National Working Group on the Sexual Offences Bill

FACT SHEETS ON THE SEXUAL OFFENCES BILL (2006)

PAGEFACT SHEETTITLE

2FACT SHEET 1:TIMELINE

4FACT SHEET 2:PROVISIONS RELATED TO CHILDREN

7FACT SHEET 3:MEDICAL TREATMENT AND PSYCHOSOCIAL SUPPORT

11FACT SHEET 4:CERTAIN OFFENCES DEFINED IN THE BILL

14FACT SHEET 5:HIV/AIDS AND THE SEXUAL OFFENCES BILL

16FACT SHEET 6:TRAFFICKING IN THE SEXUAL OFFENCES BILL

19FACT SHEET 7:NATIONAL POLICY FRAMEWORK

22FACT SHEET 8:NATIONAL INSTRUCTIONS, POLICY DIRECTIVES AND DUTIES

25FACT SHEET 9:RULES OF EVIDENCE AND PROCEDURE

29FACT SHEET 10:THE AGE OF CONSENT

31FACT SHEET 11:MANAGEMENT OF OFFENDERS

35FACT SHEET 12:MAKING SUBMISSIONS

National Working Group on the Sexual Offences Bill

FACT SHEET 1

TIMELINE

January 1998 / The South African Law Reform Commission (SALRC) requested to investigate sexual offences by and against children and to make recommendations to the Minister of Justice and Constitutional Development for reform of the criminal law. The SALRC establishes an expert committee for this task.
1999 / The SALRC mandate is extended to include sexual offences committed against adults, prostitution, and the development of policy directives for the management of sexual offences.
The expert committee conducts research and consultations in the rural and urban areas of all provinces, with all sectors involved in the management of sexual offences and with all groups affected by sexual offences. The committee also consults with the Project Committee on the Children’s Bill to ensure coordination between the two drafts.
December 2002 / The SALRC issues its final report. The report contains a draft Bill that embodies some progressive recommendations for the reform of the substantive and procedural law relating to sexual offences.
January 2003 / The final report and draft legislation is handed over to the Minister of Justice and Constitutional Development by representatives of the SALRC.
July 2003 / The Minister of Justice and Constitutional Development and other members of Cabinet consider the SALRC report and draft law. Thereafter, Bill 50-03 is introduced to the National Assembly. The Bill, unable to pass in its current form, is referred for further review to the Portfolio Committee on Justice and Constitutional Development of the National Assembly (Justice Committee).
Bill 50-03 (and other bills) published in the Government Gazette, No. 25282 on 30 July 2003.
August/September 2003 / The Justice Committee calls for written submissions on the Bill.
September 2003 / The Justice Committee holds public hearings on the Bill, giving organisations one-business days’ notice. This prevents organisations outside the Western Cape from attending the public hearings.
December 2003 – February 2004 / The Justice Committee considers changes to Bill 50-03. The committee recesses for national elections before finalising their work. The committee’s proposed changes are contained in a “Working Document”.
November 2005 / A representative from the Justice Committee accepts a memorandum from civil society organisations and publicly states the intention of Parliament to finalise the Sexual Offences Bill early in 2006.
April – May 2006 / As part of the national “Get on the Bus and Stop Violence against Women and Children” campaign, a second memorandum is submitted both to the Department of Justice and Constitutional Development as well as the Joint Monitoring Committee on the Improvement of the Quality of Life and Status of Women.
In early May, the draft Bill once again appears before Cabinet for approval and is then sent to the Justice Committee. There is currently a call from the Justice Committee for written submissions around the Bill.

National Working Group on the Sexual Offences Bill

FACT SHEET 2

PROVISIONS RELATED TO CHILDREN

Introduction

The Bill contains a number of substantive and procedural provisions defining sexual crimes against children, and how these should be managed.

Substantive Law

  1. The proposed definition of rape is more appropriate in relation to what children experience.
  2. The crime of incest has been codified. It is, however, recommended that foster parents should be included in the list of proscribed relationships.
  3. An entire chapter has been devoted to offences against children. These offences include:
  4. Acts of sexual penetration with children aged 12-16. The age of consent is retained at 16 years for both sexes. Where two children are between the ages of 12 and 16, prosecution may not be instituted without the written instruction of the National Director of Public Prosecutions;
  5. Sexual exploitation of a child;
  6. Child prostitution;
  7. Exposure or display of pornography or sexual acts to a child;
  8. Grooming of a child to commit a sexual offence. However, “grooming of a child” currently provides that the perpetrator must have communicated with the child on at least two occasions prior to travelling to meet or meeting the child with the intention of committing a sexual offence. The prior communication with the child is an unnecessary feature of this offence as is the arbitrary number of communications.

Procedural Law

Children are specifically vulnerable when it comes to sexual assault.

  1. Many victims/survivors of sexual assault report high levels of secondary victimisation when they come into contact with the legal system following the sexual assault. This can be ascribed, in part, to the unsympathetic, disbelieving and inappropriate responses that victims/survivors of sexual assault may experience both at the hands of society in general and at each stage of the criminal justice process. Secondary victimisation is usually unintentional and the result of a lack in the training of role-players who manage sexual offences, insufficient resources and/or a lack of debriefing and mentoring of those who work in the criminal justice system.
  1. Children, because of their particular vulnerability, are even more susceptible to secondary victimisation than adults. The existing substantive and procedural law is widely considered inadequate in providing victims in general and children in particular with protection from both primary and secondary victimisation.
  1. Child witnesses are still frequently brought into an alien, intimidating court

environment and expected to recount intensely personal experiences in front of strangers as well as the perpetrator who inflicted the sexual assault on them. They are confronted with a barrage of questions framed in language too advanced for them to understand and are forced to participate in a procedure that they can rarely make sense of.

  1. This lack of legal protection and appropriate management contributes to the non-reporting of sexual offences against and by children and is in itself a violation of children's rights.
  1. It is therefore crucial that the stated aim of providing child victims/survivors of sexual assault with “the maximum and least traumatising protection that the law can provide” should be adhered to in drafting legal reforms.

Protective Measures for the Child Witnesses

The stated aim of the Sexual Offences Bill – to provide “the maximum and least traumatising protection” – is of particular importance in relation to children. One of the strong points of the South African Law Reform Commission’s (SALRC) proposal was the consideration of the interests of the victim/survivor. However, there has been a significant shift away from this consideration.

The removal or modification of the following clauses is problematic:

  • The clause setting out the objectives of the legislation has been watered down – the new version is so broad as to be meaningless in relation to child victims and offenders.
  • The category of “Vulnerable Witness” into which children could be placed in order to afford them extra protections during the criminal justice process has been removed.
  • The provision of a support person for child/vulnerable witnesses has been removed.
  • The SALRC Bill acknowledged that the adjudication of cases involving child victims/survivors is a specialised area. However, this acknowledgment is currently in danger of being lost. For example, the clause providing for the use of assessors with expertise on child development has been removed.
  • The proposal for the expansion of the role of intermediaries (who act as a go-between between child witnesses and lawyers in court) and the use of the intermediary as a right of a child witness has been removed.
  • The abolition of the competency test for the younger child witness has been removed.
  • The clause abolishing the cautionary rules to be applied to the evidence of children in sexual offences has been removed.
  • The treatment clause has been removed. The focus on the provision of PEP and the neglect of other physical and psychosocial treatments which are vital for sexually abused and traumatized children is problematic.

The Rehabilitative Focus

The SALRC recommendations included provisions related to the prevention of offences and the treatment of offenders. These rehabilitative and preventive provisions are especially important for child sex offenders.

Indeed, this is particularly problematic in light of the following report:

“In her speech during the budget debate, National Assembly justice committee chairwoman Fatima Chohan-Kota expressed concern ‘about a very disturbing trend’ emerging from the specialized sexual offences courts. It is increasingly being reported that perpetrators of these offences are children of school-going age. This was reported to the portfolio committee during our visit a few years ago to the Protea Court in Soweto, where there are currently four dedicated sexual offences courts with an outstanding roll at the end of January 2005, of 759 cases.’ she said. MP’s had asked for the phenomenon to be monitored and for a report to be submitted.”[1]

It is recommended that rehabilitation programmes should be provided for all sexual offenders who are children, both in residential custody as well as those serving community based sentences.

The National Sex Offender Register

A number of problems exist with the sexual offender register in its present form. The utility of placing children convicted of sexual offences on the registry must be debated, as well as the appropriateness of having a register of persons unfit to work with children sited in the Sexual Offences Legislation and able only to capture sexual offences. It is recommended that the Part B of the Child Protection Register – a register of persons unfit to work with children – be retained in the Children’s Bill.

National Working Group on the Sexual Offences Bill

FACT SHEET 3

MEDICAL TREATMENT AND PSYCHOSOCIAL SUPPORT

Introduction

Sexual violence causes both physical and psychological trauma. After a sexual offence the victim/survivor may require medical and psychosocial treatment for the following:

  • HIV – including pre- and post-test counselling, and post exposure prophylaxis (PEP);
  • The possible transmission of sexually transmitted infections;
  • Injuries to any part of the body;
  • The prevention of pregnancy;
  • The termination or management of pregnancy;
  • Psychological shock (including post traumatic stress disorder, disturbed sleep and eating patterns, anxiety and depression); and
  • Disturbance in relationships, particularly in family and intimate relationships.

A traumatic incident may be completely overwhelming and undermine a person’s ability to cope with their world. Many victims/survivors live for years with the after-effects of sexual violence, and although s/he may be outwardly able to cope with the demands of daily living, the effects can be so pervasive that they permeate all aspects of her/his life, sense of self, intimate relationships, sexuality, parenting, studies or employment, and ability to cope. Repeated sexual abuse tends to have a more complex psychological impact, especially when this occurs within a close relationship in which there is a reasonable expectation of protection.

In recognition of these serious consequences, the South African Law Reform Commission (SALRC) recommended that the State provide psychosocial support and healthcare to victims/survivors of sexual offences. In spite of strong support for this in public submissions, the Department of Justice and Constitutional Development did not accept this recommendation and the provision was not included in the Bill introduced to Parliament in 2003. The recommendation remains excluded from the 2006 draft of the Bill. Removal of this clause minimises the seriousness of the physical and psychosocial trauma resulting from sexual offences and ignores the currently differential availability of, and access to, services for wealthy and poor South Africans.

Medical Treatment

Until recently, the health-related consequences of a sexual assault were not comprehensively addressed: policies only required the State to perform the forensic medical examination for the collection of case evidence, and the systematic treatment of victims/survivors was overlooked. Recent provincial and national health policies recognise the need to treat some aspects of the physical impact of the attack. However, the implementation of these policies has been erratic and slow, which has meant that many victims/survivors still do not have access to treatment. As of May 2005, the Minister of Health had not yet signed off the policy relating to the health examination and care of the child victim/survivor: the Department of Health says that the policy is still under consideration and consultation.

There is a high rate of HIV in South Africa, which is compounded by a high rate of rape and the fact that sexual violence increases the risk of HIV transmission. For instance, in the pre-pubescent girl, the lining of the vagina is only one skin cell thick, thus significantly increasing the risk of HIV transmission. This means that HIV pre- and post-test counselling and post exposure prophylaxis (PEP) are of extreme importance to many victims/survivors. Failure to immediately provide this and other treatment can result in long-term physical and psychosocial effects, which may be irreversible.

Currently, healthcare is still viewed as secondary to the criminal justice requirements of a case. Victims/survivors who fail to report to the police are unable to access treatment. Upon reporting, victims/survivors may experience delays at police stations and hospitals – or may even experience exclusion from services. Petty bureaucratic requirements are prioritised above the need for immediate access to comprehensive treatment. Many hospitals in South Africa still turn victims/survivors away if they have not first reported to the police. Hospitals are also not equipped to provide the services and medication that policies require.

The impact of this is that many victims/survivors of sexual offences in South Africa are dealing with the compound trauma of extremely serious health conditions that would to a large extent be avoidable with immediate treatment.

Psychosocial Support, Counselling and Therapy[2]

Counsellors provide critical support through offering advice, support and information. This assists victims/survivors to regain some sense of control over their lives and to cope after a profoundly damaging and life-changing experience. Counselling benefits victims/survivors in that:

  • It enables victims/survivors to speak about something unspeakable and to find words to describe their experience.
  • It gives them reassurance that they will heal from the experience.
  • It enables them to deal with feelings that, if not dealt with, might have long-term effects.
  • It can prevent suicide, drug abuse and the development of other serious mental illnesses.
  • Although an experience of abuse in childhood does not necessarily mean that the child will grow up to abuse, there are certain patterns of victimisation in which this is more likely. This can be mitigated by the provision of effective counselling and support close to the time of the experience and may thus prevent the perpetuation of the cycle of violence.
  • It empowers victims/survivors to take action towards bringing the perpetrator to justice.
  • It informs victims/survivors of their rights and legal responsibilities.
  • It offers support to the victim/survivor through the criminal justice process, which is often traumatic.
  • It gives access to other vital services.

Experience has shown that victims/survivors who receive counselling and support are less likely to withdraw criminal cases or have them withdrawn by the State, and are better able to testify in court because of the support and information they receive.

At this time, statistics show that the criminal justice system fails to provide justice in the majority of sexual offence cases. The sense of hopelessness that many victims/survivors experience can be addressed to some extent through a counselling process.

Sexual offences have long-term effects on individuals, families and communities. Victims/survivors of childhood sexual abuse are more vulnerable to further abuse later in life.

Existing NGO counselling services are overwhelmed. Due to prohibitive costs, long-term counselling such as psychotherapy is unavailable to most South Africans. Services are weighted in urban areas and children cannot access services without the intervention of adults, which they often don’t have. Effectively, the majority of victims/survivors in South Africa do not have access to counselling or psychological support.

Summary and Recommendations