AFRICA CHRISTIAN ACTION
Submission re B 50 - 2003: Criminal Law (Sexual Offences) Amendment Bill
With the highest reported rape rate in the world, South Africa undoubtedly faces a serious sexual offence situation. In addition, we are facing an AIDS pandemic, with much of our population already HIV positive. The sexual offence of sodomy - both of males and females - appears from anecdotal evidence to be increasing. As legislators, we appeal to you to create a legal environment that will serve to limit, rather than promote, sexual offences.
As South African Christians, we believe that the widespread sexual offences, sexual perversion and the AIDS plague are a direct result of our disobedience to God and our refusal to follow His commands.
"However, if you do not obey the LORD your God and do not carefully follow all His commands and decrees I am giving you today, all these curses will come upon you and overtake you: You will be cursed in the city and cursed in the country ... The LORD will plague you with diseases until He has destroyed you from the land you are entering to possess. The LORD will strike you with wasting disease, with fever and inflammation, with scorching heat and drought, with blight and mildew, which will plague you until you perish ... You will be pledged to be married to a woman, but another will take her and ravish her ..." Deuteronomy 28:15-16, 21-22, 30
However, if we obey God and follow His commands, we will be blessed. Because we want to see God's blessing on our country, we are making a submission setting out the Bible's position on the issues raised in B 50 - 2003: Criminal Law (Sexual Offences) Amendment Bill.
"If you fully obey the LORD your God and carefully follow all His commands I give you today, the LORD your God will set you high above all the nations on earth. The LORD will grant you abundant prosperity - in the fruit of your womb, the young of your livestock and the crops of your ground - in the land He swore to your forefathers to give you." Deuteronomy 28:1,11
We understand that many of these issues need further discussion and clarification. We appeal for an opportunity to present our concerns and solutions to the Parliamentary Committee in person. We look forward to hearing from you.
Jeanine McGill Charl van Wyk
National Co-ordinator Director
Points in the Bill that we applaud
S 8 - Performing Sexual Acts within view of children
We applaud the inclusion of this provision, since it recognises that children's sexual innocence must be protected. Further, it presents an obstacle to those who would "groom" a child for sexual exploitation by performing sexual acts with others in front of them. We, however, see no reason for the limitation of the child's age to 16 in this section - we recommend that the act's definition of child (i.e. age 18) be followed instead.
S 10 - Promotion of Sexual Offence with Child
This too is an excellent provision, and must be retained. We hope that those who would exploit our children will find this provision to be an obstacle to them.
S 11 - Child Prostitution
We hope that this provision will be useful in combating the widespread prostitution and abuse of our children. We recognise, however, that the primary reason for the flourishing child prostitution "trade" is a lack of capacity and priority in both the police and justice system, and appeal to the legislature to address this, especially as the budget is considered.
"Do not degrade your daughter by making her a prostitute, or the land will turn to prostitution and be filled with wickedness." Leviticus 19:29
S 12 - Prostitution of Mentally Impaired Persons
We are delighted that mentally impaired persons, a vulnerable group, will receive protection against prostitution by means of this section.
S 20 - Supervision of Dangerous Sexual Offenders
This section recognises the high recidivism rate of sexual offenders and is to be applauded for its attempt to protect communities from such offenders.
Schedule 2 - Criminal Procedure Act 51 of 1977 s 154
The extension of punishment for publishing details of victims of sexual offences who are under 18, and the increased flexibility in the court's ability to levy a fine is to be applauded.
Schedule 2 - Prescription Act 68 of 1969 s 12
Victims of sexual offences have a natural disadvantage when pursuing a civil claim against their attackers, since the trauma they experienced makes them less likely to institute a claim. The longer the victim waits, the less likely his or her suit is to succeed, because of the attrition of evidence and witnesses. We applaud the change in the Prescription Act to allow these victims the opportunity to pursue justice even if the attack occurred in the distant past.
Points in the Bill that are of great concern
Feminists insist that all coercive sex should be punished equally, but most rational people accept that a boyfriend who doesn't take no for an answer from his usually compliant girlfriend is not equivalent to a man who attacks an unknown, resistant woman. Biblically, seduction and other ambiguous sex outside of marriage allowed the woman's family to extract the bride price (a hefty sum of money) from the guilty man and would result in the man being forced to marry the woman if her family so desired. A heavy fine to be paid by the transgressor to the victim in such cases is far more appropriate than a criminal penalty. In addition, such victims are more likely to overcome their reluctance to go to court and pursue their cases since they have a significant financial interest to do so. The transgressors are likely to change their behaviour since they fear being convicted of the "lesser crime" of seduction and having to pay the penalty. Rapists have little fear of being convicted of raping a woman they have often had sex with previously (or would probably have had voluntary sex with - given a little more patience or timing).
"If a man seduces a virgin who is not pledged to be married and sleeps with her, he must pay the bride-price, and she shall be his wife. If her father absolutely refuses to give her to him, he must still pay the bride-price for virgins." Exodus 22:16-17
Christians believe that the appropriate penalty for non-ambiguous rape is the death penalty.
"But if out in the country a man happens to meet a girl pledged to be married and rapes her, only the man who has done this shall die. Do nothing to the girl; she has committed no sin deserving death. This case is like that of someone who attacks and murders his neighbour, for the man found the girl out in the country, and though the betrothed girl screamed, there was no one to rescue her." Deuteronomy 22:25-27
Definition of Sex (S 2)
Vaginal sex and "anal sex" are not equivalent.
Morally, the Bible accepts vaginal sex within marriage and has various penalties for coerced sex, including the death penalty for first-degree rape. In contrast, the Bible rejects "anal sex" as worthy of the death penalty (Leviticus 18:22,29; 20:13). The Apostle Paul writes of homosexual acts as indecent, perverted and containing of themselves a due penalty (Romans 1:27).
"The man said, "This is now bone of my bones and flesh of my flesh; she shall be called 'woman,' for she was taken out of man." For this reason a man will leave his father and mother and be united to his wife, and they will become one flesh." Genesis 2:23-24
"Do not lie with a man as one lies with a woman; that is detestable." Leviticus 18:22
Medically, the vaginal is designed for the rigours of sexual intercourse, since it is several cell layers thick, has a lubrication and self-cleaning system, and absorbs unused semen without complications. In contrast, the anus is only one cell-layer thick, the anal sphincter can be damaged during intercourse, contact with faeces is inevitable in this environment, and the ejaculated sperm is as biologically hazardous as blood, possibly provoking auto-immune responses in the recipient. Because of the anus's design, cuts and abrasions are more likely during "anal sex", increasing the risk of spreading sexually transmitted infections. The human sewer is not designed for healthy, loving relations within a marriage. Sodomy is an efficient way to spread diseases. Even typhoid is now listed as an STD in the USA because of sodomite practices.
Psychologically, vaginal sex and "anal sex" are not equivalent. Even if some claim not to have psychological concerns about "anal sex", South Africans in general consider it to be perverted. All sexual assault is serious and has negative psychological effects. The victim, however, carries an extra burden if he/she believes that in addition the sexual assault was perverted. The fact that a tiny minority of South Africans regularly practise "anal sex" should not be used to burden the rest of the populace with a legal normalisation of this perverted practice. Sadly, counselling centres report an increase in sodomy of both males and females.
One of the serious short fallings of the old South African legal system was that forced sodomy was not considered an offence as serious as (vaginal) rape. Forced sodomy was included in the very broad definition of "indecent assault". "Indecent assault" could be anything from "brushing against a woman's breasts with indecent intent" to "forced sodomy". Sadly, this Bill's very broad definition of "rape" will in all probability give rise to exactly the same problem as the very broad definition of "indecent assault".
We urge the committee to separate the offences of rape (vaginal sex) and sodomy ("anal sex"). We are aware that the previous treatment of sodomy (as a category of "indecent sexual assault") was inadequate, because of the very broad definition of "indecent sexual assault". It will not serve the interests of justice to blur the definition of "sex" (or "act which causes penetration"), since this will weaken the prosecution of many serious crimes.
Coercion (s 2 (3))
The definition of coercion is too broad. Sadly, the need for such definitions stem from our society's acceptance of "You have the right to choose: When you want to have sex. Who you want to have sex with." The Bible only protects sex within marriage as legal.
While recognising that coercion is a factor in rape, potential victims need to know that the law will protect them from the consequences if they refuse to submit to illegal sexual advances. This will strengthen them to resist such advances, rather than become a victim. It may be necessary to strengthen the law in this respect. In addition, a person in a position of power or authority (s 2 (3)(c)) should not automatically be held accountable for the very serious crime of rape if he/she receives no indication from the "victim" that he/she would normally resist or be unwilling.
False pretences and fraudulent means (s 2 (4))
Rape is a very serious crime. Society needs to protect the weak from sexual violation. Society needs to protect the decision of those who choose not to have sex, or who choose to only have sex within marriage. The inclusion of failure to disclose a sexually transmissible infection to a willing partner in the crime of rape trivialises the crime of rape (s 2 (4)(c)). Sexually promiscuous people live a risky life and cannot be equated to people who choose a chaste live and are violated. We would agree that failing to disclose a sexually transmissible infection is a crime - we disagree that this crime is rape.
Bona fide rape victims may experience the same problems experienced by sodomy complainants (due to the current extremely broad definition of "indecent sexual assault") if this section is left unchanged.
We are also concerned that the use of a condom may excuse a sex partner's lying about his/her HIV status. While a condom significantly reduces the risk of transmitting HIV, it does not eliminate it.
Marriage as a defence (s 2(6))
Marriage is a unique legal relationship. The common law understanding of marriage is similar to the Biblical position, and includes the obligation on both of the spouses to be faithful and to provide the other spouse with "consortium omnis vitae", which would include sexual intercourse. Similarly, divorce is a legal relationship, which severs the spouses' obligation to be faithful and provide each other with sexual intercourse.
S 2(6) equates a current marriage with "other relationship" and a previous marriage terminated by divorce. If combined with s 2(5), many men, who may routinely have sex with their half-asleep or intoxicated wives, would be guilty of rape. This trivialises the crime of rape, and opens the way for the court to be drawn into petty domestic disputes.
We acknowledge that there are many abusive marital relationships in South Africa. Rather than define virtually every South African husband as a rapist, we propose:
We believe that if marriage is rejected as a defence, the value and security of marriage in South Africa will be reduced. In addition, the incentive to marry is reduced. Marriage partners have the right to one another's bodies - attempts to undermine this in legislation are an assault on the God-ordained institution of the family.
"Husbands, in the same way be considerate as you live with your wives, and treat them with respect as the weaker partner and as heirs with you of the gracious gift of life, so that nothing will hinder your prayers." 1 Peter 3:7
"The husband should fulfill his marital duty to his wife, and likewise the wife to her husband. The wife's body does not belong to her alone but also to her husband. In the same way, the husband's body does not belong to him alone but also to his wife. Do not deprive each other except by mutual consent and for a time, so that you may devote yourselves to prayer. Then come together again so that Satan will not tempt you because of your lack of self-control." 1 Corinthians 7:3-5
Note that the above arguments assume that sodomy will be separated from rape. Marriage should never be a defence against a charge of sodomy.
Children's consent: irrebuttable presumption versus incapable in law (s 2 (5) and (7))
While we appreciate that the legislature is trying to streamline the definition of the crime of rape, we are concerned that an "irrebuttable presumption against consent" for children under 12 is a lot stronger than children under 12 merely being "incapable in law of consenting". By implication children's lack of consent is on a par with that derived from sleep or intoxication. We urge the legislature to retain the strong language of "irrebuttable presumption" in this case, while broadening the common law to protect both sexes.
Sexual acts with children (s (9))
Our children are our future. If our children are systematically and legally seduced, sodomised and exposed to sexually transmitted infections, our future is bleak. For that reason, we are very concerned that s (9):
Teenage years are fraught with emotional conflict as the transition from child to adult is made. We believe that for the sake of our nation, boys need to be protected from exploitation and abuse during their formative years. Teenage years may be a time of significant sexual identity confusion. A sexual debut tends to reinforce the child's sexual identity. In many discussions, homosexuals freely admit that theirs is an uphill path that they would not wish on anyone. We need to protect children from an early homosexual debut.
Ages of consent are admittedly arbitrary. They are the result of society's unwillingness to admit that sex outside of marriage is wrong. Ages of consent only attempt to sexually restrain exploitation of children, rather than require sexual restraint from everyone in society.
The statutory rape provisions are essential to protect children, who are vulnerable and easily manipulated, from sexual abuse. Girls whom I have spoken to at a primary school were relieved and delighted to hear that they were automatically protected from sex by the law. A progressive lowering of the age of consent sends a strong message of "open season on children". Any changes to the South African law on sexual offences must thus not be in the direction of easing the statutory rape provisions.
In 1880, an era of great promiscuity, "moral" Britain's age of consent was 13, while Europe's was 21. However, since a child under 13 could not testify in court, Britain effectively did not have an age of consent. There was a terrible network entrapping young girls into prostitution. Brave campaigners from the Salvation Army (two of whom paid for their evidence gathering work with a jail sentence) galvanised Britain into raising the age of consent to 16 in 1895.
To quote from Dr. Edward Cain's research: "There was a direct link between faithfulness in marriage and the "expansive energy" of civilisation, concluded the scholar JD Unwin after he had studied 86 different societies. To his surprise he found that when the practice of a society was that marriage should be a permanent union between one man and one woman and sex outside of marriage was condemned, that society flourished and grew geographically. He concluded that sexual restraint was the single most important indication that a society was rising."
Law alone will not reform morals, but law may serve to either undermine or reinforce morals. Given the seriousness of the HIV/AIDS pandemic and our need for growth to end poverty, South Africa should be considering raising, not lowering, the age of consent.
Act 51 of 1977 Criminal Procedure Act s 227
Rape is a serious sexual assault. However, we are living in unreality if we insist that the rape of a prostitute is equivalent to the rape of a virgin or chaste woman. Women who choose not to give themselves sexually to "every Tom, Dick and Harry" deserve special protection in law, and should be freely allowed to present their character as evidence against the alleged rapist.
"See, I have taught you decrees and laws as the LORD my God commanded me, so that you may follow them in the land you are entering to take possession of it. Observe them carefully, for this will show your wisdom and understanding to the nations, who will hear about all these decrees and say, "Surely this great nation is a wise and understanding people." Deuteronomy 4:5-6
If we want God to bless South Africa, then we must seek to obey the instructions of our Creator.