Criminal Law (Sexual Offences) Amendment Bill: deliberations

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
6 September 2006
CRIMINAL LAWS (SEXUAL OFFENCES BILL) [B50-2003]: DELIBERATIONS

Chairperson: MS F Chohan-Kota (ANC)

Documents handed out
Criminal Laws (Sexual Offences) Bill: working document as at 060906

SUMMARY
The Committee continued with its deliberations on the Bill. The Department proposed a number of new amendments following previous discussions with the Committee. Chapter 2 of the Bill would also apply to children and mentally disabled persons. The Bill would criminalise the activities of adults who solicited sexual services. It was not important whether the act had taken place or not. For instance, a person who had gone to a pimp to make arrangements for sexual services and was caught before getting to the place where the act would take place, could be prosecuted successfully. The element of travelling should be deleted because online grooming boiled down to communication between A and B wherein A invited, persuaded, enticed or coerced B to commit a sexual act. There would be two different offences should he go and commit the act. Both parties to the crime of incest could be convicted of the crime.

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. Mr du Preez took the Committee through the proposed changes to the Bill.

Index
Mr du Preez said that there was an insertion of clause 1A. The drafters had not yet decided on renumbering the clauses. The heading of Part 3 should change to "engaging sexual services of person aged 18 years or older". The heading of clause 25 should be in square brackets and in bold. He also proposed the insertion of two new clauses: 55A and 55B. He did not deal with the definitions because a lot of work still had to be done on them.

Clause 1A Application of certain provisions of Act
Mr du Preez said that the Committee had requested that clause 1(2) and (3) should be written as a separate clause to be an application clause. These two sub-clauses would now be clause 1A of the Bill. He proposed the deletion of reference to clause 11 from the current clause 1(2) and of the word "or” at the end of sub-clause 2(c) due the proposed insertion of a paragraph (e). Clause 11 dealt with incest and the other clauses referred to in the current clause 1(3) dealt with offences that included the absence of consent. Incest was a consensual crime. The current clause 1(3)(d)(iv) would become (d)(v) and the current (d)(v) would become (d)(iv). There words “for purposes of Chapter 2” would be added to the current (d)(iv). He said that the drafters were instructed to investigate the possibility of including physical disability as one of the grounds that would exclude consent. The proposed paragraph (e) was intended to address this possibility. The Chairperson had indicated that this provision might create further problems. He asked if the provision should remain or be deleted.

The Chairperson said that the paragraph (e) should deleted.

Mr du Preez said that the drafters were also requested to include a provision that would indicate general clauses were applicable to mentally disabled persons and children despite the fact that there were special clauses that applied to children.

The Chairperson said that the Bill could simply provide that Chapter 2 also applied to children and mentally disabled persons. She felt that the provisions of the proposed sub-clause (3) were adequate. The word "contained" should be added in sub-clause (4) just after "contrary".

Mr du Preez said that marriage was one of prohibited degrees of relationship in terms of clause 11. The common law definition of incest applied a provision in the Child Care Act. The Act merely provided for a prohibition and the crime itself was found in the common law. The

Children’s Act, 2005 did not have a prohibition relating to adoption. It only provided that an order of adoption would not change any prohibited degrees that existed prior to the adoption. It did not address the issue of creating a prohibition after the adoption. It would have been better to amend the Child Care Act but this could lead to implementation problems. The decision was to include the marriage prohibition in respect of adoption in this Bill.

The Chairperson had thought that the problem was that the Children's Act had not yet been implemented. Mr du Preez was now saying that the provision that prohibited marriage under an adoptive relationship was not in the Children's Act. There was a problem and it seemed that the choice that had been made when processing the Children's Act was not to include the provision therein.

Mr du Preez said that there was a difference in opinion. He was of the view that the new section in the Children's Act was not in line with the Child Care Act. The Child Care Act clearly provided that an order of adoption had the effect that that the adoptive parent could not marry the adopted child. It was drafted in a very old style wording and followed a previous Child Care Act. The wording had stayed the same for the past 50 years. The portion that dealt with the prohibition fell out in the Children Act. There was an argument that subsection (4) in the relevant section of the Children's Act had saved the prohibition. It provided that nothing that was prohibited in the common law would be allowed in terms of the Act as a result of an adoption order.

The Chairperson said that the prohibition was not in the common law but in previous legislation. The Committee might want to address this issue in its resolution on the Bill.

Mr du Preez said that there could be problems if the issue was dealt with in the resolution. There could be a very big lacuna should the Children's Act become operational.

The Chairperson said that it might be that the intention was not to incorporate it under the Children's Act. There would have been no problem if one was dealing with a drafting error.

Clause 7A Engaging sexual services of person 18 years or older
The Chairperson said that the clause should be reworded. The legislation did not deal with adult prostitution. Unlike what was the case in other countries, whilst criminalising child prostitution and other offences, the Bill did not criminalise the clients' activities at all. The clause was aimed criminalising the act of soliciting sexual services.

Clause 8 Exposure or display of or causing exposure or display of sexual act to person 18 years or older.
Mr du Preez said that the Committee had requested to look at the possibility of splitting this clause into two different clauses, one of which would deal with a person who had been compelled to watch a family member being raped. Clause 8 dealt with compelled display of sexual act to person 18 years or older. Clause 8A dealt with normal exposure or display (i.e. no compulsion) of or causing exposure or display of sexual act to person 18 years or older.

Clause 11 Incest
Mr du Preez said that the word "complainant" was in square brackets and that there was a proposed addition of the words "another person". The Committee had asked if both parties to the crime of incest could be convicted of the crime and the answer was in the affirmative. The Committee had said that there was a technical problem in the clause because it referred to the complainant. The intention was to replace "complainant" with "other person" in order to show that both parties could be convicted. The drafters were also requested to create a defence in respect to children. The defence was contained in clause 53.

The Chairperson said that there was the problem in relation to adoptive relationships.

Mr du Preez agreed and added that this was the reason why clause 11 (2) referred to section 1A(4) of the Child Care Act.

Mr du Preez replied that the definition of the offence was attached to the prohibition of marriage. There were two options of dealing with this issue: One could place the prohibition in the Marriage Act or in the Children Act. An argument had been made that the prohibition should be in the Marriage Act because it was a marriage prohibition. Another view was that it should be in the Children's Act because it was related to the effect of an adoption order. An adoption order created a prohibition to marry.

The Chairperson said that this issue should also be raised in relation to the Bill that would deal with same sex marriages. One would also have to consider customary unions and domestic partnerships. The Chairperson asked where could one find the prohibited degrees of relationships.

Mr du Preez replied that they were contained in common law and the best source was textbooks.

Clause 12 Bestiality
The Chairperson said that there was a change in the wording of the clause. She asked how much the wording had changed.

Mr du Preez replied that it was not only a technical change. The Chairperson agreed and said that the rewording had significantly altered the meaning of the clause.

Clause 14 Acts of consensual sexual penetration with certain children (consensual rape)
Mr du Preez said that the drafters had been requested to delete the words "consensual rape" in sub-clause (1). The words had been retained in the heading of the clause.

The Chairperson said that the retention of the words in the heading would not make any difference. The important thing was that they were not included in the crime itself.

Clause 16 Sexual exploitation of child
Mr du Preez said that the Committee had requested the redrafting of the clause so as to draw clear distinction between the actions of the clients and the pimp. Sub-clauses 1A and 2A dealt with the client.

The Chairperson asked what was the difference between the two besides the age issue.

Mr du Preez replied that sub-clause 1A(a) envisaged a situation wherein the client had already handed the money over or agreed that that money would exchange hands but the actual act had not yet been committed. The State should be in a position to prosecute successfully on a charge of sexual exploitation of a child. Sub-clause 2A was a follow on to the extent that money would never exchange hands and the offence had already been committed.

The Chairperson said that the intention was to criminalise the act of soliciting sexual services. It was not be important whether or not a sexual act had taken place following the soliciting. For instance, a person who had gone to a pimp to make arrangements for sexual services and was caught before getting to the place where the act was supposed to take place should still be prosecuted successfully. There would be two different offences should he go and commit the act.

Mr du Preez said that sub-clause (3) required that knowledge of sexual exploitation of a child should be reported within a reasonable time.

Ms Clark said that the Prevention of Family Violence Act had two clauses left in it. Sections 1, 2, 3,6 and 7 of the Act were repealed by the Domestic Violence Act. The remaining sections dealt with mandatory reporting of abuse and marital rape. The mandatory reporting was repealed and was dealt with in the Children's Act.

The Chairperson said that there was no obligation to report commercial sexual exploitation. The drafters should try and make the Bill consistent with other legislation.

Clause 17 Sexual grooming
Mr du Preez proposed amendments to clause 17(1). Paragraph (c) dealt with online sexual grooming. Members had raised a concern around the requirement that there should have been communication on at least two earlier occasions. The intention to travel in order to meet the person who had been sexually groomed was part of the offence of sexually grooming. Strictly, speaking, the act of travelling to meet the person went beyond grooming. The element of travelling should be deleted because online grooming boiled down to communication between A and B wherein A invited, persuaded, enticed or coerced B to commit a sexual act.

The Chairperson said part of sexual grooming could be for the groomed person to have sex with someone else or to experiment.

Mr du Preez said that the clause could refer to the commission of a sexual act with A or another person.

The Chairperson asked if sexual act included masturbation. Mr du Preez agreed. The Chairperson said that paragraph (c) should simply refer to the commission of a sexual act and not specify the other party with whom the act would be committed.

Mr du Preez said that paragraph (c) was based on the UK legislation wherein they had the requirements of communication in at least two earlier occasions and travelling with the intention to meet the child. The Scottish legal system referred to at least one previous occasion. The drafters were still trying to found out why previous communication was a requirement. The enforcement of similar provisions had created headaches for the police. For instance, the police could find that a child was in the process of being groomed on the Internet. In terms of their statutory requirements, they had to wait until the person had travelled to meet with the child before they could arrest him.

Mr Basset said that all sub-paragraphs under clause 17(1)(d) where conditional upon the intention of grooming a child for sexual purposes.

The Chairperson said that grooming had already taken place before the person could travel in order to meet the child. The person would travel in order to have a sexual act with the child. She asked the drafters to consult comparative jurisdictions. The intention was to ensure that the prosecution would be successful even before the sexual act had taken place. Travelling was a second leg of the paedophilic tendencies. The sexual act was a third phase of the process.

Imam G Solomon (ANC) said that the Chairperson seemed to be suggesting that there were two separate offences. He asked if the clause was creating two offences.

Mr du Preez replied that grooming was a process. One was talking about conduct taking place on the Internet. There was a certain modus operandi followed and the process took a long time to complete. A person would meet children on a chat room, invite them to a private chat room and eventually start sending each other messages. The whole process was in intended to diminish the resistance of the children and the final conclusion would be to meet the child and do "whatever". The "whatever" was covered in terms of other clauses of the Bill. It could be rape or any other offence created in the Bill.

The Chairperson said that people who manufactured articles used in the grooming process and those who made them available should also be punished. There should be a separate crime of manufacturing articles for the purposes of sexual grooming. One was working on the presumption that such articles existed. It would not help to outlaw things that did not exist. Grooming was the seduction process and would include the process of travelling.

Mr du Preez said that one should just accept that those articles existed.

Clause 18 Exposure or display of or causing exposure or display of sexual act to child
Mr du Preez said that the drafters were requested to differentiate between compelling a child to watch a parent being raped and the general exposure to sexual acts. There were two options on how to draft this clause. Option one (clause 18) dealt with compelled display of sexual act to a child and Option two (clause 18A) dealt with the normal exposure (i.e. no compulsion).

Clause 35 Application by police for HIV testing of alleged offender
Mr du Preez said that the clause still needed to be finalised. He skipped several clauses and resumed at clause 53.

Clause 53 Defences
Mr du Preez said that the drafters were requested to create a defence for a child who had fallen victim to the crime of incest. Sub-clause 3A provided for the defence.

Clause 55A Ability of children to consent to sexual act
Mr du Preez said that the clause was creating a rule that children under the age of 12 years were incapable of consenting to a sexual act.

Ms S Camerer (DA) said that the word "ability" should be replaced by "inability".

Mr du Preez replied that the drafters were still working of the clause.

The meeting was adjourned.