Criminal Law (Sexual Offences) Amendment Bill: deliberations

JUSTICE PORTFOLIO COMMITTEE
5 September 2006
CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL: DELIBERATIONS

Chairperson: Ms F Chohan-Khota (ANC)

Documents handed out:
Summary of Submissions (as at 31 August 2006) on Criminal Law (Sexual Offences) Amendment Bill
Doctors for Life International: Submissions on the Bill
National Council of Women of South Africa: Submissions on the Bill
Commission on Gender Equality: Submission on Sexual Offences Bill
Council for Debt Collectors: Report on difficulties in enforcing the Debt Collectors Act
Childline Gauteng: Submission on the Bill

SUMMARY
The Chairperson gave a brief history of the Bill and tabled a document summarising public comments. Some of the comments had already been taken into account when the Bill was redrafted in May 2006. The Committee had not yet considered other new comments, which were highlighted. Members gave consideration to those submissions. Matters of principle were raised that would involve a further redraft. These included the definition and extent of protection for mentally disabled persons (Clause 1 and Clauses 15 and 16), the definition and extent of protection in respect of pornography (Clause 1), consideration of whether the term “sexual violation” should be adjusted to “sexual contact” (clause 5), the age of consent (various clauses), compulsory HIV testing (Chapter 5), the National Register for Sex Offenders (Chapter 7), and use of intermediaries and CCTV when there was a child victim (Schedule 1, Item 4). In response to some comments that the procedures were cumbersome and perhaps not wholly effective, the Chairperson and Members noted that although the procedures might not be perfect, if they served to protect only one victim they should stand. This law would be subject to much testing in the Courts and it was important to try to achieve the best balance to satisfy the rationality tests.

The legal drafters indicated that they were still busy with a consolidated new version of the Bill, which should be available in the following week. The Committee would meet on 6 September to consider portions of the redraft.

MINUTES
Committee business and announcements
The Chairperson stated that the Committee’s annual report from last year had been recalled and the Deputy Chief Justice and she were still discussing it. It might be that the report needed to be brought back with some technical adjustments. She felt that it was not desirable to pass the current year’s report without the previous one going through. Therefore she felt that the current year’s recommendations should be processed by Friday.

In respect of the Regulation of the Interception of Communications and Provision of Communication Related Information Amendment Bill (RICA) the Chairperson indicated that the meeting with the Minister of Safety and Security had to be postponed but they were hoping to meet on 12 September.

Criminal Law (Sexual Offences) Amendment Bill: Deliberations
The Chairperson gave a brief history of the Bill. During 2003 the original Bill was tabled, and 128 submissions were received. These were summarised for consideration by the Committee, and public hearings were held. The Committee debated the matter further, but the matter was then postponed. In May 2006 a new draft was prepared, taking into account the submissions, public hearing comments, and deliberations. Although it was not normal to call for further comment, it was done in this case because of the length of time that had elapsed. About 20 further submissions were received, but many repeated comments made earlier. A complete summary of all submissions made had now been prepared, containing all comments made up to 31 August 2006. One or two submissions had been received after that date and were handed to the Committee Members. Comments from these submissions could be raised during the final deliberations on the redrafted Bill. The Chairperson asked the legal drafters to indicate new issues of principle as the Committee went through the summary.

The Chairperson specifically requested the drafters, when presenting the Bill, to set out each stage of the process that the Committee had been through, and capture it in the resolution.

Mr Henk du Preez (Senior State Law Advisor) stated that most of the comments received most recently had focussed on the new issues, such as the HIV testing and the provisions on the Register of Sex Offenders. The new principles raised had been highlighted in the document, and he indicated that the whole of Chapter 5 and the whole of Chapter 6 had been highlighted. He referred Members to the key of abbreviations. He intended to deal only with the provisions highlighted since the rest had already been discussed by the Committee and had been taken into consideration when deliberating on the Bill.

Clause 1: definitions: Mentally disabled
Mr du Preez stated that in her submission on the Bill Ms Helta van Niekerk, an educational psychologist, had suggested that the provisions relating to mentally disabled persons may apply equally to those with a physical or sensory disability, which would render them unable to communicate consent. Mr du Preez stated that a similar point had already been addressed.

The Chairperson had rethought this point. Mental disability in this Bill had been dealt with in a limited way; it was not defined as the whole spectrum but was confined to those mentally disabled people who could not appreciate the nature of a sexual act. To extend this to physically disabled could be problematic, especially since it would have to include those temporarily disabled.

The Chairperson indicated that this aspect would need to be thought out further. Mentally disabled people, as defined in this Act were not able to consent, so that anything requiring consent would not be applicable. It was possible to retain the clauses dealing with sexual exploitation but rework them so that consent would not apply to a mentally disabled victim. The clauses on sexual grooming could still stand. These issues would be dealt with in Chapter 2. The Chairperson suggested that this could be dealt with in the Bill so that subparagraph (iv) became (v) and vice versa, and that “a mentally disabled” be supplemented with “for the purposes of Chapter” (as applicable). She asked the legal drafters to redraft this definition, and the Committee would then consider it again.

Mr J Jeffery (ANC) commented that a person who had a physical rather than mental disability would understand the nature of the act but not be able to communicate consent or otherwise.

The Chairperson indicated that this had been discussed before. All the provisions must be read together. There was already a clear link made between disability and being unable to communicate. The problem was that many people did not read the clause clearly enough. She suggested that perhaps it could be redrafted so that it kept the same intention but was clearer to read.

Mr Jeffery was still concerned with a person who did not fall within the definition of mentally disabled, but had a purely physical disability.

The Chairperson replied that in these circumstances the offender would be charged under the general provisions of the Bill, relating to rape, or sexual violation or something similar. No special category was needed for persons with a physical disability. Only children and the mentally disabled were singled out for special treatment in the Bill because they were very vulnerable. All other people still had protection under the other clauses.

Mr S Swart (ACDP) raised the question of the 16 and 18 age limits, and reminded Members that he had asked why the defences in the Bill had referred to age 18, not 16, in respect of mentally disabled complainants. The Committee had asked the drafters to check the origin and relevance of this reference.

Mr du Preez responded that the SA Law Reform Commission had recommended age 18 to give added protection to the mentally disabled, because such people were unlikely to have the mental understanding that a non-disabled person would have at age 16. However, he was still busy investigating this. A possibility was to remove any references to an age limit, because in terms of the definition in this Bill a mentally disabled person would not in any event be able to consent.

The Chairperson commented that the mentally disabled could fall into two categories; unable to consent because of the disability, and unable to consent because they could be under age 12. She did not think it was necessary to make changes immediately, but asked the Committee to consider this matter for further discussion when deliberating the redrafted Bill.

Mr Swart reminded Members that another aspect, that immature cognitive development could affect consent, had also been raised.

The Chairperson stated that there was a common law principle that a child under 12 could not consent to a sexual act. She believed it was necessary to include a special clause to re-establish that principle. It was possible also to include a clause establishing the principle that the mentally disabled could not consent. She asked the drafters to check whether any common law principles existed in respect of mentally disabled persons.

Mr Lawrence Bassett (Chief Director: Legislation, Department of Justice) stated that he would check this, but pointed out that there was already a principle stated in the Sexual Offences Act.

General comment: Exploitation
Mr du Preez pointed out that Childline had expressed its concern about the wording of the clauses on exploitation. He thought it would be appropriate to deal with that now. This Bill was not dealing with adult prostitution. The Bill had criminalized a person soliciting in respect of children, and would make a separate category in respect of the client, but had not done this for a person soliciting in respect of adults. He suggested that it was useful to look at the position in other countries. He suggested that perhaps a clause should be inserted to criminalize the activities in respect of a person over 18. Presently the wording of this section referred to “a child” which was defined as a person under the age of 18.

Provisions relating to sexual grooming
The Chairperson suggested that this would need to be discussed again when Clause 16 had been redrafted.

The Chairperson asked where paedophiles’ conduct was criminalized in the Bill.

Mr du Preez replied that Clauses 14 and 15 would allow for prosecution of paedophiles. A paedophile involved in sexual conduct with a child under 12 would be prosecuted on a rape charge. Other clauses were sufficiently broadly worded also to cater for paedophiles’ conduct. The clauses on sexual grooming would most often apply.

Mr du Preez mentioned that the question had been raised whether the legislation should make provision for serial rape offenders.

The Chairperson stated that paedophilia was a systematic seduction, and it would be desirable to be able to criminalize the type of behaviour even if the sexual act had not been committed, so that a paedophile could be charged at any point. The enticement, seduction and coercion were all part of sexual grooming and the wording of those clauses would have to be wide enough to encompass all these elements.

Mr M Waters (DA) asked whether sexual grooming would include video clips and pictures sent on cell phones. He also queried the provision that the person must have made contact on at least two occasions.

The Chairperson pointed out that the contact must be with the intention of sexual grooming. A telephone call made to the parents, where the child had answered the phone, would not qualify unless the intention was there. The clause referred to “by any means” so the cell phone communications would be covered. She commented that it was unfortunate that it was only when there was widespread abuse of a facility, such as Mix-It, that legislation would be considered.

In respect of the requirement that there be two previous contacts, Mr du Preez indicated that he was busy researching comparative legislation in other countries. The United Kingdom legislation required two contacts, but the Scottish legislation required only one. It was likely that the drafters would recommend that one contact, with intention, was sufficient.

The Chairperson indicated also that Mr Chetty of the Film and Publications Board was researching the matter. With paedophilia, the mechanisms used, prior to the sexual act, were important, and therefore it was imperative to include provisions that were framed broadly enough to deal with advances in technology and new methods of contact – something similar to “communication, by whatever means”.

Mr Swart raised a question on arranged marriages. He asked whether that would fall under sexual grooming.

The Chairperson indicated that a marriage could certainly not be arranged for a child under 12. Girls could be married at 15, with ministerial permission. The answer lay in the requirement of intention. A marriage would not be arranged with the intention of sexual grooming. After marriage, the sexual act would be lawful. If there was premarital sex with a child under 16 that would amount to rape, but there would need to be a complainant, which was unlikely where parents had arranged the marriage.

Clause 2: Definition of pornography, related also to Clause 8
Mr du Preez indicated that attorneys acting for Print Media SA had raised concerns about the definition of pornography, which they felt was too wide and placed an unreasonable limitation on the right to freedom of expression. They argued that articles in the print media could be used for sexual exploitation. It would be difficult to determine if a person had consented to being exposed to pornography.

Mr Waters asked how the definition of pornography in this Bill compared with that of the Film and Publications legislation.

The Chairperson replied that the Film and Publications legislation did not seek to define pornography, other than child pornography. This Bill’s definition referred to “for the purposes of sexual exploitation” which again would relate to children. However, she believed that the Committee must look at other options.

Mr L Landers (ANC) commented that a recently drafted Bill being handled by the Department of Home Affairs sought to limit the publication of certain types of material. The purpose was stated as being to protect children.

The Chairperson stated that the problem lay not in the definition of pornography, but in the crimes related to exposure. Two crimes had been created, one in respect of children and mentally disabled, and another in respect of non-consenting adults. Exposure to pornography could be one of the methods of sexual grooming. If a film, for instance, was given an X-rating, it should not be shown to anyone under 18, and a showing in contravention of the legislation would lead to a prosecution under that relevant legislation. Exposure of pornography to children, as defined by this Bill, was not the same crime. However, the Committee needed to look at the issue of display of pornography; it might be desirable to include a clause to cover the causing of exposure and create a more direct link. A billboard of a woman showing her breasts may not be covered under this Bill, but someone causing a display of the same image with a different intention may be covered.

Mr Jeffery enquired what the existing laws in the Film and Publications legislation relating to pornography were.

The Chairperson replied that there was no “blanket” crime of pornography. Classifications existed and showing an X-rated item to under 18s was a crime. This Bill spoke of “causing” showing or “compelling” someone to view something. Perhaps the term “display” was too broad.

Mr Jeffery asked whether sending an image to a particular targeted child whom the sender wished to groom or use for later gratification would be a crime.

The Chairperson felt that this would be covered because the definition in this Bill of pornography was used in the context of sexual exploitation. It was more difficult when dealing with exposure to adults. The question of possession of the pornographic material was dealt with in the Film and Publications Act. However, one matter that should be criminalized was the exposure of child pornography to both children and adults, and the exposure of any kind of pornography to children.

Mr du Preez commented that the drafters did not believe that the definition was limited to child pornography. The wording referred to “any images of a person”, not only images of a child, and further on referred to “showing or describing the parts of such person”.

The Chairperson replied that up to now, sexual exploitation was limited to the mentally disabled and children. However, a new concept of sexual exploitation of adults was now being added.

Mr du Preez stated that there was a problem in the use of the word “exploitation” as sexual exploitation had a certain meaning. When the offence was created, it was worded to include adults being exposed to pornography. Therefore it was felt that a wider definition was needed. There was no definition beyond that of child pornography. The drafters had in fact used the definition of child pornography as written in the Film and Publications Act. It needed to be revisited. Specific guidelines would be needed from the Committee. It was possible to limit the exposure of child pornography only to adults, which was what the new Film and Publications legislation was seeking to do.

Mr Jeffery pointed out that subsections (a), (b) and (c) would apply to pornography, but sexual exploitation was only covered in (c). He wondered if there was any point in referring in this Bill to material that was essentially classified and criminalized under another Act.

The Chairperson replied that the questions of classification, possession and purchasing did not apply at all to this Bill. It dealt only with the exposure of material to a person without consent. If a person were to invite adult consenting friends to his home to watch an X-rated film, that would be governed by the Film and Publications legislation. If children were present, this would violate the Film and Publication legislation too.

On the one hand, the Committee had wished to make the intention of sexual gratification an element of the crime, but on the other hand did not wish the lack of sexual gratification to be a defence. Presently it was irrelevant. The real test was whether there had been consent, or whether the complainant had been compelled to view the images. This was a very narrow gap that the Bill sought to address, and she believed that it needed to be considered further.

Mr Jeffery queried again whether the Film and Publications legislation was not the most appropriate place to deal with the crimes of exposure.

The Chairperson confirmed that she would ask the Film and Publications Board to check this and comment.

Mr Jeffery raised the question whether the photographs and films of the reed dances could be described as being “for sexual gratification”, since this was part of a cultural tradition.

The Chairperson replied that there must be an unlawful intention, and this would not be used to attack traditional or cultural practices. However, “flashing” would clearly not fall within this category.

The issue of consent
Mr Waters asked why Clause 10 put the onus on the victim to prove lack of consent.

The Chairperson pointed out that the same provision applied in respect of rape. Consent could always be raised by the accused as a defence, in which case the onus would be on the complainant. Some systems asked the complainant to testify, and then would recall the complainant for further testimony if the defence was raised, thus escalating the trauma. She would be unwilling to pass legislation that resulted in further trauma and it was necessary therefore to deal with the issues immediately and try to expedite the trial.

Mr Swart wondered if the lifting of the age of consent to 18 would lessen the secondary victimisation. At the moment only a child under 16 would not need to disprove consent. There was an argument that lifting the age of consent would give further protection to children.

The Chairperson indicated that she personally was sympathetic to the calls for the lifting of the age of consent. However, the age of consent was essentially a legal fiction. It was only relevant to statutory rape, which was also a legal fiction. A child under 12 could not consent. Society regarded the age group 12 to 16 as not old enough to take care of themselves and take adult responsibilities, and therefore this group straddled childhood and adulthood. The notion of statutory rape was therefore retained. The question arose whether it should indeed be retained and whether it was consistent with the constitutional principles. Even the presumption that children under 12 could not consent could well be attacked. Clearly the provision for the 12 to 16 age group was kept to protect them. Factually, however, they could of course consent, but this would not detract from the crime of statutory rape. This, therefore, was why she termed it “a legal fiction”. To extend this protection beyond the age of 16 was becoming too tenuous. Some 17-year olds might still behave like 12-year olds. However 17-year olds were likely to be at university or college and living away from their parents. 18-year olds were far more likely to do so, and would be taking on far more adult responsibilities. Many 18 year olds had been independent for a while and might have long-standing relationships with older partners. The Court would find their sexual acts to be mutually consenting, and therefore would regard a restriction that created a legal fiction as irrational.

Statutory rape was most likely to happen in the case of paedophiles, and therefore the protection was needed because paedophiles in fact did get the consent of their victims through a subtle process of seduction. Factually there was consent. Legally, the victims needed extra protection. The Chairperson was worried that raising the age to 18 could jeopardise the entire category of statutory rape if the Court were to find that the provisions could be attacked for lack of rationality. She would not be averse to including this in a resolution, but feared that it might have unintended consequences.

Mr Swart reported that he had discussed the issue with the Deputy Minister of Justice, who had mentioned the possibility of creating separate offences for the 16 to 18 age group.

The Chairperson reiterated that the Committee could draft a resolution to ask the Department to look at the categories and see if protective mechanisms elsewhere could be applied. She asked Mr Swart to start considering the wording. She confirmed that she had received a short document detailing the ages from the Department of Justice, and would forward it to Members.

Clause 5: Sexual violation
Mr du Preez reported that the Centre for Applied Legal Studies (CALS) and the National Working Group (NWG) on the Sexual Offences Bill had argued that the term “sexual violation” should be replaced with “sexual contact”. Resources Aimed at Prevention of Child Abuse and Neglect (RAPCAN) had indicated a technical concern that “violation” was an inappropriate term to use since these acts could also be performed by consenting adults.

The Chairperson stated that the Committee would consider these submissions further. Strictly speaking she took RAPCAN’s point, but the legislation was dealing specifically with the situation where consent was absent.

CALS and NWG had also suggested that Clause 5(2) should qualify as sexual assault.

The Chairperson pointed out that this clause had been worded as closely as possible to the common law, but the Court would not necessarily object if it were to be widened.

Mr du Preez stated that Clause 5(2) attempted to capture the special category of assault that was indecent assault. With regard to inspiring the belief that the complainant would be raped, the question was where to draw the line between inspiring a belief and attempted rape. He believed that these two offences should be kept separate.

The Chairperson believed that the clause should not be amended from its current form. It would not be desirable to create a harsher crime than the common law crime. It should be left for the Courts to decide whether the circumstances indicated an attempted rape.

Clause 14: Age of Consent
Mr du Preez reported that the African Christian Democratic Party (ACDP) had submitted that the age of consent should be 18. There was a particular outcry about lowering the age of consent in respect of homosexual acts from 19 to 16.

The Chairperson commented that this issue had already been dealt with, but she would like the comments to be included in the resolution.

Mr Swart indicated that the summary did not quite highlight the essential points and he would like the resolution to do so.

Chapter 5: Services for victims of sexual offences and compulsory HIV testing of sexual offenders
Mr du Preez indicated that all comments on this Chapter, which had appeared only in the new draft of May 2006 would need to be considered.

Clause 31
Aids Legal Network (ALN) had stated that treatment should be available at all healthcare facilities.

The Chairperson commented that the Department of Health had indicated that although this was obviously desirable, there were currently capacity problems. A list of designated centres would be displayed, and this list was to be updated annually as further facilities were added.

A number of institutions had commented upon various aspects of the HIV testing, but the Committee had already debated many of the issues during deliberations on the draft.

Mr Waters asked for confirmation that only a victim who had laid charges could receive post exposure prophylaxis.

The Chairperson added that this was also available to victims who had sought treatment. It was obviously necessary to create some limitations to ensure that there was no abuse.

The Chairperson asked Mr Bassett who would draft the pro forma documents in terms of the Regulations.

Mr Bassett replied that the Department of Justice, in consultation with the Department of Health, would draft the Regulations.

The Chairperson indicated that new information would need to be included in the pro forma documents, and victims must be informed specifically about the window period for testing.

Mr Bassett confirmed that the Regulations were quite specific on these points.

Mr Waters wondered what would be the situation if the alleged rapist claimed that he had been infected after committing the offence.

The Chairperson explained that this Chapter had sought to combine concepts from the previous drafts. A crime had been created in previous drafts of deliberately infecting another person, which was not covered adequately by the common law crimes, and which would then have to be charged as assault GBH, or attempted murder. Following discussions on the HIV Testing Bill in 2003, it was decided to create, in this Bill, a separate crime of knowingly transmitting a lethal disease. Cabinet was wary of this inclusion and asked that more research be done. A request would be included in the resolution to this effect. However, the Criminal Law Amendment Act of 1997 already provided that a person, knowing that he / she was HIV positive, who raped another and was convicted fell within the highest minimum sentence, a life sentence. Therefore it was necessary to establish a testing mechanism, which had been done in this Bill.

The second important aspect was that this mechanism aimed to alleviate some of the psychological trauma of rape. A victim was psychologically disempowered when raped. The secondary trauma was not only related to having to give evidence in Court, but also to not knowing whether a lethal disease had been contracted, and therefore being hindered in lifestyle choices. A victim who had a test result was able to make choices such as whether to breastfeed a baby, or making special arrangements for the family. Furthermore those test results could be used in a subsequent civil action. It was not a perfect mechanism, and often the test could not be taken within 60 days, but it went some way to assisting the victims.

Mr Swart asked if this would cover a prisoner raped in a prison. Often this victim would not want to report the crime because of the likelihood of further victimisation.

The Chairperson stated that such victims would still need to lay a charge.

Mr Swart asked if the SA Police Services (SAPS) or Department of Correctional Services would investigate, as he would not like there to be a loophole.

Mr du Preez stated that there was a special provision where Correctional Services would report the matter to an official who would then hand the matter over. However, he agreed that the issue of the 72 hours was critical and he would check whether the Bill did cater sufficiently for this type of matter.

The Chairperson commented that the issues raised by the Aids Law Project (ALP) around the testing and the medication would all be dealt with in the national policy framework. There was a need to include reference to treatment for victims and protocols would emerge later.

Mr Bassett confirmed that the wording of the Bill was wide enough to cover all the issues raised by the ALP.

Clause 33
Mr du Preez stated that RAPCAN, NWG and ALN had all recommended that the testing provisions should be removed from the Bill. The reasons advanced included that it was a human rights violation, that the window period created uncertainty, that the absence of counselling could have a negative impact, and that the evidence to be considered by the Magistrate in granting the order for testing could jeopardise the future criminal trial.

The Chairperson did not understand how the pro forma information could jeopardise a trial. It stated the facts only.

Mr Bassett indicated that if the question of exposure had not been included, it should be.

The Chairperson asked what “set out the grounds” meant. Mr Bassett believed it would be merely a statement of when and how the offence was committed.

The Chairperson then suggested that the drafters should check the pro forma documentation, which was quite well worded, and that perhaps the clause and the pro forma should match more closely, if necessary.

Mr Waters pointed out that very few rape cases would be in Court within 60 days. He asked if an alleged offender could refuse testing.

The Chairperson commented that no right (such as the right to privacy) was absolute. In these circumstances it was necessary to weigh the trauma of the victim, and the need to know whether a fatal disease had been contracted, with the right to privacy. Within the first 60 days the balance was weighted in favour of the victim. After that it would move to the alleged offender. If a recent nexus could be established, the laying of a charge, then the violation of the right to privacy was justified. The question of guilt or innocence was not at issue; merely the question of HIV status. These testing provisions were similar to the drunken driving principles.

Clause 35
Mr Bassett indicated that ALP had also suggested that there were insufficient safeguards for keeping test results confidential by police and presiding officers.

The Chairperson replied that confidentiality clauses in respect of the police were included. Judicial officers would not receive the test results, and would only know whether a test had been ordered. She suggested that the process must still be included, even if it did have some flaws.

Clause 41
Mr Bassett indicated that RAPCAN, NWG and ALP had raised concerns that there was a potential that malicious intent charges would be laid against complainants if the charges of sexual offences were not successful. It was possible to include a provision that charges of malicious intent could only be laid with the consent of the Director of Public Prosecutions.

The Chairperson agreed and asked that this be inserted.

Chapter 6:National Register for Sex Offences
Mr Bassett indicated that a number of issues were raised but the Committee had already considered several of them.

The Chairperson commented that the Centre for the Study of Violence and Reconciliation (CSVR) had stated that the Register would be expensive and difficult to maintain. This might be so, but it was important to try to introduce protective mechanisms. They may not be perfect but it was imperative to take all reasonable steps to introduce measures that might even protect one child. The question of duplication with the register in the Children’s Act had already been dealt with. She explained again that the ambit of the register in the Children’s Act was much wider. This Bill sought to restrict convicted sex offenders (who may even have been convicted before the legislation came into operation) from being employed in a capacity where they would have contact with children. She summarised the procedure to be followed by employers. There was no certainty when the register of the Children’s Act might be implemented. Once both procedures were up and running, the Departments might well have to see how best to correlate the two registers.

The Committee had already discussed the principle relating to the comments made by RAPCAN as to whether the register should include details of persons convicted of any sexual offence, including against an adult.

The Chairperson commented that Clause 44 was in any event to be reworded to include convicted persons who would be able to have contact with children supervised by their spouse, such as in a home environment, and to provide that licensing bodies would also need to get the clearance.

Clause 47
The Chairperson commented, in respect of the comment by Childline, that no mention was made of children who committed sexual offences against other children because most were diverted, and therefore not charged. Some offences were clearly not capable of being dealt with on diversion. Depending upon the sentence imposed, the names would be removed at some point.

The Chairperson commented that Correctional Services had queried whether the names of sex offenders should ever be removed from the Register. The Register was intended to be protective, not punitive. The Chairperson believed that there was a proper balance because the periods for which the names would remain on the register were fairly long. There remained a problem with those previously convicted. She believed that the Committee would have to look at this problem again.

Mr Waters submitted that the names should surely remain on the Register forever. The reason why those convicted did not commit another offence was that they were not permitted to work in posts that would allow them access to children.

The Chairperson commented that Childline’s comment on the powers of the registrar did not take the provisions of the Bill into account.

Chapter 7: General Provisions
Clauses 65 and 66
Mr du Preez indicated that the attorneys acting for Print Media had stated that newspapers and magazines should not be held liable for the content of advertisements.

The Chairperson indicated that she could not agree with these submissions.

Schedule 1 Item 4
The Chairperson indicated that RAPCAN had stated that Section 170A of the Criminal Procedure Act was not applied consistently by the Courts, and many were reluctant to grant applications by the prosecution to use an intermediary or CCTV where the child witness was over 12. Ideally CCTV and intermediaries should be more readily accessible to all children. The test for the application, in respect of children under 12, should be easier and the test of stress and suffering should relate to the 12 to 16 age category. In addition, the Chairperson suggested that if an application for intermediary or CCTV was made for a child under 14, and was refused, the presiding officer must furnish written reasons for the decision.

Mr Waters wondered if all children up to the age of 18 should not be given automatic rights to an intermediary.

The Chairperson commented that this would not be constitutional, as the accused had the right to face his or her accuser. It must form the subject of an application to the judicial officer. She commented that the Constitutional Court was more than likely to be called upon to adjudicate on the Bill, and would check that the drafting took account of all parties.

Mr Landers asked if it would not be prudent to refer the whole Bill to the Constitutional Court.

The Chairperson did not believe this would be the best route. She felt that the Courts should have the chance to apply and use the Bill. If the Courts were happy to allow the provisions to be applied, the Constitutional Court would, in considering any challenges, be obliged to take this fact into account.

Schedule 1 Item 6
Mr J Potgieter (SA Law Reform Commission) stated that comments had been received on the clause dealing with previous sexual history. The protection would apply to people of a particular orientation even without the provisions of the Act.

General
Mr du Preez noted that Childline and a social worker in Port Elizabeth had suggested that the cautionary rule relating to the evidence of complainants in sexual offences should be abolished. He stated that this had already been discussed and the drafters were investigating the wording again.

Clause 166
Several organisations had suggested that Section 166 of the Criminal Procedure Act, to prevent unrepresented accused from questioning a witness directly, should be reinstated. Mr du Preez indicated that this could not be done in the legislation. This was an issue upon which the Court must decide. The suggestion made ran the risk of jeopardising rape cases against a child.

Other provisions
Mr Swart referred to the Civil Unions Bill, and wondered if the incest provisions, relating to affinity by marriage, would conflict in any way with the provisions relating to incest in this Bill.

The Chairperson commented that many foster parents acted in interim positions only and in the short term. If a child under their care was violated this would fall within other provisions and so it would not be necessary to make specific provision for these degrees of relationship.

The Chairperson asked whether the Department of Justice would be able to make a portion of the redrafted Bill available for discussion on the following day. The consolidated version should be ready by the following week. It was confirmed that certain provisions would be available for discussion on 6 September.

The meeting adjourned.