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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
17 September 2003
CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL: PUBLIC HEARINGS
Criminal Law (Sexual Offences) Amendment Bill [B50-2003]
Criminal Law (Sexual Offences) Amendment Bill - prior to tabling
Sarah Baartman Legal Advice and Training Project submission
Sarah Baartman Legal Advice and Training Project PowerPoint Presentation
UWC Community Law Centre; UCT Criminology Institute: Defining Rape & Indecent Assault
Community Law Centre: Bail in Sexual Assault Cases: Victim's Experiences
Rape Crisis & Idasa joint submission
Rape Crisis counsellor's input
Women's Legal Centre submission
Commission on Gender Equality submission
UCT Gynaecology Department submission
National Directorate of Public Prosecutions; UCT Institute of Criminology submission
Western Cape Network on Violence Against Women submission
Transformative Human Rights Unit submission
Most presenters supported the principles embodied in the Bill, but objected to the criminalisation of sexual experiment between children between the age of twelve and sixteen as long as they are not coerced or persuaded in doing so. They all concurred that there should be a provision regarding medical and psychological treatment of sexual offence survivors. Most believed that this Bill is not the proper route to deal with the criminalisation of harmful HIV-related behaviour and that the clause relating to HIV should be deleted from the definition of rape. Many felt that the clause dealing with sexual activities in the view of children needed to be redrafted due to the confined living spaces prevalent in South Africa. There was support for the retention of Clause 21 which authorises the National Directorate of Public Prosecutions to decide when investigation should be discontinued. Many submitted that the Guiding Principles should be contained at the beginning of the Bill rather than in a Schedule to the Bill. Certain submissions highlighted the general trend in international law to move away from the concept of absence of consent and focus on the violation of sexual autonomy and coercive circumstances.
Ms Carol Bouwer (Executive Director) noted that, as an organisation that deals with children's abuse and neglect, this Bill is of great interest to them as it would ensure that children's rights are protected by law. She raised concerns on the removal of provisions for support persons and noted that children experience the court process very differently to adults, hence it is vital that they should be supported through the whole process. Taking into account the traumatic consequences of rape and sexual assault on children and their families, then a need to provide them with psycho-social and medical care becomes imperative (see document).
Mr T Maseka (UDM) noted that the trauma that is experienced by adults who are victims of sexual offence should also be looked at especially when they are in court where they sometimes have to wait in the same room with the perpetrator - intimidated and unsupported. He asked for comment on the perception that the support persons, when preparing children to appear in court, normally do so in a manner that could denote that they actually tell them what to say in court. He also asked for the difference between the role that is played by the court preparatory officers when preparing children for court and the one played by Rapcan in preparing sexual offence victims.
Ms Bouwer noted that the court supports that are trained and utilised by Rapcan having nothing to do with the evidence and thus do not prepare children to answer questions nor coach them around evidence. Their role is to prepare children to be able to face the court environment and its processes. Experience has taught them that someone who is adequately prepared for court gives far better evidence and is much better able to cope than those who are not prepared. Rapcan's role is to provide a friendly atmosphere around the children so as ensure that they are relaxed, and thus able to deliver much better evidence.
Mr S Swart (ACDP) asked what is Rapcan's views on the age of consent, especially the reduction of the age of consent for homosexual activity and experimentation in the twelve to sixteen year phase.
Ms Bouwer noted that the age of consent issue is very difficult. They would not like to interfere in the natural processes that the adolescent goes through in exploring their own sexuality. However, they feel one should acknowledge the children's sexuality but it should also take into account the issue of age-gap difference and the intellectual development of children. As an organisation, they would support the idea that the age difference should not be more than two years.
The Chair wanted to know what is the practice in other countries and whether they also criminalise the sexual experimentation between these children.
Ms Bouwer noted that she is not quite sure how other societies deal with this matter, although submissions from legal organisations should deal with the matter. However, she would try to find out the position on this for the Committee. As an organisation, they are more concerned with protecting the rights of potential victims - this includes their right to make their own choices, since an act to become sexually involved is an act of choice. But such should be done without being coerced or persuaded by someone who is intellectually more mature or older than the child. In deciding this matter, sexual orientation should not play any role and whatever the decision, it should equally apply - whether a child is a boy or a girl, homosexual or straight.
The Chair asked for comment on the provision of support persons [as was contained in the Bill prior to Cabinet approval] taking into account the issues of implementation, costing and the number of people to be employed. He noted that the Constitution is very clear on whose responsibility the issue of policy is and how that should be done. Based on that, he does not see legally and constitutionally, how one could bind the Executive through a legislative process without such not being thrown out by the Courts.
Ms Bouwer said that the issue of costs, implementation plan and number of support persons depends on the number of court rooms in the Sexual Offences Court since in each court room there should be a support person every day. However it does not end there, taking into account the fact that the experience that these children have faced is in itself traumatising, the need of support for the support persons also become imperative. Thus Rapcan, as an NGO provides support care for children who have experienced sexual trauma plus they also ensure that necessary support is provided to their court supporters. Thus to provide court preparation and support services for the five courts they are involved with, costs them up to R65 000 per month. With regard to policy, she noted that she is not a lawyer and thus would not be able to argue the issue of legislation versus policies. She noted that this country has a lot of policies that are very good on paper but are not being implemented. This is why they therefore call for a legislative framework which would actively protect and promote children's rights. When the legislation is in place one would be able to hold accountable all those who fail to implement its provisions and this is not the case with policies.
The Chair asked if someone had tried to work out the cost and implementation plan for the entire country.
Ms Bouwer did not know of anyone, although she imagines that there are things that are happening in this regard. However the important thing is that the whole court project has enabled them to work in a multi-disciplinary team way with the National Directorate Public Prosecution and other role players, something that was not there before.
The Chair said that this is an important lesson for everyone since it is of no use to suggest putting things that have cost implications into legislation, without having made a clear cost and implementation plan. If people do not come up with proper planning then their suggestions become useless and end up being taken away by the department since financial provision for them was not made. If people come up with tangible, costed suggestions with set priorities, there would be no problem in persuading the Budget Committee.
Ms Bouwer acknowledged the concerns of the Chair. However, they were tired of being told that there are no resources since they believe there are resources but the issue is all about prioritising. It is important that children are prioritised - at the moment that is not the case.
Ms Camerer commended Rapcan on its work in ensuring that children give evidence in sexual offences cases are thoroughly supported. She asked if they feel that post traumatic care should be given by law to all children who were victims of sexual offence. She requested them to have regard for the Constitution's provisions, especially on children's health, in answering this question. Also, taking into account the sex education programmes that have been done so far through programmes such as Love Life, would it then be wise for the legislature to take away the current age for statutory rape which is sixteen years.
Ms Bouwer noted that notwithstanding the fact that the right of access to health care is a constitutional right, she still felt that it should also be legislated in this Bill just like other constitutional rights that are included in other legislation. Although the issue of age of consent is a difficult one, Rapcan does not think that children should be prosecuted for engaging in sexual experimentation.
Mr Swart asked Ms Bouwer to clarify their real position on this age issue since in their submission to the South African Law Reform Commission, they were in supportive of the fact that a criminal offence should be created in this regard.
Ms Bouwer noted that there is a high level of rape and abuse in the country almost as if there is a coercive-sex ethos in our societies and it was in dealing with this ethos that they supported its criminalisation, with the provision that those young children would be diverted.
Mr Swart noted that since they cannot intervene in the preparation of evidence as a support group, are they not doing the same job as intermediaries?
Ms Bouwer said that there is a vast difference between their court supporters and the intermediaries. Intermediaries are not child supporters but their presence in court rooms is to serve as communication instrument between the child and the court.
The Chair asked Rapcan to comment on the definition of rape since its current formulation seems to be very congested.
Ms Bouwer noted that as an organisation, they are not in the position to argue the legal implication of this position. They hope that those who are legally enlightened would be able to answer the Chair's concern on this matter. However she noted that a debate regarding what is a real rape and what is not would not help since the important issue that the law should take into account is that a sexual assault is as traumatic, invasive experience as rape. This means that a person who has been sexually assaulted, but her vagina not been pierced, suffers the same trauma as the one whose vagina has been pierced.
The Chair thanked Ms Bouwer and her organisation for their participation.
Sarah Baartman Legal Advice and Training Project Submission
Ms Helene Combrinck (Co-ordinator) noted that their submission covered six aspects: the Bill's context, the rights of sexual assault victims, the standards for management of sexual assault cases, the national policy framework, bail in sexual assault cases and definition of rape and indecent assault. She noted that this Bill is technical and hence they felt that it is necessary that its context should be reconsidered. Sexual offences are different from other forms of violation and as a result they require differential treatment hence the belief that it would be justifiable to make protective measures mandatory in their case. Other proposals were that the different penetrative offences in the Bill should be consolidated into one offence, that the provisions relating to prima facie unlawfulness and a failure to disclose a life-threatening STI be deleted, that the provisions relating to Common Law defences should be deleted and that the Common Law definition of indecent assault be redefined (see document).
Mr Swart noted that the Committee, during its study tour visits, normally finds different departments in the criminal justice sector working in broad context without communicating with one another. He thus welcomed the recommendation in the submission that there should be "inclusion of an 'enabling' clause that requires the relevant government departments to develop and enforce binding, uniform standards". He asked for further explanation of the recommendation and how it would be developed.
Ms Combrinck agreed with Mr Swart that the fragmentation issue is a major difficulty, but noted that the SALRC Report outlines the inter-sectoral protocols issue very clearly. One way to ensure the inter-sectoral initiative works is by coming up with proper, clear plans. It is important for all departments to co-operate in the inter-sectoral initiative so that they could all take responsibility in its success, whether financially or in terms of resources. Therefore, it is necessary that the legislation contain the SALRC proposal for the inter-sectoral initiative, including allocations.
Ms Camerer asked for comment on why the provisions on STIs, such as HIV/AIDS, should be excluded. Would it not be proper in principle to have an overriding clause in the Criminal Procedure Act dealing with the rights of victims? The Chair also asked if they proposed that the provision on HIV/AIDS be completely deleted from the Bill or only in the definition clause and if they propose not to make this a statutory offence at all. He asked what is best international practice that deals effectively with the essential element of rape around consent and in the absence of such.
Ms Combrinck replied that they also agree with the proposals made by the SALRC Project Committee on HIV/AIDS, where it says that the criminalisation of harmful HIV-related behaviour is not the proper route to deal with the matter. Based on that, they felt it would be proper to delete the clause relating to HIV from the definition of rape. However if the Committee feels it is necessary to criminalise the intentional or reckless exposure to HIV then it should do so in separate legislation. This argument is compelled by the fact that what the Legislature would want to punish in such cases is not the sexual act, itself, but the intentional or reckless exposure, if it is done through sex or any other form of reckless exposure.
She said that the suggestion that all penetrative acts should be put into one offence is based on the Rules of International Criminal Court and is also in line with the practices of the International War Tribunals. Currently there is a general trend in international law to move away from the concept of absence of consent to work with that of coercive circumstances or other grounds that might constitute unlawfulness.
On the question of the victims' rights, she noted that perhaps it would be best to have such an over-arching clause that deals with the rights of all victims in the provision of the CPA or any other appropriate form of legislation. However the SALRC Report was reluctant to recommend such an overarching provision and instead recommended the inclusion of the limited number of rights in the Schedule. Therefore they do not necessarily disagree, in principle, with the inclusion of an overarching clause containing the rights of the victims. However, it should be recognised that the rights of the victims of sexual offences may be slightly different from those of other victims in the broader sense. This should not be construed as if new rights are proposed because they are contained in both the Constitution and the International Human Rights Law. So their argument is that these rights should be clarified so that the victims of sexual offences could clearly understand when their rights have been violated, without going to the Constitutional Court to interpret that for them.
The Chair raised concern about the proposed definition of rape and noted that it would give rise to problems, especially in bail cases - notwithstanding the fact that the country has one of the best specific bail law at the moment. The minimum sentencing provisions provide a good example of this since even after its introduction, people continued complaining about the courts' failure to fully apply these provision as some courts still hesitate to apply the minimum sentencing provisions. Therefore the proposed definition, as broad as it is, would not all solve the problem but on the contrary it would exasperate it.
Ms Combrinck noted that their dissatisfaction with the provisions of the bail legislation does not concern the grading of offences and therefore has nothing to do with if there is or is not a distinction between the different forms of rape. The problem surrounds the presiding officers' refusal to acknowledge the fact that the safety of the victims in rape cases is one of the permanent issues that they should take into account in determining to release the accused or not. Therefore their contention is that the safety of the victims should always be taken into account whenever the court considers what would be in the interest of justice. As with the issue of minimum sentences, their argument is simple and is that if there is a comprehensive penetrative offence then such offence should be taken up and be divided in the same manner as it is currently being done with regard to the offence of rape at the moment. The difficulty is also not with the grading of offences but with the manner in which the presiding officers interpret the notion of compelling and substantial circumstances.
Ms F Chohan-Khota (ANC) noted that she thought that they would have supported the provision on the presumption of prima facie unlawfulness taking into account the difficulty of placing evidence before court and since this provision seems to shift the burden from the victim. She asked her to expand on the reasons why this provision should be deleted.
Ms Combrinck replied that their argument around this presumption is a very technical one since they believe that what one has to establish - in order to get to that point of prima facie unlawfulness - exactly what the State would have to do to prove the elements of the offence. Because of the evidentiary onus there is no more of an onus on the accused than the one he would have had, since the State, in any case, in order to avoid a finding in terms of Section 174 of the CPA, is still required to establish a prima facie case against an accused.
The Chair thanked Ms Combrinck for her informative submission. He said that the Committee appreciated the enormous amount work that they have done while researching this matter. He said that it would greatly assist the Committee, and he also welcomed her invitation to assist in conducting the research in this regard.
Rape Crisis and IDASA joint submission
Ms Samantha Waterhouse (Rape Crisis Co-ordinator) noted that although the policies and guidelines regarding the treatment of rape survivors are in place, they are not being implemented and hence they support the inclusion of the treatment clause for all rape survivors. On the issue of psycho-social support, they proposed that this should be under the Department of Social Development. They fully concurred with the position laid down by Sarah Baartman Legal Advice and Training Project with regard to definitions and survivors' rights. She said that the tendency of the accused's rights taking precedence over those of the victim's undermines the trial and the criminal justice system. This then leads to survivors not trusting the court with the function of protecting their rights, since in most cases the perpetrators are let go. Also proposed was that the guidelines set out in the Schedule should be made part of the provisions of the Bill and its wording be changed to be mandatory (see document).
The Chair noted that the public should rest assure that the Committee would not allow fragmented legislation to be passed and therefore all the departments would have to tell the Committee how they intend to implement this Bill's provisions. What is important is that mechanisms should be created so as to hold the departments accountable. People should understand that courts are not the relevant institutions to deal with social issues and as such they should be considered as places of last instance.
Ms Waterhouse noted that there are mechanisms in place to assist the departments, such as police national instructions, prosecuting and health guidelines, but the problem is with regard to the huge lack of support that is given to the service providers and lack of incentive structures. She said that qualification criteria should be looked at as a matter of concern since some people within government are either unaware or reluctant to implement these national instructions.
The Chair noted that the President had said it time and again that all those civil servants would do not want to do their job would be kick out of the system and therefore people who are experiencing problems, should come forth and expose those civil servants. If people are able to pinpoint the shortfalls within the criminal justice systems then the Committee would mend them. He noted that the government has tried its best to get rid of all the principles that differentiate against women because they are women, such as cautionary rule which requires a woman's evidence to be taken with caution as it is believed that women have a tendency to lie about their sexual experiences. So after all that, he finds it very demeaning that there are still people who want a woman to be declared by the whole justice system as a vulnerable person just because she has been sexually assaulted.
Ms Waterhouse said that although she understands the Chair's concern, this proposal should not be taken as relating to the complainant's gender but rather to the specific nature of sexual offences. This is due to the trauma associated with sexual offences, the profound level of violation to a victim of such sexual offence and the humiliation going with the process. All these things then make it difficult for one to express oneself in a Court and hence the need for a particular kind of protection is required. Therefore what the law decides to call those people is of no importance so long as they are afforded some form of protection when testifying before the Court. This is all about the mechanisms of ensuring that people can testify freely and not about the declaration.
Ms Camerer asked them to expand on their position regarding the provisions of Clause 2(4)(c). She also asked if they have done any costing on the issue of medical treatment for sexual assault victims and what would be their view on the government's obligation to give such treatment to children as against adults.
Ms Waterhouse replied that they agree with the Sarah Baartman Legal Advice and Training Project on the decriminalisation of harmful HIV behaviour, since they also do not see such as amounting to rape. On second question, as an organisation they understand the rationale of prioritising children before adults. Although they support such a provision in principle based on issues of availability of resources, that should not be seen as the end of service delivery.
Mr Swart asked for a comment on the SALRC Report statement on sexual experimentation: "a number of workshop participants expressed the view that sex experimentation is not what it used to be, it goes much further than in the past. It is highly likely that in view of STIs, penetrative sex would be a death sentence and thus participants proposed that the age of consent be raised to eighteen years".
Ms Waterhouse said that they do not believe that the criminalisation of consensual experimental behaviour between children would be a reasonable and effective solution to the problem and therefore their argument on this matter is in line with that of Rapcan. However, provisions that would ensure that any abuse of power is dealt with, especially in relation to age differences, should be inserted in the Bill.
Women's Legal Centre Submission
Ms Nikkie Naylor referred to a number of international instruments, such as the International Criminal Tribunal for Rwanda and former Yugoslavia and said that WLC endorses an approach that focuses on the violation of sexual autonomy and coercive circumstances and not on absence of consent. WLC therefore supports the definition of rape proposed by the UWC Community Law Centre and UCT Institute for Criminology. She proposed that the offence of rape should be narrowly defined so as to protected vulnerable groups, like women. The submission also commented on harmful HIV-related behaviours and evidentiary rule.
Ms Hayley Galgut proposed that instead of referring to the witnesses mentioned in Clauses 14 and 15 as vulnerable witnesses, the Committee should consider using the term witnesses who require appropriate additional protective measure as a neutral term. If a Court is in any doubt about the person's need for further protective measures, then it must be required to call knowledgeable persons, who need not be experts. (See document for details on the many points raised by the submission).
The Chair noted the proposals on Clause 2(3) and asked how a vaguely formulated definition of rape would assist in understanding what rape really means or should we wait for the Courts to decide this based on precedents and cases before we could really know.
Ms Naylor noted that their submission deals with the problems experienced by international communities in their quest to define what would give rise to coercive circumstances and how it should be contextualised within the entire crime of rape. In determining that, one should look at if there was an invasion of on one's sexual autonomy and dignity. She acknowledged that, based on what has happened in international tribunals, this is obviously something that would have to be developed by Courts. However, she disagreed with the Chair's contention that this concept is vaguely defined and said that in order to fully understand it one has to read it in its entirety with the definition of rape.
The Chair reiterated his contention noting that one would never really know what rape actually means in terms of this definition until the Court decided in a particular case and this therefore means that it might take sometime for a definition of rape to be developed.
Ms Naylor asked the Committee to allow them to make a further submission in this regard. They contest that the definition of rape and what coercive circumstances would be, should be interpreted in the context of each case - thus taking into account what is aimed to be protected and the international and constitutional framework.
The Chair noted that if the Committee were to pass this proposed clause it would have to be much more specific. He asked what led them to conclude that the provisions of Clause 2(4)(c) would not be implementable.
Ms Naylor responded that South Africa is not an ideal society where people are tested for their HIV status every six and are being given access to anti-retrovirals. There is a problem when it comes to testing since the majority of people are only tested when they enter the public health system. Those who are found to be HIV positive are treated in an inhuman manner by subjecting them to stigma and discrimination. Since it is women who normally know their status, as they are tested at antenatal clinics, then this provision is not only going to subject them to stigma and discrimination but also to criminal prosecution. However, their proposal should not be interpreted that they advocate that people who intentionally infect others should not be prosecuted.
The Chair noted that the real issue here is about someone exposing another to the harmful HIV pandemic. Therefore this would be the case where someone knowing that he/she has HIV/AIDS does not divulge such to a person that he/she is sexually involved with. What he does not understand about their argument is that they seems to be supportive of any form of pretence or fraud that would get one to have sex with another, so long as it is not a rape.
Ms Camerer asked for their views on medical care for child rape victims as against a provision for all victims at the State's expense.
Ms Naylor noted that they believe that medical care should be provided for all victims of sexual offence. However they have not applied their minds on the issue of progressive realisation of the right and as soon as they had they would make a submission on this.
The Chair asked if are they happy with the provisions of Clause 9 which stipulate that any form of penetration between children who are between the age of twelve and sixteen is an offence. Therefore what should be the age of consent and when should it be criminalized? Before they could respond, Mr Swart asked them to also clarify the issue of "age difference", if it should be one, two, three years or what?
Ms O'Sullivan (Women's Legal Centre) noted that the Consortium on Violence Against Women had not sat down and applied their minds to the issue of statutory rape and if there should be a defence on it. However they would accept the SALRC Report on the matter and thus support that such should be recognised by society and not be criminalised.
The Chair noted that further research on this matter need to be undertaken since it would not be proper to create an absolute defence for prospective offenders.
Dr Johanna Kehler (Director: Human Rights Research and Advocacy Project) submitted that rape should not be equated with intentional non-disclosure, since rape relates to a non-consensual act while the latter relates to a consensual act. However they do not propose that non-disclosure should not be criminalised but rather that it should be made a separate offence and not be included in the definition of rape. They supported the inclusion of Clause 15, which relates to vulnerable witnesses, as it provides access to protective measures - although the issue of terminology can be further discussed. They commended the amendment of Section 227 of the CPA and recommended that the prior sexual histroy of the complainiant in sexual offences case be inadmissible under all circumstances. (See document for comments on child prostitution, application of caution and requirement for corroboration, drug and alcohol treatment orders and the guiding principles).
The Chair understood the reason for children and complainants being allowed to give evidence in close circuit, but why would they want such to be extended to other people.
Dr Kehler responded that this would be the case in gang rape since the absence of such might deter witnesses from coming forward and giving evidence due to fear of intimidation.
The Chair noted that he acknowledges the need for protective measures for witnesses giving evidence in gang rapes or those involving organised crime. However he did not believe that this should be the case in all cases of rape just because someone happens to fall with the elements noted in Clause 15(2).
Ms Camerer asked if they think that the crime of trafficking has been adequately dealt with in this Bill.
Dr Kehler responded that the present legislation only deals with specific aspects of trafficking and thus does not deal with the trafficking issue in its entirety. Based on that, they would support any proposal for a separate trafficking provision, which would be able to deal with the trafficking of both women and children.
The Chair asked what is their views on the treatment of rape victims.
Dr Kehler responded that they also support the inclusion of a provision, which would ensure that treatment is provided to all victims of sexual offence.
UCT Department of Gynaecology
This submission focused the health risks women are subjected to sexual offence cases. Women face serious risk of severe injuries, pregnancy and HIV transmission. Prof L Denny indicated that research shows that teenagers are the most common rape survivors and are more likely to be physically injured. So far there is not any data on perpetrators. Most women who are raped do not use contraceptives and hence they have to be treated to prevent pregnancy and HIV transmission. Vaginal penetration is most common in rapes. Women are often abducted to the places where they are raped and guns and knives are commonly used in the abduction process. She lamented the fact that there is no co-ordination between the police, Department of Justice and the Health Department regarding issues of rape. She also pointed out that health care professionals are inadequately trained. Thus a comprehensive management of rape is necessary.
The Chair asked why there is not a simple manual stating what has to be done when a person has been raped. This is important given the fact that there is information as to what has to be done but the information is not readily available.
Prof Denny agreed that the information is available and that it should be easy to compile the manual. The unavailability of the manual indicates the way society views rape. There are policy guidelines but they are always broken. She alluded to the fact that a rape survivor might go to police station A to report a rape and then be told to report it at another station.
Mr S Swart (ACDP) asked what is the average time taken before the rape incident is reported.
Prof Denny said that her knowledge is based on a study conducted at two Western Cape hospitals and she therefore did not know what percentage of the population it represents. It takes 12 to 24 hours on average before a rape survivor reaches a health facility. In rural areas the period is much longer. Ideally it should take less than an hour before a rape survivor is treated.
The Chair said that it would be better if the Committee could have information on particular issues that the Committee should concentrate on when legislating for abduction, gang rape and use of weapons during rapes.
National Directorate of Public Prosecutions and Institute of Criminology
Ms Lillian Artz (Institute of Criminology and speaking also on behalf of Adv B Pithey, Sexual Offences and Community Affairs Unit, National Directorate of Public Prosecutions ) focused on Clause 21 of the Bill which they fully supported. Some of the reasons why they want the clause in the Bill is that research has shown that a large number of cases are withdrawn at pre-trial stages and that a small percentage of cases are fully investigated. In terms of SAP instruction SO (G) 325, no docket might be closed by a police officer. She said that it is important to look at some of the prosecutor-guided investigations in some modern jurisdictions. The National Prosecuting Authority (NPA) and the police are already working on the basis of this model of investigation and are yielding better results.
The Chair said that the most important consideration is the Constitution which vests investigation powers with the police and the limitation clause does not even apply here. He said that one would retain Clause 21 if there is a legal and constitutional basis for allowing the prosecution to decide when investigations should be closed. He went on to say that instructions or guiding principles have to be formulated indicating when investigations might be closed.
Adv B Pithey (NDPP) asked the Chair to indicate the section in terms of which Clause 21 would be unconstitutional.
The Chair replied that the Constitution reserves investigative powers to the police and not the NPA. He was surprised that the police are not raising any objections to the clause. Perhaps the police need to agree that they are prepared to stop leading the investigation under certain circumstances and conditions.
Adv Pithey stressed the need for prosecutor-guided investigations. She pointed out that where the police work with the prosecution, arrests rates are very high and the quality of evidence has improved.
Adv Pithey expressed concern at the victimisation of witnesses in rape cases. She indicated that victim support systems are at present largely dependent on NGOs. There was a need for government to assist.
The Chair agreed that it is important to have victim support systems. He said that these also raise problems of their own. For instance, one who would have to decide who transports the support staff and who would be liable in cases where they get injured. It would also be important that such people are present in court all the time and if they are not, then delays might follow. He also raised questions regarding the authority to which they would account and their payment. It would be easy to pass the Bill including some of the suggestions the Committee had received so far. However, the main problem would be of implementation. He indicated that the Committee had passed many Acts that are not yet fully implemented.
Ms Artz said that perhaps the Committee should postpone the passing of the Bill until such time it is clear that the Bill would be easy to implement.
The Chairperson indicated that it is important that the Bill is finalised this year given the fact that there would be elections early next year. The elections are likely to disturb the processes of the Committee given the fact that no one knows how the membership of the Committee would be after the elections.
Adv Pithey maintained that a support section is important given the fact that judicial officers have always misinterpreted Section 154 of the CPA and cleared courts of all people including those supporting the witness.
The Chair said that perhaps one needs to amend the CPA.
Commission on Gender Equality (CGE)
Ms S Williams said that communities are calling on government to do something about the rapidly increasing violence against women and children. The provisions of the Bill should be analysed in terms of its implications for women. She said that certain positive measures should be adopted to promote and advance gender equality.
The CGE is opposed to the repealing of the irrebutable presumption that a female person under the age of 12 years is incapable of consenting to sexual intercourse. The Commission welcomed and supported the abolition of the cautionary rule, and the corroboration of a single witness in sexual offences. The Commission also supports the extension of the court's jurisdiction to cover acts committed in foreign countries even though the country in which the act was committed does not regard it as an offence.
Ms Williams expressed concern with Clause 2(4)(c ) in that the primary victims of sexual offences are women. The patterns of HIV testing are skewed in terms of gender and sex because women are more likely to be tested for HIV/AIDS when they are pregnant in order to avoid mother-to-child transmission.
She had problems with Clause 8 which criminalises acts that cause penetration or indecent acts committed within the view of certain children. The clause fails to take into account the reality that this provision will punish those people who were forcefully removed from their land and placed in informal and low cost houses. Most South Africans live in one-bedroom houses. The Commission understands the importance of protecting children from being sexually conditioned at an early age. However, the clause as drafted is problematic and might have unintended consequences.
She said that the definition of incest should be extended to cover children in foster care.
The Chair said that it does not matter where the crime is committed. He cautioned against extending the definition to situations that are out of the scope of incest, as the public knows it. He suggested that perhaps one needs a crime relating to abuse of power or authority to get sexual favours.
Ms Williams said that CGE supports the clause on non-disclosure of conviction for sexual offences and said that the CGE believes that this would be more effective than a sexual offenders register. A register would be costly to maintain and might not be easily accessible.
The Chair indicated that there is a huge support for a register. He went on to say that more measures are needed to protect children.
Ms Williams said that CGE is concerned that sentences are set at a maximum. She recommended that there should be categories of punishments linked to Act dealing with minimum sentencing. She also referred to the calculation of fines in reference to child prostitution which is a serious offence and financially lucrative. In sentencing an offender the court should assess the monetary gain or its equivalent advantage that the convicted person has received.
The Chair said that he is also not happy with the way sentencing is dealt with in the Bill. He wondered why the SALC did not link sentencing to the Minimum Sentences Act.
Ms S Camerer (DA) asked if the presenter thought government has an obligation to treat rape survivors and HIV/AIDS sufferers. If she thinks that government is obliged to provide treatment, should one speak of the progressive realisation of the right to health care? She also asked the age gap that should be allowed in cases of sexual experimentation.
Ms Williams replied that she fully supports government providing care to victims and their families though this Bill is perhaps not the right forum to deal with treatment of victims. The Department of Health is responsible for treating victims and already has policies for this. She indicated that if there are no resources there might be problems. She went on to say that one has to be strategic in dealing with this issue. With regard to sexual experimentation, she said that the CGE has no recommendation but believes that a 3-year gap is too big.
Western Cape Network on Violence against Women
Ms C Ayogu said that they believe that the guiding principles (Schedule 1) should be incorporated into the beginning of the Bill. Guiding principles are particularly important because of the treatment of sexual assault survivors. The law should strongly encourage and promote the dignity and respect that victims deserve. Having the principles at the back of the legislation, implies that they are an afterthought, not a matter that should be considered first when dealing with rape cases. These principles are what will guide the implementers of the legislation through the process and should always be forefront in their minds.
Ms Ayogu recommended that a treatment clause should be inserted in the Bill. Ms H Jassen indicated that in some instances rape survivors are given improper treatment in hospitals. She stressed the need to have proper treatment so as not to compromise the health of rape survivors. Ms D Tyawana expressed concern with rape survivors who are of school-going age. She indicated that most of them are traumatised and their families have no resources to take care of them. She recommended that a clause should be inserted to deal with this issue.
The Chair said that the issue of treatment is problematic in that it is the Department of Health that is supposed to deal with it.
Ms Ayogu felt that it would be better to legislate for it in the Sexual Offences Bill.
Ms Camerer said that it is important to do what the people on the ground want. The Chair indicated it does not really matter in which legislation the clause is found as it would still be ignored even if put in this Bill. If the Department of Health indicates that it has the infrastructure to implement it, he would have no problems including it.
Transformative Human Rights Unit (THRU) and the Southern African Media and Gender Institute (SAMGI)
Ms H Fernand (Director: THRU) indicated that THRU has no problems with the classification offences. She said that she concurred with the Chair's opinion that the proposed Bill would not necessarily have prevented a similar decision being reached to that of the recent Cape High Court case where an Acting Judge ruled that two 13 year olds had consented to have sex with a paedophile, so he was not guilty of Rape, merely Statutory Rape. Therefore, THRU had proposed an additional sub-clause to the definition of rape to take account of abuses of power and authority over vulnerable people such as children and women undergoing gynaecological examination.
THRU/SAMGI completely opposed the decision by Cabinet to remove the original Clause 21 from the Bill because of budgeting implications which THRU termed "spurious". The Committee was reminded that Government had made a policy decision last April to commit to a post-exposure prophylaxis [PEP] programme for rape survivors. The Committee was called upon to reinsert the clause within the Bill.
The Chair asked her to comment on the definition of rape where it stated that consent could be vitiated if any harm was perceived to be likely on the part of the victim to him or herself or any other person. The Chair reiterated his concerns that this meant he would be passing a Bill which did not really make it clear what actions were prohibited - for example could a woman claim she had been raped if her "rapist" had not given her the job offer he had promised?
Ms Fernand said she felt the Chair's criticism ignored the fact that we live in a common law country where the courts interpret formulations of words in particular ways. She felt a wider definition was preferable because the courts would narrow it in any event.
The Chair rejected this saying that the crime was not defined at all in the Bill.
She undertook to reconsider the sub-clause and revert to him with a suggestion to tighten it.
Ms Fernand said that Clause 8 had been drafted from within a particularly "middle-class" paradigm. She agreed with the submission of the Commission for Gender Equality that many families live in crowded homes and consequently ensuring that all sexual activity occurs in a private room would be impossible to achieve. She stressed that the aim of the Bill must be to punish sexual abuse and not sexual awareness as it was within sexual naivety that child abuse flourished. Therefore, THRU proposed a sub-clause to the clause dealing with exposing children to sexual acts that bona fide sexual education was excluded from the terms of the Act.
THRU/SAMGI supported the provisions of Clause 19, however, if the Chair was concerned with it breaching the Separation of Powers doctrine then she suggested that an additional sub-clause be added to state that SAPS had to investigate fully all complaints of rape and sexual assault and had to pass all dockets to the Prosecution regardless of the police officers opinion on the merits of the case. This would also allow for a strengthening of the monitoring of SAPS procedures and attitudes towards crimes of this nature.
THRU/SAMGI welcomed the proposal to require sexual offenders to declare convictions under the Act to any potential employer if the position would require them to supervise children. However, they also thought that an additional requirement could be placed on the employer to request such information as this could open the possibility of a victim of such an employee having a civil claim against the employer who should have public liability insurance.
Ms F Chohan-Kota (ANC) asked the presenter is she opposed to the lowering of age of consent since this would criminalise sexual experimentation.
Ms Fernand replied that sexual experimentation should be allowed because the ramifications of conviction would be severe for children. She said that sexual activities between children and older persons should be criminalised.
Ms Camerer asked if THRU had undertaken any research on the cost of PEP Treatment?
Ms Fernand said that it was her understanding the Treatment cost around R200 which did not seem an inordinate amount given the cost to the country of treating a woman who had contracted HIV/AIDS.
Ms Fernand asked if she could make an additional point with regard to the Treatment clause? The Chair allowed her. She said that it was clear the Chair's reluctance was not to the inclusion of the clause but to whether the system could cope with it now. Therefore,she proposed that an additional sub-clause be added which stated that the terms of this clause would come into effect 18 months to two years after the Act came into force. This would allow for the Department of Health to fully roll out the programme and adjust their budgets, etc. And in the interim, the status quo would remain where the Government's stated policy was that women would receive PEP Treatment if they had been subjected to rape. She said that this policy statement did, of course, create a justiciable right on judicial review in any event.
The Chair adjourned the meeting.