National coordinator: Joan van Niekerk
Telephone/Fax number (+27) (0)31 563 5718
Cellular telephone (+27) (0)83 303 8322
Postal Address: 32 Chicks Drive, Durban North 4051
19th June 2006
For Attention: Ms F I Chohan-Khota
Parliamentary Portfolio Committee on Justice and Constitutional Development
Dear Ms Chohan-Khota
Re: Criminal Law (Sexual Offences and Related Matters) Amendment Bill
Childline South Africa congratulates the Department of Justice and Constitutional Development on taking the Criminal Law (Sexual Offences and Related Matters) Amendment Bill forward.
Attached is a submission from Childline South Africa on the Bill.
However Childline South Africa remains concerned about the lack of public hearings on this version of the Bill. It should also be noted that the public hearings on the original Bill were called at one working day’s notice which effectively excluded interested organisations and persons outside of the Western Cape from participating in this democratic process. We therefore appeal to the Committee to reconsider its stance and decision on the matter of public hearings.
Given the very high levels of sexual crime in South Africa, which coupled with the high levels of HIV/AIDS infection provides a major threat to the physical and psychological well-being of thousands of adults and children, the management of sexual offences by the Criminal Justice System is a matter of public concern.
Joan van Niekerk
SUBMISSION FROM CHILDLINE SOUTH AFRICA
CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT BILL
Childline South Africa through
- the crisis line for children and adults with concerns about children which receives thousands of calls annually relating to the sexual abuse of children
- Childline’s therapy programmes for abused children and their families
- our court support and preparation programmes for children who testify in court after sexual victimisation
- our rehabilitation programmes provided for children and adults who commit sexual crimes against children
- Childline’s preventive and education programmes with children and youth
is well placed to comment on issues relating to children and the Criminal Justice System management of sexual crimes against children.
Our comments on the Bill and related matters are as follows:
- this latter provision be applicable to Section 14 (Consensual sexual penetration) as well as Section 15 and
- that the term “Consensual rape” is a contradiction in terms and it is recommended that this term should be dropped from the heading of this chapter.
i. this is a duplication – but not as adequate or comprehensive as that contained in the Part B of the Child Protection Register of the Children’s Bill (Section 75) and it is strongly recommended that this be omitted from the Sexual Offences Bill and retained in the Children’s Bill. It is inappropriate, given the constant reminders of resource constraints in the provision of services to victims, to duplicate such an expensive provision. It is also of note that research into the effectiveness of registers with regard to the protection of children from sexual exploitation is dubious at best. (International Congress of the Society for the Prevention of Child Abuse and Neglect, Denver, Colorado, USA 2002 and the International Conference on the Treatment of Sexual Offenders, Vienna, Austria, 2002).
ii. The powers of the registrar with regard to removing names from the register are not sufficiently conditional on training, expertise and expert advice.
iii. The Chapter is silent on the inclusion or exclusion on the register of children who commit sexual offences against children. It is recommended that children under 14 years and children who are first offenders are not included on the register.
OMMISSIONS IN THE PRESENT VERSION OF THE BILL
The vulnerability of child victims of sexual assault and the secondary trauma they experience when they are not protected during criminal justice processes is well documented. This lack of protection inhibits the reporting of offences against children as parents and caregivers anticipate the secondary trauma to the child and are reluctant to proceed.
The protective provisions included:
i. The provision of a support person – it is strongly recommended that this be returned to the Bill as many children are unable to testify clearly and with confidence without the support of someone to whom they feel close.
ii. The automatic use of the Intermediary system for children – at present the use of the intermediary is based on the possibility of “undue trauma” to the child if s/he testifies in open court. This necessitates an (expensive) assessment process, which delays the court process, and even then the decision as to whether the child will experience undue trauma is left to the presiding officer in the court who, with respect, often have little understanding of children, child development and children and trauma. While supporting children through their court process as victims of sexual assault, Childline has experienced many refusals of the intermediary system, resulting in children being intimidated by the presence of the offender in the court room and unable to testify. Apart from the obvious trauma to the child, this has a marked impact on the psychological well being of the child. Recommendation: The vulnerable witness clause and the protective mechanisms applied to vulnerable witnesses should be reinserted into the Bill.
3. The cautionary rule relating to the evidence of complainants in sexual offences cases should be clearly abolished.
Thank you for this opportunity to comment on the Bill. It is sincerely appreciated.
Please contact me if any further research or case studies are required in order to support the above recommendations and comments.
Joan van Niekerk