Criminal Law (Sexual Offences) Amendment Bill: deliberations

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Justice and Correctional Services

17 October 2006
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Meeting report

JUSTICE PORTFOLIO COMMITTEE
18 October 2006
CRIMINAL LAW (SEXUAL OFFENCES) BILL: DELIBERATIONS

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]

SUMMARY
The Committee continued with its discussions on the latest draft of the Bill. Topics of discussion and changes emerging from this were:
- The register should contain, amongst other, the profession of the offender.
- It should be clear that one need not have served a prison sentence before one's particulars could be entered into the Register.
- The Committee still has to consider whether an accused should be able to contend that he did not know that the victim was mentally disabled when charged in terms of clause 3 or 5.
- Children who have been charged with consensual sexual violation should be able to raise the fact that the age gap between them was not more than two years irrespective of whether they were related or not.

MINUTES
The Committee continued with its discussions on the Bill. Mr H du Preez (Senior State Law Advisor, Department of Justice), Mr Lawrence Basset (Chief Director, Legislation, Department of Justice), Mr H Potgieter (SALC) and Ms D Clark (SALC) attended the meeting. Mr du Preez took the Committee through the Working Draft of the Bill [10 October 2006] from Clause 17.

Clause 48 Contents of the Register
Mr du Preez said that the only new change in this clause was that the register should contain the relevant prisoner identification number in paragraph (b)(iv).

The Chairperson said that the register should indicate the profession of the offender.

Clause 49 Persons whose names must be included in Register and related matters
The Chairperson asked if sub-clause (1)(d) referred to persons who had not served prison sentences and if it should specifically indicate that it applied to persons who had not served prison sentences.

Mr du Preez replied that there might be a slight duplication because the Department of Correctional Services have the information.

The Chairperson said that sub-clause (5) clearly indicated that there was no intention to focus only on people who had served prison sentences. It would be safe to specifically indicate that sub-clause (1)(d) covered even people who had not served prison sentences. The period of time referred to in sub-clauses (4), (5) and (6) should be three months.

Clause 50 Removal of particulars from Register
Mr du Preez said that this clause dealt with sentences imposed and the period of time that should lapse before a person's particulars could be removed from the register.

Mr Basset noted that there were new provisions in sub-clause (2)(b) and (c).

The Chairperson noted that there was a footnote in sub-clause (1)(b) that indicated that the meaning of "court order" still had to be explained.

Mr Basset said that it was necessary to have the word "court order". A person could be sent to a reform school following a court order in terms of the Criminal Procedure Act. The court order was not necessarily a sentence.

Clause 51 Confidentiality and disclosure of information
Mr du Preez said that the word "wilfully" was replaced by "with malicious intent" in sub-clause (2).

Chapter 7
Clause 53 Defences

The Chairperson said that this clause would be dealt with at a later stage. The drafters were requested to consult with the State Law Advisors on the defence provided in sub-clause (2). She noted that there were question marks and a footnote in sub-clause (2)(c). The footnote indicated that the Committee was still to give final instructions. She had thought that the Committee had agreed to the defence contained in the paragraph. She asked if there was a problem with the defence.

Mr du Preez said that clause 15 dealt with sexual violation. The concern was that sub-clause (2)(c) read with sub-clause (3) was too stringent.

The Chairperson asked what was stringent about the defence.

Mr du Preez relied that the Committee had requested that the clause should be put in brackets. The issue was sexual experimentation between brothers and sisters.

The Chairperson said that the brackets in sub-clause 2(c) should be removed. She wondered if 50(3) meant that 50(2)(b) and (c) did not apply if the accused person was related to the child within the prohibited incest degrees. Was it necessary to include 50(2)(c) in 50(3)? Sub-clause (2) dealt with a situation where the child had deceived the accused into believing that he or she was 16 years or older at the time of the commission of the offence. Sub-clause (2)(c) dealt with consensual sexual violation in cases where the age difference between the children was not more than two years. Sub-clause (3) was saying that a defence would not be available if such children were related to each other within the prohibited incest degrees. It had been indicated to the Committee that children engaged in sexual experimentation. The clause would have the effect of taking the defence away if the children were brothers and sisters. Sub-clause (3) should simply provide that 50(2)(b) would not apply if the accused was a family member. Sub-clause (3)(b) should be deleted.

She said that sub-clause (3A) was intended to protect a child in an adult-child relationship. Clause 11 dealt with incest.

Ms S Camerer (DA) said that sub-clause (3)(a) could not apply in any case because incest was incest.

The Chairperson reminded Ms Camerer that the Bill was repealing the common law. Part of the problem with this chapter was that a lot of things that had been in practice and perfected over the years would be repealed and it was necessary to capture all the issues that would be preserved.

Ms Camerer said that it was odd to say that a defence that applied to a different situation would apply to incest. The age of the parties was beside the point. The age of the parties could never have been contemplated as a defence in common law or any other law.

The Chairperson agreed with Ms Camerer.

Mr du Preez said that the concern was that the clause might create an absolute defence and that it might be better to insert a caveat.

The Chairperson said that if one of the parties to an incestuous relationship was a child under 16 years, the accused would be charged for statutory rape and incest in the alternative.

Ms Camerer asked why should a defence not be available to the accused.

The Chairperson replied that the implication was that the defence should not be available if the accused was not a family member.

Ms Camerer could not see how the defence could apply in such a case.

The Chairperson sad that Ms Camerer's view might be correct in relation to incest but not statutory rape.

Ms Camerer said that the whole point was that the parties were family members and could not hide behind the defence.

The Chairperson said Ms Camerer was assuming that the accused would be convicted of incest as opposed to statutory rape. Statutory rape would be the more serious crime if the accused was charged in the alternative and the accused would be convicted of statutory rape should all of the elements of the crime be proved. An accused who had been charged with statutory rape would be able to invoke the defence that he or she thought that the child was over 16 years old.

Ms Camerer said that the accused would still be able to invoke the defence if he or she was a family member.

The Chairperson said that the accused could technically invoke the defence and say he was the uncle and that the child was an adopted child and he did not know the biological age.

Ms Camerer said that the defence would be far-fetched. The Chairperson agreed but added that it was possible for such a factual scenario to arise. Perhaps the problem lay in the words "incest degrees of blood". She said that the clause should either say "within the prohibited degrees of affinity" or "if the child was related to the accused in any way".

Clause 53A Inability of children under 12 years and persons who are mentally disabled to consent to sexual act
Mr du Preez said that the only amendment was to change "mentally disabled persons" to "persons who are mentally disabled.

The Committee went into a closed session to discuss a report on the suspension of magistrates.

The meeting was adjourned in relation to the Bill.

 

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