Criminal Law (Sexual Offences) Amendment Bill: deliberations

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Justice and Correctional Services

19 September 2006
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JUSTICE PORTFOLIO COMMITTEE
20 September 2006
CRIMINAL LAW (SEXUAL OFFENCES) BILL: DELIBERATIONS

Chairperson:
Ms F Chohan (ANC)

Relevant documents:
Regulations under Mental Health Care Act No 17 of 2002
New draft of definitions and Clauses 21A and 22A of the Sexual Offences Bill
Criminal Laws (Sexual Offences) Bill as at 12/09/06
Films and Publications Amendment Bill [B27-2006] as at 14 September 2006

SUMMARY
The Committee dealt in general with the provisions covering pornography and decided that no definition of the term was necessary as new Clauses 21A and 22A listed a number of incidences of sexual exploitation and pornography, drew distinctions between them, and clarified the categories. The Chairperson commended the drafters on these and asked Members to check these new provisions very carefully. The provisions now created offences also for the manufacturers and distributors of pornographic material. They also incorporated classified pornography as defined in the Films and Publications legislation. Similar provisions must also be inserted into the provisions dealing with mentally disabled people and regard should be had to the useful submissions from the Human Rights Commission.

A new option had also been drafted for Clause 17, relating to manufacture and distribution of articles promoting sexual acts with children. The wording needed to be tightened so that there was correlation between the travelling and the intention of committing the sexual offence. The wording relating to pornographic images would also be strengthened. It was agreed that no attempt be made to define “articles” manufactured, but the drafters must ensure that manuals were covered. Possession of articles would have to be criminalised. Similar principles would need to be incorporated in respect of mentally disabled people but the provisions would need to be adjusted to ensure that relevant elements such as use of adult devices and relevant communication methods were included.

Other amendments were suggested to clauses 1A, 6 and 8. The new draft 1A(3)(c) was unnecessary and should be deleted. The application clause 1A(1) in relation to “consent” was also unnecessary. Clause 6’s optional wording for “sexual contact” should be removed. Clause 8 wording was to be widened and both options included.

Clause 7 had raised the issue of prostitution and after discussion it was agreed that the Committee would draft a resolution expressing grave concern that it seemed that prostitutes were charged with selling sexual services but no charges were laid against their clients. It was also agreed that a letter be written to the National Commissioner of Police calling for details of prosecutions instituted against clients, or reasons that this had not been done.

The Chairperson called upon all non-government organisations that might have relevant research results from other countries to notify the Committee so that all possible ramifications could be covered.

The Committee will continue to work through the Bill in this session ending 22 September and the drafters will produce another refined draft for the fourth parliamentary session starting 9 October 2006.

MINUTES
Continuation of discussion around the issue of pornography

The Chairperson reminded the Committee that it was busy with the definitions, particularly in regard to the issue of pornography. A number of submissions had been received on the clauses dealing with pornography. There was a need to separate out the issues that would be covered by the Films and Publications Act (FPA), and the new draft amendment to that Act, and this Bill. Essentially the FPA dealt with classification of material and the Sexual Offences Bill did not attempt to classify but merely criminalised the use of classified material in a way that promoted or facilitated a sexual offence. There was some overlap as the FPA might outlaw the use of certain material to certain groups, and the Sexual Offences Bill would also prohibit use and incorporate the use as one of the elements of the crime. Some offences was concerned with the use of material in relation to children, and it was necessary to ensure that the definitions given covered all aspects. Use of pornography related mostly in this Bill to children and the mentally disabled but there were also clauses dealing with exposure of pornography to adults without their consent. It was necessary to keep the two concepts separate. The FPA sought to outlaw possession of child pornography even by adults, but there was the added complication of using material to for the purposes of sexual grooming.

Ms S Camerer (DA) questioned whether it was ideal to have two competing versions of pornography. She wondered if the FPA should not merely deal with adults and the Sexual Offences Bill with vulnerable groups. She was concerned that the legal position might become confused and whether the offence would not be adequately covered by the FPA.

The Chairperson responded that the Sexual Offences Bill outlawed showing child pornography to children. The second issue was concerned with child pornography that was used in an adult context, and the draft amendments to the FPA proposed that any use or possession of child pornography be outlawed. The third issue was that a large category of pornography was used specifically to expose children and groom them for the purposes of committing sexual acts. The proposed amendments to the FPA were sparse in their definitions and would not assist. The Film and Publications Board preferred to take the approach that pornography was not specifically defined, but that certain images or publications would be declared to be pornographic on an ad hoc basis.

The State Law Advisors had now looked to the current FPA, the proposed amendments and the classification process. Child pornography had now been dealt with in a detailed and descriptive manner in the body of the Bill. The first category dealt with people producing or distributing pornography. The second category related to images to which children should not be exposed, and here the classifications from the FPA had been repeated so that exposure of these images to children would be criminalised. It seemed that there was thus no longer a need to have a definition of pornography since the wording of the Act set out and described the categories.

Ms Camerer agreed that the new draft seemed to make a definition redundant. The original draft was too broad. She wondered if manufacturing and distribution should not be left in the FPA.

The Chairperson pointed out that it was possible to use children in the manufacturing of child pornography and she did not believe the exploitation of children should be dealt with also in the FPA. One must also remember that mentally disabled people were given the same protection as children and would also require to be dealt with. When this Bill was passed perhaps the FPA legislation would have to take account of it. It was difficult always to draw a clear line between classification and the commission of a sexual offence. There had been a suggestion that all issues relating to pornography should be dealt with in this Bill, but the State Law Advisors and she did not agree that this was correct.

Register of Sexual Offenders: Report back on clearance certificate provisions
The Chairperson then dealt briefly with the issue of the clearance certificates and the Register of Sexual Offenders. She indicated to the drafters that the Film and Publications legislation had referred to licensing by authorities, as opposed to individual applications, which was a point raised for discussion previously by this Committee. The Business Act No 71 of 1991 contained a specific provision on licensing authorities in Section 2, read with Item 2 of Schedule 1.

Mr Henk du Preez (Legal drafter, Senior State Law Advisor, Department of Justice) responded that that item referred to adult certificates, but he would check to see if the licensing authority covered all types of business and if the wording could be of assistance.

Application clause: Clause 1A
The Chairperson reminded Members that there had previously been discussion whether it was necessary to insert application clauses in the legislation to clarify that certain definitions might apply only to certain clauses (to become sections). The reason this had been suggested was that Chapter 2 was of general application, whilst other provisions of the Bill were of application only to children or mentally disabled. However, on re-reading the drafts, it was evident already that Chapter 2 applied across the board, because no restrictions were mentioned in this Chapter, and it seemed that an application clause would merely cloud the issue. Similarly an application clause had been inserted in regard to the use of “consent” but once again the Chairperson did not think that it added any clarity.

The drafters were therefore requested to remove 1A(3) and 1A(1).

Objects and preamble clauses
The Chairperson stated that these would be dealt with at the end of the deliberations.

Attempted rape or inspiring belief that the victim would be raped
Mr du Preez reported that the footnote on this issue had been dealt with and the drafters recommended that no new crime should be created but that it was still competent to lay a charge of attempted rape.

Clause 6
The Chairperson asked Mr du Preez to remove the optional wording relating to “sexual contact” wherever it appeared as it confused the issue.

Clause 7A
Mr du Preez indicated that the new option made provision for the crime of engaging the sexual services of a person over 18.

The Chairperson queried whether the issue of consent was relevant and requested that it be removed from the second option of the draft.

Mr Lawrence Bassett (Chief Director, Legislation, Department of Justice) reminded the Chairperson that there was a query whether this clause should be moved to the end of Part 3. He also noted that the Committee must decide on the option of using “for the purpose” or “of the commission of”

Ms Camerer asked where the legislation on prostitution appeared.

The Chairperson replied that there was a provision in the Sexual Offences Act of 1953, but there was nothing that specifically outlawed the purchase of sexual services, other than a common law reference in the Riotous Assemblies Act. This did not specifically deal with the purchase of sexual services. It merely established the principle that a person who assisted in the commission of a crime could himself be found guilty of that crime and should be sentenced similarly.

Ms Camerer enquired if there was a reason not simply to leave the provision in the Riotous Assemblies Act.

The Chairperson replied that this Bill attempted to codify everything to do with sexual offences and therefore was removing everything pertaining to sexual offences from the common law. It would be necessary to include a savings clause for the Riotous Assemblies Act. It prostitution were to be legalised then this would have to be reviewed.

Ms Camerer asked how far the objections to the call for legalisation of prostitution had gone.

The Chairperson replied that the South African Law Commission’s researchers were not near the end of their research and that there was currently no indication which way the research would go. A recent constitutional court judgment had ruled, however, that the law outlawing prostitution constitutionally sound, but there might be an option for societal regulation of the ills arising from prostitution. The question was therefore now one of policy, not of jurisprudence or constitutionality. One might query why the Law Commission were involved, since the issue was simply whether government wished to revise its policies on prostitution.

Ms Camerer noted that there had been virtually no sodomy charges laid for many years, that the clients of prostitutes had not been charged since the 1980s and that the only charges laid had been against the prostitutes or brothel owners.

The Chairperson commented that Ms Camerer had raised a very valid point. The fact that the police did not press charges did not diminish the fact that a crime had been committed. She considered it completely unacceptable that collective arrests and charges did not occur where two people were obviously involved in the commission of the same offence. Clearly there should be no logistical difficulties in charging both parties. Prostitutes – who were generally women – were targeted whilst their clients were not. The patriarchical attitudes had been apparent in the past legislation too, which sought to give greater protection to young boys than to young girls. She believed that the Portfolio Committee, by way of a resolution, should express its concern that there was such a disparity in applying the law.

Ms Camerer also asked that the Committee enquire from the National Commissioner of Police whether SAPS had pursued prosecutions, and if not, why not.

It was decided that the necessary Resolution be drafted, and that the letter be written to the National Commissioner.

Clause 8: Exposure or display to person 18 years or older
Mr Bassett pointed out that optional clauses had been drafted, which were intended to cater for two situations; one of compelled display, where a person, for instance, forced another to watch a rape or assault (a compelled display), and the other for exposure of a sexual act.

The Chairperson did not feel the wording, referring to “compelling…to watch” was wide enough as the person being compelled could close his eyes, be blindfolded, or be physically blind. She believed the clause should rather refer to the act being committed in the presence of a third person. She further pointed out that the person doing the compelling may not be involved in the sexual act, and therefore the wording should also be broadened to make it clear that the compelling related to witnessing a sexual act by the compeller, or by other people.

Clause 10
Mr Bassett reminded the Committee that this clause might be deleted, and that it would be considered later.

Provisions relating to pornography and sexual conduct: possible definitions and redrafted Clauses 7A, 21A and 22A (to incorporate provisions of draft clause 16)
Mr Bassett asked the Committee to refer to document 42, which was a redraft of certain definitions and clauses by the State Law Advisors. Parts were still in a rough draft stage, but it would give an indication of the direction in which the State Law Advisors were moving.

The Committee had suggested that the definitions of “sexual conduct” and “pornography” be removed from the definitions clauses of the Bill and instead incorporated into the clauses themselves.

References to “sexual conduct” had been included in the definition of pornography, and in Clauses 7A dealing with sexual assault, and compelled self-sexual assault. These clauses still needed to be refined.

The Chairperson pointed out that including the definition in the clause dealing with compelled self sexual assault would make this clause very long, and that the Committee would come back to consider this proposal.

In relation to sexual exploitation and pornography Mr du Preez referred to Clause 21A. The redraft had tried to isolate the different scenarios, where a child was used for purposes of child pornography, but received no reward, where a child did receive a reward or where a child was used to create pornography. Sub clause (1)(a) covered the situation where a child was procured, and essentially contained a list of what was considered to be child pornography. The subparagraphs (i) to (iii) described sexual offences, and the second (iii) (a typographical error in this version) through to (ix) related to sexual conduct. Furthermore subparagraph (i) was applicable to all children whereas (ii) and (iii) covered the category of 16 to 18 year olds.

The Chairperson asked all Members to check the list very carefully and ensure that all possibilities were covered. She commended Mr du Preez on a well-drafted version that covered all options and moved to a far more certain statement.

Mr J Potgieter (South African Law Commission) commented that there might be some difficulty with the wording of 21A(1)(a)(i). Offences other than sexual offences had been created by this Bill. He suggested that it might be wise to revert to the definition of “sexual offence” in the definitions clause, so that offences such as revealing information on the Register, or failure to maintain confidentiality, did not fall under this section.

The Chairperson suggested that the clause could be clarified, perhaps by referring to something along the lines of “sexual offences as contained in Chapter 2”. Then the definition clause (in the main draft document) could also specify “any offence in terms of this Act in Chapter 2, 3 etc” to make it clear that although matters such as unlawful disclosure were offences, they were not sexual offences.

Mr du Preez reported that 21A(1)(b) had been created to try to separate the situations where a child was not involved in any sexual act, but was used as a prop to enhance the film sequence.

The Chairperson queried the wording, as she believed that “being involved in” might suggest a creative role. She suggested that it might be better to consider something like “in the presence of a child”

The Chairperson wondered if paragraphs (a) and (b) should be incorporated so that it was clear that there was one crime, but that it could be committed whether or not a reward had been paid, so that there should still be a separation of the concepts in (a) and (b).

Mr du Preez reported that 21A(1)(c) related to child pornography and created the offence of abuse of a child for pornographic purposes.

The Chairperson agreed that this was important as the use of “abuse” created the crime of manufacturing child pornography.

Mr du Preez stated that 21A(2) referred to the agent or parent who allowed the child to be used.

The Chairperson asked if the distributor of pornographic materials was covered. The legislation should try to cover anyone who, in any way at all, benefited from child pornography, including film crew, the renter of property used for the film, and so on.

Mr Bassett replied that he believed the wording was wide enough to cover all, and would include advertisers on the internet. The wording here was similar to the wording originally used for pimps. The strikethrough of “and (c)” in the list was possibly an error.

The Chairperson requested that the reference to (c) be restored and asked the drafters to think of ways to cast the net even wider.

Mr Bassett queried whether a provision similar to this should then also be incorporated in the clauses dealing with sexual exploitation.

The Chairperson agreed that it should, so that any facilitator would be covered. She wondered if “benefit from” was not a better wording.

Mr du Preez thought that “involved in” was wide enough to cater for all situations.

Mr Bassett asked the Committee where this clause should appear.

The Chairperson believed that it should sit closely with the clause dealing with exposure or display of pornography to a child, as they both contained elements of grooming. She agreed with Mr Bassett that the crime created was more serious, and therefore the current positioning of the clause was incongruous.

Clause 22A
Mr du Preez explained that this clause dealt with the exposure of a child to pornography, and was not only limited to exposure to child pornography. For ease of reference the clause referred to “classified pornography” which, by definition in the FPA, was images or publications which, although not illegal per se, should not be shown to a child under 18, as well as to unsuitable material that was completely banned.

The Chairperson was a little concerned that the classifications listed in the clause did not indicate precisely enough what nature of material was contemplated.

Mr Bassett pointed out that the drafters did not know what wording would be used in the amending Bill to the FPA.

The Chairperson said that it was clear that XX or X18 material was adult material clearly unsuitable for children. She felt that there was no harm in keeping these classifications in, as there was no indication that the Film and Publications Board was intended to depart from them. However, she pointed out that not all XX or X18 classifications related to sexual material, so it was necessary, for purposes of this Bill, to clearly stipulate that the showing of sexual material that was classified was a crime, not necessarily the showing of violent material or hate speech that was classified.

The Chairperson believed that a catch-all clause was still needed in addition to the listed (a), (b) and (c), to the effect that children should not be exposed to material of a sexual nature that was age-inappropriate as provided for in any other law. Once again, the sexual nature of the material would need to be separated out from other undesirable material. She also commented that the wording of subclause (c) needed to be tightened.

Mr du Preez asked about material contained, for instance, in biology text books.

The Chairperson believed that if this material had to be sent for classification then the restrictions would apply. There were exclusions for material of a scientific, literary or artistic nature. It was clear that the classifications would not be challenged under this Bill, but under the FPA. The purpose of this Bill was merely to use the classifications to identify the material. If the exposure to a grouping was illegal under the FPA, it would also be illegal under this Bill.

Once again the Chair commended the State Law Advisors on their drafting of these difficult concepts.

Mr Bassett enquired where this clause should be placed in the Bill.

The Chairperson believed that it should be placed near the provisions on grooming, and perhaps the order should be grooming, Clause 22A, causing exposure or display, then Clause 21A, as this dealt with a different concept of manufacture and distribution of child pornography.

The Chairperson further commented that similar provisions to those in clauses 21A and 22A must be incorporated into the provisions dealing with mentally disabled people. They would be most vulnerable to pornography, incidences of exposure as part of a grooming process, and being used in the manufacture of pornographic material. She noted further that the Human Rights Commission submission contained some very valid points on mentally disabled people. Abuse of such people tended to be by their carers, and would be done in a very surreptitious way that was hard to detect. It was less likely that they would be groomed over the internet, although not completely impossible, so there may need to be some modification of those provisions.

Clause 17
Mr du Preez referred members back to the main draft document 35, and went through the provisions of Clause 17. An option had been given for this clause. In this option subparagraph (1)(a) would relate to the manufacture and distribution of an article promoting or intended for use in the commission of a sexual act with a child. The person selling or distributing would not necessarily be doing the grooming of the child. Subparagraphs (1)(b) and (c) would include supply or display or use of the article by a pimp or the internet and facilitating the meeting with the child. Subparagraphs (2) dealt with the person using the article to perform the grooming of the child, and included travelling to meet the child.

The Chairperson thought there was a problem with the wording of 17(2)(c)(i) and (ii).

Mr du Preez replied that subparagraph (2)(b) contemplated the offender travelling to a meeting with the child. The travelling was not directly linked to the sexual act. Similarly (c)(i) merely related to travel by the child, and it did not matter how far the child travelled. He agreed that this wording would have to be amended to make it clear that the travelling was offensive only if linked to the crime, so that wording such as “travels to meet ….with the intention of committing a sexual offence” would need to be used both in relation to the provisions on the adult and the child.

The Chairperson asked if the wording of 17(2)(c)(ii)(ccc) would not overlap with the wording dealing with exposure to pornography.

Mr du Preez commented that this subsection dealt with a third party providing material to an adult who then exposed the material to the child. However, the wording in relation to pornographic images could be strengthened. This draft was prepared before discussions on the types of images, and the final wording would match other provisions to make it clear that it could include videos, photographs, publications, clips or cartoons.

The Chairperson asked if the position of subsections 17(2)(d) and (b) should not be reversed. Subsection (d) related to the facilitation of a meeting, whereas (b) referred to the meeting having actually taken place.

Mr du Preez agreed that the order of these subsections could be reversed.

The Chairperson raised the use of the word “articles” in clause 17(1)(a) and asked if the articles needed to be defined. There were specific devices that facilitated sexual performance by children. She wondered if the wording should not refer more specifically to toys designed to be used by children, instruments, manuals or publications, but excluding contraceptive devices.

Mr du Preez firstly noted that similar provisions appeared in respect of the mentally disabled. He did not believe that any attempts should be made to specify the articles. He thought it would be preferable for the prosecution to lead evidence that the device used was an article as contemplated in this clause, which would also allow the prosecution to lead evidence on a seemingly innocuous article. The drafters could not possibly cover all existing and future devices. Sufficient definition was already contained in the use of the words” intended to be used in the commission of a sexual act”, so that the manufacturer would have an intention, and that would also mean that this would not apply to contraceptives.

The Chairperson took Mr du Preez’s point but asked whether manuals would be covered. She commented that a European country had apparently started to produce manuals aimed at the promotion of paedophilia so it was vital that publications must be covered.

Mr du Preez commented that he would need to check if “article” included “publication”.

The Chairperson pointed out that the Bill did not criminalise possession of this material, which was designed for a particular criminal purpose.

Mr du Preez believed it would certainly need to be inserted in the other provisions dealing with the mentally disabled. He suggested amending the wording to read “manufactures, possesses, distributes or facilitates”.

The Chairperson commented that the drafters and the Committee might not have been able to access all relevant research and asked any non-government organisations (NGOs) who had any useful research material to notify the Committee so that all possible ramifications could be covered.

The Chairperson also commented that although similar provisions would need to be incorporated in respect of mentally disabled persons, there would need to be some amendments. Grooming of a mentally disabled person would differ from grooming of a child, and therefore devices intended for adults could be used on a mentally disabled person, which was not contemplated in Clause 17. The same elements of manufacture, possession, distribution and facilitation should be present, but the articles may need to be redefined.

Mr du Preez commented that perhaps the wording referring to the methods of communication would also need to be amended in the case of mentally disabled people, so that the wording included words to the effect of “communication.. by any means whatever”, and make it clear that communication could include cell phones.

The Chairperson announced that the Committee would continue with its deliberations the following day.

The meeting was adjourned.

 

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