MOLO SONGOLOLO SUBMISSION
Date: 15 September 2003
Submission on the Sexual Offences Bill
To the Parliamentary Portfolio Committee on Justice and Constitutional Development
This submission is made by the Task Team on Trafficking which consists of the following organisations by Molo Songololo, NADEL, Rape Crisis, Lawyers for Human Rights, Gender advocacy Programme, Western Cape Network on Violence Against Women, RAPCAN, Western Cape Anti-Crime Forum, Cape Town Refugee Centre, Community Law Centre (UWC), Social Law Project (UWC), Black Sash, South African Human Rights Commission, Western Cape, New World Foundation, Anex - CDW
We welcome the opportunity to comment on the proposed legislation relating to the Sexual Offences.
We will begin by stating that in principle we commend the South African Law Commission for their Discussion Paper on Sexual Offences as it attempts to provide a comprehensive legal framework within which sexual offences in all its various forms can be dealt with.
Recognising the increasing incidences of human trafficking for purposes of sexual exploitation, especially trafficking of children, we strongly feel that the proposed draft legislation on sexual offences does not adequately provide for the prosecution of such offences. Acknowledging that there are various pieces of legislation providing for the prosecution of offences related to trafficking, as well as for the protection of 'victims' of trafficking, we are of the conviction that the fragmented nature of currently existing legal provisions hinders the effective prosecution of trafficking-related offences, as well as limiting the level of protection available for victims of such crimes. It is further our contention that the occurrence of trafficking of people, in South Africa is serious enough to warrant specific 'trafficking legislation' in order to adequately deal with all aspects and forms of trafficking.
The submission is premised on the understanding that it is everyone's constitutionally guaranteed right to have their human dignity respected and protected (Section 10), to be free from all forms of violence, including the right not to be deprived of freedom arbitrarily or without just cause (Section 12), as well as the right not to be subjected to slavery servitude or forced labour (Section 13). Further, Section 28 of the Constitution of South Africa (1996) gives children special and particular rights recognising the different needs and requirements of children. Section 28(d) provides that every child has the right to be protected from maltreatment, neglect, abuse and degradation.
Section 28 also states that a child's best interests are of paramount importance in all matters concerning children, this arguably reflects the constitutional commitment to not only recognise and respect the different requirements of children, but also to protect children from violations of their rights. We believe that this commitment is especially important considering the high incidence of children being trafficked for purposes of sexual exploitation.
In addition, international human rights instruments, such as CEDAW (1979), the UN Convention of the Rights of the Child (1979) and the African Charter of the Rights and Welfare of the Child (1990) call on state parties to take all appropriate measures to protect women and children from all forms of sexual exploitation and abuse, and 'to suppress all forms of traffic in women'.
South Africa has ratified these Conventions. Recognising and acknowledging the difficulty in enforcing international Conventions, South Africa, in ratifying them, committed itself to provide all necessary legislative and other measures to protect people, especially women and children, from all forms of sexual abuse, as well as to combat sexual exploitation and abuse. Recognising trafficking for sexual exploitation as one form of sexual exploitation and abuse, current legislation does not deal adequately enough with issues related to these offences, hence it fails to protect women and children from all forms of sexual abuse and exploitation.
The following statistics reveal the reality of trafficking and related crimes, indicating the need for 'trafficking and/or sale of a person for purposes of sexual exploitation' to be included as a separate offence.
Various international organisations have placed the numbers of people trafficked at between 700 000 and 2 million persons. Agencies and government departments generally recognise that most women and children are trafficked for sexual purposes this has led some observers to note that:
"Prostitution is now recognised as a major component of the emerging global market - a vibrant multinational sex trade which involves millions of children, particularly girls, and which generates billions of dollars profit for the traffickers involved. The demand by wealthier countries for cheap sex workers is a major motivating factor in the recruitment by various means of women and children for the extensive and lucrative sex industries"
In its report on trafficking of persons the United States' Department of State asserts that " based on reliable estimates, . . . at least 700, 000 persons, especially women and children, are trafficked each year. Whilst the United States' Central Intelligence Agency has projected that the number of organised crime groups engaged in trafficking is likely to continue increasing, given the high profit potential and the relatively low penalties. As a country with an increasing unemployment rate and uneven economy South Africa is likely to experience and increase in trafficking for sexual purposes.
Article 3 of the Protocol To Prevent, Suppress And Punish Trafficking In Persons, Especially Women And Children, Supplementing The United Nations Convention Against Trans-National Crime reads as follows:
(a) trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of sexual exploitation.
(b) the consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
(c) the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered ' trafficking in persons' even if this does not involve any of the means set forth in subparagraph (a) of this article;
(d) child shall mean any person under eighteen years of age.
We believe this definition of 'trafficking in persons' adequately covers all conceivable aspects of trafficking for purposes of sexual exploitation and therefore, strongly recommend that it be included as the standard accepted definition of 'trafficking in persons' within the South African legal framework. Notwithstanding the need to introduce separate trafficking legislation to adequately provide for the prosecution of all forms of trafficking, we further recommend that this definition be included in the proposed Draft Sexual Offences Bill. We would further urge that this comprehensive definition of trafficking be the accepted common law definition of the same.
In the absence of a comprehensive definition of 'trafficking in persons' being incorporated into current legislation (or until such time as separate trafficking legislation exists) we recommend that the concept of 'trafficking and/or sale of a person for purposes of sexual exploitation' be adequately defined and included as a separate offence in the proposed sexual offences legislation; or that the definition of 'commercial sexual exploitation' be expanded to include trafficking and be incorporated into the draft legislation on sexual offences.
Recognising the dire need to provide comprehensive legislation covering sexual offences in all its various forms, we strongly recommend that 'trafficking and/or sale of a person for purposes of sexual exploitation' be included as a separate offence in the realm of the proposed draft legislation dealing with sexual offences.
Acknowledging that the Draft Sexual Offences Bill already contains clauses that could be used to legislate against trafficking and related offences, such as Section 9(1)(d), we recommend that these and additional clauses be used specifically and separately to legislate offences related to 'trafficking and/or sale of a person for purposes of sexual exploitation'.
Section 9(1)(d) of the Draft Sexual Offences Bill states that
(a) any person who, in relation to a child below the age of 18 years, for financial or other reward, favour or compensation to such child or to any other person intentionally supplies, recruits, transports, transfers, harbours or receives such child, within or across the borders of the Republic South Africa for purposes of the commission of indecent acts or acts of sexual penetration with that child by any person.
Recognising that elements of trafficking and related offences are included in this Section, we are, however, concerned that these offences form part of the Section dealing with Child Prostitution. While children trafficked are provided with protection under this clause, Section 9(1)(d) fails to acknowledge that the offence of trafficking for purposes of sexual exploitation is not a child specific offence, but also committed against adults.
We, therefore, recommend that this clause be removed from the section specifically dealing with Child Prostitution and made a separate offence dealing with 'trafficking'. In order to provide for the protection of anyone trafficked for purposes of sexual exploitation, the clause needs to be reworded to be inclusive of anyone and not be restricted to children.
Because of the apparent overlap in the actions that constitute trafficking of children for the purposes of sexual exploitation and child prostitution, and because of the gravity of both crimes, it is our contention that there is need for two distinct and separate definitions of these offences. We would also recommend that these be contained within the proposed sexual offences legislation as two separate clauses legislating these crimes. It must be emphasised that it is child prostitution that we are specifically referring to as needing to be illustratively defined separately from the concept of trafficking for the purposes of sexual exploitation. It is strongly recommended that these two acts be conceptually defined as two distinct crimes, while giving due regard and recognition to the inherent similarities and overlaps that exist between these two crimes especially with regard to children.
We would also urge that child pornography be dealt with as a separate and distinct crime in and of itself. Whilst recognising that the issue of child pornography is dealt with in the Films and Publications Act, we do, however, feel that it is important that offences relating to child pornography receive particular attention within the new sexual offences legislation. We believe that is must remain separate from both child prostitution and child trafficking, because while there are discernible links and ties between these three crimes, they also function independently of each other and, therefore, need to be treated separately. Being of an inherently sexual nature, it is imperative that child pornography be given special mention in any legislation dealing with offences of a sexual nature.
Child Care Act
Section 50 (a) of the Child Care Act (No. 74 of 1983 as amended in 1999) states that any person who participates or is involved in the commercial exploitation of a child shall be guilty of an offence. Commercial sexual exploitation means the procurement of a child to perform a sexual act for financial or other reward payable to the child, the parent(s) or guardian(s) of the child, the procurer or any other person.
While it may be argued that this section could possibly cover the act of 'sale and/or traffic of a child for purposes of sexual exploitation', it does not provide any protection to adult persons who might be the victim or trafficking for sexual purposes. Further, it has been argued that the word 'procurement in the definition may lead to legal uncertainties and ultimately a reluctance on the part of officials to arrest and prosecute.
During recent workshops conducted with law enforcement agents, it became apparent that there was some ignorance about the crime of trafficking that results in the victims of trafficking, like sexual offences victims, being doubly victimised, by the very structures and people who are meant to be helping them. There appeared to be a general misunderstanding of the concept of trafficking and the reasons why people are trafficked. This misconception places people who are trafficked at the increased risk of not only being further victimised, but of just simply not being recognised as people against whom a crime is being perpetrated and, therefore, needing the protection of law enforcement.
We recommend that clauses be included in the legislation ensuring that the victims of trafficking are not victimised further by the judicial process and law enforcement agents. To this end we further recommend the immediate inclusion of the explicit proposed definition of 'trafficking and/or sale of a person for purposes of sexual exploitation'. Because the definition is so explicit, it will assist in the process of identifying who constitutes a trafficked person so that there is clarity within the system itself. By so ding, it could be ensured that trafficked persons are not subjected to additional trauma at the hands of the very mechanisms designed to assist them. But more importantly, so that they are recognised as people against whom a crime has been committed and thus needing to be protected by law enforcement.
The lack of knowledge and level of ignorance around the issue of trafficking is frighteningly high among people in this country. This ignorance is further perpetuated by the fact that this issue is seemingly not a matter of great concern, leading to a lack of 'trafficking legislation'. This absence of comprehensive legislation also means that it is never pointed out to the public as a particular crime separate and distinct from other related crimes that are directly or indirectly the result of trafficking activities. We, therefore, cannot reiterate strongly enough the indisputable need for separate legislation that criminalises trafficking in and of itself, as well as in all its manifestations.
However, until such time as separate legislation is instituted that deals with the offence of trafficking separately, we recommend that trafficking and/or sale of a person for the purpose of sexual exploitation be included in the sexual offences legislation to combat this particular offence and to provide maximum protection to victims of such crimes.
We recognise that aspects of trafficking are catered for in the proposed legislation but these are limited to children and do, therefore, not provide sufficient protection to all other trafficked persons. We would like to urge the Law Commission to consider our recommendations as they reflect shortcoming and gaps in the proposed legislation. Addressing these gaps through the Sexual Offences Act could provide a more enabling environment for law enforcement and stem the increase of one of the most underestimated and underrated crimes, in our country.