Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill: public hearings Day 3

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Justice and Correctional Services

10 March 2015
Chairperson: Dr M Motshekga (ANC)
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Meeting Summary

The core of each submission was as follows:

Community Law Centre
This submission, which was endorsed by a further 20 organisations, argued that the criminalisation of consensual sexual activity caused secondary trauma to affected children, shuts down communicative links with people who are in a position to educate children about sex and discourages accessing social services important to children’s sexual and reproductive health. Therefore, the decriminalisation is supported. On the discretion to prosecute it was submitted that the discretion should rest with the National Director of Public Prosecutions, alternatively that provincial Directors of Public Prosecutions not be allowed to delegate the power any further down.

On the inclusion of a child offender’s name in the National Register of Sex Offenders, it was submitted that the clauses are on their face fair, but in practice would have discriminatory results. This is because it provides for inclusion but with offenders being given an opportunity to make representations against inclusion. Children who are well financed would be able to afford the professional assessments required to bolster these representations and would therefore disproportionately benefit from the provision. Therefore, it was argued that the basic premise be that no child’s name is included on the register and where a prosecutor feels the child is high risk, s/he may apply for inclusion, with the assessment being done at state expense. A further concern was that there were already a number of children who have their names on the register, due to the unconstitutional automatic inclusion provisions. Therefore it should be the responsibility of the state to determine which children warrant removal from the Register and a clause should be inserted requiring this be done within a reasonable time.

Centre for Child Law
This submission was premised by comments on the severe trauma children face when they are subjected to the criminal justice system. Trauma is exacerbated when a child lays a charge of rape, only to become subject to prosecution having failed to disprove consent. This was what had happened in the Jules High School matter, which had lead to the girl complainant suffering emotional trauma to the extent that she committed suicide.

The submission welcomed the clauses dealing with decriminalisation of consensual sexual activity between adolescents, without exception. However, there was a concern about the clauses dealing with inclusion on the register which were similar to those mentioned by the Community Law Centre. It was argued that while automatic inclusion has been done away with, it is still the position that child sex offenders ought to be included in the register following conviction, unless the representations made induce the presiding officer to disagree. However, it would be better to have the prosecutor, who has detailed information about the case and offender, apply for such an inclusion. Further, there would be no additional expense to the state if the assessment is conducted at state expense, because this is already the position where a defence lawyer requests such an assessment to found representations against inclusion. In fact this would reduce the numbers of required assessments, reducing state costs and freeing up the experts conducting such assessments.

Cape Bar Council
The Cape Bar Council made brief submission, generally of a technical nature, arguing that there are a number of untenable scenarios created by the provisions as they stand, leaving them open to further legal challenge. For example, that due to the absence of a definition of ‘person’, a child between the ages of 10 and 12 could fall within the definitions of the crimes contained in sections 15 and 16 of the Act.

Thohoyandou Victim Empowerment Programme
This submission supported both the decriminalisation of consensual sexual activity and the removal of the automatic inclusion provisions. It did so based on experience in patriarchal communities, where adolescent sex does in fact occur. Further, that due to children’s unwillingness to participate in court processes,  prosecution of consensual sexual activity was prohibitively difficult and constituted a waste of state resources.

Gender Health and Research Unit
This submission associated itself with that of several other organisations which had supported the decriminalisation of consensual sexual activity between adolescents. It similarly argued that where the close-in-age exclusion does not apply, the prosecutorial discretion rest with the National Director of Public Prosecutions, alternatively with the Directors of Public Prosecutions. If this is not the case, that a clause is inserted requiring regulations be promulgated detailing what ought to be taken into consideration when exercising the discretion.

On inclusion of child sex offender details in the Register, it was argued that the removal of the requirement of an assessment by a suitably qualified professional was a regressive step and that the presiding officer’s decisions on inclusion or removal should be informed by such an assessment conducted at state expense. Notwithstanding, the Unit’s position was that inclusion of a child offender’s name in the register is not in the best interest of the child, unless the balance is swung by the high risk which the offender poses to other children. This for reasons including that registration in sex offender registers has been proven to not be a effective deterrent and that child justice systems are predicated on restorative justice and reintegration rather than punishment.

Dr Anik Gevers
Dr Gevers who had co-authored the expert evidence submitted to the Constitutional Court in the Teddy Bear Clinic case made submissions, based on research she had conducted, to the effect that adolescents engaging in a range of sexual activity is part of normal sexual exploration and development. Further, that criminalisation of such behaviour was counter-productive as it distanced children from the best means for them to be encouraged to make healthy sexual decisions: open and comprehensive communication with adult caregivers and sexual and reproductive health services such as accessing contraception. Therefore, criminalisation was not supported and instead ought to be replaced with interventions to empower social institutions, like schools and families, which could in fact educate and encourage children to make healthy sexual decisions.

Ms Megan Morrison
Ms Morrison submission was essentially her own life experience in having not given fully informed consent to consensual sexual activity with a much older individual and the devastating emotional trauma which she suffered as a result. She therefore did not support provisions which would have the effect of lowering the age of consent, as this would expose children to the risks associated with sexual intercourse which she felt they were not capable of fully appreciating.

Women and Men Against Child Abuse
This submission was to the effect that criminalisation of consensual sexual activity was counter-productive and harmful to children, because it was a violation of children’s rights and did not aid education about healthy sexual choices. It was argued that government could be involved in better ways, such as through the establishment of youth development centres, equipped to teach children about sex to foster a healthier attitude and therefore decision making. On inclusion of child sex offender’s name in the Register, the removal of automatic inclusion was welcomed and it was further submitted that a separate section of the register be created for child offenders.


Meeting report

The Chairperson commented that the deadline for written submissions had to be extended, due to the large amount of interest. He hoped the presenters had been following the debate, sparked by a decision of the Constitutional Court (CC) enjoining Parliament to remedy defects in the Criminal Law (Sexual Offences and Related Matters) Amendment Act. It seems as though the instructions from the CC have been widely misunderstood as licensing adolescents to have sex. However, the true matter is decriminalising sex between adolescents and the true question is simple: whether the criminal justice system is the appropriate forum to discourage adolescent sexual activity or whether this responsibility should lie with society. He hoped the submissions, representing society and children would help answer the call of the CC.

Community Law Centre (CLC) submission
Ms Samantha Waterhouse, Parliamentary Programme Head Community Law Centre (CLC) said its submission deals with both aspects of the orders of the Constitutional Court covered in the Bill. That is the decriminalisation and the automatic inclusion of children’s names onto the National Register of Sex Offenders (NRSO). She informed the Committee that the joint submission has been endorsed by a further 20 organisations and five individuals, most of whom were unable to make individual submissions. It is informed by a workshop held with 19 different organisations. This workshop was not merely a meeting of ‘elite’ NGOs from the academic sector, but included representatives from five provinces including rural provinces and organisations which work in extremely impoverished communities. She noted that the COSATU parliamentary office’s written submission refers to this submission and concurs with its contents.

Moving to the submission itself, Ms Waterhouse said in following the debate thus far, it has been noticed that the nature of the debate is being skewed. It has been portrayed as either being about giving adolescents permission to have sex or criminalising it. However, the debate in fact centres on the best way which society and government can put in place measures encouraging children to make healthy decisions about sex. There is broad agreement that what is wanted is a society in which young people choose to have their sexual debut at later ages.

Ms Waterhouse said the CLC supports an evidence based approach to the matter. Looking at research done, the ‘common sense solution’ may in fact be proven to not be as good previously as thought. The organisations supporting the CLC’s submission are in full agreement with the reasoning of the CC. Firstly, because there is no evidence that criminalisation in fact deters children from engaging in sexual activity and aside from expressing society’s values has little efficacy. The organisations are highly concerned with the trauma from the criminal justice process which young people are exposed to and this is not even remedied by the diversion process, because of police questioning and prosecutorial interviews. This process further breaks down communication between the child and adult, which is exactly what research shows is needed. It is also an impediment to accessing social services, which according to public health models and sexual and reproductive health research indicate as helpful in encouraging adolescents to not engage in behaviour for which they are not physically, mentally or emotionally ready.

Ms Waterhouse said what does work is communication, not only between parents and children, but other individuals as well. She noted that there had been a lot of discussion in the Committee on the role of social institutions, such as faith based organisations (FBOs). However, she believed there was also a legitimate role for government to play in supporting, especially the more vulnerable families. It is therefore positive that there are provisions in the Children’s Act which speak about prevention and early interventions for at risk children.

Ms Waterhouse expressed a concern about Mr S Swart (ACDP)’s proposition that the crime of statutory rape or sexual assault is a fall back charge or competent verdict where a charge of rape or sexual assault fails. This is an extremely problematic position to take, because retaining a law with such negative consequences to cater for the, in her experience relatively few, cases which are dealt with in this manner.

Ms Waterhouse said the Women’s Legal Centre’s submission was to the effect that it ought to be the National Director of Public Prosecutions (NDPP) who exercises the discretion to prosecute, where the close-in-age exclusion does not apply. The Chairperson had suggested that having a single individual with this power could lead to bottlenecking. It is not known how prevalent these cases will be and it cannot be said how valid the concern about bottlenecking will be. However, there is a concern about inconsistencies in application across different courts. The submission is that the decision should remain at the level of the NDPP, alternatively that the clause allowing the provincial Directors of Public Prosecutions (DPPs) to further delegate the discretion, be removed.

Ms Waterhouse said there had been a suggestion that the minimum age for consent between adolescents be lowered to 10, but the CLC does not agree, due to the lacuna regarding consenting 11 year olds. However, the law which protects children under 12 from even consensual sex is necessary and where it is with another child of similar age this is covered in the Child Justice Act, where the processes for inquiry, assessment and possible diversion will kick in. Further, the Committee will shortly be reviewing the minimum age for criminal capacity, which may also deal with this situation. Further, CLC strongly disagrees with the suggestion that the minimum age of consent be raised to 18, because this will exacerbate the situation regarding 16 and 17 year olds.

Mr Lorenzo Wakefield, Research Fellow, Centre for Justice and Crime Prevention, was concerned about the lack of submissions about the inclusion of children’s names on the National Sex Offenders Register (NSOR). He said the Sexual Offences Act currently allows for automatic inclusion on the NSOR, upon committing a sexual offence. This was what the CC found to be unconstitutional, as it did not allow for an individualised approach. There is also a provision which makes inclusion on the register for life mandatory where more than one sexual offence is committed. The Women’s Legal Centre in its submission had raised the potential for a child takes an illicit enough picture of themselves and sending it to another child. This would constitute three offences, the production and the distribution of child pornography and exposing a child to child pornography. The CC was clear about the impact and consequences of inclusion on the NSOR for life. The Bill as it stands speaks to the individualised approach, but do so in a discriminatory fashion. Currently automatic inclusion is the basic premise, but a child may make representations against inclusions. This sounds fair, however, it is not fair to children who do not have the resources required to make such representations. The expected consequence is that children whose parents are well resourced and capable of getting psychological assessments to support their representations will be able to avoid inclusion, while rural and other vulnerable children will not be able to. It is understood why the provisions are couched as they are, because of the expense to the state. Therefore, the submission is that the basic stance be that no child’s name be included, unless the prosecutor applied for such in light of the gravity of the offence. If this were to happen then an assessment should be carried out at state expense and the court make an order on inclusion. This would mitigate the cost to the state and remove the indirect discrimination ensuring that only those deserving of being on the Register are included.

Mr Wakefield said a further concern was that there are already names of children on the NSOR. The Sexual Offences Act provides that such children should apply to court to have their names removed from the register. Many children do not even know their names are on the register and further engaging in this bureaucratic process is daunting for children. The suggestion is therefore that as the state included the name on the register, it should be for the state to determine who is deserving of removal given that automatic inclusion is unconstitutional. Lastly, this should be done within a reasonable amount of time and the Bill should specify such.

Centre for Child Law
Prof Ann Skelton, Director Centre for Child Law (CCL), prefaced her submission saying the CCL has had a long standing with the two court cases which lead to the present Bill. Further, she had acted as counsel in the Teddy Bear Clinic case and counsel for the amici in the J case, giving her a deep insight into the matters. The reason the Teddy Bear Case was taken up is because specialists who had been dealing with children who had been sent for diversion were saying that it did not make sense to deal with these children as offenders. The Jules High School case showed how a girl who had initially claimed to be a victim of rape got transformed into an offender during the course of the trial, at all times without her being legally represented. She made reference to an article in the Sunday Times which reported that the above girl had subsequently committed suicide. Dr Shaheeda Omar, who had submitted on behalf of the Teddy Bear Clinic, had indicated the deep emotional and mental trauma suffered by the girl and now, as the family had made the news public, Prof Skelton felt it appropriate to share this with the Committee.

Prof Skelton said the J case is different, because now the subject is sexual offences which means the children have in fact committed crimes. The difference between consensual sexual activity and actual sex offences should not be confused. However, the CC has indicated that child offenders still need to be treated differently from adult offenders. The purpose of the NSOR is to protect children from adults who are sexually interested in children, by stopping them from working with them. The register is not a public register and is accessed when specific employers seek to employ people. This obviously limits people’s rights to work, but it is accepted that this is justified regarding adult offenders. However, to assume that all children who have been convicted of sexual offences will grow up to be adult sex offenders is unfounded according to research. The research indicates that by far this is not the case. There are indicators which can alert to an ongoing problem, such as a large gap in the age between the offender and the victim or violence used in the course of the crime. The J case was an example of a case where violence was a factor and perhaps therefore his name ought to be included on the register. The coalition of NGOs working on this consists of organisations which traditionally work with offenders such as NICRO and others are more focused on victims. The CCL deals with both offenders and victims, therefore they are alive to the contradictions. Fortunately common ground was quickly found. The NGOs that work with child offenders have brought forth the position that total exclusion should not be the position, but there should be potential where the case fits for the offender’s particulars to be included. This could be worked out through an assessment determining whether there is a future risk and an application for inclusion could be made. Keeping with audi alteram partem, the children should have an opportunity, with the support of an assessment, to argue against inclusion with the court deciding.

Prof Skelton was pleased to say that she felt the Department of Justice and Constitutional Development (DoJ) had done an excellent job with the Bill. The CCL supports all the provision which arise from the Teddy Bear Clinic judgment, without exception. However, on the parts of the Bill which arise from the J case there is concern. Echoing Mr Wakefield’s position, she said the clauses partially give life to the individualised approach endorsed by the CC, by allowing representations. However the position is still that all child sex offenders’ names are included on the Register. The CC had stated that it was uncomfortable with this, because the individualised approach necessary for the delicate balancing exercise to discover the best interests of the child cannot start from the point that all child offenders be included. While none will go onto the Register automatically, it would be better if the prosecutor who has detailed information regarding the offender and offence were to, based on this information, apply for inclusion. In such cases there should be an assessment and it should be at state expense. This would be at state expense in any case, if they are legally represented. While not asking for anything that would not happen anyway, the submission is that the process should be tailored to the cases where the prosecutor thinks the child may be a risk to society when they are older. Further, people working in the psycho-social sector have said it would be good to have the information from such assessments to allow for the production of interventions, such as counselling. Particularly as there is still the potential for the children to grow up into adults who do not commit sex offences. As they are malleable and may be ignorant of the criminal nature of their actions. The proposal is that the true nature of the act and child be looked into; to see whether the child is in fact a risk to other children in the future. The state ought to stop ‘obsessing’ about prosecution and registers and focus on intervention, treatment and putting young people on the right path. A more protective approach would be having the general position being that no child’s name goes onto the Register, unless the prosecution applies. The CCL also believes there should be quite a high threshold for inclusion, being ‘substantial and compelling reasons’ for putting a child’s name on the Register. This is because there is a significant amount of case law dealing with what substantial and compelling means and it would therefore be a useful practical standard. She noted that on page seven of the CCL’s submission a clause had been presented which covered the points in the submission.

The Chairperson asked for clarity on the assessments being at state expense. As he was aware that there are social workers employed by the state who do such assessments, but there are also social workers in private practice and would the state also pay for a private assessment.

Prof Skelton replied that to her knowledge the assessments are already conducted at the state’s expense, with Legal Aid requesting a report which would then be commissioned. She felt therefore that the submission did not request anything which was not already happening and in fact would reduce the number of cases in which this would be required. If the rule is general inclusion, then a defence lawyer would always request such an assessment and this has the result of tying up specialists in assessments of children who do not require as much attention. The submission is that the children targeted for inclusion be narrowed down, leading to fewer cases requiring an assessment than the Bill requires as it currently stands. Society would benefit from knowing the type of offender it was dealing with and it would not introduce anything which should not be budgeted for already.

Mr S Swart (ACDP) said under the Child Justice Act each child which comes into the criminal justice system will have a social worker assessment and could the submission not be catered for through this process.

Prof Skelton replied this is certainly something which could be debated. In all cases a probation officer assesses the child before they appear in court and can be asked to do a pre-sentence report, which will be done in serious cases such as sex offences. The problem would be whether probation officers, who are social workers with degrees, are the right people to do these assessments. However, at present they are not specifically trained to do such assessments. Debates in the sector have considered some form of tool which could be used to help in the assessment, for example a checklist. What is being proposed in the submission is that the assessment be done by a ‘suitably qualified person’, leaving the determination of who exactly to the regulations. This would allow the DoJ time to think over the cost implications and civil society would be interested in being involved in how the assessments are made.

Cape Bar Council
Adv William King SC, Advocate Cape Bar, said with the contentiousness of the subject he conceives further challenge if the Bill goes through in its present form. Adolescents will experiment and placing legal strictures upon them does cause harm, as set out in the Teddy Bear Case. A child being faced with court when they experiment without the guidance of their parents is trying to deal with the problem through the wrong institution. Criminalising people has far reaching repercussions; placing a child in a court setting facing a prosecutor, in front of a magistrate is likely to scar the child. He therefore urged that when the Bill is considered that the fact of experimentation is at the fore and the courts of law used as a last resort. The problems which he foresees and which have been raised by associate members of the bar regarding section 15 are the following:
- A person is not defined in the Act, leaving open the potential for a child between ten and 12 to fall within the definitions of sections 15 and 16;
 - The artificial distinction between the offender and complainant. For example where boys engage in sexual penetration, outside the bounds of the close-in-age exclusion only the one performing the penetration is liable to prosecution;
- Arbitrary two year age difference which results in prosecution if one of the children is one day shy of the two year age limit;
- The amendments proposed by the High Court in the Teddy Bear Clinic case do not criminalise consensual sex between children, however the proposed amendments create the potential for many untenable situations. Essentially the de facto age of consent will reduced to 12, provided the partner is within 24 months in age;
- The proposed Amendment Bill is not prima facie in line with the judgment in the Teddy Bear Clinic case, leaving it open to potential challenge.

Adv King said similarly these comments apply to section 16. Further, the term sexual violation covers a far wider range of actions it compounds the existence of further untenable circumstances.

On section Adv King said clause 2(3)(c) affords a convicted person the opportunity to make ‘representations why such an order should not be made’. It was submitted that ‘representations’ is an inappropriate term to be used. In criminal law nomenclature, the term ,representations, is used to denote written submissions by an accused to the DDP. In this scenario this is not the case and if the intent is that the convicted person should give oral evidence then this should be stated and if not the position clarified. It was further submitted that guidelines as to what the nature of the representations should entail for it to be given due consideration should be set out, similar to the granting of bail under the Criminal Procedure Act.          

Mr Swart said it is irrefutable that statutory rape would no longer be the fall back charge following the decriminalisation. One of the purposes of the Bill was to reduce secondary trauma, which is a cause for only one in nine rapes being reported. He said the concern about decriminalisation was the public’s perception. How is the average layman to discern the difference between decriminalisation and the de facto dropping of the age of consent? Linked to this are the inconsistencies in the various age limits in this area. For example only being able to put a child up for adoption after the age of 16, but being able to have an abortion at any age. He asked for opinions on lifting the age for consent to 14, given the probable increase in the minimum age for criminal capacity. Further, how best to deal with education against negative public perceptions. Secondly, he asked for comments on the involvement of a mechanism from the Children’s Act, so that Parliament could empower the families and deal with children who are potentially at risk. He noted that it is dangerous to focus too much on decriminalisation and not pay enough attention to the Register, as pointed out. Also, that he was shocked to read about the suicide in the Sunday Times and it had given him a lot to think about, as the intention in passing the Act had always been positive and it has been seen that diversion is not the answer.

Ms Waterhouse said she and the various organisations she has worked with including the CLC are often concerned with secondary victimisation. Not only in the criminal sense, but also more broadly socially particularly access to services. She did not think having statutory rape as a fall back crime to cover people who happen not to fall within the narrow age gap was the way to deal with the problems around secondary victimisation. The Committee has been addressed by civil society and the Department on measures being taken regarding sexual offences courts, resourcing them and what works in that system. This is where the discussion on how to deal with secondary victimisation ought be located, not regarding consensual acts and decriminalising situations where no harm is being inflicted. On public perceptions and the average layman, she said South Africa is far too varied to speak of any general perception from a society with so many different sectors. She therefore supports deliberation, creating a democracy beyond participatory democracy where one has the opportunity to put ideas forward and people can engage on a small scale. The Chairperson has indicated speaking on various media platforms, which she had also done. These should be used to not only provide information about the CC decisions and Bill, but also to pose the key questions. She had recently been on Khaya FM, where every caller had supported the idea that this should not be a crime, but should be dealt with by society itself. On the inconsistency in ages, she said as a gut reaction she would be cautious about raising the age, but would want to do more research on what the likely impact would be among 12 and 13 year olds. She said the question had been couched carefully with reference to the increase in the age of criminal capacity, however as far as she was aware the probability was that it would be raised from ten to 12, but that the position from there to 14 was still uncertain. She would caution against making a premature decision. Lastly, she would encourage communication between this Committee and those dealing with health, development and education.

Ms Skelton spoke about how the message is going to be put out that the Bill is not about lowering the age of consent. What is interesting about the Teddy Bear Clinic case is that it has been as important to talk about what the case does not deal with. If the judgment is read, it is seen that the judge also says the case is not about lowering the age of consent. She said the media should be used to help inform the public and that it is unhelpful for people to say this in effect lowers the age of consent. Perhaps, education could still be used to teach children that the rule is that they may not have sex until after 16, but it would still be understood that they will not face criminal sanctions if they do. On the mechanism to help deal with adolescent sexual activity, she did not feel that putting anything into the Sexual Offences Act would be wise as this would bring it back into the criminal law arena. However, beefing up the Children’s Act by increasing the preventative clauses could be an option and there will be an opportunity to do so as second and third amendment Bills would be coming to Parliament. What would then be important is for Members to ensure that their colleagues on the Portfolio Committee on Social Development flag these issues. She would support such a mechanism and accepts that there may be some children who require care and protection due to their sexual activity. However, the net must not be cast so wide that every child engaging in sexual experimentation should be subject to care and protection, because the system would not be able to cope with it, aside from its impropriety. On lifting the minimum age of consent to 14, she felt it worth debating, assuming the children under 14 would not be criminalised. However, she was concerned about the impact on child offenders, because at present having sex with a person under the age of 12 is rape, regardless of consent, therefore attracting minimum sentencing. Increasing the age to 14 would cast the net wider and potentially draw more people into the harsh criminal justice system. Most of the people caught within the net would be normal, young people who are having sexual interactions and these people must be differentiated from people who use violence to violate others. Further, she would support raising the minimum age of criminal responsibility. She was aware of a workshop held by the DoJ on reviewing the age of criminal responsibility and Mr John Jeffrey, Deputy Minister of Justice and Constitutional Development, said although government has not yet taken a firm stance, he felt there was a lot of evidence for raising the age to 12, with the removal of the doli incapax presumption. At that workshop there was also a lot of support for the age being 14 and it may in fact be something in between the two positions. It would be problematic if the minimum age was increased in this context and not for criminal capacity. She understood that a report on the review of the age of criminal capacity was en route to the Committee. She felt there would be a lot of logic in dealing with both of those aspects, but would not encourage this if it would result in significant delays to the present process.

Adv King said J was 14 during the case and perhaps he was 13 and several months when he committed the crime. Should it be said that he did not have criminal capacity when he had violently committed sexual offence against three children. It is a fact of life that 13 year olds engage in sexual conduct and perhaps what the 13 year olds want should be looked into. He asked if there has ever been a study of the adolescents targeted under the law, properly peer reviewed to give grounding for the debate. He does not feel that there would be anything beneficial in arbitrarily raising the age of consent.

Mr Swart noted for emphasis that Prof Skelton had said the minimum age of consent is still 16 and said it is key that this be brought into the wider domain, to make people aware of the fact that decriminalisation does not do this.

Thohoyandou Victim Empowerment (TVEP) Programme
Ms Unarine Tshikovhi, TVEP Senior Legal Officer, asked the Committee to think back to when the Members were teenagers themselves, when they felt their first sexual feelings and what actions they took in pursuit thereof. As it stands sections 15 and 16 provide that consensual sexual activity between adolescents, aged between 12 and 16, constitutes a sexual offence. The Sexual Offences Act provides that prosecution should follow discovery of such consensual sexual activity and automatic inclusion of the offenders’ names be placed on the Register. TVEP submits that the Act should be amended to remove criminalisation and the automatic inclusion of offender’s names on the Register. The submission is based on TVEP’s work in patriarchal communities where activities may be a result of traditional practices. Regardless of the law, workshops and campaigns used as prevention mechanisms, adolescents still want to experiment and as such they suffer further harm from the consequences of unprotected sex. The duty to report aggravates the situation, because adolescents resort to back street abortions to avoid criminalisation. Initiates are teenagers and after going through initiation these persons want to explore their sexuality. Keeping the law intact would produce a generation of people with criminal records for simply exploring their sexual feelings. Children are human beings with inherent human dignity, they have rights and their sexual rights are a natural consequence. Children should not be prosecuted and traumatised for consensual sexual activity, as was the case in the Jules High School matter pointed out by Prof Skelton. Children should not be punished for how they feel, they should rather be educated and sensitised about what is healthy sexual activity.

Mr Masikhwa Tshilidzi, TVEP Senior Manager: Access to Justice & Trauma Services, raised two issues. Firstly, prosecution of consensual sexual intercourse cases is difficult due to the lack of competent witnesses, as children are not willing to participate in the criminal justice process. Leading to a waste of state resources, as “PEP” and rape kits have to be used to collect evidence in a pointless pursuit of prosecution. Secondly, exposing children to the criminal justice system creates a lot of trauma which may also lead to an unnecessary drain on state resources through counselling and other services.

The Chairperson said he was under the impression that initiation taught children abstinence, but the submission seems to indicate that it encourages them to engage in sexual activity.

Ms Tshikovhi replied traditional initiations do teach children abstinence and informs them about sexual activities, which they wish to explore upon returning to their communities.

Gender Health and Justice Research (GHJRU) Unit
Ms Hayley Galgut, GHJRU Attorney, said GHJRU welcomes the current form of sections 15(1)(b) and 16(1)(b) and commends the DoJ for taking these steps which are in keeping with international trends relating to child sexuality. The GHJRU specifically endorses the submissions of the CLC, RAPCAN, Women’s Legal Centre, Children’s Institute and CCL. Further, acknowledging that the current form of the Bill protects adolescents from sex with adults, non-consensual sexual interactions generally, sexual activity of a coercive nature or with an element of abuse of power being catered for through the rape and sexual violation provisions. As well as through the relevant provisions of the Child Justice Act which, as Prof Skelton pointed out could be augmented. On the discretion to prosecute, although not in the written submission, the GHJRU’s first choice would be to support the position of the Women’s Legal Centre and Community Law Centre, that this should rest with the NDPP. Alternatively, should power ultimately rest with the DPP that the provision revert to not allowing further delegation of the power and that a new subsection 3 be inserted into section 67, requiring regulations aimed at limiting the harm of exposure to the criminal justice system. Further alternatively, if the DPP is allowed to delegate further that new subsections (4) and (5) be inserted into section 67, again providing for the Minister to make regulations detailing to whom the delegation may be made and the factors that need to be considered.

Ms Galgut moved onto inclusion of offenders’ details on the Register saying that the Bill seems to be taking a less measured approach, by no longer including consideration of an assessment by a registered mental health professional. While the Bill retains the opportunity for representations regarding both inclusion and removal from the Register, the GHJRU feels that the removal of the requirement for that assessment is a regressive step with significant consequences. The submission is therefore that where a child is to be included or removed from the Register, that this be informed by an expert in the field of child sexuality and child sex offending, at state expense. Further, that while the current clauses relating to representations may be neutral on their face, in practice they will not only be unfair, but indirectly discriminatory, alternatively on the grounds of race and/or social origins. This is for the same reasons as those pointed out by Mr Wakefield, specifically that children whose families can afford expert medical assessments will benefit from the representations while those who cannot, will not benefit. Accordingly, the formulation endorsed by the Centre for Child Law is endorsed, because the Unit believes this is the most in line with the CC’s judgment and the needs of society. Notwithstanding, the GHJRU is of the opinion that the registration of a child convicted of a sexual offence is not in the best interests of children and should only occur in cases which expert assessment deems high risk. Detailed scientific and evidence based reasons for this position are provided in the Unit’s written submissions. These reasons were based on an opinion written for the CCL by Prof Lillian Artz, Director GHJRU, specifically to be led in evidence before the CC in the J case. She noted that this more detailed opinion could be made available to the Committee. The reasons in brief included:

- research overwhelmingly demonstrating that sexual offences registers have little or no deterrent effect in the prevention of sexual offences, nor in the reduction of recidivism;

- lifetime registration of young offenders has been considered as amounting to cruel and unusual punishment. Specifically bearing in mind that punishment structures should differentiate between adults and child offenders and registration requirements may limit child offenders’ ability to embrace a reformed life;

- child justice systems being predicated on restorative justice, rehabilitation and reintegration of young offenders rather than punishment, which the provision runs counter to. A sentiment which echoes the Committee on the Rights of the Child in their general comment on the Convention on the rights of the Child;

- the current formulation does not take into account the differences in the nature of and motivation for offending among youth, the neuro-biological and social development between children and adults, nor the rehabilitative potential of youth, whose traits are less fixed

- socio-legal scholarship raises procedural safeguards to protect young offenders including informed judicial discretion, assessment of risk and the consideration of specific circumstances;

Ms Galgut said for the above reasons the Unit recommends excluding the recommendation for registration, unless the assessment indicates that the child is a high risk offender and that the onus should be the state and assessment conducted at state expense. Where the child offender does not meet the high risk requirements, they should be sent for sex offender rehabilitation.

Ms Galgut reminded the Committee of RAPCAN alerting it of the National Adolescent Sexual and Reproductive Rights Framework, which has been finalised, in as far as it may help government on possible strategies for dealing with these rights. This document promotes a multi-sectoral approach, which suggests an understanding across government that criminalisation is not an appropriate response. Further, that there is a shared responsibility for implementation between government departments, families, caregivers, religious and traditional leadership and civil society. The Framework is at pains to place itself in line with South Africa’s international law obligations, as well as existing legislation and policy. It aligns itself to a statement in South Africa’s Population policy, written in 1998. Where the Policy describes itself as being “the promotion of responsible and healthy reproductive and sexual behaviour among adolescents and the youth; specifically to reduce the incidence of high risk pregnancies, abortion and sexually transmitted diseases, including HIV/AIDS, through the provision of life skills, sexuality and gender sensitivity education, user friendly health services and opportunities for engaging in social and community life”. The Framework has two particular priorities: creating effective community support networks for adolescents and formulating evidence based revisions of legislation, strategies and guidelines for adolescent sexual health and rights.

Submission by Dr Anik Gevers
Dr Anik Gevers, Specialist Scientist: Gender and Health Research Unit, Medical Research Council, said her work has a strong focus on adolescent relationships, sexuality and wellbeing, working directly with adolescents to promote sexual health. She noted that her written submission included the original submission made to the CC in the Teddy Bear Clinic case which she had co-authored. What was found during the research is that becoming interested in and experimenting with a range sexual behaviours during adolescence is part of “normal psycho-sexual development of people or developmentally normative”. Adolescents’ early sexual experiences have a major impact on their later sexual experiences and sexual health outcomes. There are also potential risks, especially where adolescents are engaging in sexual behaviours at younger ages. The important thing therefore is to focus on contributing to overall positive development, specifically healthy, respectful and safe sexual behaviour among adolescents. As all speakers have noted, this is not about encouraging young adolescents to engage in any sexual behaviour. Rather it is about acknowledging that curiosity around these types of behaviours are developmentally normative and that conditions should be in place to promote healthy sexual development. Therefore, healthy, respectful and safe sexual norms need to be established, especially in a country with such high sexual violence and negative sexual health outcomes. This is done through comprehensive sexual and reproductive health services and education which empowers adolescents to make healthy choices for themselves and seek help without the fear of criminalisation or being put through diversion. She clarified that developmentally normal means that it is not necessarily unusual, harmful or unhealthy for adolescents to be interested in, discuss or engage in a variety of sexual behaviours. It does not mean that all adolescents do this at the same age or even that they should be doing so. Based on local data people reach physical sexual maturity between the ages of 12 and 16 and they do engage in sexual behaviours regardless of the law or rules about open discussion. Her research has shown that while parents may think that forbidding sexual activity will prevent teenagers from engaging in sexual behaviours, it does not. Many teenagers will then find ‘creative ways to explore anyway’, therefore what needs to be done is to find ways to help them make better decisions on their own

Dr Gevers said it is also known that sexual behaviour does not only have the physiological component, but also has strong psychological and social elements. Psychologically people are adjusting to a new body, thoughts and feelings about it and how people view and react to these changes. Socially peer relationships with new emotional and physical aspects become interesting and people are starting to experience sexual feelings. Sexual exploration does not just occur in dating relationships, as adolescents engage in sexual exploration with a variety of different people. At younger ages dating relationships are very fluid and nebulous, with time spent together not generally being very high and emotional intimacy being important. There are also high levels of peer influence and gender constructions of sexual experiences. Also, sexual experience is also shaped by general social and cultural norms. Boys tend to be more motivated by curiosity and girls more motivated by feelings of affection. Which is something to be kept in mind when trying to promote healthy sexual behaviour. Also, teenagers have conflicting emotions about sexuality such as shyness or awkwardness which may lead to them avoiding discussing it. This has been noted even between teenagers who are engaged in sexual activity, with sex not being spoken about. There is also a level of excitement and interest, with teenagers enjoying the sex-education part of Life Orientation. Research has shown that sexual communication that is open and comprehensive, includes specific information and open discussion, including about risk and risk reduction strategies collaboratively created with teenagers is likely to have a positive influence on adolescent sexual behaviour. Meaning they are less likely to engage in risk behaviour.

Dr Gevers said healthy sexual behaviour should be promoted, but the law and the criminal justice system is not the place to do this. It would be best for adults to share their sexual values and guidance, rather than have teenagers learn about sex from their peers or the police following an arrest under the present law. The concern is that in the current situation help seeking is diminished, it limits the ability to educate, empower, guide and support adolescents, there could be a negative social stigma and reinforcing feelings of shame leading to poor sexual decisions in the future. There is an overall increase in risk factors and this will not help in promoting healthy, safe and respectful sexual choices. She concluded by saying that criminalisation of consensual sexual activity does not prevent teenagers from engaging in sexual activity or exploration. What needs to be done is promoting healthy sexual decision making through effective programming which empowers families, schools and social development organisations to do this and the law should not constrain these institutions ability to do so.

Submission by Ms Megan Morrison
Ms Megan Morrison, a member of the public, prefaced her comments by saying that she was a survivor of a rape. She was not violently forced into the act, but she had been taken advantage of by an older man who was aware of her feelings for him. As she became older she realised that it was not fair or right for the man to have sex with a child who was not fully aware of what his intentions were. She was unable to make an informed decision, and consented because she was young and trusting.

Ms Morrison said she had to receive counselling for years to deal with the repercussions and she was glad similar services were available to others in similar situations. She had to deal with so much shame and guilt, despite not understanding the true nature of what was happening. She had denied being raped for many years and studies show that when the denial is finally broken, many women commit suicide. If the child in point is not fully aware of what is going on, it is a crime, as sex can have major repercussions such as HIV/AIDS or as in her case massive emotional trauma. In a country where AIDS is rampant, should we being placing the lives of 12 year olds at risk. Do 12 year olds truly understand the importance of protected sex. On sex between adolescents, Ms Morrison said if adolescents are engaging in such activity perhaps there is a need for rehabilitation facilities which would give them a proper perspective on life. From her personal experience, sex crime is one of the worst things to go through. She added that young girls are not developed enough to physically deal with childbirth and this could be incredibly dangerous for them, even causing their death. She encouraged educating children about sexual offences, to alert them to the fact that where the person is significantly older, they will face jail. On children experimenting, this cannot be eliminated, but if they are not realising the gravity, one ought to start therapy programmes to enable them to understand the real repercussions of what they’re doing.

Women and Men against Child Abuse (WMACA) submission
Ms Germaine Vogel, WMACA Advocacy Manager, said the organisation that she represents is victims centred. She took the opportunity to acknowledge WMACA’s endorsement of the submissions of the Community Law Centre and Centre for Justice and Crime Preventions. Further, she appreciated the work of the Shukumisa Campaign and the experience its members shared.

Ms Vogel said WMACA is aware that children due to natural human development will show interest in sex, develop sexual feelings, establish intimate relationships and have the desire to engage in sexual acts, regardless of adult’s views or what the age of consent is. The Bill does not lower the age of consent, which remains at 16. WMACA understands that the more sex among adolescents is spoken about, the stronger the offensive will be against all forms of sexual abuse.

Ms Vogel said in 2011 WMACA commissioned an in depth, qualitative investigation into teenage pregnancy entitled ‘Young Mothers Speak for Themselves: Why We Became Pregnant’. This required accessing the life spaces and perspectives of young teens who have experienced conception and birth or abortion. A lot was learnt through the communication in pursuit of that document and what is relevant here is that young people have sex without contraception, because they are afraid of their parents and of approaching health professionals. Turning to the impugned provisions of the Sexual Offences Act, she said these are a violation of children’s rights and have not helped teach children about healthy sexual choices.

Ms Vogel said WMACA believes that the perpetrator, rather than the victim must be pursued and where there is sexual activity without consent, through coercion or an abuse of power this must be addressed through the crimes of rape and sexual assault or the relevant provisions of the Children’s Act. Research shows that teenagers want more information about sex than they are getting. When asked about where they would like to find out about sex, nine out of ten said their parents, rather than friends, a health class or books. However, when asked whether they speak to their parents about sex only one in ten says yes. The reason according to most teenagers is that their parents hold back. While most parents are born after the age of the “sexual revolution”, sex may still have been a taboo subject in their homes growing up and when it comes to talking to children about sex, parents did not have the role models. Ideally WMACA believes that children should be spoken to before they become sexually active. The emphasis on school based sex education, if it is being given, is usually around the anatomy and physiology of sex. Sexual feelings and sexual relationships, which are the concerns of adolescents, are rarely spoken about. If contraception and STD education is given this is generally in the 11th or 12th grades, which may be after the fact. In short, sex education in schools tends to be too little, too late.

Ms Vogel said WMACA shares the common call for support for families, parents, communities and comprehensive parenting programmes to support children’s overall health sexual development and decision making, to delay children’s sexual debut and encourage making decisions for which they are ready, with increased access to health and social services. Youth development centres are an existing international model for this and WMACA believes there is a huge need for such centres in a context where parents and communities are not taking care of their children. There are examples of successful youth development centres around the world which have a tangible impact on improving children’s lives. Particularly, looking at northern European cities which have made great bounds to assimilate refugee children which come to such countries.

Ms Vogel concluded saying the basic position is that consenting sexual activity between children should not be a crime and criminalisation does more harm than good. A more appropriate government response is to invest in programmes which have been proven to work in helping encourage healthy sexual behaviour among adolescents.

Ms Vogel turned to the inclusion of children’s names on the Register, saying WMACA does not believe inclusion should be automatic for the same reasons as put forward by other submissions. WMACA additionally submitted that if children are to be included on the Register, that a separate section be created for child offenders. WMACA has experience of children undergoing secondary trauma when charged with a consensual sexual offence, due to a lack of court services for children. If children are included on the Register, how is it to be ensured that their case is properly monitored to ensure that if they are deserving, their names are removed. It was therefore submitted that the clauses be reviewed.

Mr L Mpumlwana (ANC), as the debate seemed to centre around children consenting to sex, wanted to know what the actual age of consent was and what exactly was meant by consenting children. Particularly in light of Ms Morrison’s submission that at 13 she believed it to be consenting, without understanding the full consequences, which he did not view as true consent. Secondly, he said that children are generally exposed to life differently, depending on parenting style and so on, with some told everything and some told nothing; how are the former to be protected from the latter? Lastly, how does one go about proving that consent was either present or absent in court.

Ms Morrison said she feels that, from many of the young teenage girls she has spoken to, even girls who are 14 are not making conscious decisions; they make decisions based on what they see in the media. However, they are unable to cope with the emotional trauma. She felt that perhaps true consent could be given after 16, but it would depend on the circumstances of the person and how well they have been equipped emotionally.

Dr Gevers, on the ability to consent, said that data simply is not available to determine what age is best for most children. She did not feel that the question ought to be at what precise age should the age of consent be, rather comprehensive sex education would better to empower children to make healthy choices. She supported Ms Vogel's point that such comprehensive sex education would not only be about the physiology, but would also include the emotions. In her clinical experience she had had adolescents question why they were not told how they would feel afterwards. The emotional repercussions are not considered, because adolescents have not been empowered to truly think about what sex means. She noted that this law focuses on consensual sexual activity and not non-consensual sexual activity or where there are age disparate partners, which is where the law ought to step in. The debate should rather focus on how to promote healthy sexual decision making, rather than the age of consent. To protect children who do not get information about sex at home, schools, civil society and social services must pick up the slack to empower teenagers. This type of work is being trialled at the moment, looking for example how to incorporate this into Life Orientation classes. On proving consent she said that the important thing is to change the culture around consent, to one focused on active consent. Where consent is freely and explicitly given, rather than where it is implied. This would help address sex stereotypes, which will be relied on by children in the absence of sex education.

Ms Vogel said on the age of consent that the legal age of consent in Spain is 13, but the average age for a woman to have her sexual debut is 19 and the average age for men is 18. Therefore, it cannot be said that if the age of consent is made a certain age, that all children are going to start having sex at that age.

The Chairperson said it appears that due to Hollywood and other influences, parents have lost control of their children. Trying to deal with the consequences of the media is futile if the source of the influence is not dealt with first.

Ms Morrison added that she supports Standing Together To Oppose Pornography and to this end has an internet filtration programme at her house which filters out all lewd content, meaning that no pornography can be accessed in her home. This extends to her enforcing rules about the types of content her children are exposed to in movies, to prevent premature exposure to explicit content.

Dr Gevers, on the influence of Hollywood, said she felt that control has not been lost and further that the issue is more guidance than control of teenagers. One cannot control everything that teenagers are exposed to, because they are not under constant parental supervision. What should be done is to see exposure as an opportunity to discuss the choices people are making or pre-empt exposure with information about how they ought to react. Completely trying to cut children off is likely to increase the chance of risk behaviour. Research on abstinence-only sex education programmes has shown that where these are implemented there are higher rates of sexually transmitted infection, early sexual debut, teen pregnancy and violent relationships. These are the very things which we do not want for adolescents and this is why an open and comprehensive approach is preferable. Parents must also be conscious of how much a tendency towards non-communication is due to their own anxieties, rather than doing what is in the best interests of children.

Mr Swart said he wanted to ensure that people from the Christian community understand what is at hand. So he explained that the narrow ambit of the judgment of the CC is the decriminalisation of consensual sexual activity between adolescents. Therefore, if in Ms Morrison’s case the man had been under the age of 16, then both people would be liable to prosecution, based on the supposed consent.

Ms Morrison said that would be ridiculous.

Mr Swart clarified that in Ms Morrison’s actual case statutory rape would have been the crime. However, the dilemma which her case demonstrates well is whether a 13 year old has the ability to give proper consent. This is why Prof Skelton had said the age of consent remains 16 and the theme of educating children on sex has been raised by several presenters. The issue is how to best do this and the criminal justice system is not the appropriate position. He quoted from the judgment saying “I accept that the purpose of discouraging adolescents from engaging in premature sexual conduct which may harm their development and from engaging in sexual conduct which increases the likelihood of risks associated with sexual conduct materialising are legitimate and important”. He asked for Dr Gevers to clarify what is meant by ‘developmentally normative for adolescents to engage in sexual behaviours, which range from kissing to penetrative sex’. Specifically as he differed from the view that it is not necessarily unhealthy for adolescents to be engaging in fully penetrative sex of either a homo or heterosexual nature. He feels that there is a large health risk carried by premature sexual penetration, given the prevalence of HIV/AIDS, particularly in marginalised communities.

Dr Gever said the term denoted a variety of sexual behaviours and could not be divided cleanly into penetrative and non-penetrative sex, as sexual behaviour is on a continuum. If adolescents can freely consent, happen to be mature enough to consent, given all the non-physical ramifications in engaging in penetrative sex and are practicing safe sex; then they are not going to be exposed to all the risks outlined. She then distinguished developmentally normative from statistically normative. With an example of the latter being rape given the high statistical occurrence. However, it is not developmentally normative meaning something which people normally go through as they develop into adults. This founds the proposal that adolescents be encouraged to engage only in healthy sexual activity and to delay their sexual debuts, which focuses on penetrative sex. The above is certainly the generally agreed upon aim, but criminalisation will not achieve this.

Mr B Bongo (ANC) said an opportunity was missed to have the presenters from previous sessions listen to the detailed and clear submissions from the present meeting. As they could have picked up aspects of the legal problem before the Committee. An issue which needs to be dealt with is how is the public perception to be dealt with, because the minimum age of consent remains 16 and the decriminalisation is merely in light of the fact that adolescent sex does occur. He felt the issue around inclusion of child offender’s details in the Register was not receiving enough attention and if this was not dealt with carefully then it may lay pitfalls for the future. Even leaving applications up to prosecutors may open the door to their own subjective beliefs leading to the application for inclusion. He felt that the peripheral issues relating to the role of social institutions should be left for another forum, because the matter before the Committee is narrow.

The Chairperson said he was glad Mr Bongo raised the point that he would like previous presenters to listen to various submissions, lest they take the contents of their submission as “the gospel truth” and go into public and preach it as such. And perhaps it would do well to listen to other gospels to help find common ground.

Mr W Horn (DA) directed a question to Dr Gevers who had indicated that physical maturity is generally reached between 12 and 16 years old, yet she conceded that there was insufficient data to determine at which age adolescents can in fact give consent. Given that the subject of the Bill is 12 to 16 year olds is there any indication that there are some 12 year olds who can give informed consent and in her experience what percentage would this be.

Dr Gevers said the issue of consent is not only about a physical ability, there are emotional, psychological and social aspects to it. That is why it is a difficult concept to pin down. She could not provide a percentage, but she had certainly experienced and come across research which indicates that teenagers mature at vastly different rates. She was unsure whether adults could fully appreciate all of the consequences when consent is required, even outside the realm of sex. Therefore, it is about equipping people as best as possible to think through the consequences and that they understand that there is a choice to decide what happens. On the issue of public perception, she appreciated the concern, but indicated that there are a multitude of organisations, including those represented, which work around informing perceptions. She felt this ought to be viewed as an opportunity to change the sexual and reproductive landscape of South Africa, a country which has very high rates of sexual violence. It is not only about educating children, but also about educating adults to make healthier sexual choices to form good role models for children and adolescents. Therefore, the public perception of the contents of the law is not the only concern, but there is also the perception of how encouraging healthy sexual choices is to be handled.

Mr Wakefield responding to Mr Bongo’s assertion about prosecutors’ subjectivity determining applications for inclusion on the register, said the independence of the prosecutorial authority ought be respected. Further, much of the fear could be allayed through directives on what factors to take into account before applying to have children included on the register. The content of the directive could be along the lines of indicators towards repeat offending as referred to by Prof Skelton.

The Chairperson asked what Mr Wakefield meant by the independence of the prosecuting authority.

Mr Wakefield replied that he had meant that prosecutors would do what they are mandated by the law to do and not take into consideration their own personal beliefs.

Prof Skelton said in the CCL’s submission, the prosecutor would simply place notice that they would like to have the offender included on the Register. The notices will be more frequent than actual inclusion, because the assessment will be carried out, the child’s defence lawyer would make representations and the court would ultimately decide.

Ms C Pilane-Majake (ANC) said it has been an interesting journey listening to today’s presenters, with the knowledge of the previous submissions. She emphasised that public perceptions were very important, because already it was thought that the Committee has to come up with a law which gives children permission to have sex. While sex is a challenging and sensitive topic to deal with, with various views, but as long as it is understood that the CC has enjoined the Committee to a particular task, this will be fine.

The Chairperson said he had requested the parliamentary media to arrange interviews for various Members in various languages and he hoped this would continue.

Meeting adjourned.

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