Criminal Law (Sexual Offences) Amendment Bill: deliberations

Meeting report

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

Chairperson: Ms F Chohan (ANC)

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

SUMMARY
The Committee concluded its initial deliberations on the Bill going through Clauses 53 until 66. The drafters were asked to redraft the Bill taking into account the amendments suggested by the Committee. Further deliberations would take place in the next parliamentary quarter.

At this meeting the Committee went through the Defences in Clause 53. The existence of a marital or any other relationship between the accused and the complainant would not be a defence to an offence listed in clauses 3, 4, 5, 6 and 7. A person who had been accused of an offence under clause 3 or 5 would be able to contend that he reasonably believed that the person (victim) was not a mentally disabled person and was 18 years or older at the time of the alleged commission of the offence. The Chairperson said that she was very torn about this defence. The only reason why a person would be charged with an offence under clause 3 or 5 in relation to a mentally disabled person was the issue of consent. The defence should be around the issue of consent and not whether the person was mentally disabled or not. A person could be mentally disabled but this did not mean that such a person did not have the right to live a full life which would include a sexual life. One could not assume that people who were mentally disabled were by the fact of the mental disability unable to consent to sex in all instances.

Clause 53(2)(b) provided that a person who had been charged in terms of clause 14 or 15 could, subject to clause 53(3), contend that the child deceived him into believing that the child was 16 years or older at the time of the commission of the offence and that he reasonably believed that the child was 16 years or older. The Chairperson said that she had been decisively and unanimously outvoted by members of the Committee on the desirability of this defence. The Committee had felt that a person who would have a relationship with somebody who was obviously young should take the necessary steps to ascertain the real age of that person. The Bill provided that sub-clause (2)(b) would not apply if the child lacked cognitive development to appreciate the nature of the act. The Chair said that the Committee should seriously consider the implications of this defence. The legislature had already provided that a child under 16 years lacked cognitive development by employing the statutory law provision.

The South African Law Reform Commission noted that the defence had been proposed by it as an additional protection because the cognitive development of children differed. It was thought that the age was artificial and arbitrary. The matter should centre around mental capability and maturity of the person. The question was whether a person could appreciate the nature of the act concerned.

Clause 53(2)(c) provided for a defence in relation to sexual experimentation if both the accused persons were children and the age difference between them was not more that two years at the time of the commission of the offence. The Chairperson said this defence applied to sexual violation and not to acts of sexual penetration. She noted that the defence applied subject to sub-clause (3). This meant that it applied to all children other than those who were related to each other. This defence should be available to all children irrespective of whether or not they were related.

MINUTES

The Department was represented Mr Henk du Preez (Chief Director: Legislation, Department of Justice), Mr Hennie Potgieter (SALRC) and Ms Delene Clark (SALRC). Mr du Preez took the Committee through the Bill.

Clause 53 Defences
Mr du Preez said that sub-clause (1) provided that the existence of a marital or any other relationship between the accused and the complainant would not be a defence to offence listed in clauses 3, 4, 5, 6 and 7. Sub-clause (2) dealt with defences in respect of children and mentally disabled persons. A person who had been accused of an offence under clause 3 or 5 would be able to contend that he reasonably believed that the person (victim) was not a mentally disabled person and was 18 years or older at the time of the alleged commission of the offence. The question was raised whether it was in fact necessary to refer to an age in respect of mentally disabled persons at all. He asked if it was really necessary to include this defence.

The Chairperson said that she was very torn about this defence. It was difficult to understand. The only reason why a person would be charged with an offence under clause 3 or 5 in relation to a mentally disabled person was the issue of consent. It really turned on consent and not necessarily the status of the person. The defence should be around the issue of consent and not whether the person was mentally disabled or not. There might be situation wherein people could find themselves in relationships not knowing that the other person was mentally disabled to the extent that he or she could not appreciate the nature of a sexual act. The intention was to avoid convicting the person of rape because he had believed that the other person was able to consent. A circumstance would have to be constructed to indicate to the court that there was a reasonable belief that the person had consented to a sexual act.

Mr du Preez said that the accused would have to convince the court to accept the defence. The current Sexual Offences Act dealt with sexual acts in respect of imbeciles or idiots. This was where this defence was contained.

The Chairperson asked if the defence in the Sexual Offences Act was constructed like the one provided in the Bill. Mr du Preez replied that it was to a certain extent constructed like this.

Mr Potgieter said that the Sexual Offences Act provided that any person who had unlawful canal intercourse with a female or male idiot or imbecile would be guilty of an offence if it was proved that the person knew that such male or female was an idiot or imbecile.

The Chairperson said that the Act was flawed in that it assumed that all mentally ill people were unable to consent. The Bill made a differentiation. A person could be mentally disabled but this did not mean that such a person did not have the right to live a full life which would include sexual life. One could not assume that people who were mentally disabled were by the fact of the mental disability unable to consent to sex in all instances. One could not provide a defence that would say: "I did not know that the person was mentally disabled". The enquiry should be whether a person believed that there was consent even if the other party was mentally disabled. Did the fact that the accused did not know that the victim was mentally disabled absolve him from any wrongdoing? The court would still have to determine if there was consent. The Committee would have to consider whether to have this defence in the current form or whether to have it at all.

Imam G Solomon (ANC) said that the Bill referred to a mentally disabled person whereas the Sexual Offences Act referred to imbeciles and idiots. The words imbeciles and idiots meant persons who could not conceive or perceive certain things. Mentally disability in the current context would mean a bipolar person who was at some stages of a sound mind and mentally unsound at other stages.

Mr du Preez said that clause 2(b) provided that a person who had been charged in terms of clause 14 or 15 could, subject to clause 53(3), contend that the child deceived him into believing that she was 16 years or older at the time of the commission of the offence and that he reasonably believed that the child was 16 years or older. Sub-clause (3) dealt with the prohibited incest degrees and the lack of intellectual development to appreciate the nature of an act of sexual penetration or sexual violation.

The Chairperson said that she had been decisively and unanimously out voted by members of the Committee on the desirability of this defence. It was a very high test and members wanted the clause without any amendment. She asked if the current defence against statutory rape also took into account the cognitive development of the child. There were the requirements of deception and a reasonable belief that the person was 16 years or older. The Committee had felt that a person who would have a relationship with somebody who was obviously young should take the necessary steps to ascertain the real age of that person. The court would have to apply an objective test. The Bill provided that sub-clause (2)(b) would not apply if the child lacked cognitive development to appreciate the nature of the act. The Committee should seriously consider the implications of this defence. The legislature had already provided that a child under 16 years lacked cognitive development by employing the statutory law provision.

Mr Potgieter said that the defence was proposed by the SALRC as an additional protection because the cognitive development of children differed. It was thought that the age was artificial and arbitrary. The matter should centre around mental capability and maturity of the person. The question was whether a person aged 15, for instance, could really appreciate the nature of the act concerned.

The Chairperson said that the defence could not kick in unless the child who lack cognitive development had actually deceived somebody into believing that he or she was 16 or older. The element of deception implied some cognitive development and this undermined the whole defence. One could understand the defence when it came to incest. A person could not argue that he thought his stepdaughter was over 16 years.

Imam Solomon said that people should open their eyes and think further before going further. He asked why the drafters provided for this defence.

Mr Potgieter replied that it was inserted as an additional defence because not all children had the mental faculties to appreciate what they were consenting to. The intention was to have the lack of cognitive development tested in each case.

The Chairperson said that the defence not to say "I knew that the child was under 16 but the child had consented". The defence was that the child had lied and said that she was over 16. The accused should have reasonably believed that the child was over 16 years. Consent was not even an issue. Parliament had already pronounced upon the cognitive development of children. She said that the Committee should consider deleting it unless satisfactory explanation could be given.

Mr du Preez said that clause 53(2)(c) provided for a defence in relation to sexual experimentation if both the accused persons were children and the age difference between them was not more that two years at the time of the commission of the offence.

The Chairperson said this defence applied to sexual violation and not to acts of sexual penetration. She noted that the defence applied subject to sub-clause (3). This meant that it applied to all children other than those who were related to each other.

Ms M Mahlawe (ANC) said that a child who had been penetrated had been sexually violated.

The Chairperson said that sexual violation meant everything but penetration. She asked why this defence should not apply to children who were related. The whole point the defence was about sexual experimentation between kids.

Mr du Preez replied that it depends on whether one was talking about relatives who were removed from each other like cousins. For instance, the sister of a person's father was the mother of that person's cousin. This was more than two degrees away from the common ancestor and therefore not a prohibited degree of incestuous relationship. The situation was different if one was talking about a brother and sister or half-sister. The situation was different with adopted children because the prohibited degree was only related to the marriage prohibition between the adoptive parent and the adopted child.

Ms Mahlawe asked what would be the situation if one was dealing with two children adopted children from different parents.

The Chairperson said that the basic point was that both were adopted and did not matter who were the parents. Such children would not be able to raise the defence at all. The Committee had heard submissions that children experimented from 12 to 16 years and that it should be okay for children to experiment with their peers. The question was why the defence was not allowed to operate in relation to related people. Was this because the social morals did not allow this?

Ms Clark said that the SALRC acknowledged that there was sexual experimentation. It was important to preserve the sexual integrity of children and prevent abuse by older brothers or sisters.

The Chairperson said that it seemed that this defence should not exist at all. There could be abuse even if the child was five years older than the other. It seemed that the drafters where saying that the fact that the children were related opened up an opportunity for abuse. It seemed that the defence had nothing to do with the crime of incest. Most children experimented with their relations. This defence should be available to all children if it was allowed at all.

The intention was to protect children against sexual offences but the Committee should also consider that children would always be children. Children became aware of their bodies particularly around the age of 12 years and this was the stage in which their hormones began to make them crazy. Penetration was dealt with differently and there was no defence to it as it was a serious issue. The Director of Pubic Prosecution should decide whether or not to charge a child for sexual violation.

Mr du Preez said that a question had been raised whether one or both parties to the crime of incest should be prosecuted. The Committee had asked that there should be a defence for a person who was a victim in the whole process. Such defence was covered in clause 53(3A). The person who was a victim in the process would not be convicted if he was below the age of 18 years and the other person had exercised power or authority over the victim. The same would apply if a relationship of trust existed between the parties.

The Chairperson said that charging the child should perhaps be a decision that the Director of Public Prosecution should take. She suggested that the clause should start with the words "a child might not be convicted".

Mr du Preez said that sub-clause (4) provided that a child might not be convicted of living of or benefiting from the prostitution of another person.

Clause 54 Evidence of previous consistent statements
Ms Clark said that the intention was to confirm what was already happening in relation to the admission of evidence where the first report of a rape was admissible to show that the complainant's conduct in laying the charge was consistent with that of someone who had been raped.

The Chairperson asked what would the absence of a statement mean.

Ms Clark replied that it would mean that the complainant had not made a statement to the first person available.

The Chairperson said the first report was made to someone other than the police.

Ms Clark said that this clause would allow the admission of a previous consistent statement to someone as evidence.

The Chairperson wondered if the clause was sufficiently descriptive. Was this a legal terminology that was well understood?

Ms Clark agreed. One might not draw an inference only from the absence of a previous consistent statement.

The Chairperson said that there was a need to define this terminology if it was for the first time that it was being incorporated into legislation. It should not just be a jargon that was used in court but should also be defined in law.

Clause 55 Evidence of delay in reporting
Ms Clark said that a court could not draw any inference solely from the delay in reporting the crime.

Clause 55A Inability of children under 12 years and mentally disabled persons to consent to sexual act
Mr du Preez said it might be better to place this clause before clause 54 so that the evidentiary clauses could be close to each other.

Clause 55B Application of caution
Ms Clark said that evidence might not be treated with caution solely because the witness was a victim of sexual offence. This principle was clearly laid out in the S v Jackson case but the court in S v van der Ross said that double caution should be applied when dealing with a single witness and a victim of sexual offence. There was a need to confirm the Jackson decision.

The Chairperson asked why the clause said "despite any other law or practice" and not "notwithstanding anything to the contrary".

Mr du Preez relied that the drafters would look at the clause for consistency purposes. Reference to the rule of practice made sense because courts applied the rule in their practice. The rule was not captured in legislation.

The Chairperson asked if was a common law rule. Mr du Preez agreed. The Chairperson said that the Committee did not want to elevate rules of practice to law because such rules could be grounds for appeals. She said that the drafters should remove reference to a rule of practice. She asked what was meant by the statement "by the fact that the witness is the complainant in such proceedings". The clause already indicated that it was concerned with the evidence of the complainant in criminal proceedings involving the alleged commission of a sexual offence.

Mr du Preez replied that it showed that the complainant was a witness in the sexual proceedings.

The Chairperson said that the clause should be redrafted and made simple. The heading should also change so that it indicated that the cautionary rule did no longer apply. Courts sometimes use heading of sections to interpret the content of the sections. The principle of the clause was acceptable but there was a problem with the wording.

Clause 56 Extra-territorial jurisdiction
Mr du Preez said that the Committee had asked the drafters to consider incorporating a provision like section 35(2) (a) of the Prevention and Combating of Corrupt activities Act. The issue was that a person might have committed an act that did not constitute an offence in the country in which it was committed. It should be possible for the person to be prosecuted if such an act was an offence in SA and provided that there was a South Africa connection to the extent stipulated in 35(2(a).

The Chairperson said that the interest was in any person who was in the Republic.

Mr du Preez said that the principle and not the wording of the section was applicable to the Bill.

The Chairperson said that one of the biggest concerns was trafficking. She believed that human trafficking was unlawful in all countries. Section 35(2) of the Prevention and Combating of Corrupt Activities Act targeted persons who had not convicted in the another country and were now in South Africa. There were countries wherein prostitution was legal. The conduct in question would be a crime in South Africa if it had affected someone in the country. She asked the drafters to explain the contents of sub-clause (4).

Mr du Preez replied that the drafters had been instructed to look at the double jeopardy rule. This clause would not result in double jeopardy because criminal procedures allowed a person who had been charged for a crime to plead that he had already been acquitted or convicted on the same charge.

The Chairperson said that this was not double jeopardy and that the principle of doubly jeopardy applied within one’s own jurisdiction. It was not really necessary to include this principle in the Bill if there was a practice that provided that a person who had been convicted or acquitted in one country could not face a similar charge on the same fact elsewhere in the country. This issue was very complicated because the conduct in question could constitute more than one offence in different countries. For example, person could be convicted of raping a child. It might be established that the child had been sexually groomed and the accused had travelled to a certain place in order to perform a sexual act with the child. In such a case SA might want to prosecute the person for sexual grooming despite the fact that the person had already been prosecuted for rape in another country. This clause would exclude the possibility of bringing further charges. She asked the drafters to have another look at the clause.

Clause 64 Transitional provisions
Mr du Preez said that this referred to common law crimes referred to in clause 63(1)(b).

The Chairperson said that this clause would allow for the preservation of charges or prosecution in terms of previous law.

Clause 65 Application and interpretation
Mr du Preez took the Committee through the definitions contained in the clause. The definition of "commercial carrier" was important especially for the purposes of clause 66.

The Chairperson said that sexual exploitation and sexual grooming were both sexual offences. She was of the view that most parts of the definition of "trafficking" were taken from protocols.

Ms Clark said that exploitation in terms of the protocol meant much more than exploitation under the Bill. Exploitation in the Bill amounted to soliciting.

The Chairperson said that the terminology might be different but the Committee was dealing with legislation and not treaties. It was important to be very specific. She did not like the fact that the definition of "trafficking" referred to "sexual offence or sexual act, or sexual exploitation or sexual grooming" because sexual exploitation and sexual grooming were both sexual offences and therefore covered by the words "sexual offence". She asked the drafters to redraft the definition. Paragraphs (a) to (f) of the definition were fairly comprehensive and descriptive.

Clause 66 Trafficking in persons for sexual purposes
The Chairperson said that this was the kingpin story. She wondered if it was necessary to have separate definition of "consent".

Mr du Preez said that the protocol indicated that trafficking took place by like a threat of harm or use of force. This was reflected in sub-clause (3)(a).

Ms Clark asked trafficking should refer to the disposal or receiving of a person within or across the borders of the Republic. The protocol dealt with the disposal or receiving of a person across the borders.

The Chairperson said that the wider the better. She said that sub-clause (5) should refer to crimes directly related to being trafficked.

The meeting was adjourned.