Criminal Law (Sexual Offences) Amendment Bill: briefing on Clauses 14 to 37

JUSTICE PORTFOLIO COMMITTEE
11 August 2006
SEXUAL OFFENCES BILL: BRIEFING ON CLAUSES 14 TO 37

Chairperson: Ms F Chohan-Khota (ANC)

Documents handed out:
Criminal Law (Sexual Offences) Amendment Bill [B50-2003] – as of 19 June 2006

SUMMARY
The Committee continued to be briefed on the Bill, from Clauses 14 to 37, under the guidance of the drafters from the Department of Justice and the South African Law Reform Commission.

Members of the Committee raised questions on various clauses. The Chairperson asked the drafters to consider the principles involved, and to suggest rewording of Clause 16 (relating to the types of offences created), Clause 17 (whether there should be two separate crimes), Chapter 4 (whether this was covered under Chapter 3), Clause 33 (1)(b)(i), relating to the age of 14, and the application mechanism in clauses 33 and 34. Changes in wording were also suggested to Clause 14, Clause 16 (1), (2), (3), and (4), Clause 18, Clause 30 and Clause 32. Chapter 4 would also need to incorporate the redrafted wording of Chapter 3.

The remainder of the Bill would be discussed during the following week.

MINUTES
Mr H du Preez (Legal Drafter, Department of Justice) and Ms D Clark (South African Law Reform Commission) attended the meeting. Mr du Preez took the Committee through Clauses 14 to 35 of the Bill.

Mr du Preez indicated to the Committee that there were certain defences contained in Clause 53 of the Bill, which would be discussed at a later stage. In particular he pointed out that it would be no defence to claim that there was a marital relationship. This mirrored an existing provision in the Prevention of Family Violence Act.

Clause 14: Acts of consensual sexual penetration with certain children (consensual rape)
Mr du Preez pointed out that it was necessary to refer to the definition of “child”. In respect of clauses 14 and 15 a “child” was defined as one older than 12 but below the age of 16. The Chairperson had asked the previous day that this definition be clarified and re-worded if necessary. He further pointed out that clause 14(1) stated that the consent of the child was irrelevant, and clause 14(2) provided that the National Director of Public Prosecutions would have to authorise a prosecution, in writing, if both parties to the act were children at the time, and that if a charge was laid, it would be against both parties.

Mr J Jeffrey (ANC) wondered how this clause would work in practice, as there would not normally be an admission of consent.

The Chairperson replied that currently an offender would be charged in the alternative with rape and statutory rape, and that if consent was shown, the crime of statutory rape would still stand.

Mr Jeffrey asked whether the parties would be charged together, even if one denied that there had been consent.

The Chairperson reminded Mr Jeffrey that the clause was gender-neutral, and had therefore prevented the inequitable statutory rape offence that existed previously. This clause was intended to address the “vengeful father syndrome”. A parent, who previously might have insisted upon a prosecution despite consent of that parent’s child, would now think twice about it since both children would now have to be charged. In addition, the decision whether to prosecute must be taken at a higher level.

The Chairperson noted also that Mr S Swart (ACDP) had, on the previous day, distributed suggested an alternative definition raising the age of “child” to 18. She requested that the drafters incorporate this wording as a possible alternative in the new draft.

The Chairperson added that the offence under Clause 14 was a “legal fiction”, since it stated that a child under 12 was incapable of consent, and then extended that protection to children up to the age of 16. Other countries’ legislation differed widely on the age; India had raised it to 21 whilst Holland was as low as 10. She was concerned that any attempts to broaden the protection too far might lead to the clause being attacked on rationality. Was it consistent and rational that an 18-year old, who was considered sufficiently mature to vote, to drive, possibly to live alone and make decisions on important issues, should be subjected to this “legal fiction”. If the Courts were to find that this protection was not rational, the whole clause could be repealed. To her mind, the clause would most properly be used in prosecuting paedophiles. Paedophilia involved a history of grooming, of seduction and of making the children “consent” to something that they did not understand properly. Therefore it was extremely important to ensure that this clause stood, to afford protection in these instances. The Chairperson had already asked Ms D Clark to examine this issue in greater detail.

Mr Jeffrey asked whether the National Director of Public Prosecutions would still need to make a decision whether to institute a prosecution if one of the parties was below 16 and one above.

Mr du Preez stated that this was not so; it would only apply where both were below 16.

The Chairperson added that there would be guidelines formulated by the National Director of Public Prosecutions. She also reminded the Committee that Ms Camerer had also raised the point, on the previous day, that it was most important to bear in mind that a 17 or 18 year old could, because of his or her advanced maturity, exert considerable pressure on a 13 or 14 year old. She felt that there was a need for further research on this issue. In most African countries, customary law stated that a child could only marry at 18 years old; South Africa, however provided that a child of 15 could marry, with Ministerial consent.

Mr Jeffrey pointed out that this Bill made no mention of any exemptions in respect of a person who had married with such consent.

The Chairperson replied that an overall exemption clause such as that was not desirable and it was obvious that prosecutions would not be instituted under this clause if the “child” was married.

Mr du Preez pointed out that the current section 14 of the Sexual Offences Act had similar provisions.

The Chairperson did not think that the term “consensual rape” was apposite; she asked Mr du Preez to think of alternative wording. She also did think that the term “statutory rape” should be used. She suggested that it would be sufficient for a charge simply to be framed as “consensual sexual penetration with a child”.

Clause 15: Acts of consensual sexual violation with certain children (consensual sexual assault)
Mr du Preez pointed out that this clause, relating to sexual violation, and mirroring the similar charge in Part 1, also required authorisation in writing before a charge could be laid, but hits time by the relevant Director of Public Prosecutions. He pointed out that Clause 61(2)(a)(vi) set out that the consultative process and directives that would be followed.

The Chairperson asked what had been regarded as the distinction between “immoral” and “indecent” acts.

Mr du Preez replied that this depended on the context. “Indecent” acts included all common law sexual offences, and was a term used in the Criminal Procedure Act. “Immoral” may originally have been regarded as relating to the Immorality Act, but the term had been extended to anything that did not involve penetration. The Sexual Offences Act drew a distinction between 16 and 19 year olds and “indecent” acts were linked to the 19-year old group.

Clause 16: Sexual exploitation of child
Mr du Preez pointed out that the definitions section relating to this clause described a “child” as “a person below the age of 18 years”. The clause dealt with sexual exploitation. The South African Law Commission had recommended that every person involved in prostitution, other than the child, should be regarded as guilty of an offence,. The draft Bill therefore aimed to criminalise a wide scope of activities, as well as create an obligation to report knowledge of sexual exploitation to the police. He summarised the aims of each of the sub-clauses.

The Chairperson asked whether Clause 16(1) would overlap with Clause 16(2). In particular, 16(1)(c) “participating in, being involved in, promoting, encouraging or facilitating” would surely be the same as “furthering the sexual exploitation of a child”. She suggested that the whole of the wording needed to be tightened.

Mr Jeffrey asked why the clause referred to “a child complainant”. Although he understood that the “complainant” no longer needed to be a person who would prosecute, he felt that “a child” would be sufficient. He felt that using both words would add another complicating factor requiring proof that the child was a victim. This clause was more explicit than clauses 14 and 15. He felt that there was no need to have any qualifying words to “a child”. He felt that including “complainant” had the potential to be a hurdle.

The Chairperson did not agree; she saw the term “a child complainant” as descriptive. She could see no harm in this phrase, nor did she believe it would cause any legal complications. She would prefer to leave the phrase as it was and added that it was consistent with the style of drafting of the remainder of the Bill.

Mr du Preez added that sub-clause 16(1) had already made it clear, by the use of the words “with or without the consent..” that any so-called “consent” was irrelevant.

It was decided that there was no need to decide the final wording now as the entire clause would in any event be re-examined and re-drafted.

Mr du Preez confirmed, in answer to a question from Adv C Johnson (ANC), that both the pimp and any customer or third party involved in a commercial sex transaction would be charged with an offence.

The Chairperson commented that the elements of involvement by each party would differ and so Clause 16 should cover every element of persuasion, facilitation and arranging, and involvement. It was possible for a person to be guilty of sexual exploitation and furthering. She asked that Mr du Preez and Ms Clark check the wording of the whole clause.

With specific reference to Clause 16(2)(a) the Chairperson asked that the words “allows or knowingly permit” should move next to the word “intentionally” in the previous line, so that the description would apply to both sub-clauses (2)(a) and (b).

Mr Jeffrey pointed out that there was a similar concept of “allowing or permitting” in the Prevention of Organised Crime Act, and this could provide some guidance as to the best wording.

Mr du Preez indicated that he had a problem with the wording of 16(1)(d) and would check this subsection also.

The Chairperson summarised that it seemed there was a necessity for clearer definitions of the individuals involved and that the redraft should be as broad as possible to cover all possibilities.

Mr Jeffrey asked whether there was any section that dealt with a pimp offering a peep show
-which another person paid to watch.

Mr G Solomon (ANC) commented that this could be covered in Clause 10.

Mr du Preez undertook to check this aspect also.

Clause 16(3)
The Chairperson asked why it was felt necessary to include a reference in this clause to “within a reasonable time” and why a specific time frame had not been stipulated.

Mr Solomon did not agree that a time frame should be specified, and queried what sanction would be imposed if the time limit was not observed.

The Chairperson pointed out that this clause referred to actual knowledge, and not mere suspicion, and was intended to facilitate a speedy police investigation.

Mr Solomon asked why this offence had been included as sub-clause 3, as he felt that it was not chronologically correct.

Mr du Preez replied that sub-clauses 16(4) and (5) did not refer to actual exploitation; the offence related to receiving a financial reward. The knowledge would refer rather to sub-clauses (1) and (2).

The Chairperson believed that the obligation to report should be worded more specifically; this was actual knowledge being reported. She asked Mr du Preez to look again at this sub-clause and provide some alternative wordings. The shortest time period named in other legislation was 48 hours; perhaps one alternative should include that time period. She also asked that the subclause include wording which specified the penalty that the offence could carry.

Clauses 16(4) and 16(5)
The Chairperson asked for clarity on a situation where a pimp was paid but the act never took place. She asked if this would be covered by the clause providing for the offence of furthering.

Mr du Preez replied that this clause would cover a pimp in the circumstances described by the Chairperson. The pimp could be charged both with an offence under 16(1) and 16(4). However, it was also intended to cover a family member, for instance, who knew of the offence but was paid to keep quiet about it.

The Chairperson suggested that the words “arising from the commission…” be used in the second line of 16(4), instead of “from the commission…”

Mr Jeffrey queried why it was necessary to provide for a separate offence under Clause 16(5). He believed that 16(4) was wide enough to cover the offence under 16(5), which, admittedly, catered for a more extreme situation.

Mr du Preez replied that the living off income, as contemplated by 16(5), was more serious than a one-off payment under 16(4), and the specific distinction between the two emphasised that 16(5) was more serious and deserving of a more serious sanction.

The Chairperson agreed that there was some overlap but commented that there were enough differences to warrant a separate subsection.

Mr Jeffrey confirmed that 16(4) was necessary, but commented that every person committing an offence under 16(5) would also be committing an offence under 16(4).

Clause 16(6)
The Chairperson pointed out that the phrase “irrespective of whether that act is committed or not” appeared in this sub-clause. She felt it would be useful for something similar to be included in Clause 16(1). It should not be necessary to prove that any acts actually occurred; the facilitation and planning of exploitation in itself should be criminalized. It should be clear that the exploitation occurred on payment for the act, and not on commission of the act.

Mr du Preez confirmed that he would take this into account in the redraft of Clause 16.

Clause 17: Sexual grooming of child
The Chairperson reported that she had discussed this clause with Mr Chetty of the Film and Publications Board. She felt that this clause had more to do with promoting than with actual grooming. She wondered whether two crimes should not be created; one of sexual grooming, and another of furthering or promoting sexual grooming.

Mr Jeffrey commented that there was no definition of “sexual grooming” provided in the Bill

The Chairperson agreed that it was necessary to define the elements of the crime, so that a distinction could be drawn between those doing the grooming, and those who manufactured products to further the offence of grooming.

Mr Jeffrey commented further that Clause 17 (c) referred to a person communicating with a child “on at least two earlier occasions”. He queried why this was included as he thought it would be just as serious for a person to make an arrangement to meet the child after one conversation or internet communication.

Mr Solomons agreed that there seemed to be a loophole.

The Chairperson also agreed, commenting that this was in fact already contemplated under subsection (d). The clause was intended to cover an internet prowler, but should perhaps be captured more broadly.

The Chairperson asked Mr du Preez to check the position in other countries, and to contact Mr Chetty about research that the Film and Publications Board may have conducted.

Clause 18: Exposure or display…of sexual act to child
Mr du Preez reported that this clause was similar to Clause 10, and that the points raised for further consideration under Clause 10 would be considered also for the redraft of this clause.

Clause 19: Engaging in act of sexual penetration in presence of child
There were no comments on this clause.

Clause 20: Engaging in act of sexual violation in presence of child
There were no comments on this clause.

Clause 21: “Flashing”
Mr du Preez pointed out that the offence required “unlawful and intentional” exposure. There were no comments on this clause.

Clause 22: Exposure or display… of pornography to child
There were no comments on this clause.

Chapter 4
The Chairperson indicated that Chapter 4 duplicated Chapter 3 in many respects, so that any changes following the discussions on Chapter 3 would obviously need to be replicated in the corresponding clauses in Chapter 4.

The Chairperson pointed out that this Bill provided that no child under the age of 12 could consent. Mentally disabled people were now put in the same category and given the same level of protection. Part 1 of Chapter 4 (Clauses 23 to 24) did not present any problems, but she wondered if Part 2 of Chapter 4 (Clauses 25 to 29) was necessary, since similar protection already appeared to be provided for. She asked Mr du Preez to consider her question and revert with a suggestion whether adequate protection did exist elsewhere.

Mr du Preez commented that Clause 23 contained some technical issues: for instance Clause 23(2)(a) contained definitions under the Social Assistance Act. He would look at Chapter 4 and report back to the Committee.

Chapter 5: Clause 30 : Definitions
Mr du Preez pointed out that clause 30 contained definitions specific to this Chapter of the Bill. He reminded the Committee that on the previous day it had been decided that the definitions of “body fluids” and “HIV” should be moved from Clause 1 to this clause.

The remainder of the definitions were self-explanatory.

Mr Jeffrey asked whether the reference to the Nursing Act of 1978 and the Health Professions Act of 1974 were still correct, as he thought these Acts had been repealed and replaced.

Mr du Preez said that he would check on the position but that it was possible that the new replacing legislation was not yet in force. If so, it would be possible to use wording that followed the relevant legislation, rather than merely making reference to the legislation.

Clause 31 : Services for victims
Mr du Preez stated that victims exposed to the risk of infection by HIV would be entitled to receive post-exposure prophylaxis (PEP), and be given free medical advice, and also apply for compulsory HIV testing of the alleged offender. The reference to 72 hours in this Clause was based upon the 72-hour period for effective administration of treatment.

Mr Jeffrey wondered if the ability to obtain PEP and medical advice should be linked, in Clause 31(1), with the testing.

The Chairperson replied that this was a general clause which stated what would be available to a victim, and pointed out that a victim might need to have an HIV result in order to take the decision whether to proceed with treatment.

Mr Jeffrey said that it was unlikely that a test result would be obtained within 72 hours, and therefore he still did not see the point in linking the steps.

The Chairperson did not consider that there was a link in the sense that one was premised above the other; it was merely phrased as a list as to what was available.

Mr du Preez indicated that he could add no more to what the Chairperson had already said.

Mr du Preez pointed out that an “interested person” referred to in Clause 31(3) was defined in Clause 30 as any person having a material interested in the well-being of a victim. He further clarified, in answer to a question from the Chairperson, that a family member was not defined anywhere but would follow its ordinary meaning and would not be confined to a narrow meaning. The question was rather whether the person making application had “a material interest” and this would be assessed in the Court application.

Mr du Preez then summarised the content of Clause 31(3), which did not require discussion.

Clause 32: Designation of public health establishments
The Chairperson asked why Correctional Services would receive a list of designated establishments, as the police were given the power to ensure that the specimens were taken.

Mr du Preez replied that the accused might already be in custody awaiting trial and he assumed that when the accused was collected at Correctional Services they should be able to ascertain the closest public health establishment.

Mr Jeffrey commented that since the police officer would carry out the order this did not make sense. In his view it might have been included if the complainant requiring prophylaxis was already in custody.

The Chairperson suggested that 32(3) should contain a reference that the relevant members of the Department of Health also receive the lists.

Clause 33: Application by victim or interested person for HIV testing of alleged sexual offender
Mr Jeffrey queried the wording, pointing out that Clause 31(2)(a) stated that only a victim who laid a charge could receive the benefits of clause 31. However, only Clause 33 (3) made reference to a charge being laid. He believed that the reference to laying a charge should apply to the whole Clause.

Mr Jeffrey further commented that a Magistrate could satisfy himself that a person could not give consent, and he wondered if the circumstances specified in Clause 33(1)(b) (i) to (iv) needed to be included. He queried if these circumstances were merely given as guidance to magistrates.

The Chairperson believed that there was a necessity to include an unconscious person specifically in a list. She commented that this was a new procedure, and that guidance would be useful.

The Chairperson asked why 33(1)(b)(i) named the age of 14 years.

Mr du Preez confirmed that these points would be queried further with Mr Bassett. He thought that the age and circumstances listed might correlate to provisions in the HIV testing Bill, which Mr Bassett had also drafted. The age of 14 might well be the age of consent to medical treatment, or relate to guardianship provisions.

Mr Jeffrey wondered whether the age should be limited to 14, or perhaps raised to 16, since there was already a category of protection to children between 12 and 16 years of age.

The Chairperson suggested that it would be far more material for a child to undergo treatment, and this would also involve the family making lifestyle choices in relation to other family members. She asked Mr du Preez also to consider whether the age limit should be raised.

The Chairperson then commented in general that she had some difficulty with the way in which the provisions for making application were worded. The application would be used to lessen the secondary trauma, and to enable the victim to make lifestyle choices. However, the information derived from the test could also be used in subsequent civil proceedings. The problem was that the clauses permitted a victim to apply for a compulsory HIV test on the alleged offender within 60 days of the offence being committed. She queried what would happen if the offender was only arrested on day 62 and whether the victim would still be able to obtain the information for the civil proceedings. Because treatment within the 72 hour period was no longer the issue, it was then a case of balancing the right to privacy against the right of the victim to know if he or she was suffering from a life-threatening disease. In a case of urgency, the Magistrate need not call for a response.

The Chairperson asked whether the Bill should not include some mechanism to deal with such applications in the normal course, as a full scale hearing, but without the 60-day limitation.

She pointed out also that an application could be made relating to an assault other than a sexual assault; such as a person stabbing another with a syringe. It might therefore be necessary for the Committee to ask the Department to consider other crimes relating to transmission of HIV that would involve a similar application for compulsory testing.

Mr Jeffrey agreed, but added that the situation would be complicated if the blood in the syringe was not the blood of the person who had stabbed with the syringe. In this case, no purpose would be served by testing the offender.

Mr Jeffrey further commented that there was no requirement in the Bill that the offender had to be notified that the application was being brought and the Magistrate could but was not obliged to consider oral evidence. He believed that there should be some attempt to serve notice on the offender.

Mr Jeffrey also asked if it would be possible to obtain an order where the identity of the offender was not known, and if it was possible to obtain an order within a 60-day period, but that the order need only be executed after that period.

The Chairperson believed that the whole order and execution should be done within the 60 days. After the 60 day period it was possible for the victim to be tested to determine his or her own HIV status. The difficulty remained that it discriminated against victims where offenders could not be found within the 60 days. She would therefore prefer that the legislation was worded so that it was clear that there was not an absolute bar to obtaining an order, in other words by making provision for a full-blown application process. An applicant in this process would have to be able to show that the test was required in order to support civil proceedings.

Mr Jeffrey did not feel that this addressed the question of notice to the offender.

The Chairperson believed that such notices could be served at the time that the blood was drawn as there would still be time for a counter-application, if desired, before the blood was tested.

Mr du Preez indicated that he would investigate and make some suggestions on re-drafting this clause.

Clause 34
Mr Jeffrey referred once again to the 60 day period prescribed under clause 33(1)(a). He suggested that a person could bring an application within this 60 day period, but that the investigating officer could hand it to the Magistrate on day 61, and the Magistrate, in terms of Clause 34(3)(c), would have no discretion because the 60 days had now lapsed. This would mean that the application was nullified by a technicality, particularly if day 60 fell on the weekend.

The Chairperson pointed out that there was an urgency clause, but that this again dealt with the question of conflicting constitutional rights. She suggested that this difficulty might be overcome if there was allowance made, as suggested previously, for a different type of application after day 60, so that a complainant would not be barred.

Mr Jeffrey pointed out that there was a 60-day time period again mentioned, relating to the execution of an order, and perhaps it would be appropriate to fix a time period only in respect of execution. He suggested that in fact most of the difficulties would probably arise in execution.

The Chairperson said that the police directives mentioned later in the Bill would apply to this, and that there would be a chain of accountability. However, the more that these provisions were discussed, the more she believed that an alternative mechanism should be considered.

Mr du Preez noted the comments and undertook to do further investigation on this aspect also.

Clause 35
Mr du Preez referred the Committee to the definitions clause 30, which defined an offence as used in Clause 35.

The Chairperson clarified that this specific definition had been included because deliberate infection with HIV was originally included as a separate offence. Cabinet had asked that this clause be investigated further, and this was still being done. This clause had nothing to do with victims or treatment but related to testing for the purposes of an investigation, similar to drawing blood for testing of alcohol levels under the Criminal Procedure Act. This mechanism would apply only if it was alleged that a person trying to infect another was using his or her own blood. This provision had been included to create a specific offence of deliberate transmission of HIV, rather than accidental transmission arising from another offence such as assault. The testing would have to be shown to be relevant to the current investigation.

Mr Jeffrey wondered if the right to privacy would be shown greater than the right of the victim. He stated that this could be open to abuse; a possible scenario would be where a policeman abused this provision to have his ex-girlfriend’s new lover tested.

The Chairperson pointed out that this was done by way of application, which would have to set out the grounds on which the application was made. It would be also be covered by protocols and directives, which the Committee would discuss at a later stage. She agreed that there could be a problem if no directives were tabled. This Bill contained a number of innovations and the Committee must therefore be careful that it was specific and clear. She pointed out that any directives would also be tabled before the Committee, and that the Committee must always attempt to strike the right balance.

The Chairperson announced that the discussion on the Bill would resume on Tuesday 15 August.

The meeting adjourned.