Criminal Law (Sexual Offences) Amendment Bill: briefing on Clauses 47 to 53

JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
16 August 2006
CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) A/B: DELIBERATIONS

Chairperson: Ms F Chohan-Kota (ANC)

Documents handed out:
Extract from the Children’s Act, Chapter 7, Sections 111-142
Draft Regulations under Section 12 of the Compulsory HIV Testing of Alleged Sexual Offenders Act, 2003

SUMMARY
The Committee continued to deliberate the Bill, covering Clauses 47(2) to 53(4).

The Chairperson asked the drafters to amend the wording in respect of particulars remaining on the Register in Clause 47(2)(b), to correlate with Clause 48. They were also asked to consider and report back whether the provisions of Clause 47(3) should be moved to Clause 48. Clause 47(3), referring to “Registrar or Clerk of the Court” in Clause 47(3), needed to be clarified. Clause 47(3)’s references to review or appeal should be substantiated. Clause 47(4), (5) and (6) time periods might require extension. The wording of Clause 49 needed to be tightened. The typographical errors in Clauses 50(2) and 53(3) would need correction. The provisions of Clauses 43 and 50 would need to correlate with each other.

The drafters were also asked to check matters of law and principle and report back on any necessary amendments. These included whether Clause 48(1)(b) catered already for correctional supervision or periodic imprisonment. It was uncertain whether the definitions referring to other Acts not yet implemented would be enforceable. The specific definitions relating to mentally disabled people, in relation to both offences and defences, would need to be re-considered. (The way in which the Bill covered mentally disabled people had already been debated, and the concerns now applied also to Clause 53(2)(b)). There was some doubt whether the wording of Clause 53(2)(b) had been based on the cases. The reason for inclusion of age 18 in Clause 53(2)(a) was requested.

Members, having discussed the issues in depth, were also asked to reconsider some principles. Later discussions would be held on whether the Register should be extended to include the names of offenders sentenced to a minimum sentence, not merely a sexual offence against a child; in particular whether such an amendment would meet the rationality test. The principles contained in Clauses 53(2)(a) and 53(2)(b) would be further debated. Clause 53(3)(b) would be reconsidered.

MINUTES
Mr Henk du Preez (Senior State Law Advisor, Department of Justice) continued to guide the Committee through each clause of the Bill.

Clause 47(2):Persons whose names must be included in the Register and other matters
Mr Lawrence Bassett (Chief Director, Legislation, Department of Justice) confirmed, in answer to a question from the Chairperson, that the categories set out referred to all persons who had been convicted of a sexual offence except those mentally incapacitated. He further confirmed that there was no automatic removal, but that a person could make application for removal of his or her name after a specified period, as set out in Clause 48 (3).

The Chairperson pointed out that the application procedure was not referred to in Clause 47, which referred merely to “the applicable period”. She suggested that the wording of Clause 47(2)(b) should be amended along the lines of “The particulars…must remain in the Register for an indefinite period, subject to section 48 (3)”.

Mr Bassett confirmed that the drafters would amend this clause

Clause 47(3)
The Chairperson suggested that the wording relating to the Registrar and the Clerk of the Court (47(3) was rather confusing, in the light of the previous references to the Registrar of the National Register for Sex Offenders, in Clause 44. She asked that Clause 47(3) therefore be amended to clarify that this clause referred to “The Registrar of a High Court or the Clerk of Court of a Magistrate’s Court”, and that similar clarifications may need to be made in other clauses.

The Chairperson also requested more clarity on the provisions of Clause 47(3)(a) and (b). She pointed out that subparagraph (a) referred to a convicted person who had failed to note an appeal or review on time, but made no provision for a successful application for condonation of the lapsed time period. She would prefer the wording to be amended so that subparagraph (a) specified that the person had taken no steps to note a review or appeal, and the period had expired. Subparagraph (b) should then make it clear that if the person subsequently applied for a review or appeal, which had been successful, notwithstanding the endorsement under (a), the Registrar should endorse or remove the particulars from the Register.

Mr Bassett confirmed that the drafters would attend to rewording these phrases.

Clause 47(4) ; (5) and (6)
Ms S Camerer (DA) pointed out that these clauses referred specifically to a person who had been convicted of a “sexual offence against a child”. As a matter of principle she queried whether this should be extended to cover those who had been convicted of any sexual offence. She pointed out that the provisions were basically designed for the protection of children and other vulnerable groups, and that it might be that a person convicted of, for instance, raping another adult might still rape a child.

The Chairperson appreciated Ms Camerer’s concerns but questioned the constitutional implications. She pointed out that the draft legislation already had a fine balance between the right to work in a chosen profession (such as teaching, primary school care, nursing) against the protection of children who would come into contact with the professionals. She suggested that perhaps including those who had been convicted of crimes attracting the minimum sentence might be justifiable.

Ms Camerer indicated that this might not affect a substantial proportion of offenders, since she believed there were very few successful prosecutions in these cases.

The Chairperson questioned Ms Camerer’s statistics, but still felt that if the Register were to be widened, it could only be done with reference to the minimum sentences.

Mr J Jeffrey (ANC) queried whether any empirical research had proven that a person convicted of a sexual offence would necessary pose any threat to children.

The Chairperson stated that rape was most often related to power relations and aggression. The minimum sentences were imposed in respect of the more “deviant” behaviour. She wanted to avoid a Court finding that the Register fell foul of the rationality test, which would destroy the whole mechanism aimed at protecting vulnerable groups. If one followed this argument through, it should perhaps also be extended to those convicted of murder. The Register would solve some of the peripheral problems, such as finally creating records of child victims.

Mr Jeffrey agreed with the Chairperson. He would prefer to see a more limited application of the Clause, but one that would stand up to the rationality test. He pointed out that the logical sequel to Ms Camerer’s suggestion was that a rapist should be restricted from working with women at all. He suggested that the wording remain restricted to sexual offences against children, that the mechanism start working, and that perhaps it could be worded more broadly at a later stage.

Ms Camerer indicated that she would be happy to follow the Chairperson’s suggestion of including those sentences to the minimum sentence. She suggested that the South African Law Commission (SALC) should be asked to give their advice on any research around this subject.

It was agreed that no decision would be taken on the matter at present, that SALC investigate the matter further, and that Members should consider the principle and discuss it at a later stage.

Time periods in terms of Clauses 47(4), (5) and (6)
Mr S Swart (ACDP) queried if the three month period mentioned under Clause 47(5) was sufficient.

Mr Bassett replied that the Bill had been forwarded to the SA Police Services (SAPS) for comment, and had also been discussed with them, and they had not objected to this clause.

Mr G Magwanishe (ANC) wondered if formal notice should not be given to SAPS.

The Chairperson pointed out that complete information could not be furnished, but that perhaps consideration should be given to the Commissioner of Correctional Services, who had fuller records, to allow for more comprehensive information to be furnished.

It was agreed that the point would be considered again as there was no need to take a final decision now.

Clause 47(7)
Mr du Preez explained that a person whose name had been placed on the Register would be informed of this during the court process in terms of Clause 47(2)(c). The Department of Correctional Services would inform inmates of the implications, including their obligation to notify any changes of address, in terms of Clause 47(4)(b) and the Department of Health had similar obligations for those subject to directions in terms of sections 77(6) or 78 (6) of the Criminal Procedure Act. It would, however, be difficult to trace and advise offenders previously convicted of the implications of this section, although the SAPS and the South African Criminal Records Centre had been asked to try to assist.

Mr Swart pointed out that no records would necessarily have been kept of the fact that the offence had been committed against children.

The Chairperson indicated that this was correct, and that this point had been discussed the previous day. The Committee would prefer to keep the clause because Correctional Services would probably be able to find records more easily, by following their paper trails. Even if the records were incomplete, there was benefit in allowing the clause to stand.

The Chairperson asked what would happen if an offender changed his or her name, either by Deed Poll or by marriage, or managed to change identity. She asked the Department of Justice to consider this possibility and to make some suggestions.

Clause 48: Removal of Particulars from Register
Mr du Preez summarised that this clause set out different time periods, which were dependent upon the sentences handed down, for removal of names from the Register. He stressed that the removal would only occur following an application by the convicted person.

The Chairperson enquired whether Clause 48(1)(b), which referred to “any other form of lesser punishment” would include suspended sentences or periods of correctional supervision.

Mr du Preez confirmed that suspended sentences were covered; subparagraph (a) referred to sentences without the option of a fine.

The Chairperson asked Mr du Preez to check whether correctional supervision, and also periodic imprisonment, would be included.

The Chairperson noted that diversion would apply to this clause, because there was no conviction. When drafting provisions relating to children it must be clear that only the lesser offences would carry the option of diversion.

The Chairperson asked if regulations would be drafted.

Mr du Preez confirmed that regulations were contemplated in Clause 51.

The Chairperson raised her earlier point of removal following an appeal or review (Clause 47(3)), and wondered if it would not be more logical to move that subsection to this clause.

Clause 49: Persons entitled to apply for certificate in respect of particulars included in Register
Ms Camerer pointed out that the Children’s Act also made provision for a separate Register, and she suggested that the two Registers needed to be brought in line with each other, and perhaps rationalised. The provisions of the Children’s Act were badly drafted and did not appear to reflect exactly what it intended to achieve.

The Chairperson agreed that the Committee could propose a resolution relating to the Children’s Act. She agreed that the wording was unclear, but the mechanism, once functioning, would be easier to understand. The Register under that legislation was much wider as it was not limited to sexual offenders. This Committee could not decide that certain categories of offenders could not, for example, foster children. While any initiative protecting children was worthwhile, it was the responsibility of another Committee to refine and rework the Register under the Children’s Act. The Social Welfare authorities clearly needed a mechanism over and above that provided in the Sexual Offenders legislation, which attempted to achieve a more limited protective net, rather than a “name and shame” Register. However, at some future date there may need to be some information sharing, which would require legislative amendment.

Ms Camerer agreed that there should be separate processes, but queried whether there was a need for more than one Register relating to those considered unsuitable to work with children.

The Chairperson pointed out that people other than sexual offenders might be considered unsuitable to adopt or foster. There was an overlap, but she believed the position would become clearer once the Registers were operative.

Mr G Solomon (ANC) added that it was impossible to curtail the rights of every person convicted of an offence, and that the curtailment would be justified only when the special interests of children were concerned.

The Chairperson was concerned that the way in which this clause was currently worded made it possible for an offender to “hedge his bets”. She cited an example of an offender making application to check whether his details were on the Register, finding that there was some error so that his name was not reflected, and therefore not making disclosure. The real issue was perhaps that any unusual request should sound a warning to the Registrar to obtain full details of the history of the person requesting the information.

Mr du Preez responded that the drafters felt that the initiative for a certificate should come from the applicant for the job, so that the potential employer would not be burdened by having to approach the Registrar. It was intended that the Certificate would form part of the CV.

The Chairperson suggested that the obligation should then be worded more specifically to make it clear that the person applying for the positions listed must disclose, by way of a Certificate, whether he or she has been convicted of an offence.

Ms Camerer believed that the employer should not be permitted to employ a person who had not obtained a certificate.

The Chairperson referred to her previous comment, and asked the drafters to consider a way of wording the section so that there were fewer loopholes. She also pointed out that the present wording did not cover authorities who granted licences, for instance special permission relating to private welfare schemes, home schooling and so forth.

It was agreed that the drafters would consider the principles behind the clause and suggest alternatives.

Clause 50: Confidentiality and disclosure of information
Mr du Preez pointed out that there was a typographical error in Clause 50(2); it should refer to “an application contemplated in Section 49”.

The Chairperson asked for clarity on this clause in relation to Clause 43.

Mr Bassett confirmed that Clause 43 needed to be redrafted, in order to capture the two categories. The first would deal with an employee who had a previous conviction prior to entering employment. The second would deal with a person already in employment who was, during the employment, convicted.

The Chairperson added that another category also needed to be added, relating to service agents whose contracts would require termination.

The Chairperson wondered if all those elements in Clause 43 had been captured in the current clause. The principle that a person convicted of a sexual offence against children could not work with children provided additional powers and duties to an employer with regard to the employment contract.

Mr Bassett confirmed that he would check this clause again.

Clause 51: Regulations pertaining to Register and Clause 52: Definitions and Interpretation
The Chairperson indicated that the Children’s Act, 2005 had not yet been implemented, and she queried the effect if the Regulations under this Bill were to be implemented before the Children’s Act was implemented.

Mr du Preez commented that there was a similar situation in relation to the Nursing Act. Although he believed that it was competent to refer to a definition contained in another Act, regardless of whether that Act was already implemented, there was a problem in that the definitions relating to the nursing profession contained a cross-reference to sections.

The Chairperson suggested that the safest option was perhaps to merely repeat the whole definition in the current draft.

Mr Bassett pointed out that there was a further difficulty in that, although the Regulations under the Children’s Act fell under Section 75 of the Constitution, some of the definitions could cross over into the Section 76 provisions, which had not yet been finalised.

The Chairperson requested the Department of Justice to investigate and advise the Committee further.

Ms Camerer enquired whether the 30-day period mentioned was usual for regulations.

The Chairperson saw no problem with this provision. The Committee would deal with the implementation of the legislation as part of its oversight function. She commented that the Committee would want the relevant Departments to report back within the first six months of implementation.

Ms Camerer asked whether the clause should not perhaps refer to any institutions for the care of children in terms of any applicable legislation.

Mr Bassett indicated that this type of provision was included in Clause 49.

The Chairperson indicated that she would prefer to have many possibilities covered to lessen the risk of loopholes.

Chapter 7: General Provisions
Clause 53: Defences
Mr du Preez summarised the provisions of Clauses 53(1). There was no discussion on this subsection.

Clause 53(2)
Mr du Preez summarised the valid defences listed in Clause 53(2). He pointed out that there was a typographical error in Clause 53(3) – the reference should be to the provisions of subsection (2)(b) or (c)

Mr du Preez pointed out that Clause 53(2)(a) referred to a mentally disabled person and reported that the Law Commission had recommended that recognition be given to the fact that mentally disabled people had sexual rights.

The Chairperson queried if this referred to mentally disabled people as defined in law, as the definition in this Bill was restricted to the categories that were most vulnerable. She pointed out that there were differing degrees of mental disability.

Mr Jeffrey indicated that the clauses dealing with mentally disabled people related to sexual exploitation and grooming only.

The Chairperson replied that the provisions of Chapter 2 covered offences against all people, including children and the mentally disabled.

Mr Jeffrey pointed out that it was not specifically defined as a crime to have sex with a mentally disabled person, and so he wondered why there was a defence raised specifically in those terms.

The Chairperson pointed out that the crime would be one of those generally stated in Chapter 2.

Mr Jeffrey said that the crime generally known as “statutory rape” was defined, and he wondered why a similar crime should not be created in respect of the mentally disabled.

The Chairperson pointed out that there was a difference. The defence set out in Clause 53(2) would relate specifically to a charge under Clause 3 or 5. However, she could understand Mr Jeffrey’s point that this defence seemed anomalous. The mentally disabled person referred to here would be a person who was unable to consent by reason of the mental illness, and therefore within the most vulnerable category. Such a person could not easily counter a suggestion that consent was given during a lucid period. She suggested that perhaps the whole concept of mental disability needed to be examined more closely for the purposes of this legislation.

Ms Camerer suggested that the definition of a “mentally disabled person” could perhaps be amended in subclause (d) to read “unable to communicate his or her willingness or unwillingness…”

The Chairperson replied that she did not think this would take it further; the definition of those who could not consent (subclause iv) covered the point.

Mr Jeffrey pointed out that although Clause 53(2)(a) referred to a person who “was not mentally disabled”, “mentally disabled” was not defined. He wondered if the words “and mentally disabled has a corresponding meaning” should not be added to the definition of “a mentally disabled person”.

Mr Jeffrey also asked for an explanation why the age of 18 was relevant in this subclause.

The Chairperson asked if the clause should not simply refer to a person who was an adult. She suggested that the whole definition needed to be considered, to decide what was to be covered. She would not like to see the concept undermined by the defence, yet must recognise that people who were mentally disabled may nonetheless have perfectly lucid periods. The protection was surely aimed at those who were most vulnerable. She suggested that perhaps it would be possible to include a definition specifically under this Chapter.

Mr Jeffrey pointed out that the defence was not automatic, so there was some safety mechanism since the Court would have to be convinced that the accused reasonably believed the complainant was not mentally disabled, and had therefore given proper consent. This was analogous to a person raising a defence of reasonable belief that a child was over 16. The defence would clearly not succeed if the complainant was a three-year old, but might if the complainant was fifteen and a half.

The Chairperson concurred, but added that if the legislation was intended to protect those who were so obviously disabled that the defence would not succeed, it did not make sense. The definition as formulated did not take all the possibilities into account. It also did not take into account the uneven relationship that a mentally disabled person could not easily argue that the defence was incorrect. There was no exact science that could be applied to temporary lucidity.

The Chairperson therefore reiterated that the whole Chapter on mentally disabled people needed to be looked at, with a view to bringing in line all the references to mental disability, or including a separate definition for this Chapter.

Reverting to the question of age, the Chairperson and Ms Camerer could not see the relevance of the age of 18. Ms Camerer suggested that all references to age be deleted, so that the issue turned only on consent. She added that she did not see the point of defining the degrees of mental illness purely to support this defence.

The Chairperson commented that the difficulty arose through the lack of proper definition. The defence was needed, because of the differing circumstances of mental illness. A mentally disabled person had already been defined, for the purposes or creating the crime, in Chapter 2 and Chapter 4. It was possible that another definition might be needed for the purposes of the defence under this Chapter.

Mr Jeffrey pointed out that perhaps this could be placed elsewhere in the Bill. He pointed out that Clauses 14 and 15 applied to children in a defined age category. There would be no consent in children under 12. He suggested that a correlation could perhaps be drawn for mentally disabled.

The Chairperson did not believe that the concept of an irrebuttable presumption could be captured holistically in a definition. The principle would need to be captured very clearly so that it was clear that in respect of a child under 12, the presumption existed, but in respect of a mentally disabled person, there was no such irrebuttable presumption. A defence could be raised, based on a factual set of circumstances, and it would have to be proved that consent existed because of a lucid period. The idea of any defence at all had been complicated by the principle of a special protective status for the mentally disabled.

The Chairperson therefore requested the drafters to amend the relevant portions of the Act to clarify the irrebuttable presumption in respect of children under 12, and to ensure that the defence could be raised in all cases. It should be left to the discretion of the Court to decide if there was no possibility of consent, or if the complainant was, at the time, able to consent despite the disability.

She also asked the drafters to consider Mr Swart’s question why the age of 18 was considered relevant.

Clause 53(2)(b)
The Chairperson asked why it was necessary for an accused to prove both a reasonable belief that the child was 16 years or older, and that the child had deceived the accused.

Mr Jeffrey suggested that the inclusion of both gave greater protection to the child, since it cast the onus on the accused to show that the child had actually deceived him or her.

The Chairperson posed a query about an accused meeting a child at an “over-18” club.

Mr Jeffrey said that this would satisfy the requirement of “deception”.

The Chairperson said that the defence related specifically to the 12 to 16 year old category. If a child looked older, perhaps drove or drank alcohol, and had friends who were obviously older, there was no overt deception, but an accused could reasonably believe that child to be over 16. The defence required both the reasonable belief and the deception. Although she agreed that it did provide further protection to the child, she did not think that this defence had achieved a good balance.

Mr Jeffrey argued that an accused should ask a child about their age, and if the child lied then the deception was clear. If a child claimed to be 18, but the accused knew that the child was in Grade 7 or 8, then the reasonable belief requirement could clearly not be fulfilled.

Mr Swart asked if this was a “traditional” defence. He pointed out that in relation to homosexual behaviour, the age limit for consent had already dropped from 19 to 16, and he agreed that there was a strong need for protection of the child. He also pointed out that his previous suggestions in relation to raising the age definition of “child” to 18 years should apply to this clause.

The Chairperson noted this point. She asked the drafters to check whether the wording of this defence was based upon previous case law and to report back.

Clause 53(2)(c)
There was no discussion under this subclause.

Clause 53(3)
The Chairperson asked if the reference to lacking intellectual development in Clause 53(3)(b) related to a lack of appreciation of the nature of the sexual act, or a lack of appreciation as to what would result from consent. She felt that the essential element, which was not clearly stated, was the consent to the performance of the sexual act.

Mr Jeffrey pointed out that this wording was probably derived from some of the old case law. He pointed out that one child might ask another “Can I do this?” but would not specify what “this” entailed.

Mr Swart felt that the understanding must be linked to the consequences of the act.

The Chairperson thought that this was not reflected in the wording. She pointed out that a child might, theoretically, be able to explain what “having sex” was, but not be able to appreciate how this happened. She pointed out also that some children might lack cognitive development because of a cloistered upbringing, rather than lacking intellectual development.

It was resolved that the Committee should consider the principles and possible rewording of this subclause.

Clause 53(4)
Mr Jeffrey could understand the need to exclude children from the provisions of Sections 16(3) and 23(3) but queried why they should not be convicted if they were living off the benefits of child exploitation set out in Sections 16(4) and 16 (5).

Mr du Preez replied that this was based upon the social phenomenon, in South Africa, of child headed households. A sibling might be aware that money was being brought in to a household through prostitution, but be totally dependent upon that income for survival.

General Committee Business
The Chairperson announced that the next meeting to discuss this Bill would be on Tuesday, 22 August.

Ms Camerer asked the Chairperson if she had received any information on the Draft Legal Services Charter, which was due to be discussed the following week. It was an important document and she felt that the Committee should have been invited to the discussions.

The Chairperson confirmed that she had received only an invitation to a gala dinner, and an agenda, but knew nothing further. She suggested that Ms Camerer raise the issue with the Department of Justice.

The meeting adjourned.