incorporated in this initiative via workshops.
Ms Govender said that the problem with the registration of South African babies has been discussed by the Joint Monitoring Committee for the Improvement of Life and Status of Women, and it was suggested that a representative or official from the Department of Home Affairs be stationed at the maternity hospitals and clinics. These would then be responsible for registering the births immediately upon delivery, and perhaps mobile clinics could be implemented to facilitate increased registration rates.
The Deputy Minister replied that this is a good idea, and will be fully considered with regard to the existing budgetary constraints of the Department of Home Affairs. The primary problem here is the registration of births in the most rural areas of the Republic.
Ms Govender said that it has been reported that the American government subjected its fighter pilots to screenings of violent pornography before deploying them to the Gulf War.
Deputy Minister Nqakula assured Ms Govender that anyone found violating the South African law on this topic would be fully prosecuted, as the law is quite clear here.
Department of Education
Minister Asmal conducted the submission from the Department of Education.
Ms Palesa Tyobeka, Chief Director of Human Resources Development and Gender Equity of the Department of Education, slightly elaborated certain points already raised by Minister Asmal during the presentation.
Ms Dudley contended that the Life Skills Programme initiated by the Department of Education has too graphic a content, and contains explicit details of sexual activity and prowess which succeeds only in encouraging sexual promiscuity in South African youth. It is thus suggested that this programme is harmful to its target audience and should be abandoned as soon as possible.
Minister Asmal retorted that this suggestion is nonsense, and stated that he was of the opinion that those providing input at these hearings were all reasonable and educated adults, and insisted that these allegations cannot be referring to the Life Skills Programme. The primary objective of this project is to target those sexually precocious children who are engaging in sexual activity without proper and accurate information on their actions, and the consequences thereof. It is unacceptable for Members to impose their own religious and psychological contradictions on everyone else. In fact, the theologians who were consulted in the formulation of the programme were fully supportive of its objectives and the manner in which it sought to achieve those goals. Members are urged not to subscribe to conspiracy theories regarding the effectiveness of this programme.
Ms Chalmers stated that the trend in recent criminal incidences seems to suggest that the younger the person, the more vulnerable the child is to sexual abuse. The Department of Education is requested to outline its plans to protect very young South Africans, such as those at pre-primary and nursery school level, from such abuse and harm.
Minister Asmal replied that various governmental Departments, as well as SAPS and community based police, are actively involved in an attempt to properly address this issue.
Secondly, it was mentioned during the presentation that a survey had been conducted by the Department of Education on this matter. Did that study include pre-school children?
Ms L Mabe (ANC) requested Minister Asmal to explain the measures taken by the Education Department to extend the Speak Out empowerment initiative, referred to in the presentation, to the rural areas within the Republic, as these contain the most disadvantaged and the most vulnerable communities.
Minister Asmal replied that his Department does not distinguish between rural and urban areas. In fact, both CONTRALESA and the traditional leaders insisted that this matter be left to them.
Ms Mabe asked what measures have been put in place by the Department of Education to ensure that the drive to increase awareness in schools, as mentioned in the presentation, is maintained over a significant period of time, and is not just a once off event.
Thirdly, it has been reported that drastic actions have recently been taken against educators, and in most of these reported cases their seniors knew of the abuse taking place, yet no disciplinary actions was taken against the perpetrators. This merely serves to perpetuate the vicious cycle of abuse, and it seems that in these instances the Department of Education has failed to take appropriate action.
Minister Asmal informed Ms Mabe that the implementation of policy is purely a provincial prerogative, whereas the national Minister only lays down rules to monitor the execution of functions of various Department sectors. As the Minister he also submits a report to the State President on the progress made and initiatives engaged in by the Department of Education. The Department of Education recognises that things are getting tougher on employees, and for this reason attempts are being made to increase the job specifications of the senior officials, and these findings would then be reported to the MEC.
It has been recommended that a unit be established in each province to deal specifically with race, gender and sex discrimination in the rural areas in particular, as well as problems with violence. Should these problems persist, it would seem that the only viable solution would be to introduce all-girl schools.
Mr George expressed concern both with the insufficient time afforded to each presenter, and the time allocated for questions.
Ms Govender suggested that Members submit written questions, which were not answered or not posed to the presenter. The latter would in turn respond to each question in writing. In this way each concern would be addressed, and the hearings can proceed according to schedule.
The Chair agreed with this suggestion.
Department of Safety and Security
The National Commissioner of Police, Jacki Selebi, introduced the delegation, who would each be dealing with specific portions of the presentation: Senior Superintendent Anneke Pienaar, Assistant Commissioners Schutte and Nomoyi, Divisional Commissioners De Beer and Makhubela and Assistant Commissioner Susan Pienaar, the Head of Social Crime Prevention.
Ms Kalyan referred to the statistics provided on page ten of the presentation relating to the number of cases that have been finalised in court. Could the Commissioner provide further statistics on the precise number of reported cases as opposed to the number of successful convictions. This would enable Members to arrive at a better understanding of the progress and attempts made by the Department of Safety and Security to address the problem with the sexual abuse of children.
Senior Superintendent Pienaar replied that she does not have all the statistics before her, but the information will be provided to the Task Group as soon as possible.
Secondly, point 2.3.2 on page eleven of the presentation mentions the "specialised one stop center" personnel. Ms Kalyan asked the Commissioner to explain whether these personnel have received proper training with regards to social work skills as well as forensics education.
Thirdly, page 14 of the presentation refers to the problem with transferals currently facing the Department of Safety and Security, which causes a double trauma. Could the Commissioner outline any measures taken by his Department to address this matter?
Assistant Commissioner Nomoyi replied that here reference was not being made to rape victims, but only to sexual harassment in the workplace.
Assistant Commissioner Pienaar added that police stations themselves do presently house facilities that cater specifically to the needs of the victim, and the interests of the children are very important here. Efforts are also made to prioritise those areas that the State President himself has earmarked as being in urgent need of attention.
Ms P N Mnandi (ANC) appreciated the effort made to ensure that the number of cases involving the sexual abuse of children that have been taken to court has increased, as reflected on page ten of the presentation. Yet page ten of the presentation states that "fines" are also issued for the commission of this serious crime, and this cannot be accepted as a suitably serious sentence for such crimes.
Senior Superintendent Pienaar replied that fines are issued primarily for offences relating to assault, and not for rape or indecent assault.
Ms Mnumzana contended that the attitude of police personnel in certain areas within the Republic are unacceptable, as their customer-relations skills, especially with regard to the support given to the victim and the family, are found to be severely lacking.
Senior Superintendent Pienaar replied that Section 28 of the Constitution is important here, and it has resulted in cases being withdrawn because the social worker or child psychologist is of the opinion that continuing with the case in court would only cause further avoidable harm to the child.
The Member is assured that the National Instruction 22 of 1988 provides for those personnel with attitude problems to be charged intra-departmentally.
Secondly, it has been reported that far too many cases have been thrown out of court because police personnel have failed to properly gather and record the relevant evidence. This cannot be allowed to continue.
Senior Superintendent Pienaar replied that the decision regarding the evidence is made by the prosecutor.
Assistant Commissioner Nomoyi added that concrete evidence is needed in such matters, as it involves a very important claim in which the children could potentially suffer if the case is not handled correctly. The criminal courts very often constrain the child from fully and properly expressing themselves regardless of the thorough investigation conducted by SAPS, because the court itself is so cold and intimidating.
Department of Justice and Constitutional Development
Advocate Pieter du Rand, Chief Director of Court Management of the Department of Justice, introduced Advocate Thoko Majekweni, Special Director of the Sexual Affairs and Community Affairs Unit from the National Prosecuting Authority, and informed Members that they would each be dealing with certain portions of the presentation.
Ms W S Newhoudt-Druchen (ANC) thanked the Department of Justice for the presentation, and contended that children with disabilities are posing a particular problem within the Western Cape with regard to their relationship with the appointed interpreter in the court proceedings. It seems as if the state prosecutors are not in favour of the use of these interpreters, because the child would develop a particular relationship of familiarity and trust with a particular interpreter, and would relate the events in a particular way to this interpreter. The trouble which then occurs is that when a different interpreter is then assigned to that child, a different relationship might develop between them and a different version of events might be received from the child. The Department of Justice is requested to explain the measures taken to stabilise this process.
Advocate du Rand replied that the aim here is to increase the current capacity of South African courts to better accommodate the interests of disabled children who have come to court to testify on the sexual abuse they have suffered. In this regard discretion lies with the National Director of Public Prosecutions (NDPP) and its Sexual Offences and Community Affairs Unit (SOCA) to establish guidelines here so that uniform standards may be set.
Ms N V Cindi (ANC) contended that the people on the ground have no knowledge of the SALC reports referred to in the presentation, and it seems as though these documents have not even considered the different cultural backgrounds and languages alive in South Africa.
Secondly, the prosecutors must be sensitive to the cases involving children who have been sexually abused, and the Department of Justice is requested to explain just how sensitive they have been to such cases.
Adv du Rand informed the Member that personnel are indeed required to undergo social context training on these matters, and the concern with language incorporation has always been a stepchild within the justice system. These matters are still being considered, and efforts are being made to improve the current sensitivity levels.
Ms Mnandi suggested that most of the problems facing the Department of Justice lie in the very light sentences and fines imposed for assaults, as assault forms the basis of violent sexual crimes.
Advocate du Rand replied that the judge always has a discretion to impose an appropriate sentence, and the Executive arm of Government does not interfere in the decision made. However, should the sentence clearly be too lenient, the National Prosecuting Authority does have the right to appeal against the sentence imposed.
The fines are imposed for the various degrees of assault crimes that are committed, and fines are usually handed down for crimes which have less serious implications for the victim.
Secondly, the problem is that these children break down when testifying in court because they have to relive the event in a cold and intimidating environment, as mentioned earlier. The result is that some choose not to go to court, as the process threatens to do more harm than good.
Advocate du Rand replied that his Department has recognised that this is an important issue, and intermediaries are employed to make the child feel more relaxed, comfortable and confident in the court environment when relating the events. A variety of other court equipment has been developed and introduced to assist the child in this regard.
Ms C M P Ramotsamai (ANC) referred to the third paragraph on page 13 of Annexure A of the presentation, which creates an additional problem. The shortcoming here is that avoidable trauma is far too often caused by the long wait that has to be painstakingly endured by these child victims, and they are forced to relive the event before the matter is finally heard in Court. The Department of Justice is requested to outline any plans it has made to shorten this crucial period.
Advocate du Rand replied that a strategy has been adopted to make South African courts more productive and automated, and Saturday courts have now also been introduced in an attempt to alleviate the case load of the Courts.
Secondly, the assistance of the Department of Home Affairs should be attained with regard to community service, referred to at the end of page nine of the presentation, as that Department is best placed to deal with social problems occurring in homes. Furthermore, the "one-stop centres" could also be equipped to deal with this matter.
Ms Mabe referred to the statistics provided under point 2.5 on page eleven of Annexure A of the presentation, and requested the Department of Justice to provide this task group with statistics on the number of reported cases of sexual abuse of children. These statistics should include those cases that have been fully followed up, as well as those that have been withdrawn, and this should be in the form of a breakdown of each province, as well as the rural and urban areas. This would provide Members with a holistic picture.
Advocate Majokweni replied that it would not be easy to get hold of these statistics. This information is used to provide a segmented outline of matters, so that the efficiencies of the system may best be scrutinised, and the strugglers in need of attention can be identified.
Ms A Van Wyk (UDM) stated that the enlistment of specialised prosecutors would be vital here, and the Department of Justice is requested to explain whether it is actually co-ordinating with the SAPS in this matter.
Secondly, the tertiary institutions could also be contacted to identify students who express an interest in specialising in the area of child sexual abuse prosecutions.
Advocate Majokweni replied that the assistance of tertiary institutions are indeed enlisted, as these are recognized as major role players in this initiative.
South African Law Commission
The delegation from the SALC, the Chief Director, the Project leader for the Sexual Offences Committee, Ms Joan Van Niekerk, and Professor Knowles briefed the Task Group on law reform in the area of child care.
The Chief Director explained that the Commission had released documents that were to be very important milestones in the process, and were produced through the interaction with relevant parties, such as non-governmental organisations, and the Portfolio Committee on Social Development. Ms Van Niekerk and Professor Knowles would briefly deal with the documents.
He stressed that the Commission was committed to expeditiously finalising the matters at hand as an utmost priority. In this regard, both their investigations had been on schedule, and the two reports would be ready by the end of June 2002. He mentioned an empirical study on sentencing conducted by the Commission over approximately 55000 cases. The study showed that only 4.5% of the cases actually ended with successful convictions. This showed that sentencing was almost irrelevant to offenders, and as a result successful prosecution would be of utmost importance. He noted that in addition to law reform, other matters such as capacity building would have to be addressed as matters of extreme urgency.
The Chief Director explained that the new democracy was placing new demands on law reform programmes, with a need to transform the justice system. The investigations conducted by the SALC were prime examples of trying to achieve just that. Since 1994, the Commission had successfully dealt with 48 reports, 50 discussion papers, and 80 issue papers, covering a wide range of topics. Thus, although there are contrary perceptions, the SALC could not be said to be slow in performing its functions. Since 1994, the Commission carried out approximately 24% of investigations per year, 14% of which would be prioritised.
The Commission sometimes face a daunting task, and as a result, quick fixes would not be possible. Extensive research (including into the international frameworks) was necessary, and the need to consult with all relevant role players usually involved time consuming and expense constraints. Nevertheless, he reassured all the members that were present that there were benefits to be reaped.
Ms Van Niekerk: project leader, SALC Project Committee on Sexual Offences. The committee had initially dealt with only offences on and by children. However, it presently dealt with all sexual offences, and had the task of regulating and managing the policies therein.
Ms Van Niekerk explained that their work was divided into four parts: -
Substantive law - definition of crimes
Procedural law - management of crime commission
Investigation into adult prostitution
Investigation into child pornography
All recommendations would be reached following extensive discussions with relevant role players. This was in order to affording complainants the full protection of the law by strengthening the commitment of the Committee. She highlighted problems that had been encountered during the discussions, and noted that inadequate or inappropriate legislation was not a great concern. Rather the following was of concern:
-Implementation of legislation;
-Lack of training - particularly of the Judiciary;
-Lack of resources - such as inadequate basic resources;
-Corruption-inter alia, lost documents, failed subpoenas and so forth;
-Relation to social problems. She noted that this point was constantly raised, and involved aspects such as social security, education and so forth.
Ms Van Niekerk then gave a summary of legislative proposals.
Substantive law proposals
-Common law definition of 'rape' is to be codified free of gender distinction, and to include oral penetration. Shift focus from consent to coercive circumstances.
-A new crime of 'compelled or induced indecent act'.
-Age of consent for both sexes fixed at 16years, and acceptance of consenting sexual acts between teenagers of similar ages.
-Child prostitution clearly criminalised, protecting children up to the age of 18 years.
-Extra-territorial jurisdiction clearly provided for, enforceable upon South Africans outside of the country and foreigners within South Africa.
Procedural law proposal
These processes had been divided into pre-trial procedures, trial procedures, and post-trial procedures.
-The Draft Sexual Offences Act should contain guiding principles for the interpretation and implementation of the legislation in order to ensure the maximum protection of victim and their families.
-The development of inter and intra-sectoral protocols for the co-ordinated management of sexual offences.
-Selection of ongoing training and debriefing of all professional working in the field of sexual offence management.
-An instruction to the SAPS to investigate all reported cases.
-SAPS member prevented from accepting withdrawals by victims.
-Health service provision of medical services of medical examination and treatment for victims.
-Provision of prophylactic medication for victims by the Health Services.
-State provided psychotherapeutic services for victims.
-No recommended changes to the existing bail legislation.
-Amendment to the law of evidence to include 'vulnerable witnesses', being the children victim to sexual abuse. The court may provide a number of protective measures.
-Amendments to the Prescription Act in order to facilitate the use of applicable civil law processes.
-Recommendations to enhance the use of intermediary systems of facilitate the giving of evidence.
-Abolishing the Competency Test used for child evidence.
-Abolishing the cautionary rules relating to sexual offences, the child witness, and the single witness.
-The use of Videotaped Interviews as Evidence in Chief is not recommended.
-Recommend making greater use of expert witnesses.
-Recommend that support persons be appointed to support victims.
-Various recommendations are made around some rules of evidence relating to similar fact evidence, hearsay evidence and previous consistent statements.
-Use of assessors with specialised knowledge in sexual offences to assist the Court.
-Recommendation that a Sentencing Council be established to advise on appropriate sentencing.
-The presentation of Victim Impact Statements to the Court prior to sentencing in order to sensitise the Court to trauma inflicted.
-Recommended that where possible, the offender compensate the victim in some way.
Combination of rehabilitation and punishment.
-Recommendations relating to parole and the release of sexual offenders.
-Development of sexual offenders' register and community notification legislation not recommended.
-Chemical castration of offenders not recommended.
-Legislation providing for sexual offender and drug treatment and testing orders.
-The application of dangerous sexual offender orders upon the release of sexual offenders from prison.
Ms Van Niekerk repeated the Committee's concern that legislative change and reform would only make a small contribution to the reduction of sexual crimes against children. Nevertheless, progressive legislation would provide the framework for the protection of such victims.
Professor Knowles (SALC) referred to the new Child Care Bill, and explained that it would deal with a wide range of children's issues. It was the largest project ever undertaken by the SALC, and the Bill would go hand-in-hand with the Child Justice Act and the Sexual Offences Act. He undertook to deal only with the provisions of the legislation that would be relevant to the topic that was currently in debate. His focus would be directed towards child perpetrators, with an aim to bring about prevention and early intervention as opposed to punishment. He made the distinction between enabling provisions and mandatory provisions and said that one always had to be aware of this.
Professor Knowles referred to Chapter 2 of the Act and explained that it would be foundational to all the rights concerned. It included basic rights, and underpinned more detailed provisions still to come (i.e. Clause 13 - the right to protection against all forms of torture and the inducement to prostitution, and support systems therein). He proposed an amendment to the common law, reversing the juristic parent-child relationship. Parental responsibilities, as opposed to rights, would be emphasised; thereby making parents more accountable in law.
Chapter 5 deals with children in need of care and protection. Clause 84 would apply in cases where a "child lives in circumstances likely to lead" to situations of abduction, ill treatment and so forth, from persons in parental responsibility. In this regard, the Bill included reporting clauses. In terms of Clause 85, one would have the right to report to a Social Worker if one felt that a child was in need. In addition, professionals would be obligated to make that report. Implicated persons would therefore be given the power to come before the court and give reasons for the failure to look after the child. Parental responsibility could then be removed if the case necessitated it.
Professor explained that the court would have a flexible responsive system, by which orders could be amended if necessary. He recommended the introduction of more specialised training in the courts, and noted that there were many provisions directed at strengthening the capability of personnel involved in the process. He further recommended a change in the name of the Child Courts to the Child and Family Courts. In addition, advocates would then be referred to as Child and Family advocates. He noted that the act would oblige them to represent victims.
A much greater range of remedies would be offered to children. For example, courts hearing matters related to the care of children would be obliged to simultaneously entertain delictual claims arising from the abuse of the child (i.e. medical costs; psychological damage). Courts would have to make orders concerning parental responsibility. Social Workers would be given a kind of warrant, allowing them to enter premises when necessary. He mentioned the introduction of new orders, namely the assessment orders of persons in control of the child, and treatment of such persons against ills such as alcoholism. However, this could only occur in the best interests of the child.
Other proposals included:
-A parenting skills programme;
-Giving local government authorities a larger role to play;
-Keeping records of needy children;
-State recreational playgrounds;
- Inspecting care facilities;
-Promoting child welfare;
Mr Saloojee (ANC) explained to the Committee that he had since discussed with the SALC, and reached consensus, about affording the Chairperson of the NCOP, Ms Naledi Pandor, the opportunity to make a brief presentation concerning a sexual abuses register.
Ms Naledi Pandor
Mr Naledi had two proposals:
-The introduction of a South African Sexual Offenders Act in terms of which one could address the plight of sexual abuse of women and children.
-A national register of sexual offenders, to compliment the positive steps that had already been taken by the State. She referred to the Megan's Law as a precedent; the law passed by the US Congress in 1996 requiring the production of a national register.
She explained that the Register would give citizens the right to information about convicted child offenders through the use of a number of methods, such as internet posting, the branding of worst offenders, local police station advertisements, dropping leaflets at homes, and library posters. It had been indicated that parents felt more comfortable under such conditions.
Ms Pandor listed the criticisms against such an approach: -
-It caused six abusers in the USA to increase their crimes.
-There would be little to stop a paedophile from giving a false address, or from living underground.
-Misidentification of offenders could lead to public attacks against the wrong individuals.
However, she went on to outline the UK scenario in support of her proposal. She explained that the Registration Rule was followed in the UK, in terms of which:
-Offenders would be registered within 72 hours of release from prison, or after serving six month prison sentences or paying a fine.
-1500 offenders were listed on the UK Register.
-A Community Protection Order could be issued by the police, thereby barring individuals from visiting areas frequented by children. The order would be operative for a minimum period of five years.
The register has been enormously successful. It resulted in a high rate of compliance. Nevertheless, the UK government was still aware that it could not become complacent. It would be in the best interests of the South African economy to adopt the same degree of compliance. She mentioned the UK Criminal Justice Court Services Act 2000, in terms of which judges had the authority to prevent sex offenders from ever contacting their victims.
Ms Naledi proposec that South Africa adopt an amended version of the UK Act. She also proposed amending the current South African law of evidence, with the aim of making it difficult for offenders to escape the from the law.
Mr Bloem (ANC) was concerned that most of the suggestions seemed to address the situation 'after release'. Would anything be done whilst the offender was in prison?
Mr Saloojee (ANC) responded that his question would require the time to engage with the SALC report. The committee would seek the opportunity to engage in the matter at a later stage.
Ms Van Niekerk said they have suggested the provision of rehabilitation programmes wherever possible to Correctional Services.
She noted that the Register was a very sensitive issue, and that the Commission had conducted extensive research upon it. She referred to the proactive protective provisions that they had proposed, and she directed the Committee to the report that she had submitted.
Department of Health
Mr Eddie Mhlangu: Department of Health, briefed the Task Group.
Mr Bloem (ANC) expressed dissatisfaction with the fact that the Department of Health official that had been invited to make a presentation had not honoured the commitment. He stated that they all had work to do, and that the behaviour was not excusable.
Mr Saloojee (ANC) appreciated the point made and confirmed that their work was critical.
Mr Mhlangu explained that initially he was meant to be presenting with Dr Nono Simelela. However, Dr Simelela was unable to make it to the meeting because she had to remain at a court judgement in Pretoria. He sincerely apologised for her absence, and for the inconvenience caused to the committee.
Mr Mhlangu said that there was no law teaching people to be good citizens. However, the law had the authority to punish bad citizens. Children are very vulnerable and the law had a long way to go in protecting their rights. Sexual violence would always leave children permanently scarred, and in this regard, girl children are often more at risk. He noted that the country was often aware of the obvious horrendous cases, and the minor ones would usually go unnoticed, only to be discovered later on in the life of the child.
Mr Mhlangu gave some background information. He mentioned the Conventions to which South Africa was a signatory, namely the UN Convention on the Rights of the Child, and he UN Convention on the Elimination of all forms of Discrimination against Women (CEDAW). He referred to Section 28 of the Constitution, entrenching the rights of the child in South Africa. He also mentioned that there was other legislation in place for the protection of the child. Despite all this more children were being sexually abused by the day.
Mr Mhlangu stated some of the consequences of child sexual abuse:
-Exposure to HIV.
As a result, certain strategies had been put in place: -
-A process embarked on by the Gender Focal Point (GFP) to facilitate the conforming of policies to CEDAW and the International Conference for Population and Development.
-Participation by the Department of Health in the Inter-Departmental Management Team on Violence against Women.
-The training of health workers.
-Forensic Nurse training had been started in South Africa.
-A current initiative involving the various sections for the health department with the aim of collaborating the training of nurses.
-The assessment of medico-legal services in all provinces by the GFP and the Medical -Research Council with the aim of establishing whether hospitals and clinics are fully equipped.
-The hosting of a conference in August 2002 by the Paediatric Association of South Africa and the National Association of Paediatric Surgeons of South Africa, in order to establish the technical and medical challenges faced in this debate.
-Increasing family intervention by including the promotion of men in birth and in the nurturing of their children, for example.
-Requiring Health Workers to become increasingly investigative.
-The reduction of substance abuse by men.
Mr Mhlangu outlined the challenges faced by the Department. There is an increase in the number of cases in the face of limited resources. Injuries are increasingly complex, therefore requiring specialised skills. Prolonged/sustained psychological support is required. There is inadequate guidance on international experience.
In conclusion, Mr Mhlangu emphasised that the country was facing a critical situation that would have to be dealt with urgently. He called for a unified and committed approach to curbing the sexual abuse of children.
Ms Pregs Govender referred to the myth that having sex with a virgin could cure HIV. She proposed a massive education campaign to increase awareness.
Mr Mhlangu responded that there had been insufficient campaigning, and that the Department would look into it. Nevertheless, this was a message that would have to be passed on by everybody.
Ms Van Wyk stated that the main complaint currently at the ground level was that there were no district surgeons available to examine victims. She felt that the Department could address this.
Mr Mhlangu explained that the abuse and misuse of surgical time led most of the provinces to get rid of district surgeons. This was coupled with an increase in the number of facilities available. However, holistic training would be necessary, as in the case of the training of forensic nurses.
A Member referred to earlier presentations that touched on the multi-purpose trauma centres. Would an integrated approach with all the Departments be followed?
Mr Mhlangu replied that those shelters were for after the attacks. Many of the areas, especially the well-resourced ones, had them. However, the Department was looking at the provision of public health facilities instead.
Ms Morobi (ANC) made particular reference to Kwa-Zulu Natal and the high rate of children with HIV. Did the Department have a joint programme with the Department of Education. She referred in this regarded to care giving programmes in schools that she had heard about.
Mr Mhlangu said that he would defer answering the question of care giving in schools because he was not aware of the programmes mentioned.
Ms Dudley said that she was very encouraged by the training initiatives. She wanted to know whether confusion surrounding the reporting of crimes had any negative effects.
Mr Mhlangu explained that evidence was a difficult to obtain. This was because it often required special skills, such as those provided by forensic doctors. Thus one would have to increase the provision of such services.
Ms Dudley asked whether anti-retroviral treatment would be made available to rape victims.
Mr Mhlangu did not appear to answer the question. He referred to needle prick injuries, which are treated with anti-retrovirals, and which suggest the effectiveness of anti-retroviral treatment. However, rape results in the release of a large amount of fluids, thus one could not clearly state the adequacy of such treatment in those cases. He noted that rape would usually be accompanied with additional injuries.
Ms Morobi wanted to know why it had taken so long to provide training programmes, when the doctor himself had been trained in the 1980s.
Mr Mhlangu explained that the training of doctors involved a very difficult process. It would take six years to receive the training for sexual assault, an additional two years to acquire a gynaecology certificate, and one year within which to complete specialisation. This required great time and expertise, and that is why all the old doctors were still the main persons.
Ms Morobi wanted to know when DNA tests had to be conducted, before the DNA was no longer suitable for testing.
Mr Mhlangu said that DNA could not be altered by time. However, it could be ruined through contact with water, for example.
Mr Bloem referred to the case of baby Tsepang and asked whether the DNA initially collected would still be useful now that four months had passed.
Mr Mhlangu responded affirmatively. The Health Department only requires a match.
Mr Bloem stated that the training of doctors would be very important. What is being done?
Mr Mhlangu stated that it would be necessary to go from the old stock to the new stock.
Mr Baloyi asked whether any strategies had been put in place to deal with the perpetrators.
Mr Mhlangu said that the Department of Health was currently focused on the victim. He stated that if other Departments, such as Justice and Correctional Services required their assistance, they would make it available.
Ms Ghandi reiterated the last question and wanted to know whether the Health Department was able to provide services broader than medical doctors were.
Mr Mhlangu concluded by saying that men came out of a hole and were spending most of their lives trying to get back into one. This called for the capacitating of all men in order to reduce the scourge.
UWC Community Law Centre
Ms Jacqui Gallinetti, from the UWC Community Law Centre, conducted the presentation.
Ms Kalyan referred to the issue of children's rights and the media as discussed on the second last page of the presentation. She informed Members of a recent case in which the South African media had disclosed the findings of the district-surgeon's report before the matter had even gone to trial. Could Ms Gallinetti explain any rights and legal recourse the child might have in this case, as this surely amounts to irresponsible reporting, at least?
Ms Gallinetti replied that recourse might be had to other resources such as the media monitoring bodies and the Complaints Directorate, as all these could sanction industry members. Yet the precise binding effect and gravity of such sanctions is not certain, and a workshop will be held in April 2002 in Johannesburg on the Media Monitoring Programme.
If the child has suffered monetary damage or harm, the parents could institute a civil claim against the offending newspaper. Yet even this route is potentially traumatic for the child, who would have to endure another lengthy and often costly court procedure. It is thus clear that a comprehensive code of ethics for the media has to be devised.
Ms Mnumzana thanked Ms Gallinetti for the recommendations, and requested her to explain the person in control of the cross-examination process, referred to on pages two to five of the presentation. The problem here is that if the judge cannot control the intimidating and harsh questioning of the prosecutor, and it is not entirely clear who monitors this process. Surely state or legislative interference here would amount to a significant erosion of the independence of the judiciary.
Ms Gallinetti suggested that the Task Group submit recommendations to both the Department of Justice and the South African Law Society to issue directives to the state prosecutors and attorneys, respectively, instructing them to object to a contravention of the guidelines by their legal counterparts. The appropriate disciplinary action should then ensue. This model does not interfere with the independence of the judiciary, as the judicial arm itself regulates this matter.
Mr George referred to the SALC recommendation on page two of the presentation that an inter-sectoral agreement be concluded to address the problem of the sexual abuse of children, and Ms Gallinetti then takes a further step and suggests that this agreement should be entrenched via legislation. The result would be that once it becomes law, failure to comply with it would result in the strictest sanction being imposed on the defaulter. Ms Gallinetti is thus requested to explain how practical her suggestion is, as it seems less practical than the SALC recommendation.
Ms Gallinetti informed Mr George that the legislation would take the form of regulations, not Acts of Parliament. These regulations can then be amended or removed by the Minister, from time to time.
Ms S Rajbally (MF) contended that the number of persons interviewing the child should be decreased, as this seems to cause such confusion that the testimony might not be regarded as credible. This has to be avoided.
Ms Gallinetti replied that the pilot programme mentioned in the presentation suggests that only one interviewer be used here, or that this interview be recorded and then played-back in court.
Address by Ms Kosa
Ms Kosa informed Members that she is a teacher from Kwazulu-Natal, and has seen the devastating effects that sexual abuse has on the children attending the school at which she teaches. These are some of those experiences.
She has learnt that most of the students at her primary school have been sexually abused, most by a family friend or relative. She has developed good relationships of trust with most of the students, and they ultimately confide in her about their abuse, the abuser and the effects of the abuse. Far too many of these children are sexually abused on a daily basis, with the result that changes in their appearance and general disposition both at school and at home are clearly visible.
These children are often sexually abused by a relative living in the home, with the result that they cannot return to their homes because they are paralysed by fear, or the relative in whom they have confided (often the mother) refuses to believe their ordeal and, for all intents and purposes, abandons the child. With the assistance of a few fellow teachers, the children are feed and cleaned at their own cost, and they try to comfort them. They even take these children to the police station to file the charge, but on far too many occasions the officer on duty either ridicules the complaint, and thus the childas well, or the child is too intimidated to file the complaint for fear of being stigmatised by the community.
The biggest problem here is that these children belong to families that are plagued by poverty, with the result that the sexual abuse of children and other gruesome crimes are committed, seemingly, on a daily basis. This matter has to be addressed and these children have to be rescued.
Ms Mnandi informed Members that Ms Kosa is from her constituency, and stated further that it has recently been discovered that no less than 50% of the children at her primary school have been sexually abused and are HIV positive.
Mr George expressed grave concern with the role played by the parents of these children, and recommended that the State provide more shelters for children who have been sexually abused and who cannot return to their homes. Clarity is needed on whether any plans have been put in place to address the problem with such parents.
Ms Kosa suggested that such parents should be imprisoned.
Ms Kalyan applauded Ms Kosa for the role she is playing as an educator in combating the sexual abuse of children. The earlier report submitted by the Department of Education stated that 30% of teachers are found to sexually abuse learners, but they should not lose sight of the fact that there are good educators in South Africa, like Ms Kosa. Could she explain the precise measures she is taking to get these children to confide in her and report this crime, as the present failure to report is a national problem. It is hoped that this would assist other schools in increasing the levels or reporting.
Ms Kosa replied that her school does host fundraising events to buy medicine for these children, as in many cases the teachers themselves have to bathe and clean these children after the rape. These children are highly traumatised.
A Member stated that Ms Kosa has not mentioned any interfacing with law enforcement agencies, such as SAPS, and Social Services. How could the community be involved in this process?
Ms Kosa replied that the problem here is that the personnel at these facilities, especially the social workers, openly mock the children. A better relationship exists with SAPS, but a vast majority of the reported cases are never fully processed.
Ms Kosa responded that the poverty rate in the Newcastle area is very high, and parents themselves are not in a fit position to address this issue. They even fail to pay the child's school fees, which could assist this initiative.
Ms Rajbally asked why these children are not taken to a clinic or hospital immediately after the acts of abuse.
Ms Kosa replied that the mothers often feel shame and guilt for the rape, and the result is that the teachers have to take these children.
Ms Tsheole asked Ms Kosa how she is able to break down the cultural barrier that almost prohibits people from speaking about, let alone reporting, sexual abuse of children.
Ms Kosa answered that she is able to gain the child's confidence by requesting the child to either tell her about it or to write it down. She then sits down with the child and discusses the matter.
A Member suggested that the cleaning up of the children by Ms Kosa and her colleagues could actually destroy vital information and evidence of the rape. The children should be bathed and cleaned up after the visit to the police station, never before.
Ms Kosa assured the Member that this is done after the matter is reported. The problem here is that several children are sexually abused on a continual or daily basis, with the result that they have to be washed everyday, and the evidence could very well be lost.
The hearings were adjourned for the day.
SUBMISSION TO THE TASK GROUP ON CHILD ABUSE
Children's Rights Project
Community Law Centre
University of the Western Cape
As of late there has been a proliferation of media reports highlighting severe instances of child abuse in South Africa. This is not a new phenomenon, but an ongoing problem that is once again receiving enormous public attention. There are obviously many aspects to the issue and this submission will address a select few of these, namely:
A multi-disciplinary approach to child abuse, particularly the prosecution of child rape
Corporal punishment in the home
One of the important aspects that will not be discussed in this particular submission is the issue of prevention practices. Prevention needs to be ongoing and aimed at all sectors of society. It needs to be actively undertaken by all relevant government departments such as Health and Education as well as by the private sector. Employers and business should be encouraged to engage in a campaign to raise awareness of the problem and provide educative information to facilitate prevention.
There are a number of services that a child who has been physically or sexually abused comes into contact with. These include government and civil society services. As far as State involvement is concerned, a child will be exposed to SAPS, health authorities, social welfare officials and department of justice officials. Further to this a number of NGOs offer counseling and support services within and outside of the formal justice system.
The effect of this is a range of services provided to abused children, however it appears to be common cause that there is little, if any, co-ordination of these services. There is no systematic handling of a particular child's case from initial reporting to the finalisation of the case.
There are a few protocols in place that attempt to provide some framework within which a child should be treated once a case has been reported, however these are not binding or consistently applied.
The Project Committee of the South African Law Commission on Sexual Offences has released a discussion paper that closed for comment on 28 February 2002. In this document the Commission notes the lack of co-ordinated approach and makes extensive recommendations for a strategy on multi-disciplinary interventions for sexual offences. The Commission's recommendations include the establishment of a memorandum of good practice that takes the form of an inter-sectoral binding agreement. The recommendations go further and discuss the establishment of case-management techniques, appropriate appointment and training of SAPS officials dealing with sex abuse victims, improving the relationship and co-operation between SAPS and medico-legal services and the roll-out of specialised sexual offence courts. The Children's Rights Project supports these recommendations.
Although this multi-disciplinary approach is proposed in the context of sex offences against children, it is submitted that cases of physical abuse, without a sexual component, should also be dealt with along the same lines. Inevitably a child who has been assaulted will be exposed to the same officials that a child who has been raped has - the only exception being that the former victim will not appear in a sexual offences court. Such an inter-sectoral agreement needs to be binding on all officials dealing with child victims, irrespective of the nature of the crime.
The Law Commission, however, does not propose that the agreement itself be embodied in legislation as this could lead to non-flexibility and rigidity, but rather that the legislation only provide for the development of such a framework for agreement. However, it is our opinion that there is a strong need to hold all officials working with child victims accountable to such an agreement and so we propose that once an agreement or memorandum of good practice has been developed, it be incorporated in regulations and can be changed from time to time when necessary by the relevant Minister. This would provide for both flexibility and accountability.
It is clear that such a systematic approach is long overdue and is a pressing need in order to effectively combat child abuse. If our services are capable of supporting the expeditious and effective prosecution of physical and sexual abuse cases then, it is submitted, this will go a long way to create an atmosphere conducive to and supportive of prevention techniques. In the interim it is submitted that this Task Group call on all Departments to begin developing an inter-sectoral strategy for a multi-disciplinary approach to child abuse.
The successful prosecution of a sexual or physical abuse case is dependent on the testimony of the victim, as the nature of the crime is that it is a crime against the person. However, with child victims, a number of obstacles present themselves when it comes to children giving evidence in court. These include the competency of the child to give evidence, cautionary rules, cross-examination of the child witness and evaluation of the child's evidence.
The competency of a child to give evidence is determined by the common law. It relates to whether the child has sufficient intelligence, sense and reason in order to understand the difference between truth and falsehood and recognise that it is wrong to lie. This is determined by the presiding officer after he or she, as well as the prosecution and defence, have had an opportunity to question the child. It is submitted that the competancy of a child would be better determined if the presiding officer had the assistance of a child development expert in a particular case. Obviously it is clear in mot cases whether a child is competent to testify, however in borderline cases, especially with young children, such expert evidence should be allowed and encouraged. It is however acknowledged that this would be expensive and that there are delays occasioned by this as this would entail an examination of the child by the expert. In addition presiding officer's should receive training on child development issues in order to capacitate them to make informed decisions in this regard.
Cautionary rules still remain in our law today. S v Jackson removed the obligation to treat complainants in sex offence cases with caution, however the discretion to do so remains. In addition although there is no formal evidential requirement in our law that children's evidence must be corroborated, the Law Commission notes that it is general practice to treat child witnesses' evidence with caution. Finally, although our law provides that an accused can be convicted on the evidence of a single witness, our evidentiary rules state that such evidence must be treated with caution. As most child sexual abuse matters involve single witnesses that are children, these cautionary rules create great barriers to the effective prosecution of these types of cases. The Law Commission has recommended the abolishment of these rules and the Children's Rights project supports this recommendation. However as the Law Commission's work is still under discussion, it would perhaps be expedient to amend the Criminal Procedure Act in the meantime to abolish these rules, especially the two that don't relate specifically to sexual offences.
In accordance with the constitutional guarantees of due process, a child witness must undergo cross-examination by the accused or his legal representative. We will not deal with the use of intermediaries or video evidence here, but rather the nature of cross-examination itself. There are certain guidelines relating to cross examination such as:
Vexatious, abusive, oppressive or discourteous questions will be disallowed
Misleading questions should not be put to the witness
Cross examination should not be done in an intimidating, offensive or mocking way
However, despite these guidelines a practice of aggressive and intimidating cross-examination technique has arisen in our courts. It is submitted that a cross-examiner does not need to make use of harmful techniques in order to effectively cross-examine a witness. Unfortunately, the cross-examination rules that do exist are not formalised. The Law Commission recommends the introduction of formal legislation to control the nature of the cross-examination of witnesses in sexual offence matters. The Children's Rights Project supports this recommendation. However in the interim, it is submitted, that this Task Group call on the Department of Justice and the Law Society of South Africa to ensure that the guidelines for cross examination are effectively applied and that attorneys failing to apply the rules adequately be reported to their respective Society for the consideration of possible disciplinary action.
As far as the evaluation of a child's evidence is concerned, it has been said that the question involves the court deciding, in light of all the evidence, whether the child witness is trustworthy. This goes to the credibility of the child's evidence. There have been prolific international studies on child testimony and issues relating to credibility and suggestibility.
Often children are found to be not credible, for example, because of inconsistencies in their oral evidence and their written statements.
One of the main problems identified by studies has been the method of questioning the child. It has been noted that child interviewing specialists trained in child development result in improved fact finding and reduced trauma to the child. Questioning a child victim should be aimed at avoiding biasing responses, encouraging spontaneous free-recall reports, avoiding specific and leading questions and using age-appropriate language. In South Africa there is no consistent approach to interviewing a child, and a child victim can be questioned by a range of police officials, prosecutors and social workers in the course of a particular matter. This can lead to confusion and apparent inconsistencies due to differing interviewing techniques. There are some pilot projects on child witnesses at present and it is submitted that these be rolled out through out the country. Police officers and prosecutors should be trained and sensitised in interviewing techniques and should collaborate as soon as possible in order to form a clear strategy for the handling of a particular victim.
CORPORAL PUNISHMENT IN THE HOME
South Africa has the common law crimes of common assault, assault with intent to commit grievous bodily harm and attempted murder. These crimes should be sufficient to combat the invasion of the physical integrity of a child. However, it is submitted that at present they are not. The reason being is that our law has the justification ground of reasonable chastisement which a parent or caregiver can raise.
It is our submission that all forms of corporal punishment are wrong and should be prohibited. Violence breeds violence and physical violations of children, one of society's most vulnerable groups, is wrong. The physical abuse of children is no answer to disciplinary problems. There should be a concerted effort to educate society on alternate forms of discipline.
The South African Law Commission's Project Committee on the Review of the Child Care Act has recommended the abolishment of the justification ground of reasonable chastisement so that the new position would be that a parent or care-giver has no " parental authority" defence to a common law criminal charge.
The Children's Rights project supports this recommendation and does not think it necessary for an addition statutory offence prohibiting corporal punishment to be enacted as the common law crimes will suffice. However, The Law Commission does not unequivocally state that corporal punishment should be prohibited and it is our submission that this is necessary in order to change a societal mindset that seems to indicate violence in the home is acceptable.
It is our submission that the new proposed legislation should abolish the justification ground and state that all forms of corporal punishment in the home are prohibited and those persons contravening this should be prosecuted in terms of the common law.
The media have highlighted child abuse and raised public awareness of the problem and for that they must be recommended. However it is submitted that certain reports have contributed to and resulted in the secondary abuse of children. In certain media reports child victims have been indirectly identified through interviews with their parents and school teachers.
Section 154 of the Criminal Procedure Act prohibits the publication of any information that reveals or may reveal the identity of a witness at criminal proceedings under the age of 18. The presiding officer is the only person who can authorise such publication if he or she is of the opinion such publication is just and equitable and in the interest of any particular person.
Therefore these media reports are unlawful. The media may respond by saying that the parents or school consented to being interviewed but the question then arises as to whether that was informed consent. The identification of child victims, who may or may not testify, is very serious and has enormous consequences on the healing of a victim. Even where victims are babies and prosecutions may not proceed to identify the victim now will still probably hold serious consequences for the victim in years to come. In revealing information that can lead to the identification of the child is therefore secondary victimisation.
It is our submission that the Task Group directs the NDPP to instruct its regional offices to enforce the offence created by section 154 and prosecute those who contravene the provision. Also a code of conduct should be established in the media for dealing specifically with these types of issues and the media should be held accountable for violations.
The South African Law Commission's two project committees have made far- reaching recommendations for legislative changes to improve the combat of child abuse and they should be supported in their endeavours. However, the pressing need is to ensure that there is a co-ordinated, informed and systematic implementation of the new legislation and that will need human resource and financial commitment from government. Obviously, this is not the forum to decide on budgetary policy, however the need to provide sufficient resources to allow for proper implementation is paramount and cannot be ignored.
SUBMISSION FROM JOAN VAN NIEKERK PROJECT LEADER, SEXUAL
OFFENCES COMMITTEE, SA LAW COMMISSION
Thank you for the opportunity to address you.
I represent the Project Committee Sexual Offences of the SA Law Commission.
This Committee was appointed by Minister Dullah Omar to investigate sexual offences committed on and by children. The Committee, through the, Law Commission, prepared and developed an Issue Paper on Sexual Offences Committed on and by Children. Towards the end of 1998 the Deputy Minister of Justice expanded the terms of reference cf the Committee to include all sexual offences, and requested that the Committee make recommendations riot only in respect of the legislation, but also in respect of policy and regulations affecting the management of sexual crimes.
The Committees investigation is divided into 4 parts:
1. The Substantive Law - the definition of crimes. The Discussion Paper on the Substantive Law and Draft Sexual Offences Bill was published in August 1999. The Discussion Paper and Draft Legislation was workshopped extensively throughout the country arid all interested sectors including victims groups were invited to comment on the recommendations.
2. Process and Procedure - the management of sexual crimes. The Discussion Paper on Process and Procedure was published in December 2001, together with a refined Draft Sexual Offences Bill which integrated feedback received from the workshopping process and comments received on the first Draft Bill and Discussion Paper. This Discussion Paper is presently being workshopped throughout the provinces and with specific interest groups. The Commission on Gender Equality has been invited to assist with this process.
3. An investigation into adult prostitution. The Discussion Paper on this will be complete within the next two months.
4. An investigation into child pornography.
The recommendations of the Committee have been extensively researched and debated with experts and those with experience in this field both nationally and internationally. Comparative legislation in other Countries has also been accessed and researched.
The intention of the draft legislation, as well as recommendations with regard to policy directives to the various sectors involved in the management of sexual offences, is to afford the complainants of sexual offences the maximizing and least traumatizing protection that the law can provide and to strengthen the state's commitment to eradicate the pandemic of sexual offences committed in South Africa.
It is also essential to mention that in most of the Committee's debates around the country, inadequate and inappropriate legislation was not the greatest concern of those who expressed their concerns about children and sexual assault. The most commonly expressed concerns that were expressed are:
1. The implementation of the legislation - already South Africa has some legislation in place that is very progressive and child friendly, for example the use of an intermediary with closed circuit television in order to protect the child victim of sexual assault from testifying in the courtroom itself in the presence of the accused. At present many child witnesses, particularly in the more rural courts, do riot have access to this protective system, sometimes because of the lack of technical equipment, but also because of the lack of training of Magistrates and Prosecutors, who are uncomfortable with the system and who do not fully appreciate the importance of protecting the child witness in the interests of achieving a higher quality of evidence as well as minimizing system generated secondary trauma to the child.
2. The lack of training, particularly of the Judiciary - consequently children's evidence and presentation in Court is frequently misinterpreted and incorrect assumptions about children's development and behaviour after sexual assault lead to poor decision making. What was alarming was the fact that during many of our workshopping processes it was clear that many professionals within the Criminal Justice System neither knew or understood the law and what provisions are presently available to protect children.
3. The lack of resources - most personnel involved in the management of sexual abuse of children complained about their massive caseloads and inadequate basic resources such as vehicles to assist the investigation process. Some Court rolls are so overloaded that children may wait up to two years and sometimes longer before they testify to the abuse they have experienced. Long time delays affect any witness's memory and their ability to testify to their victimization.
4. Corruption - concerns about corruption included inter alia "lost dockets", SAPS members involved in brokering "damages" settlements for raped children, witnesses not receiving subpoenas for Court and therefore not attending Court, resulting in charges being withdrawn.
5. Child rape and sexual assault is also related to many other social problems -the lack of social security for children over the age of 7 years living in poverty and destitute families, the high levels of domestic violence in many families, lack of educational and employment opportunities resulting in disaffected youth who join gangs and develop criminal patterns of behaviour that include rape and sexual assault.
A summary of the legislative and policy proposals include the following:
I. THE SUBSTANTIVE LAW
1. The crime of rape is codified, becomes free of gender bias and includes sexual penetration of genitals, anus and mouth when an act of sexual penetration occurs under coercive Circumstances It is believed that this new definition recognizes the fact that forced sexual penetration of male as well as female victims is equally traumatic, and that the focus on coercive circumstances rather than consent will make convictions easier and will to some extent, remove from the victim the burden of having to prove lack of consent.
2. A new offence, compelled or induced indecent acts is also contained in the draft bill - criminalizing the act of intentionally and unlawfully compelling, inducing or causing another person to engage in indecent acts.
3. The age of consent is fixed at 16 years for both boys and girls but consenting sexual acts between two teenagers of similar age is excepted from this provision.
4. Child prostitution is clearly criminalized and children are protected under these provisions to the age of 18 years. Any person knowing, in any way benefiting from, or living off the earnings of child prostitution can be prosecuted under these provisions in the new Draft Bill.
- Extra-territorial jurisdiction is also provided for. This means that South African Citizens or Permanent Residents will not be able to travel abroad to abuse children with impunity, or tourists to South Africa whose count[y of citizenship has a similar extra-territorial provision, cannot come to this country and abuse children with impunity. This provision is in line with international efforts to combat child sex tourism.
II. PROCESS AND PROCEDURE
1. The Draft Sexual Offences Act contains guiding principles that guide the interpretation and implementation of the legislation. This clause attempts to ensure that the legislation will be used to protect the rights of victims, their families and Communities, as well as ensure fair trial and management of the accused.
2. The development of intra and inter-sectoral protocols for the coordinated management of sexual offences.
3. The selection, ongoing training and debriefing of all professionals who work in the field of sexual offence management.
4. An instruction to the SAPS to investigate all reported cases. It is clear from reported research and reports from victims, their families and others working in this field that presently the SAPS exercise an enormous amount of discretion in the registration of complaints and opening of investigation dockets.
5. Prosecutor driven investigations.
6. SAPS members may not accept withdrawal statements from victims.
7. The Health Services shall provide medical examination and treatment for sexual assault victims.
8. The Health Services shall provide prophylactic medication for sexual assault victims including post-exposure prophylactic medication for HIV/AIDS.
9. The State must provide psycho-therapeutic services for sexual assault victims and their families.
10. Bail- no changes in bail legislation are recommended by the Committee. The legislation does in itself appear to be adequate but time after time the Committee were told stories of inadequate application of the legislation.
11 Provision in legislation for the creation of a category of "vulnerable witness". Children who are witnesses in Court automatically fall into this category, as do victims of sexual assault. Vulnerable witnesses then may be afforded a number of protective measure by the Court such as the use of the intermediary and Closed Circuit Television, the provision of a support person, the Court proceedings being held in camera whilst giving evidence.
12. Plea bargaining and pre-trial settlement procedures are supported by the Committee where these processes are in the child victims best interests.
13. Amendments are suggested to the Prescription Act to facilitate victims using civil law and processes where appropriate.
THE TRIAL PROCESS
1. Some recommendations are made to enhance the use of the intermediary system used to facilitate the giving of evidence.
2. It is recommended that the Competency Test for the child witness be abolished and that the child's evidence is heard and that the Court then attaches weight to that evidence as it deems fit.
3 It is recommended that the cautionary rules relating to sexual offences, the child witness and the single witness are abolished as there is no scientific base for their existence.
4. The use of Videotaped interviews as Evidence in Chief is not recommended. This provision requires extensive technical resourcing as well as a high level of interviewer competence, neither of which are presently available or the norm in South Africa at present. In the UK in which this provision has been applied for the past 5 years, research indicates that many cases of sexual assaults against children are withdrawn prior to trial due to interviewer error. In South Africa we believe that this provision would result in an even greater number of withdrawals, leaving child victims more vulnerable.
5. It is recommended that greater use be made by the Prosecution of expert witnesses in order to inform the Court about issues relating to children, the dynamics of child sexual abuse and the evidence of children.
6. It is recommended that support persons be appointed to support victims.
7. Various recommendations are made around some rules of evidence relating to Similar Fact Evidence, Hearsay Evidence and Previous Consistent Statements.
8. The use of assessors with specialized knowledge in sexual offences to assist the Court is recommended.
THE POST TRIAL PROCESS
I. The Committee supports in principle the recommendation of the SA Law Commission Committee on Sentencing that a Sentencing Council be established to advise on appropriate sentencing. It is noted that the application of the Minimum Sentences Legislation has been resisted as it is perceived to interfere with the independence of the Judiciary and therefore this legislation has had limited value.
2. The presentation of Victim Impact Statements to the Court prior to sentencing is recommended in order to sensitise the Court to the trauma inflicted on the victim through the commission of the sexual offence.
3. It is recommended that wherever possible the offender pay some form of compensation to the victim.
4. In the interests of long term safety of children and communities, and in recognition of the fact that most offenders are returned to the community at some point, it is recommended that rehabilitation be combined with punishment whenever possible.
5. Recommendations are made in relation to parole and the release of sexual offenders on parole.
6 The development of a special sexual offenders register and community notification legislation is not recommended. Research into the effectiveness of these provisions in countries that have this legislation indicates that these provisions have not contributed to the reduction of sexual crimes against children, are expensive to implement and create a false sense of security. However expanded use of the existing criminal offences register is recommended as well as a recommendation that this be accessible to anyone employing staff to work with children.
7, The chemical castration of offenders is not recommended. Again research does not support this measure as effective in controlling sexual criminal behaviour.
8. Sexual offender and drug treatment and testing orders are provided for in the draft legislation.
9. It is recommended that dangerous sexual offender orders be applied for and issued when a sexual offender is released from prison into the community. These orders may provide for intensive monitoring, compulsory attendance in a treatment programme, may not live or frequent certain places, or other conditions considered appropriate and child protective. Dangerous sexual offenders will be considered those who have committed an offence against a child, those who are repeat offenders or those who used physical violence during the commission of the crime.
This in summary are the major recommendations of the Committee and provisions contained in the Draft Sexual Offences Bill.
However I do want to repeat the Committee's concern that legislative change and reform will make only a small contribution to the reduction of sexual crimes against children. Furthermore legislation criminalising sexual assault and providing sanctions for offenders will not in themselves prevent the sexual assault of children. Few sexual offenders consider the consequences of their behaviour or the possibility of being apprehended, convicted and punished. Therefore the threat of punishment has little deterrent value. However progressive legislation does provide the framework for the protection of children who are victims of sexual crimes.
PUBLIC HEARINGS ON THE SEXUAL ABUSE OF CHILDREN
SUBMISSION ON BEHALF OF CHILDLINE SOUTH AFRICA
Submitted by Joan van Niekerk, Chairperson Childline, also Chairperson of the Kwazulu-Natal Child Abuse and Neglect Protocol Committee
Note: The present legal definition of rape is very narrow and presently excludes oral and anal rape. The term sexual assault is therefore used as it is more inclusive and appropriate. Axial and oral rapes have just as serious consequences for the child victim both physically and psychologically.
CHILDLINE'S SERVICES IN THE FIELD OF CHILD SEXUAL ABUSE
Childline SA represents 6 regional Childline structures that provide toll free crisis telephone counseling services to children and their families/caretakers throughout the country. Any child or family member in South Africa can telephone the crisis line any time of day or night, any day of the year. A total of 50,000 calls are received each month. Although the line receives large numbers of "test" calls, the largest number of serious calls relate to the sexual abuse of children.
Other services offered include:
- treatment of abused children and their families,
- court preparation for the child victim,
- abuse education and prevention programmes,
- training of lay counselors, both for the crisis counseling lines as well as for remote rural and semi-rural areas where there are no normal resources providing services in the field of management and prevention of child abuse,
- training of professionals who work with abused children,
- networking and co-ordination of child abuse services,
- advocacy and advisory services to policy and legislative development,
- some Childline centers provide for the treatment of child, adolescent and adult sexual offenders.
Sexual abuse is the single largest category of child problems that Childline deals with. Our history spans 16 years of service delivery to the country's children. Our services tend to be used by the poorer sections of our Communities as services are not charged for and any child or caregiver who has access to a telephone, has access to our services
Childline has conducted extensive research with child victims of sexual assault, as well as with the perpetrators of sexual assault. This firsthand work and research has given us an in-depth insight into what causes sexually abusive behaviour.
DEPARTMENT OF HEALTH
INPUTS ON THE SEXUAL ABUSE OF CHILDREN
PARLIAMENTARY TASK TEAM ON 11 MARCH 2002
1. The sudden increase in the sexual violence (sexual abuse and exploitation) against children, is probably an indication of how far we as a society are from reaching the ideals of our Constitution. It also highlights how vulnerable our children are. The frequent reports also highlight that we still have a long way to go in protecting children's rights in the home. School, street and community.
2. Sexual violence often leave children with permanent damage to their physique, psyche and spirit.
3. Girl children are often more at risk for violence than their male counterparts, though paedophiles prey on both sexes.
1. South Africa has signed and ratified the UN Convention on the Rights of the Child, and has submitted the first Country Report on progress made thus far.
2. South Africa also signed and ratified the UN Convention on the Elimination of all forms of Discrimination against Women (CEDAW). A report on progress has also been completed.
3. Section 28 of the Bill of Rights for the special protection of children states that "a child's best interest are of paramount importance in every matter concerning the child".
4. Several pieces of legislation are in place for the protection of children (Child Care Act 1983) as amended, Sexual Offences Act 1957 currently under review by the South African Law Commission)
5. South Africa participated in both the 1st and 2nd International Conference against the Commercial Exploitation of Children.
6. However, more children are sexually abused by the day.
7. The crimes are becoming more violent and gruesome by the day. Children are sometimes killed in the process.
8. Various explanations are advanced for the observed trend. These range from ritual killing to an attempt at a cure for HIV/AIDS. Both these are reprehensible, and should be discouraged.
1. Physical trauma, with resultant severe disruption of the reproductive and adjacent organs often requiring major surgical procedures
2. Emotional trauma. This is often underestimated in children, under the false impression that children will often forget when they have grown up. Because children do not often verbalise their pain, emotional rehabilitation of children requires specialised skills and competencies. Many young girls and women who sometimes end up being commercial sex workers have suffered sexual abuse that was never addressed with the aim of attaining healing.
3. Physiological traumas, in the form of pregnancy, often has detrimental effects on future generations, as the offspring will hardly experience love and care in the majority of cases. The pregnancy can also lead to death, because of complications that arise in women who are very young.
4 Infections that may or may not be amenable to treatment will often result. While there are guidelines for the prevention and treatment of infections, the lasting damage resulting from infected reproductive organs may only later in life manifest as inability to conceive or to enjoy sexual relations, both physically and emotionally. It is therefore important that skilled persons be available to address these needs in a timely manner.
5. Some children are exposed to HIV because of the sexual violence. It is also important that children be protected against possible infection. Because of very little violence against children in other countries, it is important that intervention be documented scientifically, so that the knowledge can be shared in South Africa and beyond, on how to deal with this situation. Pure clinical trials are not possible on ethical grounds.
1. The Gender Focal Point (GFP) has embarked on a process to facilitate departmental policies and programmes that conform to the CEDAW and the International Conference for Population and Development. These emphasise the protection of the rights of the girl-child in particular, in all spheres of life. The Beijing Platform of Action also has suggestion for strategies for elimination of discrimination against women and children.
2. The Department of Health participates in the Inter-departmental Management Team on Violence against Women. The participating departments are the following: Health, Safety and Security, Social Development, and Sexual Offences and Community Affairs Unit (SOCA) of the National Directorate of Public Prosecution. A long-term sustainable anti-rape strategy to prevent sexual violence against women and children is being developed.
3. The department of Health also has embarked on the training of health workers in order to equip them with skills to deal with and support the abused children. This initiative is still in its infancy.
4. Forensic Nurse Training has been started in the country. However, because children have not previously been targets of sexual violence, there is a very small pool of human resources in the country to deal with the extensive and debilitating injuries that are inflicted upon girls.
5. Currently, there is an initiative that involves the various sections in the department of health that is aimed at collaboration for training nurses. In many areas, there are not enough doctors who are committed and willing to participate in forensic service delivery. Nurse practitioners are therefore trained in order to fill this gap. There is support from the Canadian government, as well as from the World Health Organisation. It is important to note though that children are often not the focus of many of the training programmes elsewhere in the world.
6. The Gender Focal Point, together with the Medical Research Council is currently assessing the medico-legal services in all the provinces, to check if hospitals and clinics offer forensic services, and whether there are the requisite skills and attitudes to respond to the needs of the community.
7. The Paediatric Association of South Africa in collaboration with the National Association of Paediatric Surgeons of South Africa will be hosting a conference in August 2002, in order to highlight the technical and medical challenges of violence against children, particularly sexual violence (rape) in this era of HIVIAIDS. This will help inform the future training of doctors and specialists in the country.
8. Family interventions include the promotion of men in the birth and nurturing of their children. However, since some children are abused by their step-fathers, the challenge is enormous in order to influence all men to view every child as their own child. Children often get victimised because they represent a previous life of the mother in the eyes of the man, and the new father vents his anger on the child. However increased bonding between fathers and their daughters will often lead to more care by the man in order to ensure safety of the child.
9. Health workers are having a heightened level of suspicion, and will therefore investigate more deeply any suspicious case presenting in health facilities. Ongoing in-service training ensures this, and facilitates reporting of cases.
10. Attention given to education of the abuse of alcohol and other substances will also help reduce the sexual abuse of women and children.
The challenges to the role that the Department of Health are the following:
1. Increasing number of cases, with limited human resources
2. Increasing complexity of the injuries. These require very specialised skills to attend to.
3. Prolonged and sustained psychological support for the child and the family
4. Inadequate international experience to guide us in dealing with the complexity of issues concerning sexual violence against children.
What we need is sustained directed anger in the country and in the community, a zero tolerance attitude to sexual violence against women and children, and a committed and skilled professional core of public workers to support those
We need to protect and rehabilitate those violated, through safe houses and shelters.
As Department of Health we need to accelerate training of doctors and nurse who are competent to collect and document evidence, and to present it credibly in a court of law.
Above all, we shall need to assemble a team of compassionate and gender-sensitive members of the Department and community, to make children feel safe, wanted and cherished, whatever their circumstances or situations may be.
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