SEXUAL OFFENCES IN THE SCHEDULES OF
THE CHILD JUSTICE BILL
Table 1: Summary of the Most Serious
Offences
Schedule 3: Part I |
|
Item 4 |
Any rape or
compelled rape by a child over 14 Rape or compelled rape
by a child under 14 when: gang rape, multiple rape or repeated rape;
there is a previous conviction for a sexual offence; victim is – physically,
mentally disabled, a baby or elderly; infliction of grievous bodily
harm; the child who knows they have HIV/AIDS |
Item 5 |
Sexual exploitation or
grooming of a child, exposure or display of pornography to a child; using
a child in or benefiting from child pornography. |
Item 6 |
Sexual exploitation or
grooming of a person with a mental disability, exposure or display of
pornography to a person with a mental disability; using or benefiting from
pornography of persons with mental disability. |
Item 7 |
Trafficking or
involvement in trafficking for sexual purposes |
Schedule 3: Part II |
|
Item 2 |
Sexual assault;
compelled sexual assault or compelled self-sexual assault; when involving the
infliction of grievous bodily harm. |
Item 5 |
Compelling and causing
a child to witness a sexual offence, a sexual act or self masturbation and exposure
or display of genital organs, anus or female breasts to children (flashing a
child). |
Item 6 |
Exposure or display of
or causing exposure or display of child pornography to a person over 18. |
Children over 14 accused
of these offences are denied assessment (35) and preliminary inquiry (44), all
children accused of these offences are denied the possibility of diversion
(11(e); 68). Children convicted of the
above do not qualify for automatic expungment of their criminal record.
Selected offences within
item 4, 5 and 6 of Part I of Schedule 3 require a sentence of imprisonment if
the child is 16 years or older. Thus imprisonment is a first and not a last
resort for these children. Minimum
sentencing legislation must not be applied to young offenders.
Table 2: Summary of Less Serious
Sexual Offences
Schedule 3: Part II |
|
Item 1 |
Rape or compelled rape
by a child under 14 excluding circumstances listed in item 4 of Part I above. |
Item 3 |
Sexual assault;
compelled sexual assault or compelled self-sexual assault on a person
under the age of 16 years. |
Item 4 |
Acts of consensual
sexual penetration with certain children (statutory rape) and acts of
consensual sexual violation with certain children (statutory sexual assault). |
Schedule 2 |
|
Item 10 |
Sexual assault,
compelled sexual assault or compelled self-sexual assault other than
contemplated in items 2 and 3 of Part II of Schedule 3 |
Item 11 |
Compelling or causing
persons 18 years or older to witness sexual offences, sexual acts or
self-masturbation. |
Item 12 |
Exposure or display of
or causing exposure or display of genital organs, anus or female breasts to
persons 18 years or older (“flashing” and adult) |
Item 13 |
Engaging sexual
services of persons 18 years or older |
Item 14 |
Incest, bestiality
and sexual acts with a corpse |
Children
accused of the above offences do have access to assessment and preliminary
inquiry, however clause 57(1) then limits access to diversion for children who
are 14 or older and who have been accused of committing the offences listed in
items 1, 3 and 4 of Part II of Schedule 3.
Children accused of items 1, 3 and 4 of part II of Schedule 3 do not
qualify for automatic expungement of their criminal record.
Table 3: Other Sexual Offences
Schedule 1 |
|
Item 9 |
Bestiality |
Children accused of
crimes in Schedule 1 must be referred to a prosecutor who may consider
diversion (11(b)). An assessment must be
done in terms of clause 35(c) however a preliminary inquiry is not required for
diversion of these matters.
Cases not diverted in
terms of the above provision may go to a preliminary inquiry and may be
considered for diversion.
Bestiality
appears both in schedule 1 and in schedule 2.
Table 4: Sexual Offences in Schedule 2 Act 105 of 1997
Minimum Sentencing Legislation
Part I |
Offences for which life
sentences apply §
Rape or compelled rape which results in the death
of the victim §
Rape or compelled rape where the victim was raped more
than once or by more than one person, where the person has been convicted of
two or more offences of rape but not yet sentenced, where the victim was
under 16 years old, is physically or mentally disabled or involving the
infliction of grievous bodily harm. §
Trafficking in persons for sexual purposes |
Part III |
Offences for which 10,
15 and 20 year sentences apply for 1st, 2nd and 3rd
convictions. §
Rape or compelled rape in circumstances other than those
described above §
Sexual exploitation of a child or a person who is
mentally disabled §
Using a child or person who is mentally disabled for
pornographic purposes |
Amendment to the minimum
sentencing legislation through the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007 indicates that the above offences were viewed
as the most serious sexual offences for which it was considered necessary to
apply the minimum sentencing legislation:
This
includes only a few of the most serious offences listed in part I of Schedule
3.