Criminal Law (Sexual Offences) Amendment Bill [B50- 2003]: deliberations

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
07 November 2006
CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL [B50- 2003]: DELIBERATIONS

Chairperson: Ms F Chohan (ANC)

Documents handed out:
Criminal Law (Sexual Offences) Bill [B50-2003]
Criminal Law (Sexual Offences & Related Matters) Amendment Bill as of 7 November 2006

SUMMARY
The Committee went through the Bill clause by clause in preparation for voting on the 10 November. The latest draft discussed contained all amendments that the Committee had proposed. The Committee mainly made grammatical changes to the Bill. It was decided that the defence that provided that the alleged offender did not know that the victim was a mentally disabled person should be deleted. The court would have to consider the facts of the case in order to establish if there was consent by the victim. The deletion was motivated by the fact that the Bill defined a person who was mentally disabled as someone who could not consent to a sexual act.

There was a new paragraph to deal with attempting, conspiring or inciting a person to commit a sexual offence against a child or a person who was mentally disabled. There would be new statutory offences relating to certain compelled acts of sexual penetration or violation and compelling or causing the witnessing of certain sexual conducts and certain parts of the human anatomy. The Bill would criminalise instances where a person had coerced or induced a child to discuss, explain or describe the commission of a sexual act. People who knew of the commission of sexual offences against children or persons who were mentally disabled should report the knowledge immediately. A person who had had knowledge, reasonable belief or suspicion that a sexual offence had been committed against a person who was mentally disabled should report such knowledge, belief or suspicion to a police official. A person who had reported in good faith would not be liable to any civil or criminal proceedings.

The Chairperson reiterated that this was not a new Bill but was the very same Bill that was tabled in Parliament in 2003. The Bill was revived by a resolution of the House.

MINUTES
Mr Henk du Preez (Senior State Law Advisor, Department of Justice), Mr Lawrence Basset (Chief Director, Legislation, Department of Justice) and Ms D Clark (SALRC) attended.

The Chairperson said that there would be voting on the Bill on 10 November. The Committee had received two further submissions on the Bill. Those submissions would be sent to the National Council of Provinces for consideration. The new draft of the Bill contained all the changes that the Committee had proposed during previous meetings. The Chairperson took the Committee through the Bill clause by clause and checked if all the proposals had been included. The changes were in grey highlighting. Some changes, especially in the Schedule to the Bill, were underlined because they were changes to existing Acts. The Committee had already approved those changes. Square brackets indicated that words contained therein had been deleted.

The Chairperson asked Mr du Preez to explain changes to the first page of the Bill.

Mr du Preez said that Bill was now called the Criminal Law (Sexual Offences and Related Matters) Bill. The words (As introduced in the National Assembly as a section 75 Bill; explanatory summary of Bill published in Government Gazette No. 25282 of 30 July 2003" were replaced by "As presented by the Portfolio Committee on Justice and Constitutional Development (National Assembly) after consideration of the Criminal Law (Sexual Offences) Amendment Bill, [B50- 2003]".

The Chairperson asked if it there should be a reference to the tagging of the Bill.

Mr du Preez replied that the Report of the Committee would refer to the tagging.

The Chairperson said that there was a problem because some people had reported that this was a new Bill. The Bill should speak for itself. The drafters would look at this issue.

Mr Basset said that the number “[B50-2003]” should become “[B50B-2003]”.

Long title
The Chairperson took the Committee through the changes made in the long tile of the Bill. The Committee made some grammatical changes to various paragraphs of the long title without changing the substance of the provisions. There was a new paragraph to deal with attempting, conspiring or inciting a person to commit a sexual offence against a child or a person who was mentally disabled. There would be new statutory offences relating to certain compelled acts of sexual penetration or violation and compelling or causing the witnessing of certain sexual conducts and certain parts of the human anatomy.

Preamble
The Chairperson said that the drafters had moved the paragraphs around and there were few changes. The preamble would no longer refer to the "relatively high incidence of the commission of sexual offences" but to the "commission of sexual offences".

Ms S Camerer (DA) asked if the word “non-discriminatory” should not be deleted from the fourth paragraph. The word had already been removed from the long title of the Bill.

The Chairperson said that the word should be kept given the discrimination that male victims of rape faced in courts.

Index
The Chairperson said that the index should consistently use the word “children” in the Bill. There were clauses that referred to “children” and others that referred to “child”.

Chapter 1
Clause 1 Definitions and interpretation of Act
The Chairperson said that Mr S Swart (ACDP) had issues on the issue of age of consent. Clause 1(1) should refer to the age of 16 years.

Clause 2 Objects
Ms Camerer asked if there should not be a definition of Batho Pele. Some people did not know the meaning of the words.

The Chairperson hoped that people knew what Batho Pele meant and said that there was also an objective policy of Batho Pele.

Ms Camerer said that the problem was that the words were used in legislation. A person who was not a South African might not know what they meant.

The Chairperson said that Batho Pele had a specific meaning.

Ms Camerer had a problem with using indigenous expressions in an English text.

The Chairperson said that a foreigner who was reading this text on the internet could always contact the Government Communications and Information System.

Mr du Preez said that the general rule of interpretation was to use the ordinary dictionary meaning if a word was not defined in the Act.

The Chairperson said that the drafters should add the words “people first” after Batho Pele” and put them in brackets.

Ms Camerer also had a problem with the use of the words “relatively high”. She said that sexual offences were excessively high. The word “relatively” qualified the meaning of the word “high”. The clause should simply refer to a high incidence of sexual offences. SA had a high incidence of sexual offences compared to the rest of the world.

The Chairperson said that the Committee had already considered whether the words should be deleted. It was agreed in a previous meeting that the words should be deleted. She ruled that the words “relatively high” should remain.


Chapter 2
Clause 4 Compelled rape
The Chairperson reminded the Committee that she had once raised a scenario wherein a person was compelled to rape another person but had done the act willingly. She said that it had been drawn to her attention that such a person would be an accomplice to the act. The amendment that had been made to a previous draft (25 October 2006) of the Bill should be reversed.

Clause 6 Compelled sexual assault
The Chairperson said that the changes made in clause 4 also applied to this clause.

Clause 7 Compelled self-sexual assault
The Chairperson said that that paragraph (a)(iv) had been taken out and put as separate paragraph (b). Paragraph (a)(ii) was very similar to paragraph (b).

Clause 8 Compelling or causing person over 18 years or older to witness a sexual offence, sexual act or self-masturbation
The Chairperson pointed out the addition of the word "causes" in the clause. There would normally be a tying up or some overt act to compel someone to witness the sexual offence or act. Compelling someone to watch did not include situations where in a person just happened to be at the place where the act was taking place. The person would helplessly stand or sit there and watch. The intention was to cover instances where a person was "caused" even though not forced to watch the act.

Clause 10 Exposure or display of or causing exposure or display of child pornography to a person 18 years or older
The Chairperson said that the intention was to outlaw the exposure of child pornography completely.

Ms Camerer asked if anybody who would stage a sex show would attract penalty in terms of this clause.

The Chairperson said that the court would have to consider if the act was unlawful. Flashing would be a crime and some people did it for sexual gratification.

Clause 11 Engaging sexual services of person 18 years or older
The Chairperson said that there was a question whether a person who had had sexual intercourse with a prostitute but without paying the prostitute could be said to have engaged the services of a prostitute. The question was answered by referring to sexual intercourse “with or without the consent of B for financial or other reward, favour or compensation”. She said that Mr du Preez had said pointed out that the words “with or without the consent of B” created a problem. She said that the words should be deleted. The issue of engaging someone's services implied that there was consent. A person who had engaged the services of a prostitute without the consent of the prostitute would be guilty of rape.

Clause 13 Bestiality
The Chairperson said that there was a submission made in this clause. The submission would be referred to the NCOP for further consideration. The submission had pointed out some shortcomings with the clause. There was nothing that could stop the NCOP from widening the ambit of the offence.

Clause 18 Sexual grooming of a child
The Chairperson pointed out the addition of the word “exposes” in sub-clause (1)(b). This was different from the supply or display of articles intended to be used in the performance of a sexual act. The intention was to tighten the clause by outlawing the supply, display and display of the articles. Sub-clause (2)(d) would criminalise instances wherein a person had coerced or induced a child to discuss, explain or describe the commission of a sexual act.

Clause 18 Exposure or display of or causing exposure or display of pornography to children
The Chairperson said that there was an interpretation that said that the Films and Publications Act only dealt with child pornography. She did not share such a view. The intention was to cover both child and adult pornography. The Committee did not want children to be exposed to pornography of any kind. In referring to the Act, the Bill specifically referred to the classification of child pornography. There was also an inclusion of reference to any image or publication of a sexually explicit nature.

Chapter 5 Services for victims of sexual offences and compulsory HIV testing of sexual offenders
Mr Basset said that there were no substantive changes. The changes made in this chapter were mainly in relation to cross-references. The Chairperson said that members should look at the reference at their own time before Friday. She asked the drafters to double-check the cross-references because the numbering of the Bill had changed a number of times.

Clause 33 Execution of order and issuing of warrant of arrest
The Committee had decided that an order for the testing of the alleged offender should lapse in cases where the case had been withdrawn at the request of the victim or if the victim had expressed an unwillingness to co-operate with the prosecution. The order should lapse only if there was an effective withdrawal.

Clause 34 Use of results of HIV tests
The Chairperson said that the application for the testing of the offender could be made over a period of 90 days.

Imam G Solomon (ANC) said that there was no requirement that the alleged offender should be present when the application for his or testing was made. He asked if the alleged offender could apply for a review of the process if the correct procedures were not followed.

The Chairperson replied that the application would make in terms of the normal court rules. The test should be done within a certain period of time.

Chapter 6 National Register for Sex Offenders
Mr Basset proposed that the Committee should skip this Chapter for discussion tomorrow. Ms Clark was still making changes to it.

Chapter 7 General provisions
Clause 54 Obligation to report commission of sexual offence against children or persons who are mentally disabled
The Chairperson said that people who knew of the commission of sexual offences against children or persons who were mentally disabled should report the knowledge immediately. Mentally disabled persons were a vulnerable group. A person who had had knowledge, reasonable belief or suspicion that a sexual offence had been committed against a person who was mentally disabled should report such knowledge, belief or suspicion to a police official. A person who had reported in good faith would not be liable to any civil or criminal proceedings.

Clause 55 Attempt, conspiracy, incitement or inducing another person to commit sexual offence
The Chairperson said that this clause was based on the Prevention and Combating of Corrupt Activities Act.

Clause 56 Defence
The Chairperson said that the problem was that a mentally disabled person could not consent to a sexual act. The Committee had said that the accused should be able to raise the fact that he did not know that the victim was mentally disabled as a defence. However the sexual act was always premised on consent and not mental disability. The Committee had defined a mentally disabled person as one who could not consent to a sexual act. To provide for a blanket defence would be wrong. The accused should be able to show that he did not think the victim was mentally disabled and should have thought that there was consent. Whether there was a lucid interval would depend on the facts of the case. The onus of proving consent should remain with the accused and not shift to victim once a defence was alleged. The Committee should not provide for a defence because this would cause problems. Everybody would claim not to have known that the person was mentally disabled. The options in the clause should be deleted.

Schedule
The Chairperson said there were technically amendments to the Bill and most of them dealt with the replacement of the year "2006" by "2007" because the Bill would be passed by the NCOP in 2007.

Prescription Act 68 of 1969
The Chairperson said that the drafters should add sexual exploitation and grooming to item one. The right to institute prosecution for sexual exploitation or sexual grooming would not prescribe.

Criminal Procedure Act 51 of 1977
Item 7
The Chairperson said that a court should immediately give reasons for its refusal to grant an application for the giving of evidence by a child complainant below the age of 14 years by means of closed circuit television.

Item 9
The Chairperson said that the court would be required to give reasons for any direction or order that the appointment of an intermediary should be revoked and that proceedings should continue in the absence of an intermediary. The court should immediately give reasons for its refusal to grant an order for an intermediary in respect of a child complainant below the age of 14 years.

The meeting was adjourned.