SUBMISSION TO THE JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE ON THE CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL
BILL 50 OF 2003
SUBMITTED BY THE CHILDREN'S RIGHTS PROJECT AT THE COMMUNITY LAW CENTRE, UNIVERSITY OF THE WESTERN CAPE
15 September 2003
This submission by the Children's Rights Project relates to specific sections of the Criminal Law (Sexual Offences) Amendment Bill with particular emphasis on children. Since children are vulnerable members of our society and in need added protections, our approach seeks to be a balanced one taking into account the rights of children as both victims of sexual offences and also as perpetrators of such offences and hence the recommendations made should be seen in this light.
BACKGROUND OF ORGANISATION
The Children's Rights Project is based at the Community Law Centre, a human rights research institute attached to the Faculty of Law, University of the Western Cape. The Project has in the decade of its existence played an important and influential role in securing the legal development of children's rights in South Africa in accordance with the UN Convention on the Rights of the Child (CRC). It has contributed to law reform specific to children through involvement with two projects of the SA Law Commission and assisted in many other respects to further the implementation of the rights contained in CRC, such as through the production of publications, through evaluations of research reports and by advocacy.
The research function of all of the Centre's projects seeks to ensure that advocacy, lobbying, drafting and interpretation of the implications of law are based on a thorough understanding of international, constitutional and domestic law requirements, on prevailing socio- economic conditions, and the real position of children and vulnerable people living in South Africa.
SECTION 20 - SUPERVISION OF DANGEROUS SEXUAL OFFENDERS
While in principle we have no objection to the concept of supervision of a sexual offender there are various issues that concern the Children's Rights Project regarding this section:
We are also concerned that while section 20(1)(c) excludes a child offender, sections 20(1)(a) and (b) do not. Therefore it is possible for a child to be declared a dangerous sexual offender, again without any proviso, in section 20(1)(a), that there has to be violence or aggravating circumstances attaching to the commission of the crime. For example, one might have a 15 year old child with two convictions for indecent assault where the facts show that he has pinched a fellow learner's behind, and the discretion would potentially allow a presiding officer to declare him a dangerous sexual offender.
In addition the wording of section 20(1)(b), as it stands, implies that sexual offences themselves do not contain an element of violence and this does not recognise the aggressive nature of such offences.
That the wide discretion contained in section 20(1) be informed by guidelines - either legislatively or through a provision that evidence must be led before such an order can be made.
That section 20(1(b) should read "...a sexual offence which was accompanied by additional violence and threats of violence"
We agree with the contents of section 20(1)(c).
Furthermore, there is no indication as to who would be responsible for delivering the rehabilitative programme, whether there is some objective determination as to whether the rehabilitative programme complies with certain standards in order to qualify as a suitable programme for sex offenders and finally, from an implementation point of view it is submitted that there are presently no rehabilitative programmes in South Africa for sex offenders of a duration of at least 3 or 5 years, so if this provision was enacted , it would be difficult to implement.
Therefore it submitted that unless there are proper implementation plans to accompany this section or it is redrafted, it should not be enacted in its present form.
We submit that before rehabilitation programmes are considered for prisoners released or paroled, provisions should be enacted requiring rehabilitation programmes for sex offenders in prisons.
We agree with the original recommendation of the Project Committee that there should not be community notification and that there should not be a register of sexual offenders solely to blame and shame sexual offenders, nor should there be a register of alleged sexual offenders. It is very important that we reiterate the reasons for not including provisions along these lines.
As far as the latter two registers are concerned we do not feel that these types of registers will hold up to constitutional scrutiny.
There are criticisms leveled at the system of community notification, as is operated in the United States of America, by United States organisations themselves. The Association for the Treatment of Sexual Abusers states, inter alia, that:
- The level of protection of these laws is limited and community notification does not guarantee protection from harm
- While community notification is dependant upon risk assessment of the individual sex offender there is little evaluative data addressing validity and reliability of the risk assessment rating techniques being developed or used in the United States
- Notification to the community at large in the case of a sexual offender who abused a family member could result in the victim's and/or family's identity being revealed, and therefore potentially causing further victimisation.
The Centre for Sex Offender Management has noted that there are few studies on the effectiveness of community notification in the United States. The one study, (The Washington State Recidivism Study) revealed there was no significant statistical difference between the recidivism patterns of adult sex offenders who were subject to community notification (level III) and similar sex offenders released prior to the implementation of the law.
The Centre also notes the negative effects of community notification:
- The potential for vigilantism by the community towards offenders
- Difficulties experienced by the states in complying with the registration requirements - e.g. inaccurate offender addresses
- Victim identification
If one looks at these problems coupled with the resources used in the United States to implement community notification - internet, media releases, door to door flyers, mailed flyers, the offender placing an advertisement in a local newspaper, posting of signs on an offenders home, CD-Rom lists- it is submitted that South Africa will not be able to implement an effective system of community notification. We do not have the resources that are available in the United States. The discrepancies between urban and rural life and informal housing arrangements would make community notification impractical. The vast potential for victim identification and the lack of research on notification available militates against the introduction of such a system.
Although the sentiment behind such a system is laudatory - to prevent further harm - there is no evidence this will not occur and South Africa has more pressing needs in terms of resource allocation to prevent sexual abuse.
Therefore if one wished to include a provision requiring specified monitoring, it needs to be clear as to what this monitoring entails - whether this be in the primary legislation or regulations.
That this subsection be more specific and spell out the purpose for which the monitoring is intended- for example, to ensure that the offender does not come into contact with certain family members, if for instance the original offence was committed within the family. At the same time the section needs to balance the monitoring with the victims and offender's rights to privacy.
Furthermore, the monitoring must be effective and, for example, not simply a correctional services official contacting the offender every two months.
That section 20(12) becomes a subsection of section 20(10) and that there is a discretion provided to the court to convict the offender for failing to comply after an inquiry into the reasons for non-compliance.
SECTION 23 - NON-DISCLOSURE OF CONVICTION OF SEXUAL OFFENCE
In addition we also wish to note that the Children's Bill provides for Part B of the National Child Protection Register to have a record of persons unsuitable to work with children and to use the information in the Register in order to protect children in general against abuse from these persons. This is not the same as the registers mentioned above under the discussion of section 20(6)(c), but is aimed at providing a confidential list of persons that can be accessed under strict circumstances in order to determine whether a person applying for work relating to children, is in fact unsuitable to undertake such work.
It provides for findings of persons unsuitable to work with children, which includes an automatic finding if a person is convicted of sexual abuse or rape. These findings need to be reported to the Director -General of Social Development.
We submit that this clause needs to be linked to the provisions of the Children's Bill, however we acknowledge that it is not yet enacted. A further possibility is for a separate sexual offender register, along the same confidential and limited access lines as the Children's Bill, to be included in this legislation and then at a later stage for the two registers to be aligned once both pieces of legislation are passed. The purpose of this register would not be to name and shame but to provide a resource to check when employing a person in a position of care in relation to children.
The addition of section 23(1) placing a positive obligation on a person convicted of a sexual offence to disclose such conviction when applying for employment which involves children.
A possible provision requiring a confidential sex offender register with restricted access thereto in order to inform employers who wish to employ persons coming into contact with children.
CHILD TESTIMONY (INSERTION OF SECTION 192 A -SCHEDULE 2-ITEM 8)
In terms of section 192 of the Criminal Procedure Act (51 of 1977), every witness is competent and compellable to testify unless expressly excluded. A child is therefore also a competent witness as long as the child does not fall under any of the grounds of justification for excluding them as witnesses. However, even though there is no minimum age below which a child may not give evidence, the competency of a child is determined by the court and relates to whether the child has sufficient intelligence, sense and reason in order to understand the difference between truth and falsehood and recognize that it is wrong to lie. This is determined by the presiding officer after he or she, as well as the prosecution and defence, have had an opportunity to question the child. The only requirement for purposes of a competence finding is therefore that it must be proved, in cases of doubt, that the child does understand the difference between the truth and a lie.
The Children's Rights Project is in principle in agreement with the insertion of section 192 A in the Criminal Procedure Act (as provided for at (8) in schedule 2 of the Sexual Offences Bill 50-2003, page 19) which provides that any child in a sexual offences trial is competent to testify. The proposed section provides:
"(1) All persons below the age of 18 years shall be presumed to be competent to testify in criminal proceedings and such person shall not be precluded from giving evidence unless he or she is found, at any stage of the proceedings, not to have the ability or the mental capacity, verbal or otherwise, to respond to questions in a way that is understandable to the court."
(2) The evidence given by a person referred to in subsection (1) shall be admissible in criminal proceedings contemplated in that subsection, and the court shall attach such weight to such evidence as it deems fit.
(3) The court shall note the reasons for a finding in terms of subsection (1) on the record of the proceedings."
It is submitted that this is in accordance with Article 12(1) of the UN Convention on the Rights of the Child, which provides:
12.1 States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
However, we wish to express our concern that the phrase "as it deems fit" in subsection (2) of section 192A gives the court a very wide discretion and does not provide the court with any guidelines on how to determine the weight to be attached to the evidence of the child. In this respect we propose that guidance be sought from Article 12(1) of the Convention.
There are two restrictions to the rights in Article 12(1) of the CRC, namely that the rights are only extended to children who are capable of forming their own views and those views are only given due weight according to the age and maturity of the child in question. Lücker-Babel states that the capacity of a child to form his or her own views does not mean that the child must be fully developed to do so, as the second limitation then applies - requiring a decision-making body to only give weight to those views in accordance with the age and maturity of the child. She goes on to reason that the first step is then to determine whether the child is in a position to form a view on an issue in question, but not on the whole range of issues in a particular case. Following this reasoning even an "infans" can participate where his or her feelings are interpreted by an appropriate expert and then those feelings are given due weight according to his or her age and maturity.
Once the question of whether a child has the capacity to form an opinion has been determined, the question shifts to the weight to be given to that opinion. The two determining factors are the age (an objective determinant) and maturity (a subjective determinant) of the child. These two factors are of equal value. In addition, it is argued that the more serious the consequences of the decision are, the more the child's opinion needs to be considered having regard to the nature of the problem and the degree of interest it represents to the child.
However, the requirement of capacity to form an opinion can be in itself problematic if one looks at its practical implications. In a legal setting, Courts are often required to examine the legal competence of a child. In a seminal decision the House of Lords, in Gillick v West Norfolk and Wisbech Area Health Authority, by realising a child's legal competence may be dependant on individual capacity as opposed to age, decided the matter by applying a test of maturity rather than age to hold that a child of sufficient understanding could consent to medical treatment despite being under a particular statutory age of consent.
In establishing what weight is to be attached to a child's testimony it is submitted that the competency of a child would be better determined if the presiding officer had regard to the age and/or maturity of the child and had the assistance of a child development expert in a particular case. Obviously it is clear in most cases whether a child is competent to testify, however in borderline cases, especially with young children, such expert evidence should be allowed and encouraged. In addition presiding officer's should receive training on child development issues in order to capacitate them to make informed decisions in this regard.
We once again confirm that we are in agreement with the provision that allows for a child' s testimony to be admissible without an enquiry into competency (with the exception of children who are found not to have the ability or mental capacity to respond to questions in a way that is understandable by the court). This ensures that children have every opportunity to participate in court proceedings affecting them. The only issue is what weight needs to given to their evidence and we wish to reiterate that more certainty around the weight to be attached around a child's evidence can be gained with proper guidelines such as "age and/or maturity " as opposed to "as the court deems fit."
In light of the above we propose that the clause "as it deems fit" in subsection 2 of the proposed section 192 A be replaced with the words "in accordance with the age and/or maturity of the child" to offer some guideline to the court on what weight to be attached to the evidence of the child. This would also be in conformity with Article 12(1) of the UN Convention on the Rights of the Child stated above and would be an internationally acceptable guideline.
PROTECTION AGAINST FORCED OR EARLY MARRIAGES [SECTION 9(7)]
Section 9 of the Bill specifically criminalizes acts which cause penetration and indecent acts with children over the age of 12 years but under the age of 16 years.
In relation to acts which cause penetration, a person committing such an act with a child under the age of 16 years, despite such child's consent, will be guilty of an offence and will be liable on conviction to a fine or imprisonment not exceeding 6 years. However, it would be a defence to this charge if it were proved that the accused was deceived into believing that the child was over 16 years and the accused reasonably believed that the child was over 16 years of age. These defenses will not apply if the accused is related to the child within the prohibited incest degrees or where the child lacked the intellectual development to appreciate the nature of an act of sexual penetration.
With regard to indecent acts, a person committing such an act with a child under the age of 16 years, despite the child's consent, shall be guilty of an offence and will be liable on conviction to a fine or imprisonment not exceeding a period of 4 years. It will be a defence to this charge if the accused was below the age of 16 years and the age of the accused did not exceed the age of the victim by more than 3 years, or it were proved that the accused was deceived into believing that the victim was over 16 years and the accused reasonably believed this. These defenses do not apply if the accused is related to the victim within the prohibited incest degrees of blood or affinity, such victim lacked the intellectual development to appreciate the nature of an indecent act or such child was below the age of 12 years.
In addition, section 9(7) of the Bill specifically provides that:
"a person may not be charged under this section if a marriage existed between that person and a child referred to in this section, unless the child concerned was below the age of 12 years at the time when that offence in terms of section was allegedly committed".
As mentioned above, section 9 of the Bill specifically deals with sexual offences against children over the age of 12 years but under the age of 16 years with their consent. It aims to protect children between this age group as the minimum age for consenting to sexual intercourse is 16 years.
However, section 9(7) provides that a person may not be charged with any of these offences if a marriage existed between a person and a child under the age of 16 years.
At this stage it should be pointed out that acts which cause penetration committed with a child under the age of 16 years, despite consent, is an offence in terms of section 9(1) and this is so irrespective if the perpetrator is also under the age of 16 years while a person, who commits the same acts with a child under the age of 16 years where a marriage exists between the person and the child, cannot be charged for an offence under this section.
While we agree that a person should not be charged under this section where a marriage exists between such person and a child under the age of 16, section 9 results in a situation where if the parties are both 15 years of age or where one party is 15 years and the other is 17 years and have consented to the act of penetration, this will amount to statutory rape in terms of section 9(1). However, the same act which occurs between the child who may be under 16 years of age and his/her spouse who may be 30 years old, where a marriage existed, will not. In this respect we wish to inform the committee of the current law reform proposals in respect of marriages which also aim to protect children against early or forced marriages.
Requirements for marriage and law reform proposals
Common law and statute
In terms of our (common) law, a girl over the age 12 years and a boy over the age of 14 years are competent to conclude a marriage. However, in terms of the Marriages Act 25 of 1961 no boy under the age of 18 years and no girl under the age of 15 years is capable of contracting a valid (my emphasis) marriage except with the written permission of the Minister of Home Affairs.
Law reform proposals
There are proposals in the Report on the Review of the Marriage Act 25 of 1961 that a uniform age requirement for marriage of 18 years be set for both boys and girls. This will remove the current age discrepancy between boys and girls and will provide greater protection for all children under the age of 18 years as the permission of the Minister of Home Affairs or a judge will be required for the contracting of valid marriages of children under the age of 18 years.
Further, the Children's Bill provides that every child below the minimum age set by law for a valid marriage has the right not to given out in marriage or engagement. Similarly, the Recognition of Customary Marriages Act provides that for a customary marriage to be valid, the prospective spouses must both be above the age of 18 years. Where a person is below 18 years, the Minister of Home Affairs may grant permission to such person to enter into the customary marriage if the Minister considers such marriage desirable and in the interests of the parties in question.
From the above, it is clear that there is a move towards setting the age for marriage at 18 years for both boys and girls. Where the parties are under 18 years, then ministerial consent or consent from a judge is required. It may be said that, even though the Minister may still give consent for children younger than 18 years to get married, these developments are an effort to avoid early marriages or child marriages from taking place given the severe impact it has on the lives, health and well-being of girls and boys as it curtails their opportunities to education, restricting their personal development and leave lasting impacts on their lives and that of their children. It also provides social sanction to what would otherwise amount to statutory rape or the sexual abuse of children.
International and regional instruments
These law reform recommendations and provisions are somewhat more in line with the recommendations of the United Nations Committee on the Rights of the Child and various international and regional instruments which South Africa has ratified and which we wish to point out to the Portfolio Committee.
While the United Nations Convention on the Rights of the Child sets a minimum age on some issues, for example, no capital punishment or life imprisonment without the possibility of release for those under the age of 18, on other issues, States are required to set minimum ages, for example, employment and for criminal responsibility.
The Committee on the Rights of the Child has stressed that when States set minimum ages in legislation, they must do so within the context of the basic principles of the Convention, particularly the principle of non-discrimination (for example challenging the different marriage ages for boys and girls), the principles of best interest and the right to life and maximum survival and development. With regard to marriage, the Committee on the Rights of the Child has emphasized that the age for both boys and girls be the same to conform with article 2 of the Convention (non-discrimination principle) and that ages should not be set too low (implying that 14 years is too low) to conform with other general principles such as the best interest of the child and the right to maximum survival and development. In light of this, it would seem that the ages of 12 and 14 years (for girls and boys respectively) as the ages at which persons may be competent to enter a marriage would be too low in the view of the Committee.
While the CRC does not set a minimum age for marriage, the Committee on the Elimination of Discrimination Against Women has proposed that the minimum age for marriage should be 18 for both women and men (girls and boys). Similarly, article 21(2) of the African Charter on the Rights and Welfare of the Child provides that "child marriage and the betrothal of girls and boys shall be prohibited and effective action, including legislation, shall be taken to specify the minimum age of marriage to be eighteen years ....."
We agree that a person who commits these acts with a child under the age of 16 years where a valid marriage exists between such person and the child, not be charged with an offence in terms of section 9(7). The reason being that in these that the Minister when granting permission for such marriage would have applied his/her mind.
However, we recommend that some protective measure be included to protect those children who are forced into early marriages without their consent or where certain marriages involving young children are not registered. In these matters the Minister is not provided with an opportunity to apply his/her mind.
In this respect, taking guidance from the Law Reform Proposals currently being made in England in respect of their Sexual Offences Law, we recommend that section 9(7) be redrafted as follows:
"9(7)(a) Conduct by a person which would otherwise be an offence against a child referred to in this section is not an offence if a marriage existed between such person and the child unless the child concerned is under 12 years at the time when that offence in terms of this section was allegedly committed.
9(7)(b) In proceedings for such an offence, such person must prove that a valid marriage existed between such person and the child referred to in this section."
Further, we wish for the Portfolio Committee to take cognizance of the law reform developments around marriages and the rise in ages which are being proposed and alert the Committee to the inconsistencies regarding the ages at present in our law around marriages.
While we know that the issue of early marriages cannot be dealt with in terms of the Sexual Offences Bill, but because of its implications, we further submit that the Portfolio Committee call on their relevant counter-part committees to address the issue of early marriages as a priority.