National Association of Democratic Lawyers

Human Rights Research and Advocacy Project

Submission on the Sexual Offences Bill

Introduction

Thank you for giving us the opportunity to make a submission on the Sexual Offences Bill (B50-2003).

The NADEL Human Rights Research and Advocacy Project is a non-governmental human rights organisation committed to the promotion of a human rights culture in South Africa through its research, education and training, advocacy, lobbying and monitoring activities. The main areas of our research are gender discrimination and inequality, access to justice and socio-economic rights.

We will begin by stating that in principle we commend the Department of Justice and Constitutional Development for the Bill as it attempts to reform existing sexual offences legislation and to provide a comprehensive legal framework within which sexual offences in all its various forms can be adequately prosecuted and dealt with. Furthermore, we would like to commend the efforts to broaden the definitions of what constitutes a sexual offence; to provide a wider spectrum of rights to the victims/survivors of sexual offences; to allow for victims of, and witnesses in, sexual offences cases to access protective measures; as well as for attempting to minimise the possibility of secondary victimisation within the criminal justice system. It is within that context that we welcome and support the stated purpose of the Bill to afford complainants of sexual offences the maximum and least traumatising protection that the law can provide.

Acknowledging that incidences of sexual violence and abuse, including rape, are continually on the increase, we are especially concerned by the fact that a disturbingly high percentage of these incidences are committed against children. We also take cognisance that current legislation fails to provide adequate protection for victims/survivors of sexual offences in all its various forms. Thus, current sexual offences legislation not only impedes the prosecution of perpetrators, but also subjects sexual offences victims/survivors to secondary victimisation, subsequently discouraging them from coming forward, laying a charge and breaking the cycle of sexual abuse and violence.

Section 2: Definition of Rape

We commend the broad and comprehensive definition of rape. We especially commend the fact that the Bill’s rape definition is moving away from the narrow understanding currently applied stating that penetration of the vagina has to occur in, or part of, a sexual offence for it to be prosecutable as rape. We support the inclusion of unlawful penetration of the anus into the scope of rape as it acknowledges rape in all its forms, including male rape. Furthermore, we commend the inclusion of the false pretences or fraudulent means clause (Section 2(2)(b)) as part of the definition of actions that constitute rape.

We do, however, strongly feel that making the non-disclosure of one's infection with a life-threatening sexually transmissible disease, including one's HIV status, tantamount to rape is inappropriate. The Bill declares in Section 2(4)(c) that such non-disclosure would amount to committing an act that causes penetration under false pretence or fraudulent means and hence, would constitute rape. The Bill states that false pretences or fraudulent means include circumstances where a person

…intentionally fails to disclose to the person in respect of whom an act which causes penetration is being committed, that he or she is infected by a life-threatening sexually transmissible infection in circumstances in which there is a significant risk of transmission of such infection to that person.

Notwithstanding the significance of the full implication of the failure to disclose, we strongly contend that the inclusion of non-disclosure in this context distorts the otherwise succinct definition of what constitutes an act of rape. We are of the conviction that the failure to disclose the fact that one is infected with a life-threatening sexually transmissible disease cannot be equated to the other acts defined within the Bill as acts of false pretences or fraudulent means, hence the offence of rape.

Taking cognisance of the need to make the withholding of one’s infection with a life-threatening sexually transmissible disease a criminal offence, such non-disclosure has to be subject to criminal sanctions. Especially considering that the widespread occurrence of sexual activities is compounded by deliberate exposure to HIV/AIDS the inclusion of intentionally non-disclosure of one’s infection with a life-threatening sexually transmissible disease as a criminal offence becomes imperative.

We strongly recommend that the non-disclosure of one's life-threatening sexually transmissible infection not be regarded as an act of rape under the false pretences or fraudulent means clause. Acknowledging the need to criminalize intentional non-disclosure, we strongly believe that the inclusion of such behaviour in the offence of rape does not only strongly undermine the seriousness and severity of rape as a sexual offence, but also subsequently, minimises the adequate protection of rape victims/survivors, as well as the prosecution of rape offenders.

We, therefore, further recommend that the non-disclosure of one’s infection of a life-threatening sexually transmissible disease needs to be prosecuted, but as a separate offence specifically criminalizing such behaviour and not as an act constituting rape. Thus, we believe a separate offence should be created and included in sexual offences legislation in order to allow for the prosecution of intentional non-disclosure.

Section 11: Child Prostitution

We commend the broadening of the scope of child prostitution, in that it provides not only for the prosecution of anyone who commits an indecent act or an act which causes penetration with a child, but also allows for the prosecution of a variety of related activities, including trafficking related activities, leading to children being subjected to sexual offences. We also welcome the inclusion of the offence of benefiting from child prostitution (Section 11(2)), the offence of living from the earning of child prostitution (Section 11(3)), as well as the offence of promoting child sex tours (Section 11(4)).

We are, however, concerned about the exclusion of the offence of failure to report knowledge of child prostitution proposed by the South African Law Commission’s (SALC) Report and Draft Bill (December 2002). We strongly believe, that in order to provide maximum and all encompassing protection to children who are prostituted, mandatory reporting and a legal obligation to report knowledge of child prostitution, as proposed by the SALC, has to be included in Section 11 of the Bill.

Considering that the failure to place a legal obligation to report the knowledge of child prostitution is potentially perpetuating the prostitution of children, we strongly recommend that the failure to report such knowledge be made an offence within the scope of the sexual offences legislation.

Section 15: Vulnerable witnesses

We commend the establishment of the 'vulnerable witness' category seeking to facilitate access to special measures for victims of sexual offences, for children who have witnessed the offence, and for any other witnesses, other than the accused, who may be declared a vulnerable witness by the court in an attempt to reduce the trauma and victimisation commonly occurring during the proceedings.

Section 15 distinguishes between witnesses who must be declared vulnerable witnesses, in that they are either the victim/survivor of a sexual offence or are a child who witnessed the offence (Section 13(1)), and witnesses who may be declared vulnerable witnesses (Section 15(2)).

Section 15(2) allows for the protection of witnesses in sexual offence cases other than the 'victim' and children who witnessed the offence. If the court is of the opinion that a witness is likely to be vulnerable on account of a variety factors, including age (15(2)(a)), trauma (15(2)(c)), cultural differences (15(2)(d)) and the possibility of intimidation (15(2)(e).

While this clause would facilitate the access to special protective measures to, for instance, the parents or family members of child victims of sexual offences, it would, however, also allow defence witnesses to be declared vulnerable. The failure to define categories, such as cultural differences and how they may impact on a person's vulnerability, clearly allows room for abuse. The age category needs to be more defined stating clearly the circumstances under which age becomes a criterion for vulnerability. If, however, this category is meant to provide protection for child witnesses other than the ones who witnessed the offence and are protected under Section 15(1), then it should be stated as such. Similarly, the trauma category needs to be specific identifying clearly if it is the trauma that was caused as a direct result of the offence or the trauma that is likely to be caused during the trial that would enable a witness to be declared vulnerable.

We, therefore, strongly recommend clear definitions of the categories describing the eligibility criteria to be declared a vulnerable witness. We believe, this would minimise the possible abuse subsequently impeding on the adequate prosecution of offenders, as well as maximise the benefit of the protective measures available to vulnerable witnesses, such as reducing secondary victimisation.

It is within the context of providing access to protective measures to victims/survivors of, and witnesses to, sexual offences, that the exclusion of the clause ‘appointment of support persons’, as proposed by the SALC, is of great concern. Premised on the understanding that support persons would greatly impact and potentially decrease the stress/trauma associated with testifying in sexual offences cases, we strongly believe that support persons are imperative, especially in light of the stated purpose of the Bill.

Section 18: Application of caution and requirement for corroboration

We strongly support this section in that it prevents treating evidence with caution and calling for corroboration of evidence solely on the grounds that it is the evidence of a victim of a sexual offence or a child’s testimony.

Currently, the common practice in sexual offences cases is to treat the testimony of complainants and children with caution. Since in reality, most victims are female, the court is thus assuming that women, based on their gender and sex, are unreliable witnesses and are more likely to misrepresent the truth. As a result of this current practice, the testimony of a victim of a sexual offence can be disregarded by virtue of the assumption that the complainant is unreliable and is to be treated with caution.

It can be argued that the current application of the cautionary rule in sexual offences cases is unconstitutional, since it violates the right to equality, as well as the right not to be discriminated against. If and when the cautionary rule is applied, victims of sexual offences, who are in the majority of cases female, are discriminated against on the grounds of gender and sex. In addition, it violates women's right to be treated equally before the law.

We, therefore, agree that the cautionary rule and calling for corroboration of evidence is not to be applied in respect of the testimony of victims of sexual offences or children’s testimony, especially since the limitation or exclusion of women's and children's participation in sexual offences proceedings based on their gender, sex and age constitutes a violation of their constitutionally guaranteed rights.

It is our strong belief, that the trauma of the crime and the subsequent trial notwithstanding, it is imperative that women and children are given the opportunity to speak for themselves as and when it becomes necessary and that their testimony as witnesses to the sexual offence be treated equal to all other testimonies heard during the proceedings. We further believe that the access to special protective measures for victims of sexual offences and children carries the potential to reduce the trauma and further victimisation during the legal proceedings.

Section 19: Drug and alcohol treatment orders

We welcome the inclusion of possible treatment pertaining to alcohol and drug abuse to offenders of sexual offences. However, in light of the right to equal protection and benefit of the law, we are deeply concerned that the Bill fails to afford any treatment to victims/survivors of sexual offences. We believe that this is a clear reflection of not only prioritising the offenders’ need for treatment over the one of victims/survivors, but also discriminating against the victims/survivors.

Giving due recognition to the need to provide treatment to offenders, we strongly recommend that the needs of victims/survivors of sexual offences for treatment be given the same recognition. Thus, we are of the conviction that the provision of treatment, including counselling, be as an integral part of sexual offences legislation as the provision of treatment to the offender and that the cost of such treatment be covered by the State.

We, therefore, recommend that the provision of treatment, as proposed by the SALC’s Draft Bill, be included in the scope of the sexual offences legislation affording equal rights to treatment to both the victim/survivor and offender of sexual offences.

 

Schedule 1: Guiding Principles

We welcome the inclusion of Guiding Principles to be considered in the application of the proposed sexual offences legislation, as it outlines the sentiment in which sexual offences legislation is to be applied and implemented.

We are, however, concerned that the Guiding Principles have been included at the end of the legislation, as a Schedule, suggesting that the Guiding Principles are not a core element of the Bill. Furthermore, the wording and language of the Guiding Principles are a matter of great concern, in that the outlined principles seem to be more suggestive in nature and optional in adherence to it, than a matter of principle. Subsequently, the guiding principles imply the discretionary application of these principles and, hence, discretion as to the extent to which the rights of victims and offenders are to be upheld.

Principles such as complainants should not be discriminated against… (Principle (a)), complainants should be treated with dignity and respect’ (Principle (b)), and complainants should have the right to confidentiality and privacy…’ (Principle (g)) are only a few of the outlined principles suggesting that upholding constitutionally guaranteed rights to equality and non-discrimination (Constitution, Section 9), to have ones dignity protected and respected (Constitution, Section 10) and to privacy (Constitution, Section 14) are not as imperative in sexual offences proceedings. Considering that upholding these rights are imperative to a fair trial and to the protection of the rights of victims/survivors and offenders, we strongly believe that the suggestive nature of the Guiding Principles are unacceptable.

While we commend the inclusion of ongoing training and an appropriate selection and screening process of all involved in the management of sexual offences cases as one of the Guiding Principles (Principle (n)), we are, once again, concerned about the language and the suggestive nature of this principle. We believe, that in order to ensure the adequate implementation and application of sexual offences legislation and related policies, the continuous training, as well as adequate selection and screening processes of all professionals and role-players involved in the management of sexual offences cases are imperative and, thus, not a matter of ‘should’, as formulated in the Bill.

We, therefore, recommend that the Guiding Principles be rewritten, the language be strengthened and made binding and the suggestive nature of the principles be removed, so as to ensure the maximum protection of these rights, as well as adequate application of the provisions within the sexual offences legislation. Taking cognisance of the country’s constitutional and human rights framework, we are under strong conviction that complainants are to be treated with dignity and respect, and are not be discriminated against, and not, as formulated in the Bill, should be treated with dignity and respect, and should not be discriminated against.

We further recommend that the Guiding Principles be moved and inserted in the beginning of the Bill, so as to reflect that the principles are in fact a core element of the application of the sexual offences legislation. This would also give meaning to, and be in adherence with, the stated purpose of the Bill of affording complainants of sexual offences the maximum and least traumatising protection.

Evidence of character and previous sexual history (Amendment to Section 227 of Criminal Procedure Act)

The Bill’s attempt to afford protection to the complainant in a sexual offences case from further victimisation, through limiting the admissibility of evidence relating to the complainant's prior sexual experiences, is commendable.

However, as can be argued, the very fact of the possibility of the victim's prior sexual history being admissible as evidence suggests that there are circumstances within which rape, as one of the sexual offences, would be 'acceptable, 'justifiable' or less of a crime. This implies further that the victim's prior sexual behaviour before the rape has bearing on the occurrence of the rape. We are of the strong conviction that such an implication is not only unacceptable, it also minimises the seriousness of rape as a criminal offence suggesting that the right to be free from all forms of violence and abuse might be limitable for the victims of such abuse based on her or his prior sexual behaviour.

With regard to child rape and sexual abuse of children this is especially unacceptable. Whether or not a minor is sexually active prior to being raped is totally irrelevant to the fact of child rape. We strongly believe that the prior sexual history rape of a victim/survivor, as well as a victim/survivor of other sexual offences, can never be relevant in a sexual offences case and should, therefore, be inadmissible under all circumstances.

Limiting the criteria for the admissibility of such evidence, as provided for in the Bill’s proposed Amendment of Section 227 of the Criminal Procedures Act (No 51 of 1977) gives recognition to the fact that prior sexual history allowed as evidence in sexual offences cases is, in practice, often used to establish the complainant's promiscuity leading to the misconception and feeding into prevailing beliefs that the victim 'asked for it' or 'deserved it' due to prior behaviour. It also leads to the misconception that a female sex worker cannot possibly be raped simply by virtue of being a sex worker.

It is a known fact that any discretion given to the court in deciding whether or not evidence relating to the complainant's prior sexual history is relevant opens the possibility for prejudice and further victimisation of the complainant, as well as minimising the gravity of the offence. It can be argued that allowing such evidence, by virtue of the kind of evidence it is, is prejudicial to the victim. It is discriminatory and violates the victim's right to dignity and privacy, as well as the right to be protected from all forms of violence and abuse.

Due to the fact that the majority of victims of sexual offences are female, a court's discretionary decision to allow women's prior sexual history as evidence is not only prejudicial, but also discriminatory. Especially since this entertains prevailing societal myths, attitudes and prejudices that women who are promiscuous are somehow responsible for the offence being committed against them through their behaviour.

We, therefore, strongly recommend that the prior sexual history of the complainant in a sexual offences case be inadmissible under all circumstances based on the conviction that such evidence cannot be relevant in sexual offences cases.

Conclusion

We would like, once again, to commend the Committee for its efforts to provide a comprehensive Bill that attempts to adequately deal with all forms of sexual offences.

Furthermore, it is our sincere hope that the recommendations we have made towards the Sexual Offences Bill will not only prove useful, but that they be carried forward and given due consideration. Our recommendations, though not exhaustive, are intended to extend the full recognition and protection of the rights of victims of abuse. We contend that current legislation is not only failing the victims of sexual abuse and violence, but also fails to protect their constitutionally enshrined right to the full benefit and protection of the law.

We hope that the forthcoming sexual offences legislation will enable better protection and realisation of the rights of victims of sexual abuse and violence.

 

 

 

Dr Johanna Kehler (Director)

Cape Town

15 September 2003