Transformative
Human Rights Unit (THRU)
P O
Box 15896
Vlaeberg
8018
South Africa
Tel:
+27 72 285 0121
Email:
helen@thru.org.za
ORAL SUBMISSION TO
THE JUSTICE PORTFOLIO COMMITTEE
17 September 2003
Criminal Law (Sexual Offences) Amendment Bill, 2003
Presented by Helen Fernand
The Transformative Human Rights Unit (THRU) wishes to convey its immense gratitude to the Portfolio Committee for allowing it to make an oral and written submission on the content of the draft Criminal Law (Sexual Offences) Amendment Bill, 2003. As we do not have a large research capacity, this submission should be regarded as a critique of the draft Bill from a feminist human rights and constitutional law perspective.
THRU is a female managed human rights NGO which promotes an ethical approach to human rights. Its Board members consist of exception female academics and senior researchers engaged in legal, social and political issues of importance to the future of South Africa.
THRU is pleased to see a recognition on the part of the drafters of the Bill in conceptualising a piece of legislation which goes beyond simply regarding rape and sexual offences as a criminal act, taking into account the wider social ramifications of the abuse. This can be seen in the proposed measures to support vulnerable witnesses and to provide treatment orders for convicted abusers in addition to prison sentences. THRU believes that the common law crime of rape has for too long been conceptualised within a masculine paradigm, which has had an adverse effect on the exclusively female complainants. THRU supports those parts of the Bill which purport to turn that anomaly around.
However, THRU is extremely disappointed at the removal of the clause providing treatment to rape survivors, especially post-exposure prophylaxis [PEP] treatment. THRU fundamentally disagrees with a Government spokeperson's assertion that this should be a 'principled' decision. The continued failure to provide coherent treatment to rape survivors breaches, in our view, the survivor's right to life, dignity, access to emergency health care, equality and in the case of children constitutes behaviour with is not in their 'best interests'. If PEP is not administered, in an estimated 40% of cases, what was a harrowing experience becomes a fatal encounter. This Committee is called upon to ensure that this horror does not continue. THRU is keen this proposal is not held up by taking a lowest common denominator approach which will not impose a legislative requirement on any part of the country if one part of the country is not ready. THRU is pleased to hear that dialogue is taking place between the Departments of Health and Justice to ascertain how quickly the provisions can be implemented and at what cost.
THRU has suggested in the written submission that an addition be made to the wording of the original sub-clause (2) that the State provides treatment to the survivor only if she cannot afford it. However, in light of the comments from the Chairperson with regard to a reluctance to reinstate the clause if the provisions therein cannot be immediately realised we would like to propose an additional sub-clause (3). This sub-clause would state that the provisions of the treatment would come into effect two years from the date of promulgation of the Act, or such sooner time. We would motivate for this formulation rather than a statement that the right to treatment should be "progressively realised" as the latter option is too weak to be of tangible benefit to women.
THRU has taken a public stance to urge all South African women to carefully note the position taken by political parties with regard to the re-insertion of this clause - and to ensure that it is a factor they take into account when voting in the national elections in 2004.
THRU has no objection in principle to the creation of the three offences in clauses 2, 3 and 4 as we do not consider this to create a hierarchy of offences, merely to provide a practical differential between the crimes.
We also welcome the intention to replace rape and incest with a gender neutral definition bringing the law into line with the widely held belief that society views sexual assault perpetuated against males with equal abhorrence as those perpetuated against women.
However, THRU does not believe that the proposals go far enough to take account of the abuse of trust placed in adults by children which paedophiles manipulate to their benefit, nor the trust which women place in medical practioners amongst others. The recent judgement in the Cape High Court by Acting Judge Treuernicht shows how the common law has failed to tackle these issues effectively and we do not wish to see the legislation continuing to perpetuate this harm against women and children. We have suggested an addition to clause 2 to take account of this. We have not suggested amending the clause dealing with sexual activities undertaken with the consent of the child because we appreciate this clause intends to tackle a quite different problem to that of paedophilia or the abuse of a professional relationship.
THRU is concerned at the pitch of clauses 8 and 10 of the draft Bill, namely sexual activity occurring in view of a child and the promotion of sexual offences to a child. We feel these clauses have been written within a middle-class paradigm not taking sufficient account of the lived reality of many South Africans who do not have multiple bedrooms in their homes. Equally, we are keen that laws which seek to protect children from sexual exploitation or abuse do not unduly isolate them from the fact that sex exists. Indeed, sexual abuse flourishes in environments of sexual naivety. The aim of the Bill should be to assist with the creation of a progressive public forum where sexual interaction occurs in a healthy and informed manner free of power inequalities.
With regard to the provisions of Clause 9 relating to the criminalisation of consensual sexual activity between children who are within the 12 to 16 year age group, we are concerned that the Law Commission's previous public statements that they did not want to create a situation where the parents of one child could insist on the police prosecuting the other child are not reflected in the drafting of this clause. The ramifications to an accused of a conviction under this Act will be extensive - even allowing for the diversion programmes in the Child Justice Bill (although to the knowledge of the author, the Portfolio Committee are still only considering whether to allow Rape to be a divertible offence).
THRU is concerned by the use of the word "prostitution" in the titles of clauses 11 and 12. We appreciate that the titles of sections of an Act have a very limited role in the interpretation of the section. But nevertheless, we would rather the term "sexual exploitation" be used. We also would like to see sub-clauses 11(1)(f) and 12(1)(f) amended to remove the seeming strict liability placed upon innocent property owners. We believe any person convicted under future section 11 and 12 must be of a sufficient proximity to the sexual exploitation to warrant a sexual offences conviction.
THRU supports the inclusion of a direction to the state to inform witnesses of the availability of protective measures and do not consider the designation of rape and sexual assault survivors as "vulnerable witnesses" to be a step backwards. Rather, it is a clear recognition of the historical problems encountered by survivors to the attack suffering secondary victimization by the criminal justice system. We see this as another important measure to transform the criminal justice systems' response to rape and sexual assault to become more gender sensitive.
THRU supports the express removal of the discretion of the court to place an adverse inference on the length of time a complainant takes to report an incidence of rape, and also the ability to decree the testimony of certain witnesses to be suspect. This takes account of the wealth of cross-disciplinary research carried out on the subject of, for example, rape trauma syndrome. The veracity of witness testimony should be tested by fair and appropriate cross-examination alone. Another aspect of the reporting restrictions on the crime of rape is that the complainant must have made the complaint free of any force or fear. This means that when family members or friends forcibly push for information from the survivor, themselves in a heightened state of anxiety, the possibility of conviction is diminished as the complaint is than regarded as inadmissible evidence. We ask that the drafters take account of this dimension.
THRU supports the proposal in clause 20 to designate some convicted sex offenders "dangerous sexual offenders" and, indeed, we believe this to be in the best interests of all parties, the offender also. The measures in clause 21 to remove the right to discontinue prosecutions from all but the National Director of Public Prosecution is strongly supported by THRU as it makes a clear public statement on the severity of the state's attitude towards rape and sexual assault. If the Committee hold the view that the requirements of the Constitution are such that clear separation of powers in respect to this matter must be maintained, then we suggest that an additional sub-clause be included to state that the police must fully investigate all complaints which relate to alleged misconduct prohibited by this act and that they must forward all dockets to the Prosecution regardless of whether or not the police believe the complaint to be valid.
THRU also supports the requirement that those convicted of sexual offences must disclose this to an employer if they will be undertaking duties which place them in direct contact with children. However, we would like to extend the requirement to employers also in that they must ask potential employees of such posts. This need not incur criminal sanctions but we feel this would increase the liability of employers if a child in their care was abused by an employee who was not asked to declare a conviction and so act as an incentive to employers to ensure the success of this measure. THRU would also offer tacit support to extending these measures to organisations operating domestic violence shelters.
THRU welcomes the addition of guiding principles to the Bill, however, wonder what effect they will have in limiting fundamental rights in the Bill of Rights. For example, will the right of the survivor to have a speedy resolution of the case impact upon the rights of the accused to a fair trial?
THRU would again like to thank the Committee for their interest in our submission and hope it has been of use to them in their work.