Criminal Law (Sexual Offences) Amendment Bill: briefing on Clauses 62 to 67

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
23 August 2006
SEXUAL OFFENCES BILL: BRIEFING ON CLAUSES 62 TO 67

Chairperson: Ms F Chohan-Kota (ANC)

Relevant documents
Criminal Law (Sexual Offences) Amendment Bill [B50-2003] as introduced on 19 June 2006 in the Portfolio Committee on Justice and Constitutional Affairs
For van Zijl v Hoogenhout judgement, go to www.supremecourtofappeal.gov.za

SUMMARY
The Committee continued with its deliberations on the Bill, from clause 62 until the last clause and Schedule of the Bill. The Bill repeals the common law relating to the irrebutable presumption that a female person under the age of twelve years is incapable of consenting to sexual intercourse. It would also repeal the common law relating to the crimes of rape, indecent assault, incest, bestiality and violation of a corpse, insofar as it was related to the commission of a sexual act with a corpse.

It would also deal with the prosecution of recalcitrant publishers. Details of people involved in criminal proceedings or rape victims, particularly children, were regularly published in contravention of section 154. The main aim was to increase the fine payable and to make section 300 of the Act applicable upon the conviction of a person who had published the information in contravention of the law. Victims whose details had been published and had suffered some harm would be able to have some compensatory order made in their favour.

The law dealing with evidence about a complainant's sexual history was very important, especially given the prominence it had received during the Jacob Zuma trial. In terms of the common law, evidence on previous sexual history of the complainant with the accused could be led. The accused was not entitled to lead evidence about the complainant's sexual history with other men. However, the complainant could be cross-examined on this aspect as it was viewed as relevant to credibility. There was criticism of the common law provision and the Bill attempted to deal with this. It was argued that cross-examination on the complainant's sexual history traumatised and humiliated the complainant and that the evidence was irrelevant. It could only establish a general propensity to have sexual intercourse. It was also argued that evidence of this nature was inadmissible in other cases and so there were no grounds for admitting such evidence in cases of a sexual nature. The possibility of such cross-examination deterred victims from reporting the offence.

Evidence in relation to the sexual history of the complainant with the accused would remain admissible, as was the case under the common law. However, evidence relating to the complainant's sexual experience outside the act complained of and cross-examination on such experience would be inadmissible unless the court had granted leave to lead such evidence. The court would only grant leave to lead the evidence if relevance had been established. The amendment was aimed at limiting the admissibility of evidence of the complaint's sexual conduct including past conduct with the accused. The application to court to lead evidence of past sexual conduct would be required in all instances except where the evidence was related to the sexual experience or conduct in respect of the offence that was being tried. The proposed clause contained guidelines on when such an application could be granted. The court would be required to grant or refuse leave to lead such evidence.

Based on the van Zijl v Hoogenhout judgement, the Bill amended the Prescription Act so that prescription would not commence running in the matter of sexual abuse during the time in which the creditor was unable to institute proceedings because of his or her physical, mental or psychological condition.

MINUTES
Mr H du Preez (Senior State Law Advisor, Department of Justice), Mr L Basset (Chief Director, Legislation, Department of Justice), Mr H Potgieter and Ms D Clark of the South African Law Reform Commission (SALRC) attended the meeting.

Clause 62 Regulations
The Chairperson said that this was a catch-all clause and would cover things that the Committee had not considered to regulate at this stage.

Mr Basset said that it was a standard clause.

Clause 63 Repeal and amendment of laws
Mr du Preez said that this clause repealed the common law relating to the irrebutable presumption that a female person under the age of twelve years was incapable of consenting to sexual intercourse and the crimes of rape, indecent assault, incest, bestiality and violation of a corpse (insofar as it related to the commission of a sexual act with a corpse).

Clause 64 Transitional provisions
Mr du Preez said that clauses 65(1) and 92) should refer to clause 63(1)(b).

Clause 65 Application and interpretation
The Chairperson said that the definition of trafficking was complicated and was perhaps taken from United Nations conventions. Mr du Preez agreed. The Chairperson said that it was drafted in a way that would ensure that nobody got off. She wondered if it would be less effective if it was worded differently.

Mr du Preez said that the definition was based on the definition in the convention. The term sexual exploitation as used in the protocol combined many offences. Sexual exploitation had a specific meaning for the purposes of the Bill.

The Chairperson asked if it would not be better to refer 'sexual exploitation in the context of the convention'.

Mr du Preez replied that the problem was sexual exploitation had a different meaning in terms of the Bill.

The Chairperson said that the problem was that the clause looked like South Africa's interpretation of sexual exploitation. The clause should refer to sexual exploitation as contemplated in convention and should also specifically include things like sexual act and sexual grooming. Mr Basset agreed.

Mr S Swart (ACDP) asked if the drafters had checked the overlap between this Bill and the Children’s Act. This Bill would apply to children as well.

The Chairperson asked the drafters to look at it. Part of the problem was that the Children’s Act was not yet in effect.

Mr Basset said that the section 75 Bill was already an Act but not yet in force. The section 76 Bill had not yet been introduced in Parliament.

The Chairperson said that the sections 75 and 76 Bills were meant to be implemented as a whole. The section 75 part would not be implemented until the section 76 part had been passed. It should be noted that this was a transitional clause. The idea was that there should be something in place rather than wait for other Bills to be implemented.

Schedule
Sexual Offences Act, 1957
Section 1 of the Sexual Offences Act
Mr Potgieter proposed an insertion in the Sexual Offences Act, 1957. The ideal would have been to repeal all the provisions of the Act. However, there were still some provisions that dealt with adult prostitution in the Act. The Bill would repeal all provisions that dealt with children. The Bill would also repeal section 13 of the Act that dealt with abduction. There was a common offence of abduction that was still in operation and was wider than the offence created in the Act. He wondered if there was a need for a parallel existence of the offence as found in common law and in the Act. Section 21 was a penalty provision and referred to provisions that were being repealed. It would be necessary to re-adjust the section as a result of the repeal of the section mentioned therein. The section itself was not being repealed because it provided for penalty provisions in terms of the Act.

Criminal Procedure Act (CPA) 1977
Section 18 of the CPA
Mr Potgieter said that there would be consequential amendments to the CPA because section 18 of the Act referred to rape.

The Chairperson asked what was sexual violation in terms of the existing law. Section 18 was meant to preserve heinous offence.

Mr Potgieter replied that sexual violation was not included in the CPA.

Section 154 of the CPA
Ms Clark said that the amendment was aimed at prosecuting recalcitrant publishers. The section dealt with the prohibition of publication of certain information relating to criminal proceedings. Details of people involved in criminal proceedings or rape victims, particularly children, were regularly published in contravention of section 154. The main aim was to increase the amount of fine payable and to make section 300 of the Act applicable upon the conviction of a person who had published the information in contravention of the law. Victims whose details had been published and had suffered some harm would be able to have some compensatory order made in their favour.

The Chairperson asked what was the amount of fine payable. One was dealing with big media houses and the fine should not be too low in such a way that publishers would not be deterred from publishing the details. It might be helpful to raise it much higher if it was too low.

Section 164 of the CPA
Ms Clark said there was a common law requirement that all witnesses should testify under oath. Section 164 provided for an exception in relation to people who could not understand an oath. The introduced Bill had attempted to change the test. A person who did not understand the nature and import of the oath or the affirmation would be admonished by the presiding judge or judicial officer to speak the truth.

Section 170A of the CPA
Ms Clark said that the amendment was made to ensure attendance and accountability of intermediaries in criminal proceedings. The proposed section 170A(1) referred to "biological or mental age".

The Chairperson said the Bill previously referred to 'biological age' and now included 'mental age'.

Section 195 of the CPA
Ms Clark said that the wife or husband of the accused was competent and compellable to give evidence for the prosecution where the accused was charged with an offence committed against the person of either of them or the child of either of them. The amendment would include offences that were committed against the person of a child who was in the care of either of them. She proposed that the section should also include a child who was under the supervision or care of either of them.

The Chairperson said that the section dealt with the issue of whether a person was compellable to testify. The concept was not based in fact but in law.

Section 227 of the CPA
Mr Potgieter said that the provision was very important especially given the prominence it had received during the Jacob Zuma trial. In terms of the common law evidence of previous sexual history of the complainant with the accused could be led. The accused was not entitled to lead evidence of the complainant's sexual history with other men. However, the complainant could be cross-examined on this aspect as it was viewed as relevant to credibility. There were some criticisms against the common law provision. It was argued that cross-examination on the complainant's sexual history traumatised and humiliated the complainant and that the evidence was irrelevant. It could only establish a general propensity to have sexual intercourse. It was also argued that evidence of this nature was inadmissible in other cases and there were no grounds in admitting it in cases of a sexual nature. The possibility of such cross-examination deterred victims from reporting the offence.

He said that the proposed amendment was an attempt to counter some of the criticisms. Evidence in relation to the sexual history of the complainant with the accused would remain admissible, as was the case under the common law. However, evidence relating to the complainant sexual experience outside the act complained of and cross-examination on such experience would be inadmissible unless the court had granted leave to lead such evidence. The court would only grant leave to lead the evidence if relevance had been established. The amendment was aimed at limiting the admissibility of evidence of the complaint's sexual conduct including past conduct with the accused. The application to court to lead evidence of past sexual conduct would be required in all instances except where the evidence was related to the sexual experience or conduct in respect of the offence that was being tried. The proposed clause contained guidelines on when such an application could be granted. The court would be required to give reasons for granting or refusing leave to lead such evidence.

Section 238 of the CPA
Mr Potgieter said that there was a consequential amendment. The section referred to "incest " and would now refer to the offence referred to in clause 11 of the Bill.

The Chairperson asked if there was a legal definition of 'stepmother'.

Mr Potgieter doubted if there was.

Mr Basset said that "step mother' was already covered in the CPA.

Section 276A of the CPA
Ms Clark said that the provision dealt with the extension of the period of correctional supervision. The proposed 2A provided for treatment for people who had shown potential to benefit from treatment.

The Chairperson asked who would accredit the treatment programme.

Mr Basset was of the view that the Department of Correctional services would accredit the programme.

Mr J Jeffrey (ANC) asked to whom should the potential be demonstrated. He wondered if the provision should refer to an "appropriate treatment programme" or "sex offence specific accredited programme".

The Chairperson said that regulations should specify which programmes would be appropriate.

Mr Jeffrey asked if the potential to benefit should not be demonstrated to the satisfaction of the Court.

The Chairperson said that the proposed 2A should be read as part of the whole section. The provision should somewhere indicate that such potential should be demonstrated to the satisfaction of the court.

Section 335A
Ms Clark 335A said that this provision dealt with the fine payable by or the amount of time to be served by a person who had published the details of certain persons. The intention was to raise the period of imprisonment to two years if the person whose identity had been revealed was over 18 years. The punishment would be a period not exceeding three years imprisonment if the person whose identity had been revealed was under 18 years. Section 300 of the CPA would also apply to this provision.

Mr Basset said that the penalty was five years in relation to the publication of information about a person under 18 years in contravention of section 154.

Prescription Act, 1969
Section 12 of the Prescription Act
Mr Potgieter proposed a new section 12 that would provide that "prescription shall not commence to run in respect of a debt based on sexual abuse during the time in which the creditor is unable to institute proceedings because of his or her physical, mental or psychological condition". This clause seemed to have found support in the van Zijl v Hoogenhout judgement.

The Chairperson said that the clause was dealing with people who had blocked the experience for some years. The court held that 'a victim who had suffered sexual abuse as a child and who had only in adulthood acquired an appreciation of the responsibility of the abuser for the abuse could sue the abuser within three years of acquiring that appreciation'. The Chairperson asked why the clause still referred to 'sexual abuse'.

Mr Jeffrey said that the case was about section 5 of the Prescription Act and this Bill dealt with section 12. He agreed with the sentiment but wondered if the Bill was amending the right section.

Mr Potgieter said that the judgement referred to section 5 of the Prescription Act, No. 18 of 1943. The abuse in question had taken place in 1958 and the court had to apply provisions of the 1943 Act. A similar provision was contained in section 12 of the current Prescription Act.

Criminal Law Amendment Act, 1997
Schedule 2
Mr Potgieter said that there should a consequential amendment to the Act because it referred to rape and indecent assault. The section should refer to offences created in the Bill. The section would also become gender neutral.

Prevention of Organised Crime Act, 1998
Schedule 1
Ms Clark said that there should be consequential amendments as result of the offences that the Bill would repeal.

The meeting was adjourned.