Criminal Law (Sexual Offences) Amendment Bill: deliberations

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Justice and Correctional Services

26 January 2004
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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
27 January 2004
CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL: DELIBERATIONS

Chairperson: Adv J De Lange (ANC)

Documents handed out:
Summary of Submissions on Criminal Law (Sexual Offences) Amendment Bill
Criminal Law (Sexual Offences) Amendment Bill [B50-2003]

SUMMARY
With regard to the performing of sexual acts within the view of a child or a mentally impaired person, the Committee felt that such acts should be criminalised only if they are performed with the purpose of obtaining sexual gratification. This acknowledges the fact that many people live in one-bedroom houses and lack privacy. The Committee also suggested that the word ‘prostitution’ in the headings of Clauses 11 and 12 should be replaced by the words "sexual exploitation". Some members were not happy with Clause 14 which empowers the court to declare a witness in criminal proceedings wherein a sexual offence has been committed, to be a vulnerable witness in need of protection. It was felt that this clause may stigmatize such witnesses and that some of them may not even be in need of such protection. The Committee could not express a view on the desirability of Clause 18 and 20 until they have further information on the issues. It also asked the drafters to meet with the South African Police Service for their views on Clause 21.

MINUTES
Clause 7 Defence to indecent act or act which causes penetration with certain mentally impaired persons
The Chair wondered if there is a need for this clause. He could not understand the need for a defence of such a nature. He asked as to how a mentally impaired person could induce sex. He said that if a person falls into the definition of a mentally impaired person as defined in Clause 1, such a person could not be held accountable for his or her actions.

Ms D Clark (South Africa Law Reform Commission) said that there are people who are mentally impaired but still need protection as far as exercising their sexual rights is concerned. The Chair interjected and said that perhaps one should say that such a defence is available when one is dealing with a person who has been certified as mentally impaired.

Ms F Chohan-Kota (ANC) felt that sub-clause (a) should be deleted as it is contradictory. The Chair agreed and added a concern about the age specified in the clause.

The Chair said that IDASA is correct to submit that the clause leads to unfair discrimination in that an accused will be charged with rape where a mentally impaired person has induced an act which causes penetration, but if a complainant is above the age of 18 years the opposite is true. IDASA had also submitted that the legislator should provide a basis for the assumption that a mentally impaired person who is above the age of 18 years deserves to be treated differently from those below the age of 18 years.

Clause 8 Acts which cause penetration or indecent acts committed within the view of certain children or certain mentally impaired persons
The Chair acknowledged that many people live in poverty and do not have adequate accommodation. He agreed with the submissions made by the Transformative Human Rights Unit (THRU) and the CGE that most South Africans live in one-bedroom houses and their concern that these people might be contravening the clause. He asked for suggestions as to how to address this issue bearing in mind the conditions under which some people live. He requested the drafter to deal with children and mentally impaired persons separately. He also asked that indecent acts be split from acts which cause penetration.

Ms Clark suggested that the Committee should follow the British model where the word ‘towards’ is used instead of ‘within the view’ of children or mentally impaired persons.

Ms Chohan-Kota supported South Africa Young Sex Offenders Programme’s submission that one should be concerned with acts committed with the purpose of obtaining sexual gratification. The Committee supported.

Clause 10 Promotion of sexual offence with child
The Gender and Health Group submitted that people who are engaged in HIV prevention and sexual health promotion activities with children could be construed as contravening the provisions of the clause.

The Chair said that Clause 10(a) does not deal with preparing a child to have sex. He asked the drafter to explain what kind of article is contemplated in Clause 10 (b). He added that the crime is too narrow and that it should include sexual conditioning and grooming. He also asked the drafter to define a sexual act as meaning an indecent act or an act which causes penetration.

The drafter gave an example of sex toys which children could associate with sex.

Ms Chohan-Kota said that the facilitation of the manufacturing or distribution of articles that promote or are intended to promote sexual offences should be covered in the definition of the proscription. She also asked how far the Department of Home Affairs has gone in trying to ban web sites that display child pornography.

Mr S Swart (ACDP) indicated that the Films Publication Act is undergoing some changes so as to address the issue of child pornography.

Clause 11 Child prostitution
The Chair asked if there is no other law which deals with child prostitution. Ms Clark indicated that the Sexual Offences Act does deal with the issue but it is not as wide as this Bill.

The Chair said that he had no problem with NADEL Human Rights Research and Advocacy Project’s submission that there should be a legal obligation to report child prostitution. However, he wondered how effective this reporting duty would be. He added that such a duty should rest on someone who knows that a child is involved in prostitution.

The Chair suggested that human trafficking for the purposes of sexual exploitation should also be included in this Bill. He warned members against confusing prostitution in the strict sense of the word with situations where a person is kept in a place against the person's will in order to render the services of a prostitute. In this case, the element of consent is lacking and therefore the crime committed ceases to be that of prostitution. He was quick to add that he was open to correction in case he was wrong in his analysis.

The Chair agreed with Molo Songololo’s submission that sexual exploitation is not a child-specific offence, but also committed against adults. The title of the clause should change to sexual exploitation of child. The heading of Clause 12 should also be along the same lines.

The Chair dismissed THRU’s suggestion that Clause 11(1)(f) and 12(1)(f) impose strict liability upon owners of property within which alleged sexual exploitation takes place. He said that the word ‘intentionally’ in the clauses clearly indicates that intention is required for liability to attach.

Clause 13 Extension of common law incest
After reading Clauses 2, 3 and 4, the Chair said he could not understand how the acts described in the clauses could apply to the common law offence of incest. He asked the drafter to define incest.

Ms Clark defined incest as sexual intercourse between a man and a woman who are prohibited from marrying each other. The Chair asked if this means that a homosexual relationship between family members is legal. To this, the drafter replied that there might be a possibility of a charge of indecent assault.

Clause 14 Witness to be notified of protective measures
The Chair questioned the need for this clause especially if the National Prosecuting Authority (NPA) knows how to handle witnesses and discharges its duties accordingly. He failed to see how this clause helps victims. All it did was to stigmatize them as vulnerable witnesses. Some witnesses might not even want to be declared vulnerable witnesses. He noted that there is also no sanction for failure to declare a person a vulnerable witness.

The drafter replied that the majority of prosecutors are not implementing available measures to protect witnesses. She said that the clause is intended to acknowledge the fact that some witnesses need protective measures that are built into the procedural aspect of the justice system. In terms of the Criminal Procedure Act (CPA), measures to protect witnesses exist but witnesses are not entitled to them.

Clause 16 Evidence of previous consistent statements and delay in reporting
The Chair asked why this clause does not explicitly state what the rule of evidence is instead of being cast in the negative. He advised the drafter to formulate the clause like the Namibian section on this issue.

Mr Swart said that normally a complainant is asked why she did not make a statement to the same effect immediately after she was raped. He said that the rule is against self-corroboration and that perhaps the clause was drafted in the negative so as to meet such kind of a question.

Clause 18 Application of caution and requirement of corroboration
The Chair said that the drafter should make a resolution to the effect that the Committee is not sure if the cautionary rule as it relates to children should be retained. He added that it is not desirable to remove it in some places but leave it in others.

Ms Clark said that children face three hurdles: of being (a) a single witness; (b) a child and (c) a complainant; hence this clause has been added. The Chair pointed out that (a) applies to most cases irrespective of a person’s age.

Clause 19 Drug and alcohol treatment orders
Ms Clark motivated the need for this clause by saying that drugs and alcohol are seen as major contributors to sexual offences. In terms of s296 of the CPA a treatment order may not be made together with a sentence of unsuspended imprisonment and that this clause would allow this.

The Chair said that if the Department feels that there is a need to amend the CPA it should do so. He went on to say that the Committee does not see the need for this clause and that should it be shown to be necessary, it should be in the CPA.

Clause 20 Supervision of dangerous sexual offenders
The Chair said that this clause is suspended until the Committee is provided with the financial implications of such supervision. It was necessary to know the financial implications given the fact that too many sexual offenders are convicted every year. He also asked the drafter to show how a judge making an order would know that after a period of X years, a person would be ready for supervision. He also wondered if this clause would be constitutional.

Clause 21 National director of Public Prosecutions to decide whether police investigation be discontinued
The Chair said that the Constitution clearly states as to where the powers to investigate crimes rest. There might not be litigation around this issue since the South African Police Service (SAPS) and the NPA might have agreed on this clause. He wondered what would happen if the NPA directs that investigations should be discontinued and a police office says no. There was a need to know how the closing of dockets and the discontinuation of investigations would be handled.

Clause 22 Extra-territorial jurisdiction
The Chair said that this clause should not say that a person who commits an act which constitutes an offence in South Africa on foreign soil would be guilty of an offence. The clause should state that such a person may be prosecuted by a South African court unless he has already been prosecuted in that country. The purpose of the clause should be to extend the jurisdiction of the court under whose jurisdiction the offender is ordinarily resident.

Clause 23 Non-disclosure of conviction of sexual offence
The Chair indicated that he is strongly in favour of a paedophile register. He did not agree with the view that such a register would encourage vigilantism. He added that in case vigilantism arises, those found responsible would be dealt with in terms of the law.

Ms S Camerer said that the question of access to the register should be addressed in the Bill.

Ms Clark asked if any duty would be placed on employers to check the status of their prospective employees. The Chair did not have a problem with placing such a duty on employers. He said that employers may simply require that those who apply for jobs submit a clearance certificate from the register holder together with their applications.

Ms Chohan-Kota said that the Bill should provide for a general access to the register. She indicated by way of an example that the Department of Education may simply make it imperative for all schools to check the status of their prospective employees. In cases where the schools do not comply with the order, then the Department would face civil suits.

The meeting was adjourned.

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