Parliamentary Monitoring Group

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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
17 September 2003
CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL: PUBLIC HEARINGS

Chairperson: Adv J de Lange (ANC)

Relevant documents:
Criminal Law (Sexual Offences) Amendment Bill
Written Submission by the Transformative Human Rights Unit (THRU)
Oral Submission by the Transformative Human Rights Unit (THRU)

Transformative Human Rights Unit (THRU)
Ms H Fernand (Projects Manager: THRU) indicated that THRU has no problems with the classification offences. She said that she concurred with the Chair's opinion that the proposed Bill would not necessarily have prevented a similar decision being reached to that of the recent Cape High Court case where an Acting Judge ruled that two 13 year olds had consented to have sex with a paedophile, so he was not guilty of Rape, merely Statutory Rape. Therefore, THRU had proposed an additional sub-clause to the definition of rape to take account of abuses of power and authority over vulnerable people such as children and women undergoing gynaecological examination.

THRU completely opposed the decision by Cabinet to remove the original Clause 21 from the Bill because of budgeting implications which THRU termed "spurious". The Committee was reminded that Government had made a policy decision last April to commit to a post-exposure prophylaxis [PEP] programme for rape survivors. The Committee was called upon to reinsert the clause within the Bill.

The Chair asked her to comment on the definition of rape where it stated that consent could be vitiated if any harm was perceived to be likely on the part of the victim to him or herself or any other person. The Chair reiterated his concerns that this meant he would be passing a Bill which did not really make it clear what actions were prohibited - for example could a woman claim she had been raped if her "rapist" had not given her the job offer he had promised?

Ms Fernand said she felt the Chair's criticism ignored the fact that we live in a common law country where the courts interpret formulations of words in particular ways. She felt a wider definition was preferable because the courts would narrow it in any event.

The Chair rejected this saying that the crime was not defined at all in the Bill.

She undertook to reconsider the sub-clause and revert to him with a suggestion to tighten it.

Ms Fernand said that Clause 8 had been drafted from within a particularly "middle-class" paradigm. She agreed with the submission of the Commission for Gender Equality that many families live in crowded homes and consequently ensuring that all sexual activity occurs in a private room would be impossible to achieve. She stressed that the aim of the Bill must be to punish sexual abuse and not sexual awareness as it was within sexual naivety that child abuse flourished. Therefore, THRU proposed a sub-clause to the clause dealing with exposing children to sexual acts that bona fide sexual education was excluded from the terms of the Act.

THRU supported the provisions of Clause 19, however, if the Chair was concerned with it breaching the Separation of Powers doctrine then she suggested that an additional sub-clause be added to state that SAPS had to investigate fully all complaints of rape and sexual assault and had to pass all dockets to the Prosecution regardless of the police officers opinion on the merits of the case. This would also allow for a strengthening of the monitoring of SAPS procedures and attitudes towards crimes of this nature.

THRU welcomed the proposal to require sexual offenders to declare convictions under the Act to any potential employer if the position would require them to supervise children. However, they also thought that an additional requirement could be placed on the employer to request such information as this could open the possibility of a victim of such an employee having a civil claim against the employer who should have public liability insurance.

Ms F Chohan-Kota (ANC) asked the presenter is she opposed to the lowering of age of consent since this would criminalise sexual experimentation.

Ms Fernand replied that sexual experimentation should be allowed because the ramifications of conviction would be severe for children. She said that sexual activities between children and older persons should be criminalised.

Ms Camerer asked if THRU had undertaken any research on the cost of PEP Treatment?

Ms Fernand said that it was her understanding the Treatment cost around R200 which did not seem an inordinate amount given the cost to the country of treating a woman who had contracted HIV/AIDS.

Ms Fernand asked if she could make an additional point with regard to the Treatment clause? The Chair allowed her. She said that it was clear the Chair's reluctance was not to the inclusion of the clause but to whether the system could cope with it now. Therefore,she proposed that an additional sub-clause be added which stated that the terms of this clause would come into effect 18 months to two years after the Act came into force. This would allow for the Department of Health to fully roll out the programme and adjust their budgets, etc. And in the interim, the status quo would remain where the Government's stated policy was that women would receive PEP Treatment if they had been subjected to rape. She said that this policy statement did, of course, create a justiciable right on judicial review in any event.