Submission to the Portfolio Committee on Justice and Constitutional Development
Criminal Law (Sexual Offences) Amendment Bill
Idasa welcomes the introduction of the Criminal Law (Sexual Offences) Bill (hereafter referred to as the Sexual Offences Bill) and commends the Department of Justice and Constitutional Development for its continued commitment to fight against the violence and sexual abuse of woman and children.
The Department has demonstrated this commitment in a number of ways, some of which are;
The Sexual Offences Bill comes at a time in our country when sexual violence particularly against woman, children and other vulnerable members of our society is unacceptably high. According to the South African Police Service statistics, this country experiences 51,249 incidences of sexual violence of which 40% is against children under the age of 12. In 1999 the South African Law Commission estimated that South Africa experienced more than 1.6 million incidents of rape per year.
Between October and December 2002 the Gauteng police recorded a 30% increase in rape of which most of it was of children under 12 whilst Childline KZN noted a 400% increase in rape over the past decade. Most rape cases were found by the Groote Schuur rape clinic to be gang rape.
The sexual assault unit in the Department of Justice noted in 2002 that 50% of all crimes before the courts are rape.
Whether or not one attaches much weight to statistics there clearly is a problem with sexual offences in this country and the problem seems to be on the increase. Currently rape is a relatively safe crime for the perpetrator to commit. This is because the perpetrator knows how difficult it is for the victim to obtain a conviction. Add this with a fear of reprisal, fear of disbelief by family, friends and the authorities, the powerlessness, loss of control, shame and guilt experienced by the survivor and the perpetrator is almost guaranteed to get away with it.
The Sexual Offences Bill attempts to address a lot of the stumbling block that made conviction of the perpetrator difficult. The bill among other things extends the definition and parameters of rape to include oral and anal penetration. The definition is now extended to include men as possible victims of rape. It also criminalises the non-disclosure of a life threatening sexually transmitted disease, whether or not the parties consented to having sex. The bill also included guidelines to be considered in the application of the Bill.
The bill is well drafted and has made major strides to make conviction of perpetrators of sexual violence easier and to protect the survivour in the process. However, we feel that certain issues in the bill need revisiting and these are highlighted below.
The Bill aims to protect the vulnerable people in society from sexual violence and makes specific reference to children and persons with mental impairment. However, no mention is made in the Bill of the aged. The Aged are a vulnerable part of the South African population. Often they are frail, physically weak and experience memory loss and consequently are susceptible to abuse including sexual violence. We feel that it is important to make express provisions in the bill for sexual violation of the aged.
Rape is a physical, emotional and moral violation of a person associated with the closest human intimacy of sexual contact. The intention of the rapist among other things is to profane this most private aspect of the person and render the victim utterly helpless, humiliated and intimidated. This is what causes trauma in the rape survivour coupled with the fear of reporting the crime and the myths and stereotypes of rape.
In the event that a survivor reports the case, they are often exposed to the police, district surgeons, lawyers and court officials who in many occasions are be cold, unsympathetic, impersonal, bureaucratic, paternalistic or overly solicitous. Because of this, many rape surviours suffer secondary trauma and do not report the case to prevent secondary trauma. They would rather not enter the criminal justice system than to be subjected to further trauma and victimization.
It is for this reason that we commend the inclusion of schedule 1 in the bill, which sets out the Guiding principles to be considered in the application of this Act and the adjudication of sexual offences generally". These guiding principles are important because they formulate both the substantive and procedural law with regards to sexual offences. They speak to the treatment of rape survivours, which will minimise secondary trauma. However it is problematic that these provisions are placed in a schedule rather than as suggested by the South African Law Commission.
Although section 1 (2) makes a cross-reference to the schedule we feel that it is important to put the guiding principle in the act rather that make reference to the schedule.
Placing them in a schedule gives the impression that they are an after though rather than to set the spirit and objective of the Act as they are supposed to. The guiding principles give an overview of how rape survivours should be treated and further give a foundation of how sexual offences should be approached. Therefore, it is important that they be included at the beginning of the legislation rather than the end. In most cases when people interrogate a Bill particularly people whose legal knowledge is limited they do not look at the schedule and may therefore miss an important part of the bill.
It is not unprecedented to have such guiding principles forming the object of the act. A recent trend in Acts of parliament is to set out explicitly the objects of the Act in the first section thereof. There are several examples of such acts including those that incorporate guiding principles in the act itself.
Furthermore the legal strength of a schedule on interpretation of the statute is not always the same as the provisions of the Bill. The courts when attempting to find the intention of the legislature in the words of a statute have a ranking order in the event of conflict between the different parts of the enactment. Where there is apparent conflict between different provisions of the same act this must be resolved by means of harmonization.
Although schedules are treated as part of the act and should be consulted when reading the Act, in the event of conflict between a schedule and a provision of the act the latter will prevail. This illustrates that the schedules do not always carry the same weight as the provisions of the Act. It is for these reasons illustrated above that we recommend that the guiding principles be added to the core of the Bill as "Object of the Act".
The South African Law Commission (SALC) in its Sexual Offences Report noted that South Africa had no clear strategy for inclusively dealing with child and adult victims of sexual offences, either on a primary preventative level or on a secondary protective level. There is therefore no guarantee that the victims entering the criminal justice system will be dealt with in terms of acceptable procedure or be protected from further harm. The commission went to recommend that a national strategy for multi-disciplinary intervention relating to sexual offences should be agreed upon by incumbent government department and NGO’s working in the field of sexual offences in partnership with civil society.
These proposal were widely accepted during the consultation phase of the report and this suggestion was incorporated in the SALC’s draft Sexual Offences Bill and has been included in section 25 of the Sexual Offences Bill before parliament.
Section 25 states that the Minister of Justice and Constitutional Development in consultation with the Ministers of Safety and Security, Correctional Services, Social Development and Health may make regulations regarding –
It seems odd therefore that the ministry of education should be excluded from this list in section 25. This is of particular concern because of the high incident of rape among children in this country as well as the problem of sexual abuse, which is experienced in our schools.
A report released by Human Rights Watch in 2001 suggests that girls in South Africa are often exposed to sexual violence at school. They encounter all sorts of sexual abuse at school by other learners and by the teachers, in toilets, empty classrooms and hallways. This type of abuse results in emotional and behavioural disorder, diminishes school performance, sometimes results in unwanted pregnancy and puts the pupil at risk of sexually transmitted infections. HRW suggested that to end sexual violence in schools would require a commitment from the department of education and every level within the education system.
This problem of sexual abuse of learners does not go unnoticed by the department of education. On the 24th June 2003, Ms Palesa Tyobeka from the department of education made a presentation to the portfolio committees on Education and Social Development on the sexual abuse of Learners. This report found the incidence of sexual abuse to be unacceptably high and indicates ways to deal with this issue.
The department of education has for some time been making attempts within the education sector to prevent sexual abuse.
In light of the above it is surprising that the ministry of education which is battling with the problem of sexual violence would be excluded from being involved in promoting the objects of this act. The ministry also has an advantage that it deals with children in their formative years and can play a significant role in shaping their views about sexual violence. We therefore recommend that the Minister of Education be included in section 25.
The Sexual Offences Bill before us has removed a lot of the clauses, which pertain to survivour involving cost to the state.
The SALC’s Draft of the Sexual Offences Bill had included:
While it is understandable that the efficacy of any legislation is dependent on its effective implementation and that cost plays a vital part in implementation of any legislation, we are however concerned that provisions which help facilitate the survivours recovery and reduce further trauma have been removed.
It is of grave concern when the cost of implementing legislation justifies the removal of provisions, which would make a substantial difference in addressing the handling sexual offences. Although the current bill is a great improvement to the existing laws on sexual offences, it does not go far enough to protect the survivors of rape and to minimise trauma from HIV infection, unwanted pregnancy and unsympathetic criminal justice system. The provisions, which were removed from the initial draft Bill, would have gone a long way in minimising further trauma to the survivour.
Furthermore the Sexual Offences Bill makes provision for the state-sponsored treatment and rehabilitation of sexual offenders. Surely there should be a balance between the rights of the victim and those of the offender.
In South Africa there is a notion that the offender’s right are better protected than the victims rights and there is growing support for the idea that victims of crime should be compensated by the state, or receive restitution from offenders. This is drawn from international practise where, state compensation rests on the premise that since the state is obliged to maintain law and order, and crime results from the state's failure to fulfil this duty, the state is liable for compensation.
5. Mentally impaired persons
Mental impairment affects the person’s mental capacity to act and when they act in a particular way, it is doubtful whether they can appreciate the nature of their conduct.
There are five ways in which a person’s mental condition may affect his responsibility for his conduct. First he may perform a prohibited act in a state of impaired consciousness due to some mental condition or internal cause. Secondly he may be conscious and perform willed movements but due to his mental condition he may not know and understand what he is doing. Thirdly he may be able to understand what he is doing but due to his mental condition he may not know that it is wrong. Fourthly he may know that what he is doing is wrong but due to his mental condition he may not be able to control what he is doing. Fifthly he may know and understand what he is doing but due to his mental condition he may believe that it is appropriate.
It is for these reasons that a mentally ill person cannot sign a will regardless of his/her age. In order to make a valid will a mentally impaired person has to be assisted by a curator bonis. A will signed without a curator bonis will be invalid even if the drafter of the will believed that the person was not so mentally impaired.
Section 7 of the Sexual Offences Bill provides a defense for an indecent acts or acts which cause penetration with certain mentally impaired persons.
The section provides that it is a defense to a charge of an indecent act or an act, which causes penetration with a person who, is mentally impaired if –
We are concerned that mentally impaired persons will be susceptible to abuse and the offender may in defence say that a mentally impaired person induced the act and that the offender did not know that the person was mentally impaired. In court it will be the word of the accused against that of a person who cannot competently and fairly make their case in a court of law. This is because in many instances mentally ill persons are, by the very nature of their impairment, incapable of appreciating the nature of their actions regardless of their age. This raises the second constitutional issue.
Clause 7 (a) provides that the defence is applicable if the person is over the age of 18 years. I believe that this is unfair discrimination in terms of section 9 (3) of the constitution. The discrimination is unfair because the bill discriminates between mentally persons who are above the age of 18 and those below 18 years. As the bill stands a mentally ill person under 18 years of age may have induced an indecent act or acts that lead to penetration and the accused will be charged with rape. But if the complaint is above that age of 18 years the opposite is true.
The legislature should provide a basis (preferable scientific) for the assumption that an otherwise mentally impaired person who is above the age of 18 years deserves to be treated differently from those below the age of 18 years. The lack of such a basis cannot be justified in terms of section 36 of the constitution. As the clause stands it flies in particular at the face of the equality provision of our constitution and therefore unconstitutional.
Section 9 of the Sexual Offence makes provision that a person who commits acts which cause penetration or indecent acts with children who are above 12 years old but younger than 16, with their consent is nevertheless guilty of an offence unless they can raise a defence.
The defence does not apply where the accused is related to the child within the prohibited incest degrees of blood or affinity or where the child lacked the intellectual development to appreciate the nature of an act of sexual penetration.
We feel that the defence should also not apply where the accused is the person under whose care the child was at the time of commission of the offence. This will cover situation where the abuser is a schoolteacher or a Sunday school teacher. In the country there has been a high incident where children were abused in places like church, school and even by community members who were asked by parents to look after their children it is important to protect children from person in these positions who can abuse their authority.
The premise is that these people should know the age of the child and therefore could not have reasonably believed that the child was over the age of 16 hence the possibility of them relying on the provisions of subsection 9 (2) should not even be contemplated. A Sunday school teacher for example who instructs children between the ages of 12 and 16, should not have the defence that they reasonably believed that the child was over 16 years.
Whether the care is temporary or ad hoc should be immaterial and the constitutional mandate to protect the interest of the child should be of paramount importance in every matter concerning the child.
The defence available to the offender in this section also does not apply where child lacked intellectual development to appreciate the nature of the act. We feel that the courts should be guided of what should be taking into consideration when establishing the intellectual development of a child. Therefore the legislature should define this or at least specify what should guide the court.
Snyman CR in his Criminal Law textbook 3rd edition on page 120 writes that in looking at the intellectual development of the child "Factors such as the child’s intelligence, experience in life, general standard of education and social background must be taken into account."
We appreciate the opportunity to make a submission on this bill and again commend the department for the effort and continued commitment to the fight against abuse of woman and children. We also recognise that although it is governments’ responsibility to ensure the safety of the country’s citizens, government can not do it alone and that civil society should play an active role in this regard.
We hope that the comments made in this submission will be considered in the good spirit in which they are intended.
For comments contact:
Nokukhanya (Nox) Ntuli or Pumzo Mbana at Idasa