Evolution of Sexual Offences Legislation: A Comprehensive Overview

1. Project 107: Sexual OffencesAn overview

2. Where did it begin? • 1996: Request to SALC by Minister for Justice and Constitutional Development: sexual offences by and against children • Project Committee appointed: member of Commission; experts

3. First Issue Paper • 1997 Sexual offences against children • Workshops, briefings, focus meetings, information sessions • Mandate and capacity expanded • Incremental approach

4. Expanded mandate: • Review sexual offences in the common and statute law • Develop efficient and effective legal provisions for the reporting, management, investigation and prosecution of sexual offences • Workable legal solutions for adult prostitution and pornography as it relates to children.

5. Incremental approach: • Substantive law • Process and procedure • Adult Prostitution • Pornography

6. Publications • Discussion Paper: substantive law: 1999 • Discussion Paper: process and procedure 2001 • Issue Paper: adult prostitution 2002 • Issue Paper: pornography : effect on children: Dept of Home Affairs • Joint report on sexual offences: substantive & procedural law: 2002

7. Report on Sexual Offences • Report & draft Bill. • Addresses substantive and procedural issues related to Sexual Offences and encapsulates legislative and non legislative recommendations • Handed to the Minister for Justice and Constitutional Development on 21st January 2003 • Ministerial Memoranda expositing the non legislative recommendations were forwarded to the Dept’s of Safety & Security; Health; DCS; Education; Soc Dev.

8. Rape: common law • Unlawful, intentional sexual intercourse with a woman without her consent. • ‘Sexual intercourse’ – penetration by male sexual organ # penetration per anum/ object • ‘woman’ – gender specific – man with woman • ‘without her consent’ – woman put to the proof that there was no consent • Irrebuttable presumption that girl <12 cannot consent gender specific – not applicable to boys

9. Penetrative offences: Bill • Degrees of sexual penetration • Rape: genital organs – anus/genital organs • Sexual violation – object/body part of animal or person – anus/genital organs • Oral genital violation – genital organs of person/animal - mouth

10. Penetrative offences: Bill • Rape: - Gender neutral • Intentional causing of penetration by the genital organs into or beyond the anus or genital organs • 3 categories of circumstances make the act prima facie unlawful: • Coercive circumstances • False pretences/fraudulent means • Person committing the act of penetration • The act itself • Intentional non-disclosing infection with a life-threatening sexually transmissible disease where there is significant risk of transmission. • Incapable in law of appreciating the nature of the act which causes penetration • Includes marital rape • Confirms defences at common law : evidential burden on accused

11. Children consenting to penetration or indecent acts • Consent to penetration negated where child is 12 – 16 years • Defence: • Accused deceived that child was16 • Accused reasonably believed that child was 16 • Defence does not apply where related to child by blood or affinity or the child did not appreciate the nature of the act

12. Children consenting to indecent acts • Consent to indecent acts negated below 16 years • Defence: • Accused below the age of 16 years and • Age of accused did not exceed the age of the child by more than three years; or • Accused deceived that child was 16 and reasonably believed that child was 16 • Defence does not apply where related to child by blood or affinity or the child did not appreciate the nature of the act or child was below the age of 12

13. Promotion of a sexual offence with a child • Any person who – • manufactures or distributes an article that promotes a sexual offence with a child or • where a person sells, supplies or displays to a child an article which is intended to perform a sexual act Guilty of the offence of promoting a sexual offence with a child Fine and/or imprisonment not exceeding 6 years

14. Child prostitution • Decriminalisation of child and mentally impaired prostitutes • Decriminalisation of children benefiting from child prostitution in certain circumstances • Explicit criminalisation and severe penalisation of all role-players involved in child prostitution and prostitution of mentally impaired persons • Prohibition of organising or promoting child sex tours

15. Extra-territorial jurisdiction • Applicable to citizens and permanent residence • Relevant to all provisions in Sexual Offence Bill

16. Provision of treatment • Physical, psychological/other injuries due to alleged sexual offence • Immediate and appropriate medical care, treatment and counselling • Exposure to a sexually transmissible infection • Be advised regarding testing • Have access to all possible means of prevention, treatment and medical care After reporting offence to SAPS or Health facility • State shall pay for the care, treatment, testing, prevention and counselling

17. Rules of evidence and Procedure • Category of vulnerable witness • Automatic: • Complainant in the proceedings • A child • Excludes accused • Application: • Any other witness on grounds of age, trauma, cultural differences, any other relevant factor • May call an expert to help assess vulnerability • Must direct protection by one or more protective measures eg. appointment of a support person (prescribed witness fees) • Automatic appointment of intermediary for a child vulnerable witness, adult may apply

18. Cautionary rules and corroboration • Evidence of a complainant of a sexual offence or a child may not be treated with caution or require corroboration merely because of the fact that it is a sexual offence complaint or a complaint by a child.

19. Sentencing/post trial • Drug and alcohol treatment order in addition to sentence • Supervision of dangerous sexual offenders • More than one conviction for a SO • Convicted of a SO with violence/threats to violence • Convicted of a SO against a child where perpetrator is an adult • After being released after partial completion or on parole = long term supervision 5 years + by Dept of Correctional Services; review after 3 years

20. Non-disclosure of conviction of SO • All persons convicted of a SO must disclose such conviction when: • Applying for employment placing him/her in a position of authority or care of children • When offering or agreeing to take care of or supervise children • Failure to do so: fine and/or imprisonment not exceeding 3 years.

21. National Policy Framework • Empowering provision in Bill : statutory duty on govt dept’s and relevant NGO’s to compile an inter-sectoral, national policy framework • Purpose: to guide the implementation, enforcement and administration of the Sexual Offences Act • Aim: uniform and acceptable approach towards treatment & protection of complainants and apprehension & prosecution of offenders • Provides for internal accountability mechanisms: positive duties