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.