Transformative Human Rights Unit (THRU) and the Southern African Media and Gender Institute (SAMGI)

Submission to the Portfolio Committee on Justice and Constitutional Development on

Criminal Law (Sexual Offences) Amendment Bill, 2003

Prepared by Helen Fernand




The Transformative Human Rights Unit (THRU) and the Southern African Media and Gender Institute (SAMGI) are delighted to be offered the opportunity to submit comments on the draft Criminal Law (Sexual Offences) Amendment Bill, 2003.


THRU/SAMGI welcomes the clear recognition on the part of the drafters of the Bill in conceptualising legislation which goes beyond simply regarding rape and sexual offences as a criminal act. The wider societal ramifications of the harm sexual offences cause have been alluded to in many parts of the draft Bill. In addition, a growing awareness of the particular problems faced by vulnerable members of society has been incorporated, but in such a way that they are empowered and not patronised.

However, we do suggest additions and amendments and would like to press the Committee for the inclusion of the deleted clause relating to the administration of medical treatment to the victim in order to prevent the transmission of disease.


Organisational Backgrounds

Transformative Human Rights Unit (THRU)

THRU is an all female managed and staffed, human rights NGO based in Cape Town. It seeks to advance an ethical approach to human rights, which promotes marginalised communities and inclusive dialogue between diverse groups. It tackles human rights issues in a contextualised, nuanced manner appreciating the varying social, economic and institutional pressures which affect individuals’ empowerment with respect to the protection and advancement of their human rights.

The Board consists of Professor Narnia Bohler-Muller, Head of Private Law at Vista University, Professor Karin van Marle, of the Department of Philosophy and Legal History at the University of Pretoria, Melissa Steyn, Director of the Institute for Intercultural and Diversity Studies of the Graduate School of Humanities, University of Cape Town, Lynne Abrahams, Researcher with the National Council of Provinces and Collette Herzenberg, Senior Researcher with IDASA Cape Town. The Projects Manager, Helen Fernand, is a human rights lawyer having read law at the Universities of Glasgow, Erasmus Rotterdam and Stellenbosch.


Southern African Media and Gender Institute

SAMGI’s Vision is of a Southern African region whose media is free of racism, classism, sexism, homophobia and xenophobia. We believe women and men should become critical consumers of media and can play an active and representative role regardless of their position in society.

SAMGI’s Mission is to fulfill its vision by collectively working towards a society wherein all citizens are able to engage with policy makers, intellectuals, decision makers and media practitioners to bring about a media that is free of gender bias.

We are involved with projects in our four primary functions: 

Clauses 2, 3 and 4 - Category of Offences

THRU/SAMGI supports the categorisation of the offences into three parts namely:

This stance is in no way intended to diminish the seriousness of sexual assault which does not involve penetration of the genitals by the genitals of another. However, the categorisations appear sensible.


Clause 2 - Rape

THRU/SAMGI fully supports the removal of "consent" within the definition of rape.

THRU would like to propose an amendment to clause 2. The proposed amendment reads:


(4)(d) abuses their power or authority over a

(i) child under the age of 16 years;

(ii) person with a mental impairment; or

(iii) other person deemed by a court to be rightly regarded as an otherwise vulnerable person, having taken all relevant circumstances into account;

to secure the submission of that child, person with a mental impairment or other vulnerable person to an act of sexual penetration.


This amendment was prompted by the recently reported judgement of Acting Judge Treurnicht in the Cape High Court who ruled that a woman and her husband had not conspired to commit and then committed rape against her 13 year old sister and friend as the children had understood the nature of the act they were embarking upon and the consequences thereof. Taken advantage of the woman’s nine year old sister in a similar way only became rape because a nine year old cannot consent to sexual intercourse. This judgement shows the complete inability of the common law to remain abreast of research and a deeper understanding of the modus operandi of paedophiles. The children in this case had their naivety and lack of knowledge or sexual awareness exposed by the fact that they believed the couple’s barrenness would be "cured" if the husband had sexual intercourse with children.

However, the Amendment is also proposed in order to halt the continuance of a situation where women abused by their doctors, for example, are deemed to have consented to the assault. There has, of course, always been an enigma in the law with regard to rape survivors who were to be simultaneously "chaste" yet women-of-the-world able to spot and fend off all sexual predators. It matters not whether this (in all senses) man-made law consciously or unconsciously built into itself a protectionism that perpetuated duplicitous conduct with relation to sexual encounters.


The fact remains women are vulnerable to sexual predatory behaviour which abuses the trust they place in, for example, medical practioners. Women consenting to medical/medicinal/surgical procedures are then abused by the law for their lack of medical knowledge. The law refuses to dichotomise woman’s " informed consent" over medical procedures and "consent" to partake in a sexual act. The criminal law must come to realise that when one undergoes a cervical smear test one is not consenting to the gynaecologist obtaining a sexual thrill. The consent obtained by medical practioner is to the extent that one is giving what must be "informed consent" to a medical act which incurs the insertion of an instrument or part of another’s body into one’s vagina.


For some reason, the largely male pronounced law on this subject regards that when a woman consents to the violation of the integrity of her vagina for a particular reason, she must be regarded as having consented to the violation of her vagina for whatever reason the perpetrator has in mind. To deny her a right to regard herself as having been raped in these circumstances is unethical.

Clause 9 of the Bill, purporting to deal with the commission of sexual acts with the consent of children reflects the decision of this case as the sentence stated is substantially lower than what would be given to someone convicted under clause 2. Therefore, children would remain unprotected by the law from paedophiles.


Clause 8 - In view of a Child

We are concerned by this clause as it has been conceptualised within a very middle-class paradigm. The purpose of the law is surely not to insulate children from the reality that sexual behaviour exists. This would be self-defeating given that sexual abuse and exploitation flourishes in environments where people are sexually naïve. Also the Bill ignores the fact that many families live in over crowded homes, and so ensuring that all sexual activity occurs in another room, for example, is impossible to achieve. The purpose of the Bill is to prevent children from sustaining harm from sexual abuse. Therefore, we think this clause must be substantially redrafted.


Clause 10 – Promotion of Sexual Offence with a Child

We are very concerned that contextualising, informed discussion or educational measures could be criminalized by this Bill. We suggest an amendment to the Bill to ensure that a more enlightened approach to sexual education is not stifled.


10. (1) Any person who—
(a) manufactures or distributes an article that promotes or is intended to promote a sexual offence with a child; or
(b) who supplies or displays to a child an article which is intended to be used in the performance of a sexual act with the intention to encourage or enable that child to perform such sexual act,
is guilty of the offence of promoting a sexual offence with a child and liable, upon conviction, to a fine or to imprisonment for a period not exceeding six years or to both such fine and such imprisonment.

(2) Nothing in this section should be taken to limit the bone fide provision of responsible sexual education.


Clauses 11 and 12 – Prostitution

We object to the use of the word "prostitution" within these clauses. Firstly, the use of the word creates a negative connotation towards the child or person with a mental impairment. This stands in contrast to the aims of the clauses which appear to be trying to create a protective environment. Secondly, it suggests a limitation as to the scope of the clauses which is actually not borne out by their content, for example, the clauses could just as easily relate to trafficking. Therefore, we suggest the clauses be renamed:


With regard to sub-clauses 11(1)(f) and 12(1)(f), we do not like the seeming strict liability placed upon the owners of property within which alleged sexual exploitation is being conducted. Therefore, an amendment is proposed that the word "knowingly" is inserted between "immovable property" and "used". The clause would then read


(f) owns, leases, rents, manages, occupies or has control of any movable or immovable property knowingly used for purposes of the commission of indecent acts or acts which cause penetration with such child/mentally impaired person by any person;

This would ensure that innocent property owners are not held criminally liable for the actions of others.


Clause 13 - Incest

THRU/SAMGI agree with the amendments to the common law of incest.


Clause 14 – Protective Measures

We are especially pleased to see that a proactive approach is being taken to informing witnesses of special measures available to them to increase their safety and peace of mind. We hope that the important purpose of the clause is taken sufficient notice of by the National Director of Public Prosecutions. This clause is welcomed in that it creates a judicially enforceable duty upon the prosecutor. It would also be hoped that the Courts would uphold claims for damages against the actions of prosecutors failing in their duties.


Clause 15 – Vulnerable Witnesses

We are pleased to support the measures relating to vulnerable witnesses. It must be noted that the designation of a witness a "vulnerable witness" does not impact negatively upon their status. Nor does it extend in some way into their life to suggest that they are unable to cope with demands. Instead, it recognises that giving evidence in court is a particularly unreal experience within which a search for the truth is intended. The measures contained in this clause aim to create an enabling environment for the truth to be reached.


Clause 17 – previous consistent statements or delay in reporting

We are pleased to note that there is clear instruction to the court that an absence of previously consistent statements or a lengthy delay in reporting an incidence of sexual assault or rape may not draw adverse inference. This takes into account modern understandings of rape trauma syndrome and the societal pressures which will keep the victims of sexual abuse silent.

However, the clause does not also take into account the reaction of others around the time an abuse may come to light. For example, the victim’s reluctance to speak is often overcome by aggressive questioning, threats or physical abuse. THRU/SAMGI would like to see an amendment made to the section to allow the judicial officer hearing the trial to protect the integrity of the victim’s testimony when the complaint came to light under coercive circumstances. The amendment must not say that in all cases testimony obtained via intimidation is valid, but equally, the complaint cannot fall if, for example, a family member threatened to beat a child if he or she did not say who had sexually abused them.


Clause 18 – Surrounding circumstances and impact

If the Committee agree with the proposed addition to the meaning of "false pretences and fraudulent means" in clause 2, a further amendment is required under clause 18. THRU/SAMGI proposes the clause now reads:


Evidence of surrounding circumstances and impact of sexual offence
18. Evidence of the surrounding circumstances and impact of any sexual offence upon a complainant may be adduced at criminal proceedings where such offence is tried in order to prove:
(a) whether a sexual offence is likely to have been committed:
(i) towards or in connection with the person concerned;
(ii) under coercive circumstances as referred to in section 2(3);

(iii) Under false pretences or fraudulent means as referred to in section 2(2)(b)
(b) for purposes of imposing an appropriate sentence, the extent of the harm suffered by the person concerned.


Treatment Clauses

THRU/SAMGI completely opposes the decision by Cabinet to remove the original clause 21 from the Bill. The reasons publicly given by the Government, with regards to the budgeting implications are spurious. The Government issued a policy decision last April to commit to a post-exposure prophylaxis [PEP] programme for rape survivors. This statement creates a binding obligation on the Government in that rape survivors have a legitimate expectation that the treatment will be provided. If it is not, the survivor has a right to sue the Government for non-provision of a life saving treatment. Indeed, even without the public statement, a survivor may be entitled to sue on the basis that their right to life is being affected.

The stance of the Portfolio Committee is extremely disappointing. The Committee has shown itself to be extremely responsive to codifying within legislation the common law pronouncements of our senior courts on issues relating to fundamental human rights. The Committee is called upon to reinsert the clause within the Bill.

In order to reduce the cost burden on the state, it is suggested that sub-clause (3) be slightly amended. The proposed clause is contained below.


Provision of Treatment for victim

??. (1) Where a person has sustained physical, psychological or other injuries as the result of an alleged sexual offence, such person shall, immediately after the alleged offence, receive the appropriate medical care, treatment and counselling as may be required for such injuries.

(2) If a person has been exposed to the risk of being infected by a sexually transmissible infection as the result of a sexual offence, such person shall, immediately after the reporting of the alleged offence to the South African Police Services or to a health care facility -

(a) be advised by a medical practitioner or a qualified health care professional of the possibility of being tested for such infection; and

(b) have access to all possible means of prevention, treatment and medical care in respect of possible exposure to a sexually transmissible infection.

(3) If the person is unable to afford it, tThe State shall bear the cost of the care, treatment, testing, prevention and counselling as referred to in this section."

We do not wish to enter into a discussion on the hierarchical weighting of who is more deserving of treatment – abuser or survivor. Sexual abuse in this country is perpetuated on such a scale that to prevent treatment to the perpetrators is just as foolish as to prevent life saving treatment to survivors. Therefore, we support the proposals to allow the courts additional sentencing powers over and above imprisonment.


Clause 20 – Supervision of dangerous sexual offenders

THRU/SAMGI welcomes the provisions of this clause and hopes that they can be utilised in a positive way to ensure damaging mindsets can be challenged, and not simply as a knee jerk reaction springing from fear of certain people.


Clause 21 – Discontinuance of prosecution

THRU/SAMGI is very supportive of the provisions of this clause to allow for a more coherent approach being taken to the prosecution of sexual offences.


Clause 24 – Non disclosure of conviction

The provisions of this clause are welcomed, but we believe they could be strengthened by the addition of a requirement on the part of the employer to request from prospective employees whether they have convictions of this nature. This would allow for the survivors of attacks to have a means of civil redress against an employer who failed to ask a prospective employee. Therefore, we propose the following addition:


24. (1) Any person who has been convicted of a sexual offence and who fails to disclose such conviction when applying for employment that will place him or her in a position of authority or care of children, or when offering or agreeing to take care of or supervise children, shall be guilty of an offence and liable, upon conviction, to a fine or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment.

(2) Any employer seeking to employ a person who will be placed in a position of authority or care of children must ask the employee to declare any conviction for a sexual offence.

THRU would support amendments to increase the organisations covered to include those providing care and support to women and persons with disabilities.


Schedule 1

THRU/SAMGI very much approves of the guidelines contained in Schedule 1. It is especially welcoming to see the progressive nature of the guidelines with regard to the continued training of the criminal justice system’s personnel.