Criminal Law (Sexual Offences) Amendment Bill: deliberations

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
11 February 2004
CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL: DELIBERATIONS

Chairperson: Adv JH De Lange (ANC)

Documents handed out:
Criminal Law (Sexual Offences) Amendment Bill [B50-2003]
Working Document: Criminal Law (Sexual Offences) Amendment Bill
Working Document: Criminal Law (Sexual Offences) Amendment Bill (Word document)

SUMMARY
The Committee went through the first working draft of the Bill which reflects all the amendments requested by the Committee in its deliberations up to this point.

The Committee decided that those who are already in prison for similar offences should go into the Register of those found guilty of committing a sexual offence against a child. There should be a mechanism to register all people who have already been found guilty. It was deemed that one is not creating a retrospective crime but merely a mechanism to register people who are guilty of certain crimes.

The issue of the treatment clause would not be in the Bill pending an indication by the Department of Health if they have done the necessary cost evaluation.

MINUTES
The Committee received a working draft of the Bill which reflected all the amendments that the Committee had requested in previous deliberations. The Chair explained that the purpose of the meeting was for the drafters to show the Committee that they have included all the amendments the Committee has asked for without going into the details of the amendments. He pointed out that the treatment clause was not in this Working Draft of the Bill. The issue of the treatment clause would not appear in the Bill pending an indication by the Department of Health if they have done the necessary cost evaluation.

Index of the Bill
Mr H du Preez (Departmental drafter) noted that the Index has been divided into different parts

The Chair asked why the Bill is divided into 'Parts' and not 'Chapters'.

Mr du Preez replied that there was no specific reason for dividing the Bill into parts.

The Chair preferred the use of 'Chapters' so that if within a chapter there are sub-chapters then they could be called parts. There were some items in the Bill that he would like to be called Chapters. He gave the parts in sexual penetration and sexual violation as some of the things he would like to remain as Parts.

Clause 1 Definitions
The drafter said that the new definitions have been added in the Bill and are underlined. These include the definitions of "sexual penetration" and "mentally disabled person"

Mr du Preez noted that the Bill used to refer to a mentally impaired person as opposed to a mentally disabled person. He said that he had had discussions with the Disabled People of South Africa about this definition.

The Chair asked if the drafter had provided the definition to the Disabled People of South Africa for them to look into or had just spoken to them about the correct terminology to use.

The drafter replied that he had merely asked about the correct terminology to use.

Regarding the definition of "sexual penetration" the drafter said that the part which says "penetration to any extent whatsoever" is very important. The definition is based on the original definition by the SA Law Reform Commission in its Discussion Paper. Subsequent to submissions received on the definition, the indication was that it is not necessary to use the words "in a manner which simulates sexual intercourse."

The Chair felt that some work still has to be done on the definition.

Mr du Preez said that the definition of "trafficking" has been added so as to comply with the prescripts of the UN Protocol to Prevent Trafficking in Persons.

Clause 2 Objects
The drafter explained that this Objects clause was a refinement of what used to be Schedule One and added that the Committee should see if it is clearly formulated.

Part 2
Offences
Clause 3 Rape
The drafter said that the current Clause 2 which deals with rape has been deleted. A new Clause 3 which deals with rape has been added.

Advocate de Lange said that Clause 3(f)(iii) and (iv) should be merged.

Clause 4 Compelled rape
The drafter said that they had not yet finalized research on compelled rape. He indicated that this a difficult issue to deal with.

The Chair said that Clause 4(1) should say "person ("B"), with or without consent". He said that the clause should also regulate situations where the compelled person does not consent to commit a sexual act. He went on to say that a second offence should be created to cater for cases where the third person ("C") consents to the act.

The drafter said that the current Clauses 3 up to 5 have been deleted.

Clause 5 Criminal exposure to HIV
The drafter said that the clause has two options.

After reading them the Chair said that they are not as clear as they should be. He appreciated the fact that they have been included and said that the Committee would consider which one is better.

Clause 7 Sexual Assault
The Chair said that the clause should be redrafted as it contains the unnecessary duplication of reference to threats or inspiration of fear.

Clause 9 Exposure or display of pornography
The drafter said that this clause has an option which is primarily concerned with the exposure or display of a sexual act to a person over the age of 18.

The Chair said that the clause should specify that the purpose of the exposure is to obtain sexual gratification of that person or a third person.

Ms D Clark (South Africa Law Reform Commission) said that the main clause deals with both adults and children and that one could break it down to deal with them separately.

Clause 11 Incest
Mr du Preez said that this clause attempts to repeal the common law offence of incest. He said that there is also an option to subclause (2). The option was necessitated by the need to refer to the prohibited degrees of consanguinity, affinity and adoptive relationship when creating the offence. He said that the option was included in order to show that there is another way of defining prohibited degrees.

Clause 12 Bestiality
The Chair asked if other countries also refer to the offence of bestiality. Members agreed that another word should be found for this offence.

Clause 13 (Sexual) Violation of a corpse
The common law offence of violation of a corpse does not only relate to sexual violation. The drafter said that if one wants to include this offence in the Bill, then care should be taken not to repeal the crime of violation of a corpse entirely.

Part 3
Offences against Children
The Chair said that the issue of statutory rape should be addressed first in this part.

Clause 14 Engaging in an act of sexual penetration in the presence of a child
The Chair said that in drafting this clause one should bear in mind the living conditions of most poor people.

Clause 18 Acts of sexual penetration with children younger than 18
The Chair said that in earlier discussions it was agreed that if the gap between the two children is two or three years this could be raised as a defence. He said he was worried about instances where a parent wants to open a case against a child who performed a sexual act with his or her child. He said that if one is dealing with consensual sex between children then both of them should be prosecuted.

Clause 19 Grooming of a child to commit a sexual offence
The drafter said that the clause has been extended to cover the suppliers of articles that promote or are intended to promote a sexual offence with a child. He added that this clause also covers people who facilitate the manufacture of those articles.

The Chair said that grooming deals with making a person compliant to becoming a sex slave. He felt that the clause was drafted too narrowly and that this would make it difficult to secure convictions on this offence.

Ms Clark said that subclause (d) addresses internet cases.

Clause 20 Sexual exploitation of a child
Mr du Preez said that this clause deals with something different from child trafficking.

The Chair asked how one creates a duty under the clause whilst the term "sexual exploitation" is not defined in the Bill. Without the definition it would be difficult to know the kind of things that one has to report on

Ms Clark said that the definition is provided in Footnote 47.

The Chair said that the definition includes much of what is in the offence itself. Also if one knows that something as specified in Clause 20(1) is happening, then a duty arises to report such activities.

Clause 26 Trafficking of a child for sexual exploitation or pornography
The Chair said that there is no need to specify the purpose in the clause since it has already been mentioned in the definition.

Ms Clark that the clause is important given the UN Convention regarding trafficking of children. The Convention stipulates what countries have to do in order to be in compliance with it. She noted that the consent of the child is irrelevant. The Convention also requires one to address issues relating to people who organise or direct the trafficking of children.

The Chair said that the clause should list all possible instances that would operate to indicate the absence of consent. Conspiracies and attempts should also be included in this clause and elsewhere in the Bill.

The drafter said that a commercial carrier commits an offence if it brings an adult into a receiving country and the adult is found not to have the required travel documents.

The Chair said that one should not single out commercial carriers only. He said that anyone who is involved should be guilty of an offence. He went on to say that the carrier should also be seized.

Ms B Pithey (Public Prosecution - Western Cape) asked if the whole fleet of the commercial carrier concerned should be seized or only the one that was involved.

The Chair said that the problem in seizing the whole fleet would arise when one is dealing with a foreigner. He said that problem of jurisdiction might arise.

Clause 31 Persons whose names must be included in Register
The Chair said that everyone found guilty of committing a sexual offence against a child should be put in the register. There is no need for a court to make a finding as to whether such a person's name should be included or not. Those who are already in prison for a similar offence should also go into the register. There should also be a mechanism to register all people who have already been found guilty. He said that one is not creating a retrospective crime but just a mechanism to register people who are guilty of certain crimes. He did not see how such a clause could be challenged as being unlawful or unconstitutional.

Ms F Chohan-Kota said that access to the information contained in the Register might raise problem since one would be looking for information regarding a third party. She said that if one says to the holder of the register that one wants information on a particular person, a question might be asked as to whether the third person has agreed to having this information divulged.

The Chair said that what is need is a certificate that one has never been convicted of the specified offence and not a record on the person concerned. He said that employers are likely to require that job applicants should submit the certificate together with their applications.

Clause 32 Removal of name/particulars from Register
The Chair said that he is opposed to this clause.

Ms Clark suggested that the record of a child offender should be removed after sometime.

The Chair said that one should bear in mind the possibility of diversion. If the child is diverted, then he would not have a record. He said that he was not sympathetic to removing records of child offenders but he did not rule out the possibility of revisiting the matter.

Clause 33 Prohibition on employment of certain persons who have been convicted of sexual offences against children and criminal sanction
The Chair said that this clause should be drafted like the list in the Child Care Act.

XX Evidence of previous consistent statements
XX Evidence of delay in reporting
The Chair said that the cautionary rule, if it is not abolished, should apply to all kinds of offences and not only to sexual offences.

The Chair asked if Clauses 19 and 20 have been deleted.

Mr du Preez said that the clauses are suspended until the Department motivates the need for them.

The Chair asked the presenter to put these two clauses in brackets to indicate that they are suspended.

Clause 39 Extra-territorial jurisdiction
The Chair observed that the clause does not say what has to be done if the complainant is a South African citizen or ordinarily resident in the Republic. The drafter should look at creating an offence in cases where the complainant is a South African citizen or ordinarily resident in the Republic. It is irrelevant whether the act complained about constitutes an offence in the country where it was committed.

Adv Masutha said that the clause raises problems in that the accused might not have knowledge of the norms and values of the Republic of South Africa. It would be unfair to arrest such a person, upon entry into the territory of the Republic, for something that he did not know constituted a crime.

The Chair said one is concerned with offences that are well know all over the world. Hence the problem raised by Adv Masutha would not arise. Also the Prosecuting Authority has a discretion as to whether or not to prosecute.

The Chair asked why the clause also applies to companies since companies cannot, for instance, rape.

The drafter replied that the clause is relevant with regard to trafficking in that companies might be involved.

The meeting was adjourned.