Criminal Laws (Sexual Offences) Bill: proposed amendments

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
12 September 2006
CRIMINAL LAWS (SEXUAL OFFENCES) BILL: PROPOSED AMENDMENTS

Chairperson: Ms F Chohan-Kota (ANC)

Documents handed out:
Criminal Laws (Sexual Offences) Bill as at 12/09/06

SUMMARY
The Committee was briefed on changes that had been made to the Bill by the Department of Justice and Constitutional Development following previous discussions. The Chairperson ruled that the Department would brief the Committee on the changes proposed to the Bill without the Committee deliberating on the changes. The Committee would continue deliberations on Wednesday, 13 September.

MINUTES

Department of Justice briefing

The Department was represented by Mr L Basset (Senior State Law Adviser- Department of Justice), Mr H du Preez (Chief Director: Legislation- Department of Justice), Mr H Potgieter (SA Law Reform Commission (SALRC)) and Ms D Clark (SALRC). Mr du Preez took the Committee through the Bill.

Clause 30: Definitions
Mr du Preez proposed the definitions of "body fluid", "HIV" and "nurse".

Clause 32: Designation of public health establishments for purposes of providing Post Exposure Prophylaxis and carrying out compulsory HIV testing
Mr du Preez said that Clause 32(3)(b) had been amended to include reference to the Director General of Health.

Clause 33: Application by victim or interested person for HIV testing of alleged sexual offender
Mr du Preez said that Clause 33(1)(a)(ii) was amended in order to correct an incorrect cross-reference. The paragraph would now refer to "section 35" and not 37. Sub-clause (2)(a)(1A) provided that the application for the testing of the alleged offender should "set out the grounds on which it is alleged that the victim has been exposed to the risk of being infected by HIV as the result of the alleged sexual offence having been committed against him or her".

Clause 35: Application by police official for HIV testing of alleged offender
Mr du Preez said that Clause 35(1)(b) would allow for an order to make the results of an HIV test available to an investigating officer or a prosecutor who needed to know the results for purposes of the prosecution of the matter in question.

Clause 39: Confidentiality of outcome of application
Mr du Preez said that the fact that an order for HIV testing of an alleged offender had been granted could only be communicated to the alleged offender, victim or interested person referred to in Clause, 33, the investigation officer and where applicable, the prosecutor and any other person who needed to know the results for purposes of any civil proceedings and the person who were required to execute the order contemplated in Clause 36.

Clause 40: Confidentiality of HIV test results obtained
Mr du Preez said that the results should be kept confidential and could only be communicated to persons named in the clause. These included the alleged offender, victim or interested person referred to in Clause, 33, the investigation officer and where applicable, the prosecutor and any other person who needed to know the results for purposes of any civil proceedings.

Clause 41: Offences and penalties
Mr du Preez said that Clause 41(1)(c) provided that the institution of a prosecution for an offence referred to in paragraph (a) or (b) should be authorised in writing by the relevant Director of Public Prosecutions. Paragraphs (a) and (b) outlawed the intentional disclosure of HIV test results and the laying of a charge of an alleged sexual offence with malicious intent.

Clause 43: Prohibition of certain types of employment relating to a child or children, or access to a child or children, or by certain persons who have been convicted of a sexual offence against a child
Mr du Preez said that a person who had been convicted of a sexual offence against a child might not hold any position contemplated in Clause 49. Such a person could also not hold a position that would place him or her in a position of authority, supervision or care of a child or gaining access to a child or places where children were present or congregated. It did not matter whether or not such a person was convicted before or after this legislation came into effect. A person who had already been convicted of a sexual offence against a child prior to the commencement of this legislation should disclose the conviction to the employer. New applicants for jobs would be required to disclose the conviction when applying for jobs relating to children.

Clause 48: Removal of particulars from Register
Mr du Preez said that this clause dealt with the circumstances under which a person's particulars could be removed from the Register. The Committee should decide if it wanted to allow for the removal of the particulars from the Register.

Clause 55A: Inability of children under 12 years and mentally disabled person to consent to sexual act
Mr du Preez said that a mentally disabled person would be incapable of consenting to a sexual act.

Clause 56: Extra-territorial jurisdiction
Mr Basset said that the Committee still had to discuss this clause. Sub-clause (4) dealt with the issue of double jeopardy.

The Chairperson asked if the principle of double jeopardy was found in the common law. She said that the British were reviewing this principle. It was interesting to know what would happen if a person was to confess to murder after having been acquitted on the charge of murder.

Clause 57: National Policy framework
Mr du Preez said that the drafters still had to do some work on this clause. Sub-clause (2) dealt with the timeframes.

Schedule 1
Mr Potgieter said that the Schedule had tremendously changed in size. The drafters had checked reference to rape, indecent assault and other crimes created in the Bill in other legislation. There were various Acts that referred to the crimes created in the Bill.

The Chairperson said that the Committee should not go through the Schedule now. The drafters should prepare a presentation on the Schedule that they would make on Thursday, 14 September. She asked if there were any big problems in the Schedule.

Mr Potgieter replied that there were a limited number of statutes that contained references to sexual abuse. The Schedule did not refer to sexual abuse. The Schedule referred to legislation that contained offences that were similar to those contained in the Bill.

The meeting was adjourned.