Criminal Law (Sexual Offences) Amendment Bill: briefing by Department

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
20 JUNE 2006
CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL [B50- 2003]

Chairperson: Ms F Chohan-Kota (ANC)

Documents handed out:
Criminal Law (Sexual Offences) Amendment Bill [B50- 2003] (as introduced in the Portfolio Committee on 19 June 2006)
Criminal Law (Sexual Offences) Amendment Bill [B50- 2003] (as introduced in 2003)
Briefing by Department on Criminal Law (Sexual Offences) Bill

SUMMARY
The Committee continued with the briefing on the redrafted Bill and was at times referred to the Bill that was originally tabled in Parliament in 2003. The Committee agreed to call its former Chairperson, Deputy Minister J de Lange to come and refresh its mind on some of the issues that the Committee had already discussed before the previous general elections (2004). It dealt with clause 1 up to clause 13 of the Bill. The definition of rape had been changed because it had shortcomings in that it was gender specific. Only a male person could rape and it excluded oral penetration. An irrebutable presumption existed in respect of girls under 12 whilst it did not exist in respect of boys.

It would be interesting to see how the common law defence of duress was applied in The State v Stagie case. In this case A was forced to rape B. One did not want to have a broad defence that would incorporate every situation where there was an instigator.

The common law crime of incest would be extended to cover all instances of sexual penetration and violation as opposed to the common law approach that was concerned with sexual intercourse between men and women. The common law of offence of violating a corpse would be repealed in so far as it related to the commission of a sexual act with a corpse. Some of the definitions contained in the Bill should be revisited. This included the definitions of incest and pornography.

MINUTES
The Chairperson said that the Committee had only dealt with the index of the Bill in its previous meeting. She invited the drafting team to proceed with the briefing. The Department was represented by Mr L Basset, Mr H du Preez and Ms D Clark (SALRC). Mr du Preez conducted the briefing.

Ms S Camerer (DA) said that there was a Bill that was originally tabled in Parliament in 2003. The Committee had produced a working document (Criminal Law (Sexual Offences) Amendment Bill - as of 24/02/2003) on the basis of the tabled Bill. She asked if the current Bill made any reference to the Bill last discussed in 2004.

The Chairperson agreed with Ms Camerer and added that the Department was requested to go and incorporate the Committee's discussions in the Bill.

Mr S Swart (ACDP) wondered if it would not be useful to get the previous Chairperson of the Committee (Adv. J de Lange) to come and brief the Committee on some issues relating to the Bill. The previous Chairperson of the Committee had since been appointed Deputy Minister in the Department of Justice and Constitution Development. The Committee had delegated a lot of issues to him while he was still its Chairperson.

Mr B Magwanishe (ANC) said that Mr Swart had made a good suggestion. It was important for the Committee to refresh its memory on what was originally agreed upon.

The Chairperson had no problem with the suggestion as long as she would not be "accused of blending the separation of powers". She noted that some of the new submissions that the Committee had received dealt with issues that the Committee had already discussed when dealing with the Bill as originally introduced in Parliament. It might be useful for the previous Chairperson to refresh the Committee's mind on the discussions held and decisions taken. She said that she would try and organise a briefing by the Deputy Minister depending on his availability.

Ms Camerer also agreed with the suggestions. She said that the previous Chairperson had produced a very good clause that dealt with access to health services for rape victims or survivors.

Imam G Solomon (ANC) said that the treatment clause was included in the Bill.

Mr L Landers (ANC) asked if there was any suggestion that Adv. de Lange might have drafted clauses without consulting with the chief drafter of the Bill. The chief drafter was supposed to know everything that had taken place. He was not suggesting that the Committee should not call him to come and brief it.

Mr H du Preez (departmental drafter) said that the briefing would be based on the Bill as originally introduced and the redrafted version. The Committee would in some instances be referred to the original Bill in order to show changes that had been made. He said that all definitions contained in the original Bill were reproduced in the current draft with the exception of the definition of an "act which causes penetration". This definition was replaced by "sexual penetration". The drafters had added a number of new definitions like "body fluid" and "sexual violation". The Committee would be referred to the definitions as and when it dealt with specific clauses. Clause 1(2) defined "consent", for the purposes of clauses 3, 4, 5(1), 6, 7, 8, 9, 10, 16, 18, 21, 22, 23, 25, 28 and 29 to mean a voluntary or uncoerced agreement. Clause 1(3) dealt with circumstances in respect of which a person would not be regarded as having consented to an act of sexual penetration, or an act of sexual violation or any other act as contemplated in clauses 8, 9, 10, 18, 21, 22, 25, 28 and 29. The clause provided a list of such circumstances but the circumstances were not limited to those listed in the clause.

The Chairperson asked if the Bill contained a definition of "mentally disabled". Not all mentally disabled people were incapable of appreciating the nature of a sexual act.

Mr du Preez replied that the Bill contained such a definition. Mentally disabled persons also had sexual rights. He proceeded to read the definition of "mentally disabled person".

The Chairperson said that the definition did not do away the necessity for a judicial officer to actually make a factual finding of mental disability. A factual finding of mental disability would have to be made in court.

Mr du Preez referred to clauses 2 to 4 of the introduced Bill. Clause 2 of the tabled Bill was included on basis of that the common law offence of rape had shortcomings. It was gender specific and only a male person could rape. It excluded oral penetration and an irrebutable presumption existed in respect of girls under 12 whilst it did not exist in respect of boys.

Clause 3 of the redrafted Bill defined the offence of rape. It referred to "an act sexual penetration" and the Bill defined "an act of sexual penetration". Clause 4 dealt with instances where a person (A) had compelled another person (B) to rape C. In this instance A would be guilty of compelled rape. (A) would be the perpetrator and not accomplice to the crime.

He said that Part 2 of the redrafted Bill dealt with sexual offences. Clause 6 of the tabled Bill sought to regulate compelled or induced indecent acts. He referred to the definition of "indecent act" as contained in the tabled Bill. It was agreed that this provision should be extended to cover all aspects of the common law of sexual assault. Clause 5 of the redrafted Bill dealt with sexual violation. The definition of "sexual violation" was important for the purposes of this clause. Sexual violation did not include an act of sexual penetration.

The Chairperson said that one would have to understand sexual violation in order to understand sexual assault.

Mr du Preez said that sexual assault was a subcategory of the common law offence of assault. The common law offence included hitting a person or inspiring the belief that would one would be hit.

The Chairperson said that the offence was about a threat to sexually assault. She wondered why the Bill did not simply refer to a threat.

Mr du Preez said that a mere threat was not sufficient to obtain a conviction. The prosecution should prove that the complainant actually believed that the threat would be carried out.

He proceeded to say that clause 6 dealt with compelled sexual assault. This offence was very similar to compelled rape. Clause 7 dealt with compelled self-sexual assault and was intended to cater for instances wherein the accused had compelled the complainant to sexually assault him/herself. This would include instance where the accused had forced the accused to fondle her own breast or put her fingers into her own genital organs or anus. This clause referred to sexual conduct and sexual conduct was defined in the Bill. Some of the paragraphs of the definition of sexual conduct did not correspond with what clause 7 was trying to achieve. The definition was important in the context of the definition of pornography because the later definition referred to sexual conduct. Compelled self-sexual assault excluded an act of sexual penetration because an act of sexual penetration involved two persons.

The Chairperson asked for a distinction between sexual conduct and sexual violation.

Mr du Preez said that clauses 5 and 6 dealt with instances were two people were involved. It was important to bear in mind the definition of sexual violation when dealing with the two clauses. An act of sexual violation involved at least two people. Sexual conduct featured in cases where the victim had been compelled to perform certain acts.

The Chairperson asked which crime would have been committed in cases where a person had been forced to do something to or with an animal.

Mr du Preez replied that it would depend on the exact act or conduct such a person was forced to perform.

The Chairperson said it seemed that forcing a person to perform lewd acts with an animal would not amount to compelled sexual assault. It could be a sexual assault on an animal. She asked if the conduct would amount to bestiality.

Mr du Preez replied that it would not be bestiality because the person would not have committed the act for gratification.

The Chairperson asked if a person who had been forced to sexually violate another could raise compulsion as a defence. What would be scenario where C had been forced to sexually violate B but does so willingly? Would C be guilty of sexual assault and A of compelled sexual assault? Mr du Preez agreed. The Chairperson asked if the Bill provided for such a defence or if it existed in the common law.

Mr Basset replied that the defence existed under the common law of duress.

The Chairperson referred to The State v Stagie case. It would be interesting to see how this defence worked in that case. In this case A was forced to rape B. One did not want to have a broad defence that would incorporate every situation where there was an instigator.

Mr du Preez sad that Part 3 of the Bill dealt with the exposure or display of or causing exposure or display of sexual acts or genital organs, anus or female breasts ("flashing") or pornography to person 18 years or older. He referred to the definition "indecent act" in the introduced Bill. The Department was requested to consider the deletion of paragraph (c) from the definition and to redraft it as a separate offence. Clause 10 of the redrafted Bill was aimed at criminalising the display or exposure of or causing the display or exposure of pornography to person 18 years or older without such a person's consent. The redrafted Bill contained the definition of pornography in clause 1. The definition of pornography was taken from the Films and Publication Act.

The Chairperson asked if the Films and Publications Act had the same definitions of sexual act and conduct. The drafting team would check this. She wondered if the definitions of "sexual act" and "sexual conduct" covered all sexual activities. There was a need to look at the definition of pornography more closely.

Mr Basset asked if the Chairperson was worried if the definition would not include everything.

The Chairperson asked what would happen in cases where the pictures were simply body parts of a child. Would this be excluded from the definition because the child was not engaged in sexual acts or conduct?

Mr du Preez said that the definition of pornography was problematic. People liked taking photographs of their naked babies. Would such pictures constitute pornography?

The Chairperson said that one could have paedophiles posting photographs of naked children on the internet in order to elicit some kind of sexual response. This would be pornography and the Bill did not make this clear.

Ms Camerer was worried about the element of consent as referred to the clause.

The Chairperson wondered if Ms Camerer was saying that a person who had bought a copy of the Hustler magazine, for instance, should be able charge the publisher for exposing him or her to pornography.

Mr du Preez said that people were allowed to watch pornography in the privacy of their homes. The offence was aimed at adults. For instance, one could invite friends and show them a pornographic film without their consent. Such a person should be guilty for exposing the friends to pornography.

Ms Camerer said that the people could leave if they were not interested in the pictures.

The Chairperson said that a person could expose other people to lewd act for sexual gratification. A person who would just sit there and watch should not complain because they could have simply the left the place in which the exposure took place. The definition provided that pornography "includes an image". She asked what else was included.

Mr du Preez replied that borrowed the definition from Films and Publications Act. The offensive material could be in writing. He proceeded to take the Committee through clauses 8 and 9.

The Chairperson asked if the words "exposes or displays" came from the common law.

Mr du Preez replied that they were taken from the tabled Bill. Exposure was like quickly unzipping and zipping trousers or skirt while display would be like displaying something through a shop window.

He said that Part 4 of the Bill dealt with incest, bestiality and sexual acts with a corpse. The common law crime of incest would be extended to cover all instances of sexual penetration and violation as opposed to the common law approach that was concerned with sexual intercourse between men and women.

The Chairperson asked who was charged with incest under the common law.

Mr du Preez replied that both parties to the act were charged.

The Chairperson asked if there had to be penetration for a person to be charged with incest. Mr du Preez agreed. The Chairperson said that the clause should be drafted in a way that people would not be prosecuted for incest whilst they had committed an act of sexual violation.

Mr du Preez said that clause 12 dealt with bestiality. The common law defined bestiality as sexual intercourse with an animal. The Bill extended the scope of the crime. Clause 13 dealt with the common law offence of violation of a corpse. The common law definition of the crime referred to the unlawful and intentional physical violation of a human corpse. The Bill would repeal only the sexual violation of corpse part of the definition because the common law definition very wide. He referred the Committee to clause 63 that dealt with the repeal and amendment of laws. The clause provided that, amongst other, the common law of violation of a corpse would be repealed in so far as it related to the commission of a sexual act with a corpse.

The meeting was adjourned.