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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
16 September 2003
CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL: PUBLIC HEARINGS; SADC PROTOCOL ON TRIBUNAL: BRIEFING
Relevant documents out:
Explanatory Memorandum: Ratification of the Protocol on the Tribunal and Agreement
SADC Protocol on Tribunal (offsite link)
SADC Agreement amending the Protocol on Tribunal (email email@example.com)
Criminal Law (Sexual Offences) Amendment Bill [B50-2003]
Children's Rights Project submission
The South African Young Sex Offenders Programme (SAYSTOP) submission
African Christian Action: Submission to the PC Justice
Molo Songolo: submission to PC Justice on Sexual offences Bill
Doctors For Life: submission to PC Justice
UCT Division of Forensic Medicine and Toxicology: submissions to PC
Submissions were heard from Children's Rights Project and SAYStOP regarding the Sexual Offences Bill. Both organisations while supporting the Bill's principles, raised concerns on the protection of children rights both as victims of sexual offences and offenders. SAYStOP undertook to research international practice with regard to teenage sex to see if it also criminalises sexual conduct between children between the age of twelve and sixteen.
UCT's Institute of Criminology noted that the Bill does not contain any clause dealing with the medical management of rape survivors. Medico-legal services are of critical importance in the management of rape cases and their corroboration. Research had identified the need for a more professional, sensitive and accurate medico-legal service. Concern was expressed concern at Cabinet's withdrawal of the clause dealing with "Provision of treatment" The submission recommended the inclusion of a clause relating to the availability of medico-legal expertise and services.
Doctors for Life recommended that the age of consent should not be lowered.
Molo Songololo recommended that trafficking should be included as a separate offence in the Bill with the establishment of a separate unit to deal with trafficking of women and children.
Africa Christian Action recommended that some crimes should not be equated to rape and that marital rape should not be criminalised.
The Department briefed the Committee on the Protocol on Tribunal and an Agreement Amending the Protocol in the Southern African Development Community. The Committee noted that it would pass this protocol after it has been properly tabled before Parliament.
Hearings on Criminal Law (Sexual Offences) Amendment Bill
The Chair noted that he wants to put it on record that the Committee has not passed anything on this Bill as it still considering it. Only when the Bill is passed can changes occur - until then, it merely contains proposals from the department. People should therefore feel free to engage in the process even after they have made their submission, whether on some new aspect or something that was asked by the Committee and which needed further research.
Children's Rights Project submission
Ms J Gallinetti (Co-ordinator) noted that their submission focuses on those provisions of the Bill that deal with children. This encompasses both the victims and offenders and she called for a balanced approach to be adopted. Therefore while upholding the victim/survivor's right, due process should also be given to the rights to fair trial of the child offenders. She referred to the provisions of Schedule 1 of the Bill, which contain the guiding principles. The importance of these principles is that they guide the judiciary to balance the issue relating to victims and offenders, hence it is important that they should be retained and moreover they are complementary to the Child Justice Bill (see submission).
The Chair asked for clarity on what is meant by an early marriage.
Ms Gallinetti noted that an early marriage is when a person under the age of 21 is allowed to marry based on ministerial consent.
Ms Chohan-Khota asked that since they say that there should be a positive obligation on the offender under Clause 23 to disclose, how do they envisage this clause being implemented and enforced? Further how do they envisage the administration of the proposed confidential register or do they propose that only a particular portion of it be accessible or certain categories of people should have access to it?
Ms Gallinetti replied that although Clause 23 creates an offence for failure to disclose, it does not provide a positive obligation on the offenders to do so. Hence she felt it necessary that such should be created before a sanction could be allowed. If one allows for a positive obligation there should be a register to administer such. This is in terms of the law reform process surrounding the Children's Bill which stipulates that there should be two national registers. One of the registers should relate to persons dealing with children and Part B of it should deal with the registration of persons who are not suitable to work with children. Therefore while acknowledging the cost implications involved, she proposed that it would be preferable if this could be done in conjunction with the Children's Bill, presently before Parliament, under the auspices of the Director General of Social Development. She proposed that the Committee could then legislate that anyone who wishes to employ someone who would have direct contact with children, should first consult this register.
Mr S Swart (ACDP) noted that the whole issue of age of consent has attracted a lot media attention and the South African Law Reform Commission (SALRC) has also said in its report that the age limit in Clause 9 was set quite arbitrary. He asked which age do they see as the right age to define a statutory rape.
Ms Gallinetti agreed with the SALRC noting that the arbitrariness is clearly evidenced in the Bills presently before Parliament since some talk of eighteen as being the upper age of a child while others talk of twelve, fourteen and sixteen. This makes it difficult for one to determine which is the real correct age. However, although each child develops differently based on background and maturity, for protective measures she believed that eighteen should be the upper age of child development. This would conform with all international and regional laws and documents of which South Africa is a signatory and has ratified. It is also important for the Committee to keep in mind the sex conduct of teenagers today when it comes to consensual sex.
The Chair noted that although no one wants teenagers to engage in sexual acts, one would like to know how other societies deal with the issue, since to him it is not proper to criminalise the act and thereafter leave it to the prosecutor to decide whether to prosecute or not.
Ms Gallinetti commented that the South African Young Sex Offenders Programme (SAYStOP) has done research on the matter based on the law reform in England. She added that they support the SAYStOP submission on teenager experimental acts, which notes that the defence available for indecent acts, and thus not for acts of penetration, should also be extended to those acts.
Ms S Camerer (DA) noted that although the Committee shares her concerns regarding the rehabilitation of sex offenders, however her submission does not touch on the issue of the medical treatment which should be afforded to rape survivors, especially children.
Ms Gallinetti agreed that the submission did not cover this but in principle and based on different reasons to the one calling for the treatment of offenders, they would support the treatment of victims of sexual offences. It was expected that other organisations would address the Committee on this aspect.
The Chair thanked Ms Gallinetti for her eloquent presentation and noted that the Committee wished her and her organisation all the best in their endeavour to protect children's rights.
South African Young Sex Offenders Programme (SAYStOP) Submission
Ms Anneke Meerkotter (Co-ordinator) noted that their submission tries to balance the situation between the victims and the offenders so as to prevent any kind of further abuse against children. This was based on their research, which shows that many sex offenders commit sex offences because they, themselves, had been sexually abused as children. Their presentation should not be looked at as promoting young sex offenders but only as trying to look after their interests, as former victims. She commented on the provisions of Schedule 1, Sections 8 and 9 of the Bill (see submission).
The Chair asked what is the international practice with regard to teenage sex. At what age does it draw a line and state that children can be allowed to engage in sexual acts. Does it also criminalise sexual conduct between children between the age of twelve and sixteen?
Ms Meerkotter replied that as far she knows other countries also have similar provisions when it comes to statutory rape, however she is not quite sure to what extent they provide defences for such. She undertook to research this and submit it to the Committee.
The Chair welcomed this and noted that it would help Committee a great deal since their proposal in this regard is very vague.
Mr Swart requested SAYStOP to comment on the SALRC report where is states that "A number of workshop participants expressed the view that sex experimentation is not what it used to be, and goes much further than in the past, that it is highly likely that in view of sexually transmitted infections (STIs), penetrated sex would be a death sentence. These participants proposed that the age of consent be raised to eighteen years of age."
Ms Meerkotter supported the view that the age of consent be sixteen years. She noted that HIV is a very contentious issue and it is difficult to know how to adequately deal with it, however a counter argument could be made against SALRC's. It should not be ignored that children become sexually aware from the age of twelve or even earlier. To ignore that fact and declare eighteen years as the age of consent would not be assisting the matter and would be like driving this fact underground. Children would still know that whatever they are doing is normal although they should not talk about it since it is an offence. In this way the HIV epidemic would worsen as children would not be able to talk about safe sex, since to talk about sex, in itself, is a crime. One of the ways to deal with this issue would be to involve social workers and guidance councillors without criminalising it.
Ms Camerer asked for comment on the provisions of Clause 9(2)(a) and if they do not think that these provisions would assist child trafficking perpetrators in their defence.
Ms Meerkotter agreed with the concerns raised about Clause 9(2)(a), as people could be deceived into believing that a child is over the age of sixteen years. However in order to prevent this provision being used as an escape route, the Bill requires that the deceived person should 'reasonably believe' that to be the case.
The Chair noted that people might have sex before a child not only for gratification purposes but for commercial interests. He asked if the concept "sexual gratification" is too narrow.
Ms Meerkotter replied that since it would difficult to prove that someone had intended to sexualise a child, they had opted for the wording of "sexual gratification", which would also include cases of "grooming" as provided in footnote 10 of their submission.
The Chair objected to that view. A person grooming a child to be a sexual object does not necessarily get gratification from that and hence the concept of "sexual gratification" is very narrow as it does not deal with issues of commercialisation.
Ms Meerkotter replied that she does not think that Clause 9 is aiming specifically at commercialisation of children but rather deals with the adult-child scenario such as in the case of child molesters and child sex offenders. However the concerns raised by the Chair could be adequately dealt with in a separate clause.
The Chair accepted the explanation.
Ms Camerer asked if the issue of medical treatment for child victims or rape survivors should be catered for in law. In answering, they should take into account the UN Convention on the Rights of the Child of which South Africa is a signatory.
Ms Meerkotter replied that she would greatly encourage the Committee to consider inserting such a provision, which would ensure that the State takes all appropriate measures to ensure that children and women who have been victims of sexual abuse are treated.
The Chair felt that it is not proper to put an absolute duty on the State to provide such treatment since any transgression of an Act of Parliament is always justifiable. He thereafter thanked the presenter for shading their concerns with the Committee on the Bill.
Doctor for Life submission
Dr M de Wet noted that the proposed amendments envision children making decisions concerning their sexual health without the knowledge of their parents or guardians. He said that it has been scientifically shown that adolescents do not function like adults and cannot be expected to make logical decisions. Given a wide range of choices about sexual lifestyles they will not choose one on a rational basis.
Dr de Wet said that the proposed amendments do not take into account some important facts about sexual practices of homosexuality and the risks involved. Unlike heterosexual sexual practices, anal sex is a fairly standard component of sexual practices of a homosexual nature. Anal sex contains various health hazards that vaginal sex does not contain, even in the case of adults. Psychological effects like depression follow as a result of homosexuality.
The Chair asked if the presenter was saying that one should have an age limit of 19 for homosexuals and 16 for heterosexuals. He asked the presenter if he could justify passing legislation that discriminates on the basis of sexual orientation. He also asked the presenter to outline what should be done in cases where children below the age limit get involved in the prohibited activities.
Dr de Wet replied that he was not saying that the limits of 19 and 16 years make any real difference. His main submission was that the age of consent should not be lowered. He could not find any justification for discriminating on the basis of sexual orientation given his limited knowledge of the law. He also said that ideally children who get involved in illegal activities should be imprisoned like others who trespass the law.
The Chair said that he would like the Bill to pass constitutional scrutiny. He would not want people to regulate their lives by a law that is unconstitutional. He continued that he would consider discriminating on the basis of sexual orientation should Doctors for Life give reasonable justifications.
Ms S Camerer (DA) asked if overwhelming medical evidence has to be brought before lawmakers before lives are endangered. She asked the presenters if their views on age restrictions reflect universal opinions or if they are just arbitrary.
Dr de Wet said that there is overwhelming evidence in support of his submission. He pointed out that there are others who disagree with the submission.
The Chair asked how overwhelming the evidence is. If one took ten doctors, how many would support Doctors for Life's submission?
Dr de Wet replied that it would depend on from where the doctors were taken. If they were taken from South Africa, more that six would support his submission.
Mr S Swart (ACDP) observed that the cognitive development of the child and medical evidence seem to be the backbones of the submission. He asked at what age this cognitive development takes place. He asked if it would not be better to have an age restriction of 18 years for both homosexuals and heterosexuals. Dr de Wet said that Mr Swart's suggestion of 18 was not a bad idea.
In reply to Adv M Masutha (ANC) asking if the health risks posed by homosexuality dissipate after a certain age, Dr de Wet said that the risks dissipate with age as a result of the development of the organs.
The Chair asked if the use of condoms minimizes the health risks associated with homosexual sex activities. Dr de Wet said that tearing still occurs in the anus. He went on to caution against using the law to protect everyone's needs.
In answer to the Chair stating that the law protects the norms of the society which the Bill is seeking to do, Dr de Wet said that the norms of society do not necessarily reflect what is good for the society.
Adv Masutha indicated that adultery was an offence under common law and that it is no longer an offence. This clearly indicates how society's norms have changed and that this is how the law changes. By recognising homosexuality, the Constitutional Court has accepted law's response to the changing ethos of the society. He asked if the presenter believed that the law has the capacity to change society in the area of sex. He also encouraged the presenter to consider medical evidence together with norms of the society.
Dr de Wet said that Doctors for Life is a Christian society and takes instructions from a higher source, the Bible. He said that the organisation does not encourage immorality. He accepted that the law has its own job to do but at the same time stressed that the change of law is not always for the good of society and this is what the Committee should consider.
UCT Institute of Criminology: Forensic Medicine and Toxicology Division
Dr Lorna Martin and Ms Lillian Artz presented. It was noted that the Bill does not contain any clause dealing with medico-legal services which are of critical importance in the management of rape cases and their corroboration. Research by the SALRC had identified the need for a more professional, sensitive and accurate medico-legal service. The submission expressed concern at Cabinet's withdrawal of the clause dealing with "Provision of treatment" due to potential cost implications to the state. As the Bill now stands, there is no clause that deals with the medical management of sexual assault survivors. District Surgeons and doctors employed by the Department of Health for this purpose used to provide medico-legal forensic services to the Department of Justice. With the abolishment of the District Surgeon, this duty has fallen to any doctor employed in state health services. Internationally, it is recognised that the medical management of rape survivors falls under the ambit of emergency medical care. The Department of Health had recognised its obligation, duty and responsibility to provide adequate medico-legal services including emergency medical management to rape survivors. The Bill should contain a clause relating to the medical management of rape survivors, the availability of medico-legal expertise and services.
The Chair felt that these proposals should be put into legislation by the Department of Health.
Adv Masutha noted that because rape involves violence there is laceration of the vagina and this increases the risk of HIV infection. He asked if the chances of HIV virus transmission are less or non-existent where there is no form of laceration.
The response was that injuries in the vagina increase the risk of infection. There is always a risk of transmission when one is engaged in sexual intercourse.
The Chair noted that rape survivors are usually given anti-retrovirals to counter the risk of HIV infections. When should such treatment be given so as to stop the infection?
The presenter replied that the virus is transmitted in body fluids and that it replicates in the lymph nodes. The antretrovirals stop replication in the nodes. She stressed that the virus is not killed but only prevented from replicating.
Adv Masutha asked if the viral load a person has makes any difference with regard to transmission of the virus to other people. He also asked if the transmission of the virus is stopped once a person has been treated and the virus stopped from replicating.
The response was that people are treated and advised to practice safe sex. It had been noted that people with high and low viral load transmit the virus to others more readily than people in between.
In reply to the Chair asking if the relevant international conventions, to which South Africa is a signatory, impose a legal obligation to provide treatment, it was noted that ethically doctors are obliged to administer treatment where it is available.
Ms Vanessa Anthony said that Molo Songololo is concerned with the increasing trafficking of women and children. She noted that the laws have continually failed to address the issue of trafficking. She also highlighted the ignorance and incompetence of police officers in dealing with human trafficking.
The Chair interjected and said apart from creating specific offences what else did Molo Songololo wants the Committee to do.
Ms Anthony replied that there is a need for a special unit to deal with trafficking of women and children. Healing and care centres are also necessary. She recommended that trafficking should be included as a separate offence.
Adv Masutha said that it seems as if Molo Songolo is concerned with a multiplicity of violations some of which are provided for in current legislation. He also observed that the issue the presenter raised is one of implementation.
Ms Anthony replied that there are different laws that one might use and that there are a multiplicity of violations. Recently a young girl was stabbed in the vagina with a bottle and the culprit was charged in terms of the existing legislation. She was concerned that the culprit would not be sentenced in terms of the proposed legislation.
Ms Camerer asked if the presenter could provide any statistics indicating the extent of trafficking in women and children.
Ms Anthony indicated that there is currently not any local statistics nor a database reflecting the extent of the problem.
Mr Swart asked for the presenter's views on the issue of consent with respect to child prostitution.
Ms Anthony replied that age and consent are not issues since such children are taken without their consent.
Africa Christian Action
Ms J McGill said that sexual offences raise moral issues. She reminded the Committee that whatever legislation it decides on, would have moral implications.
She had problems with the similar treatment accorded to homosexual activities and heterosexual activities. Such activities need to be treated differently in the Bill. The vagina is better adapted for sexual intercourse than the anus and the psychological effects the activities have are different.
The Chair interjected and asked the presenter to be more concerned with legal issues in her submission.
Ms McGill said that law is religious. Many Christians would disagree with the SA Parliament, which says that the Constitution is the supreme lawgiver. It is important to note that one should not account to the Constitution but to God.
The Chair said that what the Bible says does not help that much given the fact that all laws would still have to pass the constitutionality test. He asked if the presenter meant to say that the Constitution should be ignored.
Ms McGill replied that the law is losing the point if it turns a blind eye to the practical realities of the world. The reason for public debates is that one wants to accommodate what the people say. She did not mean to say that the Constitution should be ignored. All that she meant to say was that homosexuality and heterosexuality should be treated differently. She could not comprehend how homosexuality could give rise to rape.
Ms McGill continued that another problem with the Bill is that it says that if a person does not disclose HIV status and infects the sex partner, the person could be charged with rape. People who choose a promiscuous lifestyle do so at their own risk. If the Committee wants to criminalize this, it should have another name for the crime. Calling it rape would blur the public understanding of rape.
Ms McGill also said that marriage should be a defence to a charge of rape. Each person in a marriage couple has an obligation to provide companionship and this includes sex. SA law does not recognise this and it is weakening marriage as an institution. She stressed that she was not condoning or promoting violence in marriages.
The Committee disagreed with the presenter. The Chair said that as a Christian the presenter would not want anyone forcing himself on anyone in the name of marriage.
Ms McGill said that from a biblical point of view she would differ with the Chairperson. Once people are married, they acquire a right to each other's bodies and such right should be strengthened. She said that there are difficulties with proving marital rape
The Chair said that it would be better to have the crime, although proving it might be difficult.
Ms McGill said that if one is concerned about moral regeneration and protecting women, adultery should be a crime.
In response to the Chair drawing attention to the Nigerian case of a woman who is to be stoned to death for having a child out of wedlock, the presenter said that she did not envisage a situation like that. Having a child out of wedlock is not a crime.
Ms Camerer reminded the presenter that women had fought to have rape in marriages recognised as a crime and such recognition was taken as victory. She asked if there is any support for her submission regarding marital rape.
Ms McGill replied that often steps which were originally seen as progressive, people have later realised were not as progressive as they had thought. She said that there would be no problem deleting marital rape from the Bill.
Adv Masutha noted that the law does protect the right to sexual intercourse. He observed that Ms McGill seems not to distinguish between normal sexual relationships and the use of sex as a form of violence. He asked if there is any rational and moral basis for justifying violence.
Ms McGill said that violence within marriage is as serious as violence out of marriage. Violence is not consented to by the act of marriage and that women and men should be protected from violence.
The Chair interjected and said that they only want to afford such protection in making a crime of marital rape.
The presenter replied that by getting married one implicitly consents to sex. If the marriage breaks down, then one should get out of it. She asked if they equate the rape of a stranger with the case of marital rape.
The Chair said that they are equivalent since they both lack consent. He indicated that he did not agree with Ms McGill's submission but that it would nonetheless be considered.
Protocol on the Tribunal and Agreement Amending the Protocol in the Southern African Development Community (SADC)
Mr E Allers (Department of Justice: Legal Drafter) noted that this is a Protocol to constitute a tribunal in terms of the provisions of Article 16 of the SADC Treaty. The object of the Agreement amending the Protocol is of a technical nature and that the Protocol has already been signed by SADC Head of State and Government in a summit held in August 2000 in Windhoek, Namibia. The State and International Law Advisers have indicated that no provision of this Protocol would be in conflict with the domestic law of South Africa and that of international law. Moreover, there would be no financial implication on South Africa since the tribunal would be funded from the regular budget of SADC.
The Chair asked what would this Tribunal do.
Mr Allers replied by referring the Committee to the provisions of Article 15, which states that the Tribunal would have jurisdiction over disputes between States and between natural or legal persons and States. The disputes would be those relating to the SADC Treaty as noted by Article 9 of the latter.
The Chair asked what types of disputes would this Tribunal adjudicate.
Mr Allers replied that these would be disputes surrounding, amongst others, international agreements, protocols and bilateral agreements between States. Thus whenever there is a dispute between SADC member states, the Tribunal would be able to definitively decide the issue.
Ms F Chohan-Khota (ANC) asked that since this Protocol not only relates to disputes between States but also to those of natural persons, why is it classified under S231 of the Constitution as an administrative treaty, since such does not need the approval of Parliament.
Mr Allers noted that initially they had intended to table it and have it accepted in terms of S231(3) of the Constitution as part of SA law. However after consulting the State Law Advisors and raised the concerns of the Committee, they decided to change it from. Therefore now there are two sets of documents involved, namely that of tabling it and that of requiring the Parliament to ratify it.
The Chair noted that the Committee would ignore the document in terms of S231(3) and thus pass the one in terms of S231(2) of the Constitution.
Mr J Jeffery (ANC) asked whether the Protocol has been properly tabled before Parliament.
Mr Allers replied that they did initially table it in terms of S231(3) but they had not done so in terms of S231(2) and thus he would rectify the error
The Chair noted that the Department would re-table the Protocol in accordance with the provisions of S231(2). Since the Committee did not have any problems with it, it would be passed next week after members have consulted their parties.
The meeting was adjourned.