South African Human Rights Commission

SOUTH AFRICAN HUMAN RIGHTS COMMISSION

SUBMISSION ON THE CRIMINAL LAW (SEXUAL OFFENCESAND RELATED MATTERS) AMENDMENT ACT AMENDMENT BILL [B18-2014]

For submission to the Portfolio Committee on Justice and Correctional Services

February 2015

1. Introduction

The South African Human Rights Commission (SAHRC/Commission) welcomes the introduction of the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill[1], following the Constitutional Court judgments in the matters of Teddy Bear Clinic[2]and J v National Director of Public Prosections[3] declaring sections of the prinicipal Act unconsitutional.

Over the years, the Commission has raised concern over the sexual offences perpetrated, particularly against children. In 2002, the SAHRC conducted public hearings on the issue and released a report entitled, “Report on Sexual Offences Against Children: Does the Criminal Justice System Protect Children”.[4] In 2006, the Commission made submissions to Parliament on the principal Act, highlighting the need for the legislation to have specific provisions and protections for persons with mental disabilities. Shortly after the principal Act was enacted,[5] the Commission received several complaints relating to sections 15 and 16 of the Act. The SAHRC further recalls the national mobilisation of adolescents at shopping malls to engage in a ‘kissathon’ in challenging the Act, thereby openly displaying their discontent around the legislation to the police and lawmakers.[6]

The Commission therefore acknowledges the sensitivities around this legislation as various sectors of civil society and the public at large, have opposing views about the intention and interpretation of the legislation. Italsothanks the Portfolio Committee for extending the deadline for submissions on theAmendment Bill to allow for interested parties to make submissions on the issue.

1. The mandate of the South African Human Rights Commission

The SAHRC is a constitutionally created independent state institution. It is mandated by section 184 of the Constitution of the Republic of South Africa[7] which states,

184.(1)The South African Human Rights Commission must-

(a)promote, respect for human rights and a culture of human rights;

(b)promote the protection, development and attainment of human rights; and

(c)monitor and assess the observance of human rights in the Republic.

In September 2014, the new South African Human Rights Commission Act 40 of 2013 came into effect, repealing its predecessor the Human Rights Commission Act 54 of 1994. Section 13 of the new Act expands on the powers and functions of the Commission.

Accordingly, section 13(1)(a)(i) provides,

(a)The Commission is competent and is obliged to-

(i)Make recommendations to organs of state at all levels of government where it considers such action advisable for the adoption of progressive measures for the promotion of human rights within the framework of the Constitution and the law, as well as appropriate measures for the further observance of human rights;

Section 13(1)(b)(v) further states,

(b)The Commission-

(v)Must review government policies relating to human rights and may make recommendations.

The Commission highlights below, salient points of the two judements and additional matters that the Portfolio Committee may wish to consider during its deliberations on the legislation.

1. Teddy Bear Clinic Case (Sections 15 and 16 of the principal Act)

The Commission notes that the primary intention of sections 15 and 16 in the principal Act was to set the age of consent at 16 years old and prohibit sexual exploitation of children by adults. However, in its intent to provide a protection mechanism, the principal Act went further and criminalised a range of sexual acts including kissing and sexual intercourse between adolescents between the ages of 12 and 16 years old.

TheTeddy Bear Cliniccase therefore provided the opportunity for the Constitutional Court to assess the constitutionality of the provisions and determine whether it was in line with the rights asguaranteed in the Bill of Rights. In this regard, the Court analysed sections 15 and 16 in light of the constitutional rights to human dignity, privacy and the paramouncy of the best interest of the child in all matters affecting them. During its assessment, the Court affirmed that, ‘children enjoy each of the fundamental rights in the Constitution that are granted to ‘everyone’ as individual right bearers of human rights’.[8]

3.1The right to dignity

The right to dignity, (along with the right to life), is the fundamental basis from which all subsequent rights flow and should be the respected, even in instances where other rights may be restricted. Section 10 of the Constitution provides that, everyone has inherent dignity and their right to have their dignity respected and protected’’.

In assessing this right, the Court held that under section 15 and 16, the criminalisation of private sexual choices between consenting adolescent, exposes them to a stigmatisation which isdegrading and invasive and thus infringes on the right to human dignity.[9]The Court furthertook the view that, ‘if one’s consensual sexual choices are not respected by society, but are criminalised, one’s innate self worth will inevitably be diminished’.[10] Criminalising consensual acts between adolescents for contravening sections 15 and 16 and the subsequent inclusion of a child’s name to the Register of Sex Offenders, indeed exposes the child and, ‘constitutes a significant limitation of his / her right to dignity’.[11]

3.2The right to privacy

Section 14 of the Bill of Rights guarantees that, ‘everyone has the right to privacy...’. In the Teddy Bear Clinic case, the Court recognised the inextricable link between the right to privacy and the right to human dignity, stating that, ‘privacy fosters human dignity insofar as it is premised on and protects, an individual’s entitlement to a “sphere of private intimacy and autonomy”’.[12]

In interpreting this right within sections 15 and 16 of the principal Act, the Court held that prohibiting consensual sexual / intimate relations between adolescents, ‘intrude into the core of adolescents privacy’.[13] It therefore declared that the sections 15 and 16 encroach on the right to privacy and further constitutes a related limitation on adolescents’ dignity rights.[14]

3.3The best interest of the child

Section 28 of the Constitution addresses the rights of children. Section 28 (2) provides that, ‘’a child’s best interest are of paramount importance in every matter concerning the child’.

In the Teddy Bear Clinic case, the Court acknowledged that section 28(2) fulfils two separate roles, namely, i) as a guiding principle in each case that deals with a particular child; and ii) as a standard against which to test provisions or conduct which affect children in general.[15] In applying this two-pronged approach, the Court weighed up the purpose of Sections 15 and 16 against the best interest of the child principle. The Court further states that the prosecution of children, under sections 15 and 16, have the effect of ‘harming the individuals they are intended to protect’[16]. The Court concluded that it was ‘fundamentally irrational to state that adolescents do not have the capacity to make choices about their sexual activity, yet in the same breath to contend that they have the capacity to be criminally liable for such choices’.[17] It therefore foundthat sections 15 and 16 and the subsequent prosecution of adolescents for contravening the section, invariably infringe on the best interest principle as well as the rights to privacy and dignity.[18]

It should be noted that in assessing sections 15 and 16 of the principal Act, the Court also applied Section 36 (limitation’s clause) of the Constitution.[19] In this regard, it held that there were less restrictive means,aside from criminalisation,to achieve the aim of protecting children and helping them lead responsible sexual lives.[20]

The Commission commends the judgement by the Constitutional Court in the Teddy Bear Clinic case which held that sections 15 and 16 of the principal Act, infringe on the child’s constitutional rights to human dignity, privacy and the best interest of the child. The SAHRC further emphasises that the purpose of the proposed amendment to section 15 and 16 is not about reducing the age of consent nor about ensuring adolescents have a right to engage in sexual behaviour, but rather, to remove the criminalisation aspect of such engagement.

1. J v National Director of Public Prosecutions: Section 50(2)(a)

Section 50(2)(a) of the principal Actplaces an obligation on a court, which has convicted a person of a sexual offence against a child or mentally disabled person, tomake an order that the particulars of such offender be included in the National Register for Sex Offenders (Register). The provision also applies to persons who were children at the time of the commission of the sexual offence.

The matter of J v National Director of Public Prosecutions allowed the Constitutional Court to assess the validity of section 50(2)(a) in line with the Constitution. In doing so, the Court applied the best interest of the child principle as espoused in section 28(2) of the Bill of Rights. The Court reaffirmed the wide ambit of the principle and that it, ‘creates a right that that is independent and extends beyond the recognition of other rights in the Constitution’.[21] Importantly, the Court set out a number of key principles which emanate from the best interest of the child offender. These include:

i)that the law should generally distinguish between adults and children[22];

ii)that the law ought to make allowance for an individuated approach to child offenders[23] and that the best interest standard should be flexible as individual circumstances determine which factors secure the best interest of a particular child;

iii)that the child or his/her representatives must be afforded an appropriate and adequate opportunity to make representation and to be heard at every stage of the justice process, with due weight given to the age and maturity of the child.[24]

In applying these factors, the Court held the obligation imposed on courts through Section 50(2)(a), does not allow the Court to exercise any discretion in registering the particulars of the child offender nor for an individuated response of a particular child offender, taking into account the child’s representation and views.[25] It further held that the mandatory inclusion of offenders on the Register, failed to distinguish between adults and children.

In addition, the Court noted that placing of a person’s name on the register entails limitations in employment such as working with children or conducting business which may involve contact with children or persons with mental disabilities. As such, ‘child offenders who have served their sentences will remain tarred with the sanction of exclusion for areas of life and livelihood that may be formative of their personal dignity, family life and to pursue a living.[26] The Court therefore declared that Section 50(2)(a) was unconstitutional as, ‘the child’s moral landscape was still capable of being shaped and that the compulsory registration of the child sex offender in all circumstances is an infringement of the best interest principle.[27] Although the Court considered the limitations clause under section 36 of the Constitution, it declared that the limitation of the rights of child offenders under section 50(2)(a) was not justifiable in an open and democratic society.[28]

The Commission welcomes the judgment and the proposed amendment of the principal Act as it allows the courts to consider each case on its circumstances and merit and apply the overarching provision to place the best interest of the child as the primary consideration in this regard.

1. Offender Registers in South Africa

In line with the ConstitutionalCourt judgment of J v National Director of Public Prosecutions, the Amendment Bill amends provisions in the principal Act which relate to the National Register for Sex Offenders. The Commission further notes that Parliament has also processed other pieces of legislation which seek to provide protection to vulnerable groups by providing for register of offenders. These are namely, the National Child Protection Register under the Children’s Act 38 of 2005 and the Register of Abuse of Older persons under Older Persons Act 13 of 2006.

5.1National Child Protection Register

The Children’s Act makes provision the establishment of a National Child Protection Register. Divided into two parts, Part A of the Register’s purpose is to, inter alia, establish a ‘record of abuse or deliberate neglect inflicted on specific children’; to record ‘all convictions of all persons on charges involving the abuse or deliberate neglect of a child; and, all findings by a children's Court that a child is in need of care and protection, because of abuse or deliberate neglect of the child.[29] Part B of the Register ‘is to have a record of persons who are unsuitable to work with children and to use the information in the Register in order to protect children in general against abuse from these persons.’[30] Under the Children’s Act, the Director General of Social Development is responsible for maintaining the register.

5.2Register of Abuse of Older Persons

The Older Persons Act also makes provision for the establishment of a register of persons convicted of the abuse of an older person or any crime or offence which involved the abuse of an older person.[31] Subsequently, a person whose names appear on the register may not operate or be employed at a residential facility and may not provide any community-based care and support services to an older person. The Act vests the Minister of Social Development with the responsibility to maintain the register.

5.3National Register for Sex Offenders

The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 makes provision for the establishment of a third register (i.e. National Register for Sex Offenders) which is the responsibility of the Minister of Justice. As noted in its previous submission to Parliament on this Act,[32] the Commission again raises concern as to the need for multiple registers which may potentiallyconfuse the public.[33]

In the same line, the Commission requests Parliament to take cognisance of the practical implications of registers. While it may indeed act as a deterrent to offenders in committing further crimes and protect the public from these persons, it conversely, may encourage offenders to go underground and does not provide adequate protection to victims. The Commission therefore recommends that Parliamentconsiders the implications of the registers during its deliberations on the legislation. These include:[34]

1. Practical information on how the various registers are administered, maintained and updated, and whether there is a duplication of resources in such regard;
2. Types of measures that should be put in place to allow for cross-referencing between the registers so that offenders do not move from one vulnerable sector to another;
3. Howspecialised units such as the Promotion of the Rights of Vulnerable Groups unit, (established by the Department of Justice),collaborates with other government departments in the implementation of legislation which promotes and protects the rights of vulnerable groups (such as the Sexual Offences Act and the Children’s Act);
4. What the implications are if an offender fails to disclose that his/her name is included on the National Sex Offenders Register;
5. Whether it is more effective to have separate registers or one comprehensive register relating to children which encompasses both the Children’s Act and the Sexual Offences Act (i.e. one register reflecting a person’s particulars in instances of abuse perpetrated against children as well a record of persons who have been convicted, or alleged to have committed, a sexual offence against a child or mentally disabled person).

1. Conclusion

The SAHRC reiterates its understanding that the Amendment Bill seeks to repeal those sections of the principal Act which were declared unconstituional by the Constituitonal Court. The Commission further emphasises that these amendments are aimed at ensuring that the rights to human dignity and privacy as afforded to children are protected. Italso highlightsto the Committee the centrality of the best interest of the child principle in all matters concerning children.

The Commissionis available to discuss any of the issues further with the Portfolio Committte that have been raised herein.

SAHRC Submission on Sexual Offences Amendment Act Amendment Bill, Feb 2015Page 1

[1]Hereinafterreferred to as the Amendment Bill. The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 is referred to herein as the principal Act.

[2]Teddy Bear Clinic for Abused Children and RAPCAN v Minister of Justice and Constitutional Development and National Director of Public Prosecutions, CCT 12/13, [2013] ZACC 35

[3]J v National Director of Public Prosecutions and Another, CCT 114/3

[4] Key findings emanating from the report are summarised as follows: 1) The system, as it stands, does not work for children; 2) The system is hostile and further traumatises children; 3) Children with disabilities, who have been sexually abused, are furthertraumatised by the system. 4) This inquiry reveals that despite all the initiatives that have been put in place,the criminal justice system remains ineffective in policing child sexual abusecases and is hostile to sexually abused children. Policies put in place to ensure amulti-disciplinary and coordinated response to child sexual abuse are poorlyimplemented, if at all; 5) While some agents who deal with sexually abused children are greatlycommitted, their commitment is not shared by all agents who handle sexuallyabused children. This undermines the efforts of those who are committed toprotecting children from sexual offences.6) There seems to be a serious lack of communication between role players dealingwith sexually abused children at various levels of government. While provincialgovernment has put in place policies and programmes aimed at sexually abusedchildren, frontline role players either do not know about them e.g., the Multi-Disciplinary Protocol, or if they do know about them, they implement theprogrammes and policies poorly or not at all; 7) On the whole, sexually abused children’s experience with the criminal justicesystem compounds their trauma. An ineffective system also means that thesexual abuse of children continues unabated and that government is failing tolive up to its commitments in terms of the Constitution and other internationalhuman rights instruments; and, 8)) An effective and coordinated criminal justice response to child sexual abuse is critical to ensure the protection of South African children. See,