SAYSTOP (SOUTH AFRICAN YOUNG SEX OFFENDERS PROGRAMME)
SUBMISSION ON THE CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL 50 of 2003
TO: THE PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT
BY: SAYStOP (South African Young Sex Offenders Programme)
Partners: Children’s Rights Project, Community Law Centre, UWC
NICRO, Western Cape Provincial Office
Institute for Criminology, UCT
Contact person: Anneke Meerkotter (Coordinator)
Tel: 021 959 3706, Fax: 021 959 2411, [email protected]
PLEASE NOTE THAT THE SAYStOP CONSORTIUM WISHES TO ADDRESS THE PORTFOLIO COMMITTEE AT ANY PUBLIC HEARINGS THAT MAY OCCUR AND ACCORDINGLY REQUESTS AN OPPORTUNITY TO DO SO
This submission consists of two parts. The first section consists of a brief background to SAYStOP and a general comment on young sex offenders. The second part consists of specific comments on Schedule1, sections 8 and 9.
PART 1: BACKGROUND TO SAYStOP AND GENERAL COMMENT ON YOUNG SEX OFFENDERS
Background on SAYStOP
SAYStOP was formed in 1997 for the purpose of seeking innovative and effective interventions to treat and manage young sex offenders with the aim of preventing a pattern of deviant behaviour from being established and decreasing the possibility of further offending. As such the programme does research on and tries to develop mechanisms to address various aspects of the management of young sex offenders including prevention of sex offences, assessment of young sex offenders, diversion of young sex offenders and their follow-up and the eventual development of long-term interventions for more serious and repeat offenders.
SAYStOP has developed a programme that can be used to divert children from the criminal justice system or be used as an alternative sentencing option. The programme is particularly beneficial as it attempts to provide constructive alternatives to existing sentencing options: By diverting children it holds them responsible and accountable while attempting to address the reasons for their offending behaviour and potentially provide an opportunity for reintegration into the community.
General Comment on Young Sex Offenders
Araji, in her book on sexually aggressive children, notes that there is a range of types of children who display sexually deviant behaviour. She refers to the work of various authors who have generally divided such children into four distinct groups:
It is therefore important not to simply generalise when speaking of young sex offenders, but to realize that there are varying degrees and classes of offending of this nature. What is considered normal sexual behaviour will also differ vastly between different communities.
PART 2: SUBMISSION ON THE BILL
SCHEDULE 1 OF THE CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL
Taking into account the different reasons why youth sexually offend and their personal circumstances, we wish to submit that, where such youth perform non-consensual sexual acts, they be treated in a manner that takes due consideration of their age, as emphasized by the guiding principles outlined in Schedule 1 to the Bill:
(j) Restorative and rehabilitative alternatives should be considered and applied unless the safety of the complainant and the interests of the community requires otherwise.
(k) A person who commits a sexual offence should be held accountable for his or her actions and should be encouraged to accept full responsibility for his or her behaviour.
(l) In determining appropriate sanctions for a person who has been found guilty of committing a sexual offence, (iv) the child sexual offender should receive special consideration in respect of sanctions and rehabilitation.
In relation to serious and violent juvenile offenders, the Office of Juvenile Justice and Delinquency Prevention’s Study Group on Serious and Violent Juvenile Offenders has reached certain conclusions and key findings in expanding its knowledge about such offenders and determining which types of interventions can reduce their level of offending. These include:
The reason given for developing strategies to engage male perpetrators is that most forms of violence against women will not end until men change. It is argued that by directly challenging the behaviour of violent men, and ensuring that men and boys are encouraged to reject violence, the goal of achieving safety for women can be reached. It is also argued that interventions with young offenders are beneficial as these interventions occur during a time when the child’s personality, attitudes and beliefs are still in its formative stages and can be altered where there are serious behavioural problems.
We support these objectives as contained in Schedule 1 of the Bill. The deliberations on the Child Justice Bill indicated that certain sexual offences committed by children would be divertable. We submit that it is important that this principle be reinforced in this legislation and accordingly recommend the addition of the word "diversion" in Schedule 1(l)(iv):
(l) In determining appropriate sanctions for a person who has been found guilty of committing a sexual offence, (iv) the child sexual offender should receive special consideration in respect of diversion, sanctions and rehabilitation.
With the enactment of the Child Justice Bill, it is hoped that youth who commit non-consensual sexual offences and who acknowledge responsibility, will be diverted into programmes which would enable them to change their behaviour and avoid the risk of becoming adult abusers. It is important to note that young sex offenders should be properly assessed when charged with sexual offences, in line with the procedures outlined in the Child Justice Bill, to ensure that they are diverted only when appropriate to do so.
With regard to consensual acts of penetration and indecent acts committed by youth, we prefer an approach that does not seek to criminalise such youth at all.
SECTION 8 OF THE CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL
Section 8 currently reads:
A person who intentionally commits an act which causes penetration or an indecent act with another within the view of a child below the age of 16 years or a person who is mentally impaired, is guilty of an offence of having committed such an act within the view of a child or a mentally impaired person as the case may be, and is liable upon conviction to a fine or imprisonment for a period not exceeding two years.
In terms of the objective of section 8, any person who commits an indecent act or act of penetration within the view of a child under 16 years of age or a person who is mentally impaired, with the intention that such child or mentally impaired person sees the commission of such an act, is guilty of an offence. The South African Law Reform Commission noted that the introduction of this section was aimed at the commission of acts which deliberately try to sexualize a child or mentally impaired person in order to eventually involve such child or mentally impaired person in sexual acts at a later stage.
Section 8 also has the potential benefit of discouraging acts of penetration and indecent acts in front of children which could sexualize them at an earlier age than they would otherwise have been.
It is generally accepted that, in a statutory or common law definition of a crime, "intention" requires intention in respect of each element of that crime. It is therefore submitted that a correct interpretation of section 8 requires the presence of the necessary intention to –
The current wording of this section also creates uncertainty as to whether acts which were intended to be within the view of the child or mentally impaired person, but which were not in fact seen by such child or person, constitute an offending act in terms of this section. It is submitted that, if the objective of the provision is to prevent an person from performing acts aimed at sexualizing a child for later abuse, it should not be a defense that the act was not in fact seen by such child or mentally impaired person or that the child or mentally impaired person was not in fact sexualized as a result of viewing the act.
In terms of the current wording of section 8, intention should not be present where the accused did not foresee the possibility that a child or mentally impaired person would witness the act. It is however submitted that deciding whether dolus eventualis is a sufficient form of intention for the purpose of the prosecution of this offence, could have both positive and negative implications. Snyman defines dolus eventualis as a situation where the accused subjectively foresees the possibility that the prohibited result may flow from his/her act, and reconciles him/herself to this possibility. The following example demonstrates the potential consequences of dolus eventualis as a form of intention under section 8:
A couple has sex or performs an indecent act whilst their child is watching television in the corner of the room. They intended to commit the act and were aware of the fact that, should their child turn around, he/she would witness the act. They nevertheless thought that a) there is a possibility that their child might not turn around and/or b) that their child is too young to be interested or to understand their actions. Are they liable to a fine or imprisonment?
According to the Law Reform Commission, this would depend on the discretion of the prosecutor who might be either abhorred by their actions, or see nothing wrong with it. On the one hand, section 8 discourages acts of penetration or indecent acts in front of children but on the other hand, it could lead to situations where the impact of the criminalisation of the act causes more harm than the act itself.
In this context, it might be better to explicitly state that the section only applies to cases where the accused had the added intention to sexualize or groom a child or mentally impaired person for later abuse, as per the objective identified by the Law Reform Commission. Whilst such a narrower definition of the offence would exclude the prosecution of offending acts which sexualize a child or mentally impaired person but which was not intended to sexualize such child or mentally impaired person for later sexual acts, such acts could still be prosecuted under common law crimes such as public indecency. A drawback in such a formulation would be the difficulty faced by the prosecution to prove that there was an intention to sexualize or groom a child for later abuse where such later abuse have not yet occurred.
Such a narrower definition would however deal with the concern which many have raised that the section could lead to prosecution where the commission of acts of penetration or indecent acts were primarily committed in front of children as a result of socio-economic circumstances. In this regard the Law Commission noted that the prosecutorial discretion would ensure that cases where children view acts of penetration or indecent acts due to the cramped housing conditions within which they live, are not prosecuted. It is submitted that such decisions should not be left to prosecutorial discretion. Under the proposed narrower definition of section 8, the prosecutor would look at whether or not the necessary intention was present and this would guide the decision whether or not to prosecute.
In light of the abovementioned concerns, we suggest that section 8 read as follows:
It is an offence if a person intentionally commits an act which causes penetration or an indecent act, and, for the purpose of obtaining sexual gratification, engages in it in the presence of a child below the age of 16 years or a person who is mentally impaired, knowing or believing that such child or mentally impaired person is aware, or intending that such child or mentally impaired person should be aware, of the commission of the act.
The words "for the purpose of obtaining sexual gratification" are inserted, based on the above argument expressing the need for a narrower definition of the offence to prevent undue hardship. This wording has been chosen since it does not provide the same degree of difficulty in proof as would be required if the inserted text was based on the objective of the section stated by the Law Reform Commission.
The recommended amendment makes it clear that the section is aimed at criminalizing those acts where adults obtain sexual gratification from performing sexual acts in front of children, acts which are deemed to deviate from normative sexual behaviour. Such criminalisation should be seen in a framework where the Bill is aimed at providing additional protection to children.
After comments on the Law Reform Commission’s Discussion Paper, the Commission replaced the words "in the presence of" and with the words "within the view of". This suggestion was made after various submissions noted that the initial words were too widely framed. We submit that, if the section has any purpose, surely both activities within the view of a child and within the presence of such child and of which the child is aware, should be dealt with similarly. We accordingly submit, as per our recommended amendment, that the Bill reverts to the initial phrase "in the presence of" with the added proviso that the offender knew or believed that the child was aware, or intended that such child should be aware that he or she is engaging in an indecent act or an act which causes penetration.
SECTION 9 OF THE CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL
Section 9 currently reads:
In terms of section 9(1), the commission by any person of any consensual act of penetration with a child between the age of 12 and 16 years is an offence, with the only defence being that such child had been deceptive about his or her age in terms of section 9(2). Under the Sexual Offences Act, consensual intercourse with a minor under the age of consent is currently prohibited in terms of section 14(1) of the Act. Section 9(1) of the Bill extends this prohibition to any act of penetration and is gender neutral.
Snyman raises the following problems with the offence as it is stated in section 14(1) of the Sexual Offences Act and the defences provided therefore in section 14(2):
Cossins traces the history of these defences and points out that, at the time of enactment of such provisions "sexual behaviour with female children" was a widespread and "socially acceptable masculine sexual practice." It is this pervasiveness, that eventually caused a strong outcry for law reform which would criminalise sexual acts against children and raise the age of consent. As Cossins explains, such legal reforms usually had provisos guarding against the "unreliability of children’s evidence and the possible malice of female complainants." According to this argument young women were the seducers who "tempted men into vice" and from whose complaints young men had to be protected.
The Sexual Offences Bill addresses some of the concerns posed by legislative history: sections are gender neutral, all forms of coercive acts are criminalized with little scope for defences to be raised and the more discriminatory sections of the Act has been removed. The remaining defences which have been included in section 9 of the Bill, relate to knowledge of the woman’s age and close proximity between the age of the victim and the perpetrator.
We welcome the fact that ‘young men’ can no longer use various defences when performing sexual acts on children below the age of consent. One defence created by section 9 is that the perpetrator believed or was led to believe that the victim was over 16 years of age. As mentioned earlier, this defence has a more patriarchal origin and was based on the belief that women lure men into sex by pretending to be older. To prevent a situation where a perpetrator takes advantage of such a defence and attacks the credibility of the complainant, section 9 added the proviso to this defence that the accused had to also reasonably believe that the child was over 16 years. An objective test should apply to determine reasonableness in this case.
We question the decision to limit the defence that the offender is under 16 years of age in terms of section 9(5) to an accused who committed a consensual indecent act with a child under 16 years of age in terms of section 9(4), provided that the age of such accused did not exceed that of the child by more than 3 years. This defence was originally available in the Sexual Offences Bill to an accused who committed an act of penetration, but it was removed from later versions of the Bill. We submit that this defence should be re-inserted in section 9(2) of the Bill. If the rationale for providing a defence to an accused under 16 years of age, is to avoid criminalisation of non-coercive teenage experimentation, then there appears to be no reason for excluding such defence from section 9(2).
From a social point of view, such an amendment would not necessarily reflect the patriarchal attitudes that prevailed in previous centuries. The key issue is that of consent. Magistrates, prosecutors and social workers would decide to what extent the defence is an excuse for sexually aggressive behaviour or a valid defence to avoid criminalizing harmless sex-play.
With reference to Part 1 of this submission, there is a clear distinction between what is considered normal sexual behaviour and what is sexually aggressive. When defining ‘normal’ sexual behaviour, it is not always easy to apply universal factors by stating, for example, that ‘normal sexual behaviour’ for a child under 16 includes engaging in an indecent act but excludes sexual intercourse. Such an approach would ignore the myriad of factors which cause children to be sexually active from an early age. In this context it would not be in the best interests of a ‘victim’ or ‘perpetrator’ to refuse a defence where both are under 16 years and engaged in a consensual act which causes penetration. Such an approach would have the effect of criminalizing what was in fact normal sexual behaviour for such youths. Even where the behaviour of one child in the consensual act can be described as sexually reactive or sexually extensive behaviour as indicated above, the factors which caused the shift from normal sexual behaviour will not be addressed through criminalizing the consensual actions of such child, if anything it would serve to exacerbated the situation and isolate the child further.
The wording in the new section 9(1) makes it very difficult to identify the victim in a case where there is a consensual act of penetration and both parties are under 16 years of age. This issue goes to the crux of the criticism of section 9. If the rationale of section 9 is to afford protection to young people who are at risk of sexual exploitation, this should be explicitly stated. As the section currently stands, youth who commit consensual acts of penetration, face the wrath of the criminal justice system despite the absence of sexual exploitation. This situation is exacerbated by the fact that one of these parties will be presumed innocent and a passive participant in the act, whilst the other will face prosecution. If the act is consensual, how does one determine guilt amongst youth of the same age without resorting to the entrenched gender stereotypes which the law reform process has tried to move away from? Whilst the insertion of a similar defence to that in section 9(5) will provide recourse to the accused, such defence will only be available at a stage of the proceedings where the rights of the accused have already been violated due to an arbitrary allocation of guilt where a consensual act of penetration or an indecent act has been committed.
Based on the above concerns we submit that the defence which applies to offenders under the age of 16 years, currently only included in section 9(5)(a) and (b), should be re-inserted in section 9(2) of the Bill as well.
Section 9 creates the unfortunate situation where youth who commit consensual acts of penetration or indecent acts can be prosecuted. Snyman is correct in pointing out that such a legal provision is an inappropriate way of addressing early sexual experimentation by children. In a country where we are battling to deal with HIV/AIDS, legislation that would silence children from talking about sex to avoid criminalisation could exacerbate the problem even further.
Whilst we endorse the creation of section 9 as an attempt to criminalise adults who engage in acts of penetration or indecent acts with children, it is submitted that section 9 should be reformulated to protect children from sexual exploitation without opening children up to criminal sanction.