Criminal Law (Sexual Offences) Amendment Bill: briefing on Clauses 1 to 13

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
10 August 2006
SEXUAL OFFENCES BILL: BRIEFING ON CLAUSES 1 TO 13

Chairperson: Ms F Chohan-Khota

Documents handed out:
Criminal Law (Sexual Offences) Amendment Bill [B50-2003] – as of 19 June 2006
Sweat submission
Childline SA submission
Hetta van Niekerk submission
Centre for Applied Legal Studies submission
Aids Legal Network submission
POWA submission
Rapcan submission
African Christian Democratic Party submission
Rape Crisis submission
Fact Sheets on the Sexual Offences Bill (2006)

SUMMARY
The Department guided the Committee through Clauses 1 to 13 of the Bill. The definitions were explained. In particular, the elements of the crime of rape had been considerably broadened, and new offences had been created. A number of common law crimes would be repealed by the new legislation, which therefore had to be framed broadly but comprehensively, so that it was capable of wide interpretation.

The drafter was requested to investigate and report back on the possible inclusion of an Application Clause, on a tighter definition of the ages of children between 12 and 16, on the wording of “objects” in relation to sexual violations and sexual penetration, and on the wording of the sub-clauses to (a)(ii)(cc) of the definition of “sexual violation”. He was also requested to investigate whether the references to “breasts” should be limited to women, and to report back on any decided cases on the dividing line between sexual violations (indecent assaults) and attempted rape. Some concern was expressed whether all deviant behaviour had been adequately covered in the definitions relating to exposure or display, and whether there was adequate definition and inclusion of elements relating to incest.

MINUTES
Ms S Camerer (DA) noted that a number of new submissions had been received by the Committee, and enquired whether a summary would be provided to Committee members.

The Chairperson responded that the Bill now being considered had been prepared taking all 128 original submissions, which had been summarised, into account. The new submissions received over the past few weeks had not raised many new issues, and therefore no further summary was necessary. She noted that Ms Camerer would of course have the right to raise any issues as the Committee went through the Bill clause by clause.

Mr Henk du Preez (Legal drafter, Department of Justice) took the Committee through the Bill.

Clause 1
Mr du Preez pointed out that the definition of “body fluid” was currently contained in Clause 1 of the Bill, but should be moved to Clause 30, Chapter 5, as it related specifically to this Chapter.

The definition of HIV would similarly be moved to Chapter 5.

Mr du Preez described and elucidated upon other definitions as they were raised under their respective clauses.

Clause 2 : Objects
There was no discussion on this clause.

Clause 3: Rape
Mr du Preez reported that the elements of the crime of rape had been broadened.

It was necessary to refer firstly to the definition of “complainant” as it appeared in Clause 1, as it was clarified that the complainant was the alleged victim, but that the victim would not always be the one who would lay the charge. South Africa, unlike other countries, would allow a prosecution even if the victim did not co-operate in the investigation process.

The Chairperson enquired whether the definitions could not be further tightened by including an application clause to the effect that “in this Act, ‘consent’ means…”. She asked the State Law Advisors to consider this point and to revert in due course. Mr du Preez responded that he would look further at the issue.

The second change occurred in regard to the issue of “consent”. Mr du Preez pointed out that this was defined in Clause 1(2), and that there were now various circumstances listed that vitiated consent, set out in Clause 1(3). The concept of abuse of power or authority was a new concept.

Mr du Preez pointed out to the Committee that there was another issue, relating to the circumstances vitiating consent, that he would have to investigate further, as he had just noticed that the definition of “child” in this context referred to one older than 12, but below the age of 16. However, the definition of “consent” referred to a child “below the age of 12”. This conflict would have to be resolved. He confirmed that he would report back.

The Chairperson suggested that the common law and the Interpretation Act needed to be checked. The Committee wished to ensure that the legislation protected children from their twelfth to their thirteenth birthdays, in other words during the full year they were twelve, and if there was an irrebuttable presumption excluding twelve-year-olds, this must be corrected in the legislation. Similarly, the reference to the age of 16 would mean the entire year until the seventeenth birthday of the child. Any amendments made to the definitions would obviously need to tie in with clauses 14 and 15 of the Bill.

Ms S Camerer (DA) enquired whether the wording of the Bill needed to be checked also in the case of the 16-to-18 year-old group, but Mr du Preez confirmed that there was no problem with this wording.

The Chairperson asked whether lack of consent, in the case of a compelled rape, would fall under subclause (a) or (b) as it could arise through use of force or abuse of power.

Mr du Preez replied that the circumstances of the case would normally indicate clearly which of the coercive circumstances existed, and there was no need to restrict the charge to one area only. The list provided should be interpreted in an open-ended way.

Mr du Preez reported that the third element of the new offence of rape as defined in Clause 1 was “sexual penetration”. Once again this had been considerably broadened from the previous definitions, and now included three categories. The first category, under sub-clause (a) included what was currently understood as “rape” but was not limited to offences against women, and now also included penetration of the anus or mouth. Since the Constitutional Court had found the crime of sodomy unconstitutional, the section dealing with it would be repealed from the Sexual Offences Act, and references to it would also need to be repealed in the Criminal Procedure Act and some other legislation’s schedules.

Mr du Preez added that a recent Magistrates Court decision, involving anal penetration of a female child, had resulted, despite the current wording relating to rape, in a conviction for rape. The matter had eventually been referred to the Constitutional Court where the previously limited definition of penetration needed to be reconsidered.

A further aspect now included in the definition of “sexual penetration” was the use of objects.

Ms Camerer enquired whether this aspect should not be broadened to “any object” without the qualifying words “resembling the genital organs of a person or an animal”.

Mr du Preez replied that this wording was based upon the recommendation of the South African Law Commission, and that the wording was in fact wide enough.

The Chairperson suggested that there was no need to amend this aspect of the definition and noted that there was no suggestion that any resemblance to genitalia had to be proved before the elements of the crime were present.

Clause 4: Compelled rape
Mr du Preez indicated that all the words included in this clause had already been defined and therefore no new definitions had been included.

The Chairperson asked whether a third party (described as “C” in the clause) who was compelled to commit sexual penetration could raise, as a defence to a charge of rape, the fact that he or she was compelled.

Mr du Preez believed that the Courts would decide such issues on the basis of common law, taking into account the meaning of unlawful and the intention. He confirmed for the Chairperson that there was nothing in this Bill that would change the Courts’ dealing with such matters.

Clause 5 : Sexual Assault
Mr du Preez pointed out that the wording of this clause referred to “sexually violates” and “sexual violation” was defined in Clause 1.

The Chairperson pointed out that the definition referred to a sexual act that was non-penetrative and the definition was cast widely.

Mr du Preez confirmed that “direct or indirect contact” referred to situations where the perpetrator was or was not clothed. He indicated that there were three categories and the definition was complainant-neutral as either gender could be charged with sexual violation.

The Chairperson referred to the different categories in subclauses (a)(ii)(cc)(aaa to ccc). She noted that although these subclauses intended to include any part of the body, they did not follow the best chronological order as (bbb), unlike the other subclauses, did not refer to body parts. She asked that the drafters examine this section again and attempt to tighten the wording.

The Chairperson also asked why the drafters had referred only to the breasts of a woman in this section, which should be worded as widely as possible. She asked the drafters to consider achieving greater parity in this clause as she considered that the current wording of sub-clause (a)(i) ran the risk of providing loopholes.

The Chairperson also pointed out that compelling a person to self-masturbate was not included in the definition of sexual violation. Mr du Preez pointed out that none of the lists in the Bill were closed lists. In addition, this was included under Clause 7.

The Chairperson took up the point raised earlier by Ms Camerer, in relation to the use of an object. Whilst she understood that the Law Commission’s draft wording intended to make it clear that violation would occur if an object was used in a sexual manner, she suggested that rather than attempting to qualify the object used, the wording should be along the lines of “any object used with the intention of causing sexual arousal” so that if it was clear that the perpetrator undertook certain actions, the behaviour would fall within this definition.

Mr du Preez confirmed that the acts defined as sexual violation did not involve penetration, as these would be classed as rape.

Clause 5(2)
Mr du Preez indicated that the wording of this clause followed the common law wording; indecent assault was a form of assault and therefore applied the same principles derived from the elements of that crime.

Mr du Preez confirmed, in answer to a question from the Chairperson, that a person could be charged with an attempted rape, but not with an attempted sexual assault. He undertook, at the request of the Chairperson, to do some further investigations as to whether an attempted rape could be synonymous with a sexual violation, or what were the distinguishing features, as he agreed that the current wording was perhaps a little disjunctive.

Mr L Joubert (DA) asked whether a threat to rape a person also fell within the concept of a sexual violation. It was agreed that Mr du Preez would also report back on this issue.

Clause 6: Compelled sexual assault
There were no specific points raised under this clause

Clause 7: Compelled self-sexual assault
Mr du Preez pointed out that this clause covered the situation which was not been mentioned in the definition of sexual violation, which formed the basis of Clause 5.

Part 3: Clauses 8 to 10
The Chairperson asked if there was any other legislation that already contained a definition of pornography, since any definitions in this Bill must relate to the sexual offence aspects. There was a difference between highly explicit pornography, and other forms of deviant conduct that was perhaps not as explicit, but assaulted a sector of the population (typically women and children) for the purposes of gratification. She enquired whether “sexual exploitation” was limited to the prostitution-type of scenario, or whether it would also cover deviant patterns, and asked specifically that the drafters check carefully whether they were satisfied that they had covered all possible actions.

Ms Camerer indicated that all definitions of pornography or certain types of displays were to an extent subjective. She wondered whether the word “degrading”, which was already used in the Constitution, would not be helpful when formulating definitions.

Clause 8 : Exposure or display of, or causing exposure of display of sexual act to person 18 years or older
The Chairperson asked whether this clause would cover a situation where one person was forced to watch another being raped.

Mr du Preez confirmed that this clause would cover this situation. It would also cover consenting people displaying the sexual act to others. A range of actions was covered in the clause. There had been some discussion whether a situation similar to that raised by the Chairperson should be contained and criminalised in a separate clause, but the general view was that the current wording allowed for a wide design and interpretation of the legislation, thus permitting a wide range of sentencing according to the degree of seriousness of the actions forming the offence. It was considered that the new legislation should not be interpreted too narrowly. Separate categories had been created to cater for situations where children were involved so that more appropriate sanctions could be devised for violation of those clauses.

Ms Camerer indicated that this clause referred to persons older than 18 years, who would usually be in a position to walk away or to choose not to watch. Therefore, “causing” a person to watch was not, in her view, the key issue, and the clause should restrict itself to “compelling”.

The Chairperson felt that the inclusion of the words “unlawfully and intentionally” clarified the issue, and pointed out that not all adults would be able to walk away. In addition, a person feeling violated by witnessing the act should be able to lay a charge. She stressed that the new legislation should be broadly worded, both to ensure that it stood the constitutional challenge, and to ensure that prosecutions could be successful. The new legislation was effectively removing much of the common law legislation so that it must be effective.

Adv C Johnson (ANC) pointed out that there was an additional element over and above the public indecency, which would involve three people. Here there could be more; with some obtaining gratification from the reactions of others.

It was agreed that these points merited further consideration by members and could be raised again.

Clause 9: “Flashing”
Mr du Preez confirmed, in answer to Ms Camerer, that this clause would probably cover topless sunbathing, if it was unlawful in terms of existing bye-laws. It was necessary to include “whether for the sexual gratification… or not” to allow as wide an interpretation as possible.

Clause 10: Exposure of display of… pornography
There was no discussion on this clause.

Clause 11: Incest
Mr du Preez indicated that the South African Law Commission had taken a decision to extend the definition of incest by including all sexual acts. The common law offence of incest was being repealed by this legislation.

The Chairperson felt that the reference to the “complainant” in line 2 of the clause should be changed to “another person” to extend the definition to acts between consenting relatives, such as siblings. She further pointed out that it might be necessary to amend the wording so that there would be an offence also in the case of children, although consent would be absent in certain age groups. She was concerned that there should be no loopholes in the legislation.

Mr du Preez indicated that a parent could engage in sexual acts with a child of 14, but may only be charged when the child had reached 21, and consented.

The Chairperson pointed out that the adult would be charged, and consent would be raised as a defence. She enquired whether there were any decided cases on this issue and Mr du Preez undertook to investigate and to suggest some further options to the Committee.

Mr du Preez pointed out that certain references to the Child Care Act would need to be amended, since previous wording had created loopholes in that the prohibition on an adoptive parent marrying an adoptive child had been left out. Although incest was a common law crime, it related also to statutory provisions.

The Chairperson asked the drafters to ensure that the new legislation clarified the principle that all provisions relating to incest applied equally to adoptive relationships, perhaps by way of wording such as “Notwithstanding any evidence to the contrary no child may consent to sexual acts within the prohibited degrees of marriage in any adoptive relationship”

Mr du Preez stated that normally this principle would be stated in the Marriage Act or the Children’s Act because it related to relationships with children. Therefore the offence would be created in the present Bill, but would relate directly to principles established in other relevant legislation. If the Marriage Act, for instance, were to extend or decrease the prohibited degrees of marriage, then this legislation would have to follow suit.

Clause 12 : Bestiality
Mr du Preez confirmed, in answer to a question, that it was necessary still to include the wording “unlawfully” to cover veterinary or breeding practices.

Clause 13: Sexual act with corpse
Mr de Preez confirmed that the word “unlawfully” had been included to cover autopsy procedures. In both clauses 12 and 13 the wording had followed the common law elements of the crime.

The Chairperson confirmed that the process of clause-by-clause discussion would continue on the following day.

The meeting adjourned.