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JUSTICE PORTFOLIO COMMITTEE
31 October 2006
CRIMINAL LAW (SEXUAL OFFENCES) BILL: DELIBERATIONS
Chairperson: Ms F Chohan (ANC)
Documents handed out:
Working draft of Sexual Offences Bill as of 25 October 2006
Criminal Law (Sexual Offences) Bill [B50-2003]
National register for sex offenders as at 31 October 2006
It was decided that the Register for Sex Offenders would include particulars of persons who had been convicted of sexual offences against not only children but also against persons who were mentally disabled. Each time a person had been convicted of an offence against a child or person with mental disabilities, the clerk of the court would send the record to the registrar. Departments like Correctional Services, Safety and Security and Health would be required to furnish particulars of offenders that they had to the registrar. This would be a process of building up the database. People who had committed sexual offences against children or people with mental disabilities would not be allowed to work with children or people with mental disabilities. This was not a punishment but a protective mechanism or measure for the vulnerable groups.
The Committee made technical amendments to the Chapter on the Register for Sex Offenders, the preamble and clause 2 of the Bill. Most of the amendments were technical and designed to ensure that the protective measures created for children also covered persons who were mentally disabled.
The Committee continued with its discussions on the latest working draft of the Bill. Mr H du Preez (Senior State Law Advisor, Department of Justice) and Ms D Clark (SALRC) attended the meeting. Ms Clark took the Committee through the Bill. (See documents attached).
The Chairperson said that the South African Human Rights Commission (SAHRC) had given a substantive submission on persons with mental disabilities. The Bill had two categories of vulnerable people: children and people with mental disabilities. In relation to mental disability, the Bill focused on a sub-category of the most vulnerable with the category of persons with mental disability. The SAHRC had argued that it was very odd that the Bill had a register of persons who had been convicted of offence against children but excluded particulars of people who had been convicted of offences against people with mental disabilities. The theme of the submission was about people who were in institutions and being violated by people who cared for them. The problem was that it was at times even very difficult to prosecute the offenders because the victims were suffering from mental disabilities. The only time that it would become clear that a person had been sexually violated would be when the victim had fallen pregnant or contracted a disease. It seemed strange that the Bill did not use the protective mechanism intended to cover children to cover persons with mental disabilities.
She said that she had asked the drafters to make some changes so that the Bill would cater for the concern raised by the SAHRC. It made sense to have a register that would ensure that people who worked with people with mental disabilities were also checked. There was an issue about people who granted licences and adoption or foster care orders. People applying for foster care or adoption orders should apply for clearances. Some of the provisions required certain people to relay the information that they had on offenders to the registrar. Part of the problem was that there was no crime called rape against a child or a sexual offence against a child. Rape was defined in general terms without reference to the victim's age. The records that were available did not indicate if the crime was committed against a child. There would be a need to look through the records and identify convictions in relation to offences against children. Those records would then be sent to the registrar.
The Chairperson said that people who already worked with children would be given six months within which to apply to the register for clearance. The problem was that this would be a huge bureaucratic exercise that would be based on defective information. There would be very little to show for the exercise. The proposal was that instead of compelling people who were already employed to make applications to the registrar, the Bill should provide for an enabling provision. This would take the bureaucratic exercise away. The employer could at any stage apply for access to the register. This would also take care of another problem because the Bill provided that an employer could apply for access once a person had been interviewed and was to be employed. There was no follow up mechanism once a person had been appointed. Each time a person had been convicted of an offence against a child or person with mental disabilities, the clerk of the court would send the record to the registrar. This would be a process of building up the database.
In summary, people who had committed sexual offences against children or people with mental disabilities should not be allowed to work with children or people with mental disabilities. This was not a punishment but a protective mechanism or measure for the vulnerable groups. It would not prevent a doctor from going back to his or her profession. There would be changes if one was a paediatrician and a paedophile. The person would still be able to do anything but not work with children.
She said that the documents to be discussed did not deal with people with mental disabilities. She indicated that she had sat with the drafters to see if it was not easy to effect changes to the Chapter on the register instead of redrafting the whole chapter. It would be very easy to add reference to people with mental disabilities wherever there was reference to children. There would be no major drafting changes.
Clause 4 Compelled rape
The Chairperson referred the Committee to clause 4 that dealt with compelled rape. She used an example of a gangster A who had pointed a gun to B and ordered him to go and rape C. There would be two victims in this case: B and C. A would be guilty of compelled rape as provided in sub-clause (4). B could be charged with rape but he would lack the necessary intention since he had been compelled. B would obviously have a defence. There could also be a situation wherein there was only one victim. This would be the case when B had been compelled to perform a sexual act against gangster A. The clause, as currently drafted, would not capture that situation because of the way it referred to the issue of consent. It referred to “without the consent of B” and B was the person against whom the sexual act was being perpetrated. The question was what would be the case if there were a willing gangster. The solution would be to cover situations wherein an innocent person was being compelled to rape another innocent person and cases where there was a willing participant in the crime. The clause should be amended by the replacement of the word “complainant” by "person" and the addition of the words “or without" between the words "with" and "the consent of B”. There should be a similar amendment in clause 6 that dealt with compelled sexual assault.
Mr L Landers (ANC) said that the third person (c) referred to in the clause 4 would have a defence on the basis of lack of intention. C’s fate would be on the hands of the court. However C would be guilty of rape if he was a willing participant in the crime. He hoped that judicial officers would understand how the clause was supposed to work.
The Chairperson said that a lot would depend on the facts of the case.
Criminal Procedure Act (CPA) 51 of 1977
The Chairperson said that the amendment was the substitution of the word “act” by “sexual offence” in paragraph (a).
Ms Clark said that the words “procuring or” were deleted and there was also a replacement of the word "act" by "sexual offence".
Ms Clark said that the previous draft provided that reasons had to be given for 9(i) to (iv). The Chairperson had said that reasons should be given only in relation to (iv).
The Chairperson thought that the instruction was to delete clauses 23 and 24.
Ms Clark said that the drafters had deleted 17 and 24 and retained 16 and 23. The Committee agreed with the deletion.
Ms Clark said that the drafters had deleted (5)(c) which provided that "will assist the court in arriving at a just determination of the proceedings".
The Chairperson said that the Committee had felt that paragraph (c) was too broad.
Ms Clark proposed the insertion of (g) which was originally an option for (d). The Committee had requested that it should be retained as an additional provision.
The Chairperson said that paragraph (g) should be deleted.
Ms Clark said that this item dealt with an accused who might not be released on a warning or police bail. The Committee had requested that there should be reference to any sexual offence against a child or a person who was mentally disabled as contemplated in Part 2 of Chapter 3 or the whole of Chapter 4 of the Bill. This meant that clauses 14 and 15 would not be included here.
Ms Clark said that the Committee had requested that reference to section 1 of the Mental Health Act, 1973 should be changed to "section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2006".
The Chairperson asked if the Bill would become a 2006 Act.
Mr du Preez replied that this was something that still had to be clarified. He felt that it would be a 2007 Act.
Child Care Act 74 of 1983
Ms Clark said that the item should refer to clauses 17 and 19 of the Bill. Clause 17B had since become clause 19.
Criminal Law Amendment Act 105 of 1997
Ms Clark said that the Committee had requested that reference to section 1 of the Mental Health Act, 1973 should be changed to "section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2006". There was also a reference to "sexual exploitation of a child or sexual exploitation of a person who is a mentally disabled person as contemplated in section 16 or 23 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2006".
Immigration Act 13 of 2002
Ms Clark said that the Committee had requested that there should be reference to any sexual offence against a child or a person who was mentally disabled as contemplated in Part 2 of Chapter 3 or the whole of Chapter 4 of the Bill.
The Chairperson said that the drafters had added Part 2 of Chapter 3 and excluded statutory rape.
Ms Clark said that one concern was that one might also be dealing with older persons like paedophiles. One of their modus operandi was to move from one country to another. A person's permanent residence permit could be withdrawn on the basis that he or she was an undesirable person.
The Chairperson said that there was protection because children would not be prosecuted unless the authority to do so had been given. She said that the drafters should delete reference to Part 2 of Chapter 3.
Chapter 6 National Register for sex offenders
Ms Clark took the Committee through the latest draft on the register as at 30 October 2006.
Clause 44 Definitions
Ms Clark took the Committee through the definition. She said that the word "curators" was included in the definition in order to link this definition to clauses on people with mental disabilities.
The Chairperson said that paragraph (a)(ii) of the definition was more about organs of state and (i) took care of government departments and the various spheres of government.
Mr du Preez said that sub-paragraphs (i) and (ii) should become paragraph (a) and (b).
The Chairperson said that the definition would apply to an actual employee and a person who had applied for a job (i.e. a potential employee). The definition would apply to the listed persons "where such person will be or is placed in a position to work with a child or children or with a person who is mentally disabled or in a position of authority, supervision over or care of a child or a person who is mentally disabled or of gaining access to a child or a person who is mentally disabled or places where children are present or congregate".
Ms Clark said that definition was amended to include reference persons who were mentally disabled.
Ms Clark said that the definition came from the definition of an employer in cases where the employer granted license or approved the management or operation of any entity, business concern or trade.
The Chairperson said that it was good that the Bill would contain a separate definition of a 'licensing authority' because such an authority was not necessarily an employer.
Clause 45 Prohibition on certain types of employment relating to children by certain persons who have committed sexual offences against children and related matters
Ms Clark said that the heading should also refer to people who were mentally disabled.
The Chairperson said that it should read as follows" "prohibition on certain types of employment by certain persons who had committed sexual offences against children and persons with mental disabilities".
Ms Clark said that persons contemplated in this clause would not be allowed to hold any position, related to their employment which would in any manner place them in a position of authority, supervision or care of a child or children, or which would in any other manner place them in a position of authority, supervision or care of a child or children or of gaining access to a child or children or places where children were present or congregated.
The Chairperson did not think it was necessary to refer to "permanent or temporary" in (1)(b).
Ms Clark said that sub-clause (2) was applicable to persons who were mentally disabled.
The Chairperson noted that sub-clause (2) referred to section 15 of the Sexual Offences Act, 1957. The problem was that there would be no section 15 of the Sexual Offences Act once this Bill had become an Act of Parliament and was in operation. There should be reference to offences created in the Bill. There should be reference to conviction for any offence of a similar nature prior to the commencement of this legislation. This would obviate the need to refer to section 15. People who had been convicted of offences similar to those created in the Bill prior to its commencement and those convicted of offences in terms of the Bill in terms of this Bill would not be able to do any of the things listed in (2)(a) to (d).
Clause 46 Establishment of National Register for Sex Offenders and designation of Registrar of Register
The Chairperson said that the drafters had only added the words "or a person with a mental disability" and "is alleged to have committed a sexual offence against a child or a person with a mental disability" in sub-clause (1). Sub-clause (1) should refer to conviction for any sexual offence against a child or a person who was mentally disabled and had been dealt with in terms of section 77(6) or 78(6) of the CPA.
Clause 47 Objects of register
The Chairperson said that the drafters had added reference to "a person with a mental disability". The opening sentence should refer to "persons who are mentally disabled" and not "persons with mental disabilities".
Clause 48 Persons entitled to apply for certificate in respect of particulars included in Register
The Chairperson said that the heading should read "persons entitled to for a certificate from the registrar". Paragraph (e) should also refer to a person contemplated in clause 51 applying for a licence in respect of his or her profession. Paragraph (g) should read "any person whose particulars appear on the register in respect of him or herself".
Clause 49 Obligations of employers in respect of employees [relating to sexual offences against children]
The Chairperson took the Committee through the technical amendments made in the clause.
Clause 50 Obligations of employees
Ms Clark said that the clause was amended so that it referred to "a person with a mental disability, or has been alleged to have committed a sexual offence against a child or a person with a mental disability and has been dealt with in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1977".
Clause 51 Obligations in respect of licence applications [persons applying for the granting of licences or approval for the management or operation of any entity, business concern or trade relating to having authority or supervision over or care of children]
The Chairperson said that sub-clause (4) would become (3). The clause would also refer to persons who were mentally disabled.
Clause 52 Obligations in respect of [persons applying to become] applications for [foster parents] fostering, kinship care-[givers]giving, temporary safe care-[givers]giving [or adoptive parents] adoption of children or curatorship
The Chairperson took the Committee through the technical amendments made to the clause. The word "employer" was replaced by "relevant authority".
Mr Landers asked if failure to disclose a conviction would be an automatic contravention of the law.
The Chairperson said that a person who had failed to disclose a conviction would be guilty of a crime in terms of sub-clause (3).
Clause 53 Contents of register
The Chairperson said that paragraph (b)(vi) should read "and details of the sexual offence allegedly committed by a person who" and not "and details of the alleged offence committed by a person who".
Clause 54 Persons whose names must be included in Register and related matters
The Chairperson said that the only change was reference to persons who had been convicted of sexual offences against persons who were mentally disabled. The words "an court order equivalent to that contemplated in paragraph (b)" should be deleted in 1(b)(iii). The word "must" should be added before "forthwith" in sub-clause clause. Sub-clause (4)(a) would require the Commissioner of Correctional Services to forward the particulars of every prisoner or former prisoner which he or she had on record and was at the commencement of this Chapter serving a sentence of imprisonment or had served a sentence of imprisonment as a result of a conviction for an offence against a person with a mental disability. Sub-clause (5) would require the National Commissioner of the South African Police Service to forward the particulars contemplated in clause 53 in his or her possession to the registrar. She felt that paragraphs (5) and (6) should refer to all available particulars. Paragraph 4(b) should apply in relation to serving prisoners. The Director General of Health would have to supply the particulars of people who were in institutions.
Mr Landers said that the Director General of Health had sent a submission objecting to the obligations placed in terms of the Bill.
The Chairperson said that the contention in the submission was that the entering of the particulars into the register was a further punishment. There was no intention to make this a further punishment.
Clause 55 Removal of particulars from register
The Chairperson said that the clause had remained the same apart from the addition of the words "a person with a mental disability".
Clause 56 Confidentiality and disclosure of information
Ms Clark said that the Committee had requested that it should be made clear that wilful disclosure of any information contained in the register to any person by the registrar and any other person who assisted the registrar in the exercise and performance of his or her powers, duties and functions would be a crime.
Clause 57 Regulations pertaining to register
The Chairperson said that this clause had remained the same apart from the addition of the words "a person with a mental disability".
Mr du Preez took the Committee through the long title of the Bill. The Committee made technical changes to the long title.
The Chairperson asked if the Bill, when referring to mentally disabled persons, should specifically refer to certain category of people with mental disability. Reference to children included all children. She later felt that there should be no change. The last thing the Committee wanted was for people to say that it had dropped the age of consent for heterosexual sex from 19 years to 16. The age of consent was 19 years in relation to homosexual sex. The Bill was now saying that there should be no differentiation. Rape would now be defined as penetration of any kind.
She said that the paragraph that started with the words “eliminating the discriminatory differentiation" should refer to "certain consensual sexual acts".
Mr L Joubert (DA) proposed that the word "with children" should be deleted. The Chairperson agreed.
Mr du Preez read the preamble for the Committee.
The Chairperson said that there were people who were concerned about the inclusion of adult prostitution in the preamble. The Chairperson reminded the Committee that the Bill contained transitional provisions. Adult prostitution was currently a crime and the might be a repeal of the crime at a later stage.
Mr Joubert said that strictly speaking the Bill did not deal with adult prostitution.
Mr CV Burgess wondered if it was necessary to provide that there was a relatively high incidence of the commission of sexual offences in the Republic in the third paragraph. He felt that the paragraph should read “whereas the commission of sexual offences in the Republic has a particularly disadvantageous impact on vulnerable persons, the society and the economy”. The “high incidence” was a relative thing.
The Chairperson said that the paragraph already indicated that the commission of sexual offences was relatively high.
Mr Burgess said that the Minister of Safety and Security might disagree with the statement that the commission of sexual offences was relatively high.
The Chairperson said that the Minister was unlikely to disagree and was likely to say that a rape was one rape too many. This paragraph was related to the paragraph which started with the words “and bearing in mind that”. Everybody would agree that there was a high incidence of sexual offences although there would be disagreements on the actual figures. Part of the problem with rape was that there was a high rate of withdrawal. A question had been asked if they should look at the statistics in terms of reported crimes or cases actually dealt with in courts.
Mr Burgess said that one should also look at how relevant the wording of the legislation would be ten years from now. Would the preamble still be relevant then or would the Committee have to amend it.
Mr Joubert noted that Mr Burgess was very optimistic that things would have changed drastically in ten years time.
Mr du Preez one should not draft legislation on the basis of what the situation might be in ten years time.
The Chairperson agreed with the proposal by Mr Burgess.
Clause 2 Objects
The Chairperson said that this clause should refer to sexual offences committed in the Republic or elsewhere by or against it citizens. She asked why one of the objects was to protect the families of the complainants from secondary victimisation and traumatisation. She felt that the words “and their families” should be deleted.
Mr du Preez reminded that the Bill had provision that applied to interested persons. Interested persons included family members.
The Chairperson reversed her decision to delete the words. Paragraph (e) should include reference to people who were mentally disabled. Paragraph (c) should also talk about providing PEP treatment and access to the HIV status of the offender.
Mr du Preez said that all that was left was for the Committee to decide on the short title of the Bill and the year in which it should become effective.
The Chairperson said that the Act should be called Criminal Law (Sexual Offences and Related Matters) Act. It should become effective in June 2007. She was of the view that the National Council of Provinces would deal with the Bill early next year. The Bill was introduced in Parliament in 2003. It was revived by a special resolution of Parliament after the last general elections. This was still the same Bill introduced in 2003 and not a new Bill tabled in 2005.
Mr du Preez said that there should be a discussion with Mr N Bell on this point. The Committee would be reporting a new Bill. The Bill was not amended but redrafted.
The Chairperson said that the redrafting had started way back in 2003. This was not a new Bill particularly given the resolution by Parliament to revive it. It would have been a new Bill if it had not been revived by Parliament. The Bill would have to be taken to the Joint Tagging Mechanism should it be decided that it was a new Bill. The Committee was setting a precedent by this Bill because it was just one many Bills that had been revived by Parliament.
Mr du Preez said that the Committee had referred to the possibility of drafting a clause that would deal with attempts to commit offences listed in the Bill.
The Chairperson said that she had asked Mr L Basset to consult the State Law Advisors on the possibility of having a general clause that would deal with attempts to commit crimes. Attempts and incitements in relation to the crimes in the Bill were dealt with in terms of the Criminal Procedures Act and the Riotous Assembly Act. The Bill was a codification of laws. The Prevention and Combating of Corrupt Activities Act, 2004 contained clauses that dealt with conspiracy and attempt to commit crimes.
The meeting was adjourned.