Criminal Law (Sexual Offences) Amendment Bill: deliberations

Meeting report

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

Chairperson: Ms F Chohan (ANC)

Documents handed out:
Criminal Laws (Sexual Offences) Bill as at 12/09/06
Document aimed at facilitating discussion on Schedule one of the Bill
S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae

SUMMARY
The Committee went through Schedule 1 to the Bill. Most of the amendments were technical in that they tried to align existing crimes with crimes created in the Bill. Provisions that dealt with brothels and adult prostitution would remain in the Sexual Offences Act of 1957. All provisions that dealt with sexual offences against children were covered in this Bill, the Criminal Laws (Sexual Offences) Bill. The effect of retaining provisions that dealt with adult prostitution was that adult prostitution was still a crime in terms of the law. An interpretation of the Jordan case indicated that prostitution was still a crime and that the activities of both the prostitute and the client were criminalised.

The Chairperson said that it was important for people to understand that the Committee was not changing the law in an ill considered way or without consulting people. The Bill was in line with the Constitutional Court judgement. The Bill would retain the law as it currently stood until such time the South African Law Reform Commission (SALRC) had finalised its review. The SALRC could decide to keep the law as it was or change it. The Committee did not know what the Commission would decide. People were asked to comment on the legislation in its entirety. The fact that they had not seen this provision was not the Committee’s fault. It was dishonest for people to say that this provision was inserted after the window for public comments had been closed. One of the reasons why members of the public were in this meeting was to ensure that they could make submission whenever the Committee encountered problems. The Committee had never refused to accept submissions. She appealed to people not to go around saying that the Committee had closed the submissions period. Anybody was still free to indicate to Committee why the Constitutional Court’s judgement was thought to be wrong or why the Committee should not retain adult prostitution as a crime.

Prescription would not commence to run in respect of a debt based on sexual abuse or any sexual offence during the time in which the creditor was unable to institute proceedings because of his or her physical mental or psychological condition. The intention was to cover the principle that related to children who had been abused and had grown up and realised that they had been abused.

The fines or sentences imposed on people who had published the particulars of a victim in a criminal trial in defiance of a court order would be increased. A victim whose particulars had been published in defiance of the court order would be able to claim compensation for the trauma caused by the publication. The intention was to allow a criminal court to make a compensation order in favour of the victim.

It was important to give clear evidence and specific instructions on when courts should allow evidence of previous sexual experience. One could not simply say that evidence of sexual history was irrelevant because it was not always irrelevant. The presiding officer would have to give reasons for allowing the evidence. This would bring a degree of fairness because the victim would get to know why the application to lead the evidence was given. Incest should operate against both biological and adoptive parents.

MINUTES
Mr Hennie Potgieter and Ms Dalene Clark from the South African Law Reform Commission attended the meeting.

Schedule 1 of the Bill
Mr Potgieter took the Committee through Schedule 1 of the Bill. He said that the drafters had conducted a search for reference to sexual matters in other pieces of legislation. Schedule 1 was an exposition of all the revision in other pieces of legislation that dealt with sexual matters. Most of the issues were technical.

He explained the content of the document aimed at facilitating discussion on Schedule 1 of the Bill. Part one of the document reflected the full text of all provisions in Schedule 1 of the current version of the Bill that required either some amendments or repeal. Part two dealt with proposals that were contained in the introduced bill but were omitted in the redrafted Bill as a result of the Committee’s deliberations. Part three dealt with reference to sexual matters in other legislation about which there was uncertainty as to whether they should be included in Schedule 1. Part four dealt with references to sexual matters in other legislation which probably required no amendment.

Magistrates Courts Act 32 of 1944
Section 89 of the Magistrates’ Courts Act
Mr Potgieter said that said that the amendment was intended to show that rape included "compelled rape" as defined in the Bill.

Schedule 2
Mr Potgieter said that this Schedule also referred to rape. He proposed the addition of "compelled rape" as defined in the Bill. The Act also referred to "indecent assault". He proposed that "sexual assault, compelled sexual assault or compelled self sexual assault" as defined in this Bill should substitute the crime of "indecent assault". There might be a concern with this amendment.

The Chairperson said that there was a very big concern with the proposal. This Schedule was not in operation. It was easy to deal with the offence of rape. The Bill had replaced the definition of rape with a broader definition. Indecent assault was a complete kettle of fish. It had something to do with penetration and sodomy was part of indecent assault. Sexual assault and compelled sexual assault in terms of the Bill had nothing to do with penetration. Kissing a person without consent would constitute sexual assault in terms of the Bill. Indecent assault was considered a serious offence because of the element of penetration. One could not simply swap indecent assault for sexual assault. Sexual assault, compelled sexual assault and compelled self-sexual assault were not as serious as indecent assault was in the past. Indecent assault would not feature anymore in the law. It was important to have a look at all instances wherein indecent assault appeared because it was used in different contexts.

Sexual Offences Act 23 of 1957
Section 1 of Sexual Offences Act
Mr Potgieter said that provisions that dealt with brothels and adult prostitution would remain in the Act. All provisions that dealt sexual offences against children were covered in this Bill. He proposed a new definition of "person" that would mean a person of 18 years and older.

The Chairperson said that the effect of retaining provisions that dealt with adult prostitution was that adult prostitution was still a crime in terms of the law. She asked if this was something new that the Committee had suddenly introduced as it had been alleged in the media.

Mr Potgieter said that an interpretation of the Jordan case led him to believe that prostitution was still a crime and that the activities of both the prostitute and the client were criminalised. The drafters had decided not to deal with the issue because the South African Law Reform Commission (SALRC) was busy with an investigation on adult prostitution.

The Chairperson said that this was how she had also interpreted the judgement. It had been said that the Committee had not considered the issue of adult prostitution thoroughly and that it was suddenly introduced in the Bill.

Mr Potgieter said that the amendment was not changing the law as it was applied.

The Chairperson said that it was important for people to understand that the Committee was not changing the law in an ill considered way or without consulting people. The Bill was in line with the Constitutional Court judgement. The Bill would retain the law as it currently stood until such time the SALC had finalised its review. The SALC could decide to keep the law as it was or change it. The Committee did not know what the Commission would decide. People were asked to comment on the legislation in its entirety. The fact that they had not seen this provision was not the Committee’s fault. It was dishonest for people to say that this provision was inserted after the window for public comments had been closed. One of the reasons why members of the public were in this meeting was to ensure that they could make submission whenever the Committee encountered problems. The Committee had never refused to accept submissions. She appealed to people not to go around saying that the Committee had closed the submissions period. Anybody was still free to indicate to Committee why he or she thought that the Constitutional Court’s judgement was wrong or why the Committee should not retain adult prostitution as a crime. She indicated that the Committee had received a third submission from the Sex Worker Education and Advocacy Taskforce. The submission claimed that there was not enough time to make submissions.

Section 22 of Sexual Offences Act
Mr Potgieter proposed an amendment of section 22 and not 21 as reflected in the Bill. Section 22 dealt with penalties. It was a consequential amendment necessitated by the repeal of sections 9, 11, 13, 14, 15, 18A and 20A.

The Chairperson reminded the Committee that there were provisions that would be retained in that Act.

Correctional Services Act 8 of 1959
Schedule 2
Mr Potgieter said that this Schedule dealt with the detention in prison of non-convicted persons and children between the ages of 14 and 18 years. It allowed children between 14 and 18 years to be detained if accused of certain serious offences. He proposed the addition of the crime of compelled rape.

Prescription Act 68 of 1969
Section 18 of the Prescription Act
Mr Potgieter proposed that prescription would not commence to run in respect of a debt based on sexual abuse during the time in which the creditor was unable to institute proceedings because of his or her physical mental or psychological condition. There was the van Zijl v Hoogenhout judgement that confirmed this proposal. The only issue was whether the words "sexual abuse" should be retained. He asked if the provision should not be extended to cover any other sexual offence.

The Chairperson asked if this provision was already in the Act.

Mr Potgieter replied that it was a proposed insertion.

The Chairperson asked why the proposal referred to "sexual abuse". Was it because this word was used in the Act?

Mr Potgieter replied that the term was not used in that Act at all. The problem was that a victim might not have laid a charge. To talk about a sexual offence might have been dangerous. The sexual abuse could have taken place years ago as it was the case in the Hoogenot case.

The Chairperson asked if Hoogenot decision included physical condition.

Mr Potgieter replied that no physical condition was involved. The complainant claimed that she had been raped.

The Chairperson said that the intention was to cover the principle that related to children who had been abused and had grown up and realised that they had been abused. This had nothing to do with physical conditions. It was a psychological condition with which human beings were endowed. The provision should not refer to physical condition. Physical condition was already part of the law. For instance, prescription would be suspended if the complainant was in a coma. She said that the provision should refer to sexual abuse or any sexual offence as defined in this Bill. Sexual abuse was wide but the Committee did not want courts to interpret sexual abuse as excluding crimes like rape.

Criminal Procedure Act 51 of 1977
Section 18 of CPA
Mr Potgieter said that section 18 dealt with the prescription of right to institute prosecution for certain crimes. He proposed the insertion of "compelled rape" as defined in the Bill. The right to institute prosecution for the offences listed in section 18(a) to (g) would never prescribe.

The Chairperson said that the section was worded in a funny manner. The section dealt with the most serious category of crimes. She suggested that the crime of trafficking persons should be listed under section 18(g).

Sections 77, 78 and 79 of the CPA
Mr Potgieter said that section 77 dealt with the capacity of an accused person to understand criminal proceedings. This was the State patience provision in the CPA. It was a technical amendment and the intention was to include reference to "compelled rape". The same insertion should be effected in sections 78 and 79.

Mr M Mahlawe (ANC) asked what was the difference between rape and compelled rape.

The Chairperson replied that the current definition of rape was different from the definition in the Bill. The Bill would introduce a concept of compelled rape. She used a scenario where, for gang initiation purposes, the leader of the gang would compel a new member to rape a person. The leader would not be guilty of a lesser crime but of compelled rape. Compelled rape would have the same status or seriousness given to rape in law.

Section 153 of the CPA
Mr Potgieter said that this section dealt with in camera proceedings. It referred to "indecent act" which was not really confined to indecent assault. The intention was not to substitute it with "sexual assault" but with "sexual" act because an indecent act could include both penetrative and non-penetrative acts.

The Chairperson asked if a sexual act was both penetrative and non-penetrative acts. Mr Potgieter agreed. The Chairperson asked why the provision did not refer to a sexual offence instead of a sexual act.

Mr Potgieter replied that section referred to an indecent act and not an offence of indecent nature.

The Chairperson said that "sexual act" was found in the definitions part of the Bill and was not an offence. Mr Potgieter agreed and read the definition for the Committee.

Section 154 of the CPA
Mr Potgieter said that this section dealt with the prohibition on the publication of the particulars of a victim of sexual offences. The amendment would increase the fines or penalties against people who had published the particulars.

The Chairperson said that one year would change to three years and three years would change to five years.

Mr Potgieter also proposed an insertion that would make section 300 of the CPA applicable to section 154. Section 300 dealt with the competency of a criminal court to make a compensation order in certain cases. This would avoid the necessity of going the civil route in order to claim compensation. The victim could use the section to claim damages as a result of trauma suffered due to the publication of the particulars.

The Chairperson said that the drafters were going in the wrong direction. It was not the same as compensation in other criminal matters where the quantum of damages was immediately understood or identifiable. One was dealing with psychological harm or trauma. Criminal courts were not the best vehicle to deal with this. There could be several legal problems. The provision would place the victim at a disadvantage because the victim would be required to start adducing evidence to the effect of psychological trauma in anticipation of possible civil proceedings. This would work against the victim because the defendant/accused could use the disclosure to start preparing a defence against the claim. A lot of work should still be done on this proposal. The proposal might do some good to some victims but could also cause enormous problems. The jurisdiction of criminal courts was limited and there was a cap on how much compensation they could give. Civil courts were able to grant much higher compensation.

She said that the Committee had received a number of submissions on the kind of trauma suffered by victims of rape. A lot of damage suffered by victims was fully manifested years after the crime had taken place. The victim was not really represented in a criminal case. One had a prosecutor who was representing the State. The situation in a civil trial was different in that an Attorney or Advocate represented the victim. The quantum of damages would depend of the kind of evidence adduced in court.

The Chairperson said that the court would have ordered that the particulars of the victim should not be published. The media would have published the particulars in defiance of the court order. The victim would then claim compensation arising from the trauma suffered as a result of the publication. This was a very specialised field.

Section 164 of CPA
Mr Potgieter said that this section dealt with the taking of an oath before giving evidence in court.

The Chairperson said that the proposed amendment would enable persons who did not understand the effect or nature of an oath to give evidence.

Section 170A of CPA
Mr Potgieter said that section dealt with the appointment of intermediaries. He proposed the introduction of "biological or mental age". The concept of "mental age" was not found in other legislation. This was a cause for concern but it was important to include this concept.

The Chairperson said that the proposed section 170(A)(7) did not go far enough. The issue of what should happen to an intermediary who not attended the proceedings was not dealt with.

Section 195 of CPA
Mr Potgieter said the issue here was the evidence by the husband or wife of the accused for the prosecution. He proposed that the husband or wife of the accused should be a competent and compellable witness for the prosecution if the accused was charged with any offence against a child who was in the care of either of them.

The Chairperson said that this provision did not only relate to sexual offence.

Mr Potgieter said that paragraph (e) should refer to incest as contemplated in the Bill.

The Chairperson said that there was a complication arising from the Children’s Act. The Children's Act was not yet in operation and the Child Care Act was technically still in operation. The Child Care Act had a clause that provided that adoptive parents could not marry their adoptive child. The Children’s Act did not have a similar clause. Incest should operate against both biological and adoptive parents. The Child Care Act would be repealed once the Children's Act comes into operation and this would create a problem. It seemed that the authorities were thinking of fixing the Act and include such a clause.

Section 227 of CPA
The Chairperson said that there were three new tests that would be included in the Act. These were found in the proposed section 227(5) (a), (b) and (c). Paragraphs (d) - (g) dealt with very specific issues. The more discretion given to court the less uniform was the application. Paragraphs (a) - (c) were wide areas of consideration and the drafters should seriously consider removing them. It was important to give clear evidence and specific instructions on when courts should allow evidence of previous sexual experience. Paragraph (c) provided that the court should take into account whether the evidence would assist the court in arriving at a just determination of the proceedings. This did not give any specific guidance.

Imam G Solomon (ANC) said that paragraph (h) was as broad as paragraphs (a) - (c).

The Chairperson said that the issue was providing guidance to courts in specific terms on when to consider an application of this nature. It was not just previous sexual experience of victim but also evidence of the character of the accused. Paragraph (h) was not too broad because of the word "fundamental". This paragraph came from the Canadian jurisprudence and the Canadian jurisprudence would be very pertinent when interpreting the provision. Every accused would allege that the evidence was at the heart of the defence. The court would have to decide if the evidence was fundamental to the defence.

Ms S Camerer (DA) asked if the Bill was lifting conditions in a way that would assist complaints to come forward and avoid secondary victimisation. She asked if paragraphs (a)-(c) also came from the Canadian jurisprudence. She suggested that paragraph (b) should be removed.

The Chairperson said that paragraphs (a) and (c) would remain if paragraph (b) was removed. Paragraphs (a) and (c) did not help the victim at all. There was a submission on how courts were unfriendly to victims. The intention was to provide definite guidelines to courts. One could not simply say that evidence of sexual history was irrelevant because it was not always irrelevant. The presiding officer would have to give reasons for allowing the evidence. This would bring a degree of fairness because the victim would get to know why the application to lead the evidence was given.

Section 238 of CPA
Mr Potgieter said that the section should refer to incest as contemplated in this Bill. There was also a technical amendment to make the section gender neutral.

Section 261 of the CPA
Mr Potgieter said that this section was contained in the Chapter that dealt with competent verdicts. The offences that had nothing to deal with the Bill had been retained but others were adapted to equivalent offences in the Bill. He said that paragraphs (i) and (j) should be improved. The offences of flashing and exposure to pornography were not included.

The Chairperson said that the drafters should look at the issue of sexual exploitation. The crime should be broken into facets. The first would deal with the customer paying for sex with a child and the procuring of the services of child. The second part dealt with the pimp who facilitated the service. The third part was the actual commission of the sexual act. Sexual exploitation should not be under competent verdict. One should avoid an interpretation that would say that sexual exploitation took place only if a sexual act had been committed.

Mr Potgieter asked if the Chairperson was saying that paragraphs (i) and (j) should be deleted. The Chairperson agreed. Mr Potgieter said that there could be problems with section 261(2)(c). The Chairperson said that section 261(2)(c) should be deleted.

Section 266 of CPA
Mr Potgieter proposed that "sexual assault, compelled sexual assault or compelled self-sexual assault" should replace "indecent assault".

Section 267 of CPA
Mr Potgieter proposed that "sexual assault, compelled sexual assault or compelled self-sexual assault" should replace "indecent assault".

Section 268 of CPA
The Chairperson said the offence of statutory unlawful carnal intercourse was not in the Bill. It meant any intercourse with somebody other than with one's wife. It was meant to target prostitution. It did not help to include it not knowing what the review of the law in relation to adult prostitution would unfold. The drafters had replaced 'indecent assault' with "sexual assault, compelled sexual assault or compelled self-sexual assault". The problem was that sexual assault involved the lack of consent. The crime of prostitution included the element of consent. One could not say that a person who was not guilty of prostitution was guilty of sexual assault. This crime was one of the issues that the SALC would have to consider during the review. She suggested that the amendments in paragraph (a) should be omitted. .

Section 269 of CPA
Mr Potgieter said that this section dealt with the old offence of sodomy that was being repealed.

Section 276A
Mr Potgieter said that the proposal was to extend the period of correctional supervision that could be ordered from three to five years. Section 276(2A) was a new insertion to the Act. It dealt with the attendance of and participation in a sex offence specific accredited treatment programme. An issue had been raised about the word "accredited".

The Chairperson said that the words "specific accredited treatment programme" should be deleted. The requirement would be to attend a programme prescribed in terms of the Bill. One did not want a situation wherein people would attend a two days lecture and then be released. The programme should have some substance.

Section 299A of CPA
Mr Potgieter said that this section dealt with the complainant’s right to make representation with regard to the placement of the convicted person on parole or correctional supervision. This was a technical amendment necessitated by the offences established in terms of the Bill.

The Chairperson said that it might be important to include Chapters 3 and 4 of this Bill in this section.

Section 335A of CPA
Mr Potgieter said that this provision was similar to section 154 of the CPA. It prohibited the publication of the identity of a victim from the period of the commission of the offence.

The Chairperson said that the period started from the period the court had determined that a crime had been committed. Section 154 dealt with a situation wherein the court had made the order prohibiting the publication. The possible sentences would be increased to three years or five years if the victim was a child.
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Mr Potgieter said that the proposed section 335A(3) sought to incorporate the provisions of section 300 into this section. He felt that the same problem raise in relation to section 154 would apply here.

The Chairperson said that there could be a charge and a lot of proceedings prior to the actual court appearance. The court would then decide to invoke section 154 of the CPA. Section 335A prohibited the publication of the details from the time the charge was laid. The provision was very funny.

Mr Potgieter agreed that it was funny. It might also mean that the complainant was protected once a sexual offence had been committed.

The Chairperson said that it was a fallacy because people printed whatever they wanted to once a charge had been laid. The publication did not stop until the prohibition was ordered. The court could not stop a publication that had already taken place. It could only stop future publications.

Section 335B of CPA
Mr Potgieter proposed a consequential amendment to the section.

The Chairperson said that the amendment would allow a police officer to approach court to order that minor be treated in a medical facility under certain circumstances.

Schedule 1 to CPA
The Chairperson said that Schedule 1 dealt with crimes for which a person could be arrested without a warrant of arrest. The Chairperson said that the Committee should think about including Chapter 3 and 4 of the Bill and the crime of trafficking in human being in this Schedule.

Part II of Schedule 2 to CPA
Mr Potgieter said that this part dealt with provisions wherein the offender could not be released on warning or police bail if he was in custody for any of the listed offences. The Chairperson said that the Committee should think about including Chapter 3 and 4 of the Bill and the crime of trafficking in human being in this Schedule.

Schedule 5 to CPA
Mr Potgieter said that this Schedule placed the onus on the accused to adduce evidence to support that it was in the interest of justice that he be released on bail.

The Chairperson said that the Committee should think about including Chapter 3 and 4 of the Bill and the crime of trafficking in human beings in this Schedule.

Schedule 6 to CPA
Mr Potgieter said that there was an incorrect reference to the Mental Health Act of, 1973. This Act was replaced by the Mental Health Care Act, 2002 that had a different definition of mental illness.

The Chairperson asked why the drafters did not simply refer to a mentally disabled in terms of the Sexual Offences Act.

Mr Potgieter definition in the Bill referred to severely mentally disabled persons. All mentally disabled persons were vulnerable.

Schedule 7 to CPA
Mr Potgieter said that this dealt with offences in respect of which the Director of Public Prosecutions could authorise release on bail.

The Chairperson said that the Schedule dealt with prosecutor bail.

Child Care Act 74 of 1983
Mr Potgieter proposed the substitution of the definition of "commercial sexual exploitation". There was still a need to refer to the Act because the Children's Act had not yet come into operation. The definition would refer to a sexual act as contemplated in the Bill.

The Chairperson thought that it had been decided to revert to the procuring of children to perform sexual acts. She suggested that commercial sexual exploitation should mean sexual exploitation in terms of the Bill.

Choice on Termination of Pregnancy Act 92 of 1996
Mr Potgieter said that there were consequential amendments to the definitions of "incest" and "rape".

The Chairperson referred the Committee to clause 11. Clause 11(1) should refer to persons who might not "lawfully" marry. Such persons would not be allowed to have sexual intercourse with each other. Clause 11(2) (c) should be removed. The Committee should still deliberate on the use of the word "sexual act" in sub-clause (1). It was important not to broaden incest simply because something was not covered in the Bill.

Criminal Law Amendment Act 105 of 1997
Part I of Schedule 2
Mr Potgieter said Part I of Schedule 2 dealt with offences for which life imprisonment could be imposed.

Part III of Schedule 2
The Chairperson said that one could not put the manufacturing of sex toys under minimum sentencing. There were far worse crimes than sexual grooming. The drafters should remove reference to the sexual grooming of mentally disabled persons.

Witness Protection Act 112 of 1998
Schedule
Mr Potgieter said that there were technical amendments in relation to rape and indecent assault. The Chairperson said that this Schedule should also refer to trafficking and Chapters 3 and 4 of the Bill.

Prevention of Organised Crime Act 121 of 1998
Schedule 1
Mr Potgieter proposed a technical amendment to rape and indent assault.

Military Discipline Supplementary Measures Act 16 of 1999
Section 3 of Military Discipline Supplementary Measures Act
Mr Potgieter proposed a technical amendment in relation to rape.

Immigration Act 13 of 2002
Schedule 1
Mr Potgieter said that a holder of a permanent residence permit who had been found guilty of the offences listed in Schedule 1 faced the risk of the permit being withdrawn. He proposed technical amendments in relation to rape and indecent assault.

The Chairperson said that the drafters should add Chapters 3 and 4 and the crime of trafficking to this Schedule.

Private Security Industry Levies Act 23 of 2002
Schedule to the Act
Mr Potgieter said that natural persons could be registered as security service providers. People who had been convicted of offences listed in the Schedule 10 years prior to their application might not be registered as security service providers.

The Chairperson said that the drafters should add the crime of trafficking and Chapters 3 and 4 of the Bill. Chapter 4 was relevant because a person could be hired to provide security services at a mental institution.

Explosives Act 15 of 2003
Section 30 of Explosives Act
Mr Potgieter said that this section dealt with people who were unfit to possess explosives. He proposed a technical amendment to rape.

The Chairperson said that the drafters should check the cross references in the Bill because some of the clauses would be re-numbered. She reiterated that members of the public were still free to forward any submissions that they had to the Committee.

The meeting was adjourned.