JUSTICE PORTFOLIO COMMITTEE
10 October 2006
CRIMINAL LAWS (SEXUAL OFFENCES) BILL: DELIBERATIONS

Chairperson: Ms F Chohan (ANC)

Documents handed out:
Written submission by Community Law Centre, UWC: Proposed Clauses for Inclusion
Written submission by Robyn Fudge on the Sexual Offences Bill
Survey on ages of consent for sexual activity, prepared by South African Law Commission
Working draft of Sexual Offences Bill as of 10 October 2006
Criminal Laws (Sexual Offences) Bill [B50-2003]

SUMMARY
The Department's legal drafters took the Committee through Clauses 1-17 of the latest draft of the Criminal Laws (Sexual Offences) Bill which had been prepared taking into account the comments and decisions by the Committee in the August/September parliamentary session. This version contained the previous wordings, marked as deleted, with the new versions, highlighted and underlined in a broken line. The Committee was told that in the next version the previous deleted wordings would not appear. Where the Committee had asked for different options to be drafted for consideration, these were set out under the relevant clauses, marked “Option”, and would be voted upon when the Committee engaged upon its final deliberations on the draft.

The Committee would continue to deliberate on this working draft, clause by clause, over the next week.

MINUTES
The Chairperson reported that the Committee's requested amendments had been incorporated into this latest working draft of the Bill. The Committee would be focusing upon the highlighted portions that had been underlined with a dotted line. In Chapters 5 and 6 the Committee would focus upon the highlighted portions marked with a double underline.

Mr Henk du Preez (Senior State Law Advisor, Department of Justice) took the Committee through the redrafted Bill, clause by clause.

Clause 1
”Body Fluid” and “HIV”: Mr du Preez reported that the definitions of body fluid and HIV had been excluded from these definitions as they were separately defined under the chapter dealing with HIV testing.

”Child”: Mr du Preez reported that the definition of “Child” had not been amended, save to add an option, which would be voted upon in due course, that a child should be a person between the ages of twelve and eighteen, rather than twelve and sixteen.
The Chairperson noted the option and commented that the words “or older” which appeared as deletions, scored through, could be deleted altogether from the next draft.

Imam G Solomon (ANC) enquired whether the more common usage was “under the age of” or “below the age of”.

Mr Lawrence Bassett (Chief Director, Legislation, Department of Justice) replied that there was no difference in the meaning, but he would check which wording was used more frequently and would ensure that, whichever phrase was used, it would be used consistently.

”Pornography” and “Sexual Conduct”:  Mr du Preez reported that both these definitions had been excluded in the new draft as the draft now included two new clauses, in relation to children and persons who were mentally disabled, which incorporated the content of the previous definitions.

”Person who is mentally disabled” : Mr du Preez reported that the order of the words in this phrase had been altered in the light of comments made by the South African Human Rights Commission (SAHRC)

”Sexual Offence”: Mr du Preez commented that this definition had been clarified by including a reference to Chapters 2, 3 and 4 of the Act. This was necessary because other offences were created by this legislation that were not sexual offences. However, he pointed out that there were two non-sexual offences still in these chapters. Clause 16(3)(b) provided that a person failing to report knowledge of sexual exploitation of a child would be guilty of an offence,  and a similar provision appeared also in Clause 23(3)(a),  in relation to a exploitation of a person who was mentally handicapped. It would be very difficult to exclude these offences in the definition of “sexual offence”, but he felt that the wording of the sub-clauses made the context clear enough.

”Sexual penetration” and “sexual violation”: Mr du Preez pointed out that there was an option, being a query whether “resembling” or “representing” should be used.

The Chairperson requested that the special bracket marks be removed and the option simply be reflected in the next draft as “resembling / representing” so that it could be voted upon.

”Sexual violation”:  The Chairperson asked that the option of “sexual contact” now be removed altogether from the future drafts. However, she would like the Option, which appeared scored through, under paragraph (c) to remain in the next draft for ease of comparison as the new draft contained an additional dimension which the Committee would need to vote upon.

”This act”: Mr du Preez indicated that references to section 11 in subclause (3) had been deleted because this section referred to incest. Consent was an essential part of this crime. 

Mr du Preez further noted that the order of the wording in relation to a person who was mentally disabled had been changed in subclause (d)(v), but the Chairperson pointed out that the current draft did not match exactly the wording used in the previous definition. It was agreed that “a person with a mental disability” would be replaced in the next draft by “a person who is mentally disabled”. The reference to Chapter 2 was included because this was the general chapter where consent was defined.

Application clause”: Mr du Preez noted that this had been included in one of the versions but the Committee had then decided that it was not necessary, so it now appeared scored out.

The Chairperson commented that this scored-out wording need not appear in the next draft.

Clauses 2, 3 and 4
Mr du Preez noted that there were no changes to be considered.

Clauses 5 and 6
Mr du Preez stated that the Committee had decided that there should not be any further references to sexual contact and therefore the scored-out words would not be included in the next draft as an option.

Clause 7
Mr du Preez indicated that when the Committee had discussed the clauses relating to pornography it had decided that the definitions for both pornography and sexual conduct were to be deleted. This clause had referred to sexual conduct. The contents of the original definition had therefore been incorporated into the body of the clause.

Mr J Jeffery (ANC) asked what was regarded as a “lewd act” as referred to in clause 7(a)(iii).

The Chairperson commented that Mr Jeffery had not been present at the meeting when this wording was discussed, but similar concerns had been raised by Ms Camerer. She noted that there was no definition, and therefore the ambit and extent of such acts would be left to the Courts to decide. The Committee had considered whether the wording should be included, and had concluded that it was preferable to have as broad a range covered as possible.

Part 3 : Heading
The Chairperson commented that the heading was very long, and asked why the indefinite article “a” had not been included with the nouns, alternatively why “person” and “sexual offence” should not be stated in the plural.

Mr du Preez stated that this was a drafting convention.

Clause 8
Mr du Preez pointed out that the previous clauses 7A and 8 had now been deleted in line with the redrafting of the clauses dealing with pornography.

He commented that the new draft of Clause 8 reflected the different permutations of compelling. The drafters were a little concerned with clause 8(d). The definition of “sexual act” envisaged participation by at least two persons. Therefore it was necessary to include a clause dealing with self-masturbation, where only one person was involved. He queried whether the clause should also include masturbation.

The Chairperson stated that the definition of a sexual act included both penetration and violation, but violation did not include self-masturbation. She therefore believed that this subclause was necessary but there was no need to go any wider.

Mr du Preez also pointed out that the word “watch” had been used, but he wondered if “witness” was not a better word.

The Chairperson agreed that the word “witness” was more appropriate as it tied in better with the reference to an act being committed in the presence of the complainant.

The Chairperson also stated that all the scored-out clause 8 options could be left out of the next draft, so that only the highlighted and underlined version of clause 8 remained. Option 8A should also be included for voting as it dealt with exposing only.

Clause 9
There were no changes.

Clause 10
Mr du Preez indicated that the previous clause 10 had dealt with pornography and had therefore been deleted. He asked whether child pornography should be covered in a similar clause.

In response to a question from the Chairperson, Mr Bassett confirmed that child pornography was defined in the Film and Publications Act, and that definition had basically been repeated in Clause 1 of this Bill.

The Chairperson felt that an option should be drafted, which included the elements of the crime in the body of the clause, rather than attempting to create a definition clause.

Mr du Preez stated that it would be preferable to cross reference “pornography” to the child pornography clause.

The Chairperson reminded the Committee that the Film and Publications Act regulated the possession of pornographic material. This legislation did not deal at all with possession but with exposure of prohibited material to another person, either in person or by pop-ups on the internet. This was limited to child pornography. It was the gap between possession and exposure to third parties that this legislation wanted to cover. Therefore she asked the drafters to include an option. There was another school of thought which believed that there should be no offences other than pure possession, but this Committee was of the view that all gaps should be covered.

Clause 10A
Mr du Preez pointed out that the clauses had not yet been properly numbered with their new numberings; this would be done in the next draft. This clause had been moved from its original position after clause 7. There was an option now included. The first option related to the engaging of sexual services and drew a distinction between the actual commission of and the intention to commit a sexual act. The second option was more similar to the sexual exploitation provisions in relation to children, where the actual commission of the sexual act would be treated as a second offence; the main offence was created by the engaging of services. The consent of B was an element of the first option, but not of the second.

The Chairperson requested that the double brackets be removed from Option 2. Both options would remain in the next draft for voting purposes. 

Clause 11
Mr du Preez reported that this provision related to incest. The new draft now reflected the instructions of the Committee to refer to “an act of sexual penetration” instead of “a sexual act”. The reference to the Child Care Act had been deleted, and replaced with a reference to “any other law”. Ms Delene Clark (South African Law Reform Commission) clarified that this was done because it was uncertain whether the final draft of the new child care legislation would define adoptive relationships. The wording now included in this Bill would be wide enough to cater for any legislation that did include a definition of adoptive relationships.

Mr Jeffery wondered why it was necessary to word the draft so widely. He stated that adoption was a legal concept and must therefore be defined somewhere. He felt that this draft should merely refer to the existing definition of an adoptive relationship, and that if this was altered, then this legislation must also be amended.

The Chairperson queried whether a reference to “an adoptive relationship as provided for in law” would not be a better option.

Mr du Preez stated that he would check the provisions of the Interpretation Act and use the standard wording.

Mr du Preez pointed out that the references to a complainant had now been deleted. Both parties to the incest could be prosecuted. The Chairperson firstly commented that what was currently merely called “11” should in fact be “11: Option 1” and that “Option 1” appearing below that should be renamed “11: Option 2”. She asked that the various options for each subsection should be grouped together for ease of reading.

She queried whether the inclusion of references to “persons who may not lawfully marry each other” added anything to the prohibited degrees of consanguinity.

Mr du Preez replied that where marriage was prohibited in an adoptive relationship, so would intercourse be prohibited. He was not sure whether the Children’s Act referred to both marriage and sexual intercourse.
He indicated also that a decision to prosecute would have to be taken by the National Director of Public Prosecutions and that this decision could not be delegated.

Mr Jeffery asked whether similar provisions would apply in relation to foster children.

The Chairperson explained that the Committee had been of the view that fostering was likely to be a more temporary arrangement and prohibitions between foster parent and foster child would add unnecessary complications. A person who had a sexual relationship with a child would be committing rape. If the prohibitions were to be extended to foster parents, then by implication they should also be extended to guardians and curators.  Adoption, but not fostering, was included in the common-law prohibitions, as adoption was regarded as akin to biological relationships.

Mr Jeffery indicated that the current prohibitions related to relationships based on consanguinity, lineage or adoption. He did not believe it was correct to try to cater for any future changes in the law. Although the wording in Option 3 did indicate that certain persons would not be able to marry because of prohibitions in the law, it was not particularly well worded. He also indicated that there could be other prohibitions. Same sex marriages were currently not permitted. Bigamy was also not permitted. He believed that the clauses should refer only to existing legislation and if that legislation was amended, then an amendment would need to be effected here also.

The Chairperson indicated that Option 1 did not include a reference to marriage, but there was certainly a link between consanguinity and marriage in the prohibited degrees. She asked the drafters merely to tighten up the presentation and description of the options, and to leave the three options to be decided upon when the Committee voted.

Clauses 12, 13, 14 and 15
There were no changes to these clauses.

Clause 16
Mr du Preez reported that what was described as “Option” was in fact the main clause, with a further option to follow. In this clause statutory rape and soliciting remained as two separate crimes and a person could therefore be prosecuted both with the act of soliciting and the act of statutory rape. 16(1A) referred to the customer, and 16 (3A) referred to the pimp.

The Chairperson queried whether there was any need to include the words “with or without consent” in 16(3A). Clause 16(1A) specifically stated that consent was not relevant. Although the effect of (3A) was clearly to imply that consent was not relevant, she was concerned that it was differently worded to (1A).

Mr du Preez stated that this wording could certainly be included in (1A).

The Chairperson asked whether a primary care giver would include a foster parent. Mr du Preez stated that he would check this point.

The Chairperson asked about the overlap between (3A) and the deleted (2A). She confirmed that a parent who allowed a child to be used would fall within the category of a pimp. If money did change hands the primary caregiver clause would also apply. In this case it was likely that the parent would be charged with the offences in the alternate.

Mr du Preez clarified to the Committee that the reference to “lease” of property in clause 16(2)(b) would include letting.

Mr du Preez further pointed out that in relation to the reporting of the offence, options had been included of 48 hours and of a reasonable time. He noted that most existing statutory provisions referred to “immediate” reporting of offences rather than a set time frame.

The Chairperson asked that this footnote be included in the next draft to serve as a reminder to the Committee.

Clause 17
Mr du Preez indicated that the wording headed “Option” was to be read as the main clause, and the highlighted sections reflected the instructions of the Committee. However, there was an additional inclusion. As previously stated, the SAHRC had commented on the position of caregivers in relation to persons who had a mental disability, and the drafters considered that similar catch-all provisions should be included also in the clauses dealing with sexual grooming of children.

The Chairperson asked that clause 17(2)(aA) should be renumbered as 17(2)(b) and have a heading “Option to consider”. She also asked that the heading “Option” appearing before 17(1) should be deleted. Furthermore the option of “facilitating” or “promoting” in 17(1)(c) should be expressed as optional alternates.

The Chairperson asked whether some words describing the concept of teaching, training or instructing a child in sexual behaviour – for instance by the use of manuals – should be included in clause 17(2)(a). She asked the drafters to consider suitable wording and include it for later deliberation by the Committee.

The Chairperson did not feel that the wording in 17(2)(aA)(iii) was clear enough and asked that it be clarified. The words “he or she” should either be replaced with “A or C” or with “either of them”.

Mr du Preez indicated that a similar clause appeared in relation to the persons who had a mental disability and he would ensure that the two clauses aligned.

The Chairperson requested that clause 17(2)(aA)(iv) also be clarified in a similar way, by being amended to read “watch A or C commit a sexual act or an act of self-masturbation”.

The Chairperson indicated that she would like the drafters to continue with the remainder of clause 17 at the next Committee meeting.

The meeting adjourned.