Criminal Law (Sexual Offences) Amendment Bill: Department of Justice briefing
NCOP Security and Justice
19 October 2007
Meeting Summary
A summary of this committee meeting is not yet available.
Meeting report
SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE19 October 2007
CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL: DEPARTMENT OF JUSTICE BRIEFING
Chairperson: Kgoshi L Mokoena (ANC, Limpopo)
Documents handed out:
Draft of proposed amendments, prepared by Department of Justice
Relevant documents:
Criminal Law (Sexual Offences) Amendment Bill
Audio recording of meeting
SUMMARY
The Department of Justice continued to brief the Committee on the Criminal Law (Sexual Offences) Amendment Bill. Most of the amendments were of a purely technical nature, and were detailed in the document tabled before the Committee. The main amendments related to new definitions being inserted for “pornography” and “child pornography”, and an amendment to the Schedule to the Criminal Law Amendment Act, to split up the offences of rape and compelled rape. The definitions, as far as possible, tied in with definitions in the Films and Publications legislation. The Committee would consider the substance of the Bill at a future meeting.
MINUTES
Criminal Law (Sexual Offences) Amendment Bill: Continuation of Briefing by Department of Justice (DOJ)
The Chairperson noted that the Department of Justice (DOJ) representatives had previously briefed the Committee on the Bill.
The Committee had made some input at the last meeting as to changes.
Mr Henk du Preez, Senior State Law Advisor, DOJ, introduced Ms Engela Steyn from the Legislative Development unit of the Department of Justice, who would be assisting with the drafting of the Regulations.
He noted that he had now prepared a draft of the amendments, which he tabled. The page and line numbers in that document referred to the B version of the Bill. He noted that the document contained a few substantive amendments relating to exposure of children, in child pornography and pornography. The document also contained many amendments that were technical, either formatting or spelling mistakes picked up in the printing of the Bill itself.
Clause 1
Mr du Preez said that two substantive definitions were to be inserted, and the incorrect alphabetical order of the definitions was being corrected, as set out in paragraphs 2 and 3 of the Draft proposed amendments.
He indicated that the definition of "child pornography" and "pornography" was now to be included. However, he would discuss these when discussing the substantive clauses, and revert to them later.
The remainder of the changes to this clause were technical, removing commas and inverted commas, and deleting redundant words.
Clause 10
There was deletion of the words "as contemplated in paragraph (a), (b) or (c) of Section 19".
Clauses 11
This was a purely technical amendment, deleting an unnecessary reference to subparagraph (1)
Clause 13
Mr du Preez indicated that the words "or with", would be included, to include all possibilities.
Clause 17
Mr du Preez indicated that Clause 17(1) used the expression "with or without the consent of a child". That concept needed to be added into subclauses (3) to (6) as well. The amendment sought to add these words.
Clause 18
Mr du Preez said that this amendment was not anything new, but it was rather a consequential amendment from the definitions of pornography and child pornography to be introduced. The references were being tidied up in view of the new definitions.
Clause 19
Mr du Preez indicated that during the discussion of the Bill in the Portfolio Committee, the Films and Publications Act was also being amended. Clause 19 dealt with exposure or display of child pornography or pornography to children. The clause had also attempted to define, in the clause itself, what pornography and child pornography were. The new definitions now drafted had tried to bring this more in line with international practice, and to strengthen what had been in Clause 19. It was preferable to have a definition in Clause 1, so that clause 19 was not clogged with too many details.
Dr Lirette Louw, Researcher, Department of Justice, indicated that when interacting with members from the Film and Publications Board, they had indicated that these were separate offences already, and did not fall within child pornography. Therefore the whole of (b) was deleted.
Dr Louw said that international comparative research on child pornography had been done, not only with regard to the Films and Publications board, but wider. The problem with section 19 and 20 as drafted was that they did not cover all scenarios, such as morphing of images. That was now included in the definition - that referred now to "real or simulated".
Secondly the situation had not been covered where a person older than 18 was used, but made up to look like a child.
Dr Louw then read through the new definition for child pornography. It referred to an image, however created, or any description or presentation of a person, real or stimulated, who was or was depicted as being under 18. The image was to be of an explicit or sexual nature, and various examples were included.
Dr Louw noted that the first part of the definition was drawn from case law, and the Films and Publications board had adapted their definition too. The depiction was described as "whether such image or description is intended to stimulate erotic or aesthetic feelings or not.."
Dr Louw noted that the definition of "pornography" corresponded closely to that of child pornography, save in two respects. This dealt with images of a person who was eighteen years or older. It must be intended to stimulate erotic feelings.
The Chairperson referred to paragraph (1)(h) of the definition of child pornography and asked what was meant by "engaged in sexually suggestive or lewd acts". He pointed out that kwaito music was played on SABC1 and the way in which the dancers moved was sexually suggestive. He asked how this would be monitored. He felt that South Africa was becoming obsessed with over-regulation.
Dr Louw said that there was a difference between the pornography and child pornography position. Showing a child dancing in this way was incorrect.
Mr du Preez said that it was necessary to look at the introductory words. The definition was speaking of images, descriptions or a book referring to children. The example given by the Chairperson was not subject to age restrictions. The definition in child pornography did not relate to exposure of a child to dancing adults. Child pornography was showing a child in any sexually suggestive act. He said that the sexually suggestive or lewd act would be judged according to whether it was depicting children. The definition of child pornography had to be very wide, to comply with international trends. Child pornography was essentially images manipulated by adults. The essence of the crime was not necessarily the person getting a thrill from looking at the pornography, but the fact that the creation of the images involved a child being abused. Paragraph (k) related to showing or describing a person participating or being in the presence of a child. If two adults were depicted in a sexual act, and an image of a child was shown as being in the same room, then this too would be child pornography. In Durban recently an adult woman and man had been shown committing a sexual act, with a child being used to assist them. It was necessary to draw the parameters as widely as possible. The drafters had been guided by the Films and Publications legislation drafters.
Ms F Nyanda (ANC, Mpumulanga) noted that E-tv showed films with explicit sexual content late on a Saturday evening, but children would often sneak out of bed and watch the programmes.
Mr du Preez stated that there was a simple answer: whatever was shown on the television was within an existing legal framework. Those type of films were subject to an age restriction. A parent could not ask the government to control the children in the home. He referred to the concern of over-regulation. There were complaints mechanisms available.
Mr Z Ntuli (ANC, kwaZulu-Natal) asked about the language of (i) of the definition of pornography.
Mr du Preez explained that this was geared to a specific scenario, linked to use of pain and cruelty.
The Chairperson wondered if there should not also be reference to stimulation of thighs as well as breasts.
Mr du Preez said that the definition of (c) referred to sexual violation. The description of this covered the scenario mentioned. There were definitions for much of what was in this definition - for instance sexual violation, sexual penetration etc. The definition of sexual violation referred to female breasts. (g) would strictly speaking fall under (c). However, the definition of sexual violation was limited to female breasts. However, it was considered, later in the discussions, that this could also refer, particularly in the context of children, to breasts of both girls and boys. That definition had been carried over, and further developed, from the Films and Publications Act. The only reason to insert thighs would be to draw direct attention to it. However, there was no necessity to do so, as it would already be covered, in paragraph (a)(1), which referred to direct or indirect contact between the genital organs of one person and any part of the body of another person. Furthermore (a)(ii)(cc) referred to oral stimulation.
The Chairperson referred to subparagraph (l), dealing with persons under 18, and noted that the previous day Ms Nyanda had noted that there was a discrepancy in relation to ages - some legislation referred to children of 12, who could abort foetuses and access condoms, some to children of 16. He wondered about the rationale for using the age of 18, but said that it was no doubt linked to the age of majority.
Clause 20
Mr du Preez indicated that the original clause 20 was being removed, because the content of that clause had now been included in the definitions inserted in clause 1.
New Clause 20
A new clause 20 was being inserted, specifying "using children for or benefiting from child pornography.
Clauses 24, 25 and 26
The Bill was structured so that there were specific offences against children, and those committed against mentally disabled persons, which to a large extent mirrored the provisions in respect of children.
Clauses 24, 25 and 26 reflected similar amendments to those already referred to in respect of children. A new Cause 26 was being inserted.
Clause 32
Mr du Preez noted that this applied to police applications, where there was a risk that a person might have come into contact with the bodily fluids. therefore the word "sex" was being omitted from the heading. The application was done by an investigating officer, and not a police official, so it was more correct to reflect the content of the clause in the heading itself. A technical amendment had therefore been made.
Furthermore there were some layout changes of alignment of sub-paragraphs - such as items 5, 6 and 7 under Clause 32.
Clause 40
Mr du Preez said that this included the definitions of the register for national sex offenders. Once again there were technical amendments, omitting redundant words, and correcting spelling and punctuation errors.
Clause 41
Mr du Preez indicated that the main amendment related to closing a loophole in respect of mentally disabled persons.
Clause 44
Once again there was reference inserted to "or persons who are mentally disabled", and correction of a spelling error
Clause 45
Mr du Preez indicated that the amendments were technical.
Clause 46
Mr du Preez said that words were being inserted to clarify that the obligation created did not only apply to persons convicted in the future, but also to those convicted in the past.
Clause 47
This was correction of spelling mistakes.
Clause 48
There was insertion of a comma to conform with drafting practice
Clause 49
Mr du Preez noted that an incorrect reference to section 48 was being replaced with a reference to Section 50.
Clause 50
Mr du Preez went through the amendments, which were all of a technical nature, aligning wording properly under the subclauses. Under item 5, a reference was being inserted into subsection (5) to place an obligation on the Commissioner of Correctional Services to forward information, and the reference to the Sexual Offences Act was inserted for the sake of completeness. The Act number was therefore inserted into subparagraph (5) and removed from subparagraph (6).
Clause 51
The amendment was merely inserting the word "or" to ensure that the two subsections were read disjunctively.
Clause 52
Mr du Preez noted that this was correction of punctuation, to bring the clause in line with the drafting style.
Clause 53
The word "paragraph" was replaced with the more correct "subsection".
Clause 55
This clause dealt with an existing statutory provision. This also included the principle that a person conspiring with another to commit an offence might be liable for the same punishment as the person committing the crime. It was decided to bring these references into the clause. The wording used was "may" not "must" so it was in the discretion of the Court.
Clause 56
Mr du Preez said that the first few items were reflecting subclauses (6) and (7). The proposed insertions also related back to the definitions of child pornography - especially the position of morphing of images, or the position where an adult woman would be dressed up and used to portray a child. These subsections were aimed at preventing the person from raising the defence that they were not aware that this would be used in child pornography.
Subsection (7) would apply to all offences in the Bill. When a person had been found guilty of an offence, which had been committed for the purposes of financial gain, then this should be regarded by the Court as an aggravating factor for the purposes of sentencing.
Clause 66
Mr du Preez stated that this was correction of format and incorrect reference to the "Commissioner" of Correctional Services instead of the "National Commissioner".
Mr Ntuthuzelo Vanara, Parliamentary Legal Advisor, noted that the current Act referred to the "Commissioner" but the amendment approved already in fact did refer to the "National Commissioner". He questioned the wisdom of correcting this, in view of the forthcoming amendment of the Correctional Services Bill, that was passed the previous day in the national Assembly.
Mr du Preez thanked Mr Vanara for the information, and noted that the drafters would look at this.
Clause 67
This was a technical amendment, replacing the singular form with the plural.
Clauses 68, 70 and 71
Mr du Preez noted that there was correction of incorrect numbering, and correction of inconsistent wording.
Clause 72
Mr du Preez noted that this dealt with dates. However, the Committee had already mentioned that it would like to look at this again.
Schedule
Mr du Preez , noted, in respect of item 1 under this Schedule, that references to children and statutory sexual offences were being taken out of the 1957 Sexual Offences Act and being regulated instead under that Bill. As far as children were concerned, it was necessary to specify that they would be included here. The drafters thought that this could be dealt with by inserting a definition of "person" under that Act. On further reflection, it was shown that this would not answer the whole question. Certain provisions had been amended, but only applied to persons 18 years or older, whilst other offences would still be applicable to those of 17 years old. Therefore, individual sections contained in the Sexual Offences Act were to be amended instead. he noted that these were listed on pages 15 to 18 of the document. The definition of "person" was to be replaced with a definition of "female" to clarify that a female in the Act would be one of 18 or older. He clarified that this 1957 Act had used old terms and old constructions of crimes. The Portfolio Committee in its report, had recommended that the S A Law Reform Commission (SALRC), into its investigation on adult prostitution, also needed to look at the terminology being used in that Act. this would be addressed in future, and the drafters had therefore made no changes now, preferring to wait to see how these would slot in to the remaining provisions of the Sexual Offences Act. He noted that item 4 would only apply now, in the Sexual Offences Act, to persons 18 and older. The reason for that was that in respect of children under 18, there was a parallel provision in the Sexual Offences Bill.
Items 2 to 9 were technical amendments.
Dr Louw addressed the Committee on item 10. When the National Assembly was debating the Criminal Law (Minimum Sentencing) Bill, it was realised that the Schedule would need to be looked at. When drafting this Bill, the references to rape were simply supplemented with references to compelled rape. However, when looking more closely at the criteria set out for compelled rape, it was realised that there was not in fact a direct link. Therefore the National Assembly suggested that Schedule 2 of the Criminal Law Amendment Act be amended during the deliberations of this Committee. Schedule 2, Part I, paragraph (a) therefore would refer only to rape. The compelled rape would be separately detailed under paragraph (c).
Mr Navara said that this would also address a question raised earlier by the Chairperson about the situation of an HIV positive person, who, knowing of his status, raped another person.
Long Title
Mr du Preez said that the Long Title was being amended. There was an incorrect reference to the common law, now being corrected.
Regulations
The Chairperson noted that immediately after the passage of legislation, regulations should be tabled in parliament, but in practice they were often tabled in the National Assembly.
Ms Engela Steyn, Legislative Development, DOJ, said that the Department had some thoughts on the regulations, but could not really start drafting finally before the Bill was passed.
The chairperson asked why regulations would take so long to be tabled.
Mr du Preez said that this would depend on a few factors. The subject matter of the Act, the need to consult, the processes around consultation, which included not only the private sector, but with colleagues in the department. Only after this process could the regulations be submitted to the Minister for approval. A Bill such as this, with 100 clauses, and the Children's Bill, with 300 clauses, would involve a great deal of work. There could be around 35 substantive provisions and the same number of forms, all of which must be drafted from scratch. The State Law Advisors would also need to certify the regulations as being in line with the Act.
Mr Navara added that the regulations would be referred to the House as set out in the main Act. If the Committee wished regulations to be referred to both committees dealing with justice matters, this would need to be reflected in the Bill. The current Bill did not make references to regulations being referred to parliament at all.
Dr Louw noted the Clause 39 said that a regulation must be referred to parliament, and this would be referred to both houses. It was not possible to stipulate a portfolio committee, because it would be up to the Speaker to decide what committee to refer it to. Where the NCOP could not deal with matters, such as with the Judicial Service Amendment Bill, there would be a reference to the National Assembly. Otherwise Parliament would mean both houses.
Short Title
The Chairperson had raised a question on this before.
Mr du Preez said that he wanted to get clarity. At the moment the proposed amendment was indicated on an electronic document previously forwarded to the Committee. He was under the impression that no final instructions on the proposal had been given as he had understood that further discussions would be held.
The Chairperson said that he wanted the date to be "on a date to be fixed by the President" and that a specific date should not be prescribed.
The Chairperson suggested that questions could be addressed during the next meeting.
The meeting was adjourned.