Criminal Law (Sexual Offences) Amendment Bill: deliberations

JUSTICE PORTFOLIO COMMITTEE
17 October 2006
CRIMINAL LAW (SEXUAL OFFENCES) BILL

Chairperson: Ms F Chohan (ANC)

Documents handed out:
Working draft of Sexual Offences Bill as of 10 October 2006
Criminal Law (Sexual Offences) Bill [B50-2003]
Report by the Council for Debt Collectors

SUMMARY
The Committee continued with its discussions on the Bill. It mainly made technical amendments to the Bill. These were intended to criminalise the activities of a person who had, for instance, manufactured, produced, possessed, distributed or facilitated the manufacture, production or distribution of articles that were intended to be used in the commission of a sexual act with or by a child. This would also cover the activities of people who assist in the creation of the pornographic images or articles would also be guilty of a crime. People who assisted in the creation of the pornographic pictures or images could include the cameraman and the person who did the lighting.

The application for the HIV testing of the alleged offender could be made even before an arrest had been made. Clause 53 dealt with defences to crimes like rape and sexual assault which were both serious crimes. The intention was to provide a defence for somebody who did not know that the victim was mentally disabled. Not every mentally disabled person would fall under the chapter. Only those people who could not appreciate the nature of a sexual act were covered. The problem was that the Bill was creating a defence to a charge of sexual violation or rape if the offender alleged "I did not know that the victim was mentally disabled". The issue turned on the element of consent. People who were mentally disabled in terms of this legislation could not consent to a sexual act. The problem was whether a person who was mentally disabled in terms of this Bill could be mistaken for a person who was not mentally disabled. The alleged offender would be required to prove that he did not know that the person was mentally disabled and that he or she thought that there was consent.

MINUTES
The Committee continued with its discussions on the Bill. Mr Henk du Preez (Senior State Law Advisor, Department of Justice), Mr Lawrence Basset (Chief Director, Legislation, Department of Justice), Mr H Potgieter (South African Law Commission (SALC) and Ms D Clark (SALC) attended the meeting. Mr du Preez took the Committee through the Bill from clause 17.

Clause 17 Sexual grooming of child
Mr du Preez said that this was a new grooming provision. The drafters had been requested to renumber paragraph (2)(aA) as new paragraph (b). He referred the Committee to sub-paragraphs (v) and (iv). There had been some criticisms raised about the wording used in the provisions. He proposed that sub-paragraph (iv) should read "be exposed to or have pornography, as contemplated in section 17A, displayed to him or her".

The Chairperson asked what would be the difference between the current and proposed formulations.

Mr du Preez replied that there was no real difference. It was a matter of refining the drafting.

The Chairperson asked why the drafters did not simply remove the words "or displayed" from the sub-paragraph. This would make it easier to understand the provision. Mr Basset agreed.

Mr du Preez said that the new formulation was inspired by the desire to follow the formulation of other crimes.

The Chairperson suggested that the same words should also be removed from sub-paragraph (vi).

Mr du Preez said that sub-paragraph (v) referred to "be engaged in or used for pornographic purposes as contemplated in section 17B(1) or (2).

The Chairperson said that there would be no problems should the drafters want to remove the words "be engaged". The intention was to capture the use of a person for pornographic purposes.

Mr du Preez said that there were two crimes, and one of them referred to "use" in a sense that was not attached to financial reward.

The Chairperson said that the first part of the clause dealt with a person who had manufactured, produced, possessed, distributed or facilitated the manufacture, production or distribution of articles intended to be used in the commission of a sexual act with or by a child. Clause 1(b) dealt with the supply of the articles to a third person. She asked why clause 1(a) referred to a specific complainant, namely a child. The intention was to outlaw the manufacturing, production, possession or distribution of the articles. She asked why the articles must be in the hands of a child complainant before they could be outlawed. The Committee should begin to conceptualise this as a broader crime and not limit it to a particular child. She suggested that the word complainant should be deleted in clause 1(a).

She said that clause 1(b) dealt with the supply of the article to a third person. The person who supplied the article did not necessarily have to have manufactured it. It could be a person who had bought or acquired it and was now trying to further the implementation of the article. She said that the word "instruct" should be added after the word "enable". The third leg of the offence dealt with the arrangement or facilitation of meetings and the offence committed was the promoting sexual grooming of a child. The next part was the actual sexual grooming. There should be a particular intention which, in a sense, was similar to clause 1(b). The difference between clause 1(b) and (2)(a) was that the person referred to in clause 2(a) dealt with the child directly whilst the person in clause 1(b) only encouraged a person to be a person referred to in clause 2(a). The word "instruct" should be added in clause 2 after the word "enable". It should read to "perform" and not to "commit" a sexual act. A sexual act was not in itself a crime. One could only "commit" a crime.

Mr Basset asked if the word "perform" should not also be used in clause 1(b). The Chairperson was happy to use the word "perform" in clause 1(b) but still felt that the word "commit" read better in clause 1(b).

The Chairperson took the Committee through clause 2(aA). This clause would become the new clause 2(b). She asked if the drafters wanted to change the word "commit" to "perform".

Mr Basset said that the beginning of clause 2(aA) referred to the word "commit" and also contained the word "commission". He wondered if the words should not be substituted by "perform" and "performance" for the sake of consistency.

The Chairperson said that the word should not be replaced. The problem was that reference to the commission of a sexual act implied some degree of illegality. Sub-paragraphs (i) and (ii) referred to "perform" and not "commit". She asked if the "he or she" in sub-paragraph (iii) referred to the child, or A, or C.

Mr Basset replied that it was A or C.

The Chairperson said that the words "while he or she" should be deleted. The words "be engaged in or" should be removed from sub-paragraph (v), and sub-paragraph (vi) should be removed because it was a bit too wide. Sub-paragraphs (i) to (v) dealt with acts to which one would not want children exposed. There were situations where children might bath with their parents. This was not necessarily an act that amounted to grooming. The Bill was concerned with the intention to lower the resistance to be exposed to somebody’s naked body. There would be no problem unless there was some action in terms of a sexual or violation of the person's dignity. There was a problem with saying that one did not want children to be groomed towards seeing somebody naked.

Mr Basset asked if a person convicted in terms of clause 1 would be guilty of the offence of "facilitating" the sexual grooming of a child or the offence of "promoting" the sexual grooming of a child.

The Chairperson said that the word "promoting" read better in this clause because "facilitating" had a particular meaning. The promotion of sexual grooming would include people who manufactured articles used in grooming.

Clause 17B Engaging or using child for pornographic purposes
The Chairperson said that there were two issues: paying for the services of child and using the child for pornographic materials. The second issue was having a child involved in sexual activities that might constitute a crime but for no reward. Sub-clause (c) was intended to capture people who assisted in the creation of the pornographic images or articles. People who assisted in the creation of the pornographic pictures or images could include the cameraman and the person who did the lighting. This was an important clause. There would be problems if sub-paragraph (c) was made subject to the giving or offering of financial reward. People like cameraman could easily slip through the net if the clause was not tight enough. One way of dealing with the problem was to delete sub-paragraph (c) and sub-clause (2) and replace them by a clause that would read: "a person who unlawfully and intentionally uses a child complainant (A) for the purposes of creating, making or producing or in any manner assisting to create, make or produce any image, publication, depiction, description or sequence in any manner whatsoever…".

She said that there was a problem with items like home pictures in relation to clause 17B(1)(a)(vi). This provision should be narrowed down a little. She suggested the removal of the words "arousal or" and "in the case of a female". The breast of a male child could also be stimulated for the purposes of child pornography. Sub-paragraph (vii) should be deleted because it was too broad. A person convicted in terms of sub-clause (3) should be guilty of benefiting from child pornography.

Mr Basset said that the heading of the clause would change due to the deletion of the word "engaging" in the clause.

Clause 18 Compelling child to watch (witness?) a sexual offence, sexual act or self- masturbation
The Chairperson wondered if it would not be better to have a clause 18,split into (1), (2) and (3) setting out the different crimes. All the offences had to do with a child witnessing a sexual offence, sexual act or self-masturbation.

Chapter 4
Clause 23 Sexual exploitation of person who is mentally disabled
The Chairperson assumed that this clause mirrored the clause that dealt with the sexual exploitation of children.

Mr du Preez said that the drafters would check if the clauses correlated with each other.

The Chairperson asked the reason for deleting the definition of "caregiver".

Mr du Preez replied that the reason was that the definition applied in relation to children.

The Chairperson wondered if a special teacher, for instance, was covered under the sub-clause (2). A teacher could be a caregiver under certain circumstances. She noted that sub-clause (3) had a footnote that said that the obligation to report should not be limited to sexual exploitation but should be applicable in respect of all offences. She liked the idea of extending the obligation to cover all offences. The Committee should think about making it a crime not to report the offences against vulnerable groups.

Mr du Preez said that the duty to report should not be limited to a particular chapter. The defining issue should be whether the offence was committed against children or mentally disabled persons.

Clause 24 Sexual grooming of person who is mentally disabled
The Chairperson said that this clause was different from the clause that dealt with the manufacturing or production of an article or publication to be used in the commission of a sexual act with a child. A child who was mentally disabled would be protected under the clause that dealt with children regardless of the mental disability. This clause was concerned with adults. She had thought that maybe there was some kind of publication that incited people to go around raping mentally disabled person. She did not see any merit in paragraph (a) and suggested that it should be deleted. The clause should reflect the changes made in previous clauses in relation to the use of the words "commit" and "engaging".

Clause 24A Exposure or display of or causing exposure of display of pornography to person who is mentally disabled
The Chairperson said that this clause was technically also dealing with adults. She was not sure what this clause was intended to achieve unless it was related to child pornography.

Mr du Preez said that that clause referred to exposure or display of child pornography.

The Chairperson did not understand what "refused classification" entailed if it was not child pornography. Sub-clause (b)(i) referred to a refused classification. She asked if sub-clauses (b)(ii) and (iii) should not be deleted. Perhaps the clause should be concerned with the exposure against the will of somebody. The consent issue was only relevant to the sexual act. This clause was complicated and it almost amounted to "you will be damned if you do and damned if you don't" situation. The Committee was very concerned to avoid the situation warned against by the SA Human Rights Commission that the legislation might end up treating all mentally disabled persons with certain degree of disdain. There was a feeling that the Committee was suggesting that mentally disabled people could not make certain life choices.

Clause 25A Engaging or using person who is mentally disabled for pornographic purposes
The Chairperson said that the drafters should again delete the words "engaging or" and substitute "commit" by "perform". The words "arousal or" and in the case of a female" should also be deleted in paragraph (a)(vi). Paragraph (a)(vii) should also be deleted. Paragraph (c) and sub-clause (2) should also be deleted.

Clause 30 Definitions
"Interested person"
The Chairperson said that a curator should be listed as one of the interested persons.

Clause 32 Designation of public health establishment for purposes of providing Post Exposure Prophylaxis and carrying out compulsory HIV testing
The Chairperson said that the first notice referred to in sub-clause (2) should be published within two months of the implementation of this clause.

Clause 33 Application by victim or interested person for HIV testing of alleged sexual offender
The Chairperson said that sub-clauses (1)(a) and (2) should refer to 90 days. 90 days was the window period. It was also related to the kind of HIV tests conducted. The words "parent" and "guardian" should be added in sub-clause (2)(iv). The application for the testing of the alleged offender could be made even before an arrest had been made. She wondered what would should the period of 90 days lapse while the alleged offender had not yet been arrested. She was worried about reference to "a family member" in sub-clause (2)(iv). The degree of relationship between the victim and the family member might be far removed and the victim might not want the family member to know the status of the alleged offender. The family member would have to give reasons why he or she wanted to apply for the testing or why the victim could not apply.

Clause 34 Consideration of application by magistrate and issuing of order
The Chairperson said that sub-clause (3)(c) should refer to 90 days.

Clause 35 Application by police official for HIV testing of alleged offender
The Chairperson said that sub-clause (1)(b) referred to results that had already been done following an application made by the victim or any interest person. She asked why an application by an investigating officer had to be made as soon as possible as provided in sub-clause (2)(b). She enquired what would happen should investigations begin and the investigation officer realise at a later stage that an application should be madefor the testing of the alleged offender.. This clause would mean that the officer would not be able to apply for testing until the alleged offender had been convicted. She suggested that the words "as soon as possible" should be deleted.

Clause 36 Execution of order and issuing of warrant of arrest
The Chairperson said that there was a notice on how to deal with test results for those people who were being tested. People who had been tested were first given some counselling before being given the results. There was another notice that had to do with the confidentiality of the results. There was a need to differentiate between the two notices.

Mr Bassett said that an attempt had been made to draft regulations. The regulations might take care of the Chairperson's concerns.

The Chairperson said that it should be made clear that there should be some advice given on how to deal with the results of tests and that the result should be confidential. Confidentiality did not apply to alleged the alleged offender but to the victim. Sub-clause (2)(b) should make reference to regulations. The presumption was that the results were still in the hands of laboratory. The results could be in hands of the police. The police did not have the norms and protocols of destroying the specimens or results. Only the Department of Health had the norms and protocols of destroying the specimens or results.

Mr Basset said that it might also be better to refer to any national instructions issued by the National Commissioner of South African Police Services (SAPS) issued in terms of clause 61.

Clause 39 Use of Results of HIV tests
Mr Basset said that paragraph (c)(ii) was a technical amendment and referred to clause 38(2) that dealt with access to the register.

The Chairperson suggested that the paragraph should be amended and refer to the "purposes of research, civil or criminal proceedings". It might be a good idea to allow access to research staff under prescribed circumstances. Reference to criminal proceedings could be important when dealing with an alleged offender who had previously been arrested, charged and tested.

Mr Basset suggested that the paragraph should refer to "civil or criminal investigations and proceedings".

Clause 40 Confidentiality of HIV test results obtained
The Chairperson noted that, unlike clause 39, this clause did not refer to clause 38(2). She also noted that the Bill gave the right to investigate if an order for the testing of the alleged offender had previously been granted. The prosecutor could then lead evidence that the alleged offender knew his or her status and had raped people. She asked why paragraph (c)(ii) referred to civil proceedings.

Mr Basset replied that the reason was that the complainant might want to institute civil proceedings against the alleged offender.

The Chairperson said that the wording of the paragraph was not tight enough. She guessed that the civil proceedings would have to be directly related to the rape.

Clause 41 Offences and penalties
Mr Basset said that the drafters had made some technical corrections in this clause. It previously had sub-paragraphs (i) and (ii) under sub-clause (1)(a). The two sub-paragraphs should be read together and not as separate provisions.

The Chairperson wondered if sub-clause (1)(b) should not refer to malicious disclosure.

Mr Basset said that the word "malicious" was never used in the paragraph. The Chairperson suggested that it should read "intentionally and grossly negligently". Intention on its own was not sufficient for the purposes of the paragraph.

Mr Basset suggested that it should read "wilfully and intentionally". The Chairperson said that negligence excluded intention.

Mr Basset suggested that the paragraph should read "with malicious intent or in a grossly negligent manner". The Chairperson agreed.

Mr Basset said that the Commissioner of SAPS should issue instructions dealing with the manner in which police officials should deal with the outcome of applications made and granted in clause 34 or 35.

Mr du Preez said that sub-clause (1A) dealt with instructions regarding the manner in which police officials should deal with the test results.

Chapter 6 National Register for Sex Offenders
The Chairperson proposed that the Committee should look at these provisions on the following day. She felt that the obligations of the employer were not clearly set up front.

Chapter 7
Clause 53 Defences
Mr du Preez indicated that sub-clause (2)(a) still had brackets. The drafters were still awaiting instructions from the Committee on how to draft it.

The Chairperson said that the brackets should remain and the drafters should draft another option to the clause. The clause dealt with rape and sexual assault which were both serious crimes. The intention was to provide a defence for somebody who did not know that the victim was mentally disabled. Not every mentally disabled person would fall under the chapter. Only those people who could not appreciate the nature of a sexual act were covered. The problem was that the Bill was creating a defence that would provide that it was a defence to a charge of sexual violation or rape to say "I did not know that the victim was mentally disabled". The issue turned on the element of consent. People who were mentally disabled in terms of this legislation could not consent to a sexual act. The problem was whether a person who was mentally disabled in terms of this Bill could be mistaken for a person who was not mentally disabled. She wondered if the alleged offender should be required to prove that he did not know that the person was mentally disabled, and that he or she thought that there was consent? She asked that reference to the age of 18 years should be deleted.

Ms Clark asked if consent would now be a defence.

The Chairperson said that the offender would have to prove both the lack of knowledge that the victim was mentally disabled, and that there was consent to the act in question. It was better not to have a defence rather than having a defence that would be misconstrued.

The meeting was adjourned.