Criminal Law (Sexual Offences) Amendment Bill: deliberations

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
20 October 2006
SEXUAL OFFENCES AMENDMENT BILL: DELIBERATIONS

Chairperson: Ms F Chohan (ANC)

Relevant documents
Working draft of Sexual Offences Bill - 10 October 2006
Criminal Law (Sexual Offences) Bill [B50-2003]
Revised Schedule to the Bill

SUMMARY
The legal advisors from the Department of Justice and the South African Law Reform Commission continued to guide the Committee through the most recent amendments to the Schedule to the Criminal Law (Sexual Offences and Related Matters) Bill, which indicated the Acts, in date order, that would be amended by the Bill. Most of the amendments related to the effect of a charge (or conviction and sentence) on matters such as bail, parole, evidence of character, fitness to undertake certain employment, migration and forfeiture. On conclusion of the deliberations on the Schedule, the Chairperson requested that the provisions relating to the Register be redrafted, so that these would contain a different procedure and onus in relation to the certificates. The items appearing in bold and highlighted would be removed from the next draft, so that only the options remained highlighted for discussion.

The deliberations would continue on 25 October, and the Committee would vote on the clauses that still contained optional wording.

MINUTES
Mr H Potgieter (Research consultant for South African Law Reform Commission) indicated that the Committee would be proceeding from Item 11 of the Schedule and would still be considering the amendments that would be effected by the Criminal Law (Sexual Offences) Amendment Bill (“the Bill”) sections of the Criminal Procedure Act, No 51 of 1977.

Item 11 - Substitution of Section 227, Criminal Procedure Act (CPA)
Mr Potgieter indicated that there was a typographical error in the substitution wording for section 227(2)(b). It should refer to “evidence…introduced by the prosecution”, and not by the defence.

Under Section 227(5), subsections (a), (b) and (c) required consideration. Mr Lawrence Bassett (Chief Director, Legislation: Department of Justice, indicated that the Committee had previously decided, when similar wording was under consideration, that only subsections (a) and (b) should be included, as subsection (c) was too broad, and also repeated what the Courts would as a matter of course consider in coming to a conclusion.

It was agreed that 227(5)(c) be deleted and that the remaining subsections would be renumbered.

Substitution of section 261 of CPA
Mr Potgieter pointed out that this item dealt with competent verdicts. Subsections 261(1)(i) and (j) had been deleted. Subsection 261(2)(c) had also been deleted.

Amendment of Section 267 of CPA
Mr Potgieter indicated that the original draft of “indecent assault” had now been replaced with a more specific list.

Substitution of Section 268 of CPA
Mr Potgieter stated that this item was shown in brackets because there were references to “unlawful carnal intercourse” as contained in the 1957 Sexual Offences Act.

Mr Bassett indicated that the Department of Justice intended to refer, in its memorandum, to this crime and suggest that sections of the Sexual Offences Act must be modernised. The question was whether there should be such an offence. It referred to sexual intercourse outside a marriage, and although it could include prostitution, it would not necessarily do so. The proposed wording of the memorandum would indicate that although unlawful carnal intercourse was not part of the review, it was still on the statute books. There was uncertainty as to what exactly was covered, as it seemed broader than prostitution and therefore should also be considered in the review.

The Chairperson suggested that for the moment the clause in brackets must be kept in the draft. If necessary, after the review, it could be amended. However, in subsection 268(a) the words “indecent assault” should be substituted with the fuller description that followed.

Mr Potgieter also pointed out that there had been some discussion earlier whether the words “immoral or indecent” act should appear as it was uncertain what they meant. The Chairperson felt that there was no harm in leaving the words as they stood.

Amendment to Section 276A of CPA
Mr Potgieter indicated that this section referred to eligibility of an accused for correctional supervision. The queries had related to the words detailing that an accused should also be ordered to attend a treatment programme.

Ms S Camerer (DA) queried the inclusion of the phrase “if practicable”. She wondered if it should instead refer to “if available” or “within the resources of the Department” or something similar. She was worried that presiding officers seemed to ignore such options and she would prefer to see the wording tightened.

The Chairperson took Ms Camerer’s point but indicated that it was impossible to state that the offender “must” attend a programme as such programmes were not widely available. In addition, the wording suggested by Ms Camerer could be used if the Department of Justice ran such programmes and had to deliver on them. Here, however, the programmes were under the control of public and private operators. The worth of the provision lay not so much in the practicality aspect, but in the fact that the presiding officer was at least obliged to consider whether a programme would be appropriate. The defence attorney should raise it as an additional element of the correctional supervision.

Mr Potgieter asked whether the Committee was satisfied with the wording of “programme as prescribed.” He said that at this stage it was uncertain which authority would prescribe the programmes, which would be done in terms of regulations. The Minister of Justice, after consultation with other Ministers, was given the power to make regulations once the Bill was passed.

Substitution of Section 299A(1) of CPA
Mr Potgieter stated that this section provided that a victim of certain offences must be notified if the accused had applied for parole. The wording used followed the schedule of the Correctional Services Act. Two options were given for the wording of subparagraph (1)(d).

The Chairperson stated that both options should remain and be carried through to the next draft as the Committee would vote on the issue. However, because the two options contained different principles, the second option to (d) should be renamed as subparagraph (g).

Mr Bassett reminded the Chairperson that on the previous day the Committee had requested the drafters to take out the words “sexual assault”.

The Chairperson indicated that this section was concerned with sexual offences against children so there was a different principle involved.

It was agreed that both options remain, with one to be renumbered as suggested.

New subsection Section 335A (3) of CPA
Mr Potgieter indicated that this section related to the compensation board set up under Section 300 of CPA. On the previous day the Committee had decided to confirm the prohibition on publication of identity prior to trial. This section related to identity once the trial had commenced.

The Chairperson also pointed out that the periods of imprisonment provided for had been amended and were consistent.

It was agreed that the wording was acceptable.

Substitution of Schedule 1 of CPA
Mr Potgieter stated that this schedule listed the offences for which a police officer or private person could arrest without a warrant. The draft now included references to any sexual offences against a child or mentally disabled person, and trafficking of persons for sexual purposes. As previously agreed, any references to mentally disabled persons would be checked for consistency against the definitions used in the main body of the Bill.

It was agreed that the wording was acceptable.

Substitution of Part II of Schedule 2 of CPA
Mr Potgieter informed the Committee that this Part of Schedule 2 dealt with conditions on which bail was granted.

Similar provisions had been added as in Schedule 1.

The Committee agreed that the wording set out was acceptable. In addition, discussions at a later stage revealed the necessity to amend the references to Chapter 3 and 4 of the Bill, to clarify that the sexual offence should be one contemplated in Part 2 of Chapter 3 or “the whole of” Chapter 4.

Substitution of Schedule 5 of CPA
Mr Potgieter indicated that this related to offences where the accused would have to adduce evidence to satisfy the Court that it would not be contrary to the interests of justice that he/she be released on bail. A trafficking related offence by a commercial carrier (not by the kingpin operator) was now included.

It was agreed that the wording was acceptable.

Substitution of Schedule 6 of CPA: part dealing with rape or compelled rape, paragraph (b)
Mr Potgieter indicated that this schedule dealt with matters where the accused must produce evidence that exceptional circumstances existed to permit his or her release on bail. A trafficking offence by the kingpin operator was now included. In addition, there were two options relating to persons who were mentally disabled. He pointed out that the previous wording referred to the Mental Health Act of 1973, but this had been amended to include references to the Mental Health Care Act of 2002. The first option drafted referred to “mental illness or severe or profound intellectual disability” and the second option referred to “a mentally disabled person” as defined under the present Bill. The wording was similar to the minimum sentencing legislation. Mr Potgieter pointed out that the options both were targeted to vulnerable groups but the option referring to the current Bill contemplated the most severe forms of mental disability.

The Chairperson was worried about the references to a person who “suffered from mental illness” in the first option. She pointed out that depression was a mental illness that affected a large percentage of the population, who could not necessarily be said to be especially vulnerable. The intention of the current Bill was to ensure that the sentences were more severe in relation to the severity of the crimes. A broad based reference to mental illness would encompass too much. She suggested that the first option (iii) be removed and the second option, relating to this Bill, be retained.

Substitution of Section 1, Child Care Act 74 of 1983
Mr Potgieter indicated that this section contained the definition of commercial sexual exploitation.

Ms Camerer stated that the Act was not yet in force. She asked whether this definition had been amended in the new Act (also not in force).

Mr Potgieter stated that the Children’s Act referred to “the procurement of a child for sexual or other activities” irrespective of who received or shared in a reward of trafficking in a child.

The Chairperson asked the legal advisors whether they believed there was a need to amend this wording. Ms Delene Clark (Researcher, South African Law Reform Commission) did not think there was any need to do so. The Committee was concerned that the wording of other Acts, whether in force or not, be brought in line with the wording of the current Bill. It was clearly in line with the proposed Clause 16.

Ms Camerer pointed out that if the Child Care Act came into force, this would have to be amended.

The Chairperson agreed, but indicated that there were many problems in implementation and she had no doubt that the current Bill would come into force sooner. Any Act coming into force later would then need to check its implications to make sure that they were in line with existing legislation.

Mr Potgieter indicated that although the words “the procurement of a child” had been deleted, there was still reference to “the procurer of such services”.

The Chairperson queried whether this was necessary, and suggested that the section refer simply to “or any other person”. This would include pimps, travel agents or those who benefited without doing the procurement themselves.

The Chairperson referred to the definition of pornography in the main body of the Bill. She felt that the principles in Clause 17B should also be incorporated into this amended section 1 of the Child Care Act. Therefore she asked the drafters to add words to the effect of “commercial sexual exploitation means… and engaging the services of a child for the purposes of producing child pornography as contemplated in Section 17B of the Criminal Law (Sexual Offences and related matters) Amendment Act”.

Repeal of Section 5 of the Prevention of Family Violence Act 133 of 1993
Mr Potgieter indicated that this provision had not been in the draft before. This section referred to the fact that a husband could be convicted of the rape of “his wife” whereas Clause 53 of the Sexual Offences Bill referred to “marriage or other relationship, previous or existing”.

The Chairperson stated that the two wordings were not inconsistent and enquired why it was necessary to repeal the Prevention of Family Violence Act provisions.

Ms Clark stated that the whole of Act 133 of 1993 had been repealed except for this one section. If it were repealed, the whole Act would then be cleared from the statute books. The Domestic Violence Act had effectively replaced all other provisions and the principle embodied in the last remaining section 5 would be included and extended by the Sexual Offences Bill.

Ms Camerer noted that the Committee had worked long and hard on the Prevention of Family Violence Act and it was interesting to see that it had so soon disappeared.

Substitution of Part 1 of Criminal Law Amendment Act 105 of 1997: provisions relating to rape or compelled rape, paragraph (b)(ii)
Mr Potgieter indicated that these provisions related to the imposition of the minimum sentences, specifically life imprisonment. The wording now added was similar to that added to Schedule 6 of the Criminal Procedure Amendment Act. The same comments would apply to the options listed which considered the wider definition of a person suffering from a mental illness, as defined by the Mental Health Care Act, as against the definition of “a mentally disabled person” used in the Sexual Offences Bill.

The Committee preferred the option referring to the wording as used in the Sexual Offences Bill.

Mr Potgieter pointed out that trafficking for sexual purposes by the kingpin operator was now included.

Substitution of Part III of the Criminal Law Amendment Act 105 of 1997
Mr Potgieter pointed out that the references to “sexual grooming” had now been deleted both in relation to a child and to a mentally disabled person, and the references to clauses of the Sexual Offences Bill had been corrected. Trafficking by a commercial carrier in terms of Clause 66 was included.

On this point the Chairperson requested Mr Potgieter to check with Mr Henk du Preez (Senior State Law Advisor, Department of Justice) whether the wording used in Clause 66(2) was fully consistent with the drafting principles used throughout the Bill. This clause had included reference to the meaning of words in the specific context of the subsections, and she wondered whether there should rather be a definition clause up front.

The Chairperson reminded the drafters that the references to “a mentally disabled person” would still of course need to be corrected to become consistent with the wording now to be used in the main body of the Bill.

Substitution of Schedule of Witness Protection Act 112 of 1998
Mr Potgieter indicated that this schedule listed the offences in respect of which a witness could be placed under protection. Witnesses to any sexual offences against a child or mentally disabled person were now included, as well as witnesses to trafficking, either by a “a person” or “commercial carrier”.

It was agreed that the wording was acceptable.

Substitution of Schedule 1 of Prevention of Organised Crime Act 121 of 1998
Mr Potgieter indicated that this schedule referred to attachment of assets pursuant to certain crimes. The wording of item 9(c) had been amended to make it quite clear that whereas only offences in Part 2 of Chapter 3 were included, offences in “the whole of” Chapter 4 were included.

In response to a query raised by the Chairperson, Mr Potgieter explained that Part 2 of Chapter 3 related to exploitation, grooming and offences against children.

It was suggested, and agreed, that similar clarification also be effected to Part II of Schedule 2 of the Criminal Procedure Act.

Substitution for Schedule of Offences under Private Security Industry Regulation Act 56 of 2001
Mr Potgieter stated that the Act’s citation was incorrect in the previous draft, as the Schedule in fact appeared in the 2001 Act and not the 2002 Act relating to the security industry. The Schedule referred to those persons who were restricted from applying for registration as private security providers by reason of their conviction on any of the listed offences.

Once again references had been made to sexual offences against a child or mentally disabled personor trafficking by the kingpin operator.

The Chairperson wondered whether a person who had been guilty of statutory rape when they themselves were of the same age as the complainant should be excluded from applying for registration. On pondering the matter, she concluded that the wording was acceptable.

Amendment to Schedule 1 of Immigration Act 13 of 2002
Mr Potgieter stated that this Schedule listed the crimes that could lead to withdrawal of the convicted person’s permanent residence permit. The amendments would now include similar wording as discussed earlier, relating to sexual offences against children and mentally disabled, and trafficking by a kingpin.

The Chairperson asked the legal drafters to check the position relating to permits of children and their parents. She was particularly concerned what would happen if a youth dependent upon his or her parents was convicted and had the permit withdrawn.

The Chairperson once again requested that the references to Chapters 3 and 4 be amended as discussed earlier, so that they referred to “Part 2 of Chapter 3 and the whole of Chapter 4” but that this be subject to the decision in respect of the effect of the permits.

The Chairperson noted that there were no longer any annexures to the draft Schedule to the Bill, as the points originally made in the annexures had been incorporated into the draft.

Main body of Bill: Definition of “sexual offence”.
In answer to a question from the Chairperson, Mr Bassett confirmed that context of the Bill, and the adding of the words “unless the context otherwise indicates” to the definition, would make it quite clear that the only non-sexual offence in the Chapter referred to would be excluded from the general definition of “sexual offence”.

Offences against children
Ms Camerer expressed her concern that when the Bill dealt with offences against children, it clearly defined the elements of the offences. However, compelled self-masturbation had not been included in any category.

The Chairperson indicated that this was due to the fact that it did not form part of the sexual violation provisions. She suggested that Mr Bassett could give Ms Camerer a better explanation of the reasons for the drafting, and that Ms Camerer should rather speak to Mr Bassett directly. The matter had been discussed, but unfortunately at a time when Ms Camerer was not able to be present.

P 9 of Bill: definition of “this Act” Item (3)(d)(v) references to “mentally disabled”
The Chairperson stated that the Bill defined persons who were mentally disabled (this description would be amended in the next draft) for the purposes of Chapter 4, but there was one reference to a person who could not appreciate the nature of an act “for purposes of Chapter 2”. She asked why it was necessary to limit this wording to Chapter 2, and wondered if it was because of the wording of the definition contained at the beginning of Chapter 4. She pointed out that a person might be able to appreciate the nature of the act, but still not fully appreciate the consequences, such as the risk of pregnancy or a sexually transmitted disease. There was a notion that a person who suffered from a mental disability would never be able to consent. By definition, all the matters listed in Chapter 4 would not be affected by consent. She asked Mr Bassett and Mr Potgieter to double check with Mr du Preez whether the reference to Chapter 2 was consistent with the provisions of Chapter 4, or whether it should be removed. Although the application clause had been taken out of the current draft, it might be necessary to consider putting parts of it back into the next draft.

Clause 4: Compelled rape
The Chairperson indicated that the elements of the crime made it clear that the person being compelled to rape (person C) did not have the intention to rape. However, the words “with or without the consent of C” still appeared. She noted that a prospective gang member might be told to rape someone as part of the initiation into the gang. He would not overtly resist because of the fear that he might be harmed. The deletion of the words “with or without the consent of C” would mean that the conviction would more clearly turn on the individual facts of each case and that the Court would have to assess the matter more fully.

The Chairperson and Mr L Landers (ANC) discussed the question of accomplices. There was a fine line between someone who initiated the crime, and without whom the crime would never have been performed, and an accomplice who assisted in the crime, but whose involvement might or might not be essential to successful completion of the crime.

Clause 8
Ms Camerer referred to the clauses dealing with compelling a person to witness a sexual act. She could understand the references to “vulnerable groups” but was still doubtful whether an adult could indeed be “compelled” and wondered if the term “by force” should not be included.

The Chairperson felt that “compelled” already assumed there was complete lack of consent. She pointed out that the references to exposure of consenting adults had been deleted. The clause referred to situations where a family member might be compelled by robbers or hijackers to watch a sexual assault on other family members.

The Chairperson suggested again that Ms Camerer speak to Mr Bassett about any problems with the specific wording as the matters had been discussed in Committee.

Clause 37(b)
Ms Camerer referred to the submission from the Community Law Centre, who had suggested a grammatical alteration to the clause “to enable the investigating officers to gather information with a view to using them” to read “with a view to using it”. The Centre had also suggested that the current wording might pose a challenge to the admissibility of the evidence.

The Chairperson pointed out that if the HIV test was negative, then the evidence would not be used, so she did not see that there was a problem with this wording. However, she agreed that the grammatical alteration should be made.

Chapter 6: Clauses relating to the Register
The Chairperson stated that she would prefer the Committee to consider the clauses relating to the Register only in the following week. She was not happy with the way in which the Chapter had been designed. The original drafts had put the onus on a person applying for a job that would entail working with children to obtain and show the certificate that he / she had not been convicted of a sexual offence. A person who knew that his / her name was on the Register would not apply and show a genuine certificate, so the current wording opened the door to fraud. It would certainly be possible for a person who was sending out CVs in the hope of being invited to apply to obtain and attach a certificate to the CV. However, she would prefer the legal onus to be on the employer so that in every instance the employer must check, irrespective of whether a certificate had been supplied by the employee, whether the prospective employee was listed on the Register.

The Chairperson pointed out that there were two categories of employees; potential and historic. Potential employees would be covered by the procedure she had just described. Employees already in employment (historic) must also be cleared by application by the employer to the Registrar. Obviously there would have to be a prescribed time within which the application must be made, and if not done, or if the employee was shown to have been convicted of the relevant offence, then the contract would be terminated by operation of law if the employee could not be moved to another position that did not involve working with children. The same must apply to contractors and to those licensing.

Mr Landers felt that these provisions could be challenged.

The Chairperson had no doubt that they would be, but that the structure must clearly set out what the obligations were in each case.

She added that there must be clear sanctions for non-compliance by employers, relating to new and historic employment. There would need to be sufficient time for compliance in respect of historic employees.

The Chairperson added that there was another category, which was not specifically mentioned in the current drafts; namely a person who, after the issue of a clearance certificate, had then been convicted of a relevant offence. The current draft made no obligation for a follow-up by the employer. The Chairperson suggested either that there should be an obligation placed on the employee, in such instances, to disclose the conviction, or that the employer be obliged to apply for updated certificates periodically (which would, of course, give no protection to vulnerable groups in the period between the updates) or that the clerk or registrar of the Court be obliged to notify the employers of a conviction. She indicated that for practical purposes most of the convicted persons would probably in any event be sentenced to periods of imprisonment so that it was unlikely that their current employment would continue.

She pointed out that not every category of employment would be affected; for instance a professional who had no contact with children would not be obliged to obtain a certificate. The certificate must not be seen as a sanction but only a protective measure to protect vulnerable groups with whom the convicted person would interact in the course and scope of employment, or in a volunteer capacity, such as a coach for a school sports team.

The Chairperson was aware that the drafters were trying to reach comprehensive wording without necessarily listing the categories, but she felt that, at the least, the public categories of health, education, social welfare and correctional services should be listed as employers who would have to check the certificates of employees.

The remainder of the clauses would have to deal with access to the register, confidentiality and the crimes related to breach of confidence.

The Chairperson therefore requested that a new Chapter be drafted, encapsulating the concepts of the original draft, but altering the onus as suggested. Since this was a totally new concept, it was most important that it could be easily read and understood.

The Chairperson stated that the Committee would reconvene the following Wednesday, 25 October, to consider a draft of this Chapter, and commence with deliberations and voting on the new draft of the Bill.