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Criminal Law

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 – possible amendments arising from recent judgments of the Constitutional Court Professor Ann Skelton Centre for Child Law University of Pretoria. Constitutional Court judgments.

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Criminal Law

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  1. Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 – possible amendments arising from recent judgments of the Constitutional Court Professor Ann Skelton Centre for Child Law University of Pretoria

  2. Constitutional Court judgments • This presentation deals with two recent Constitutional Court judgments - Teddy Bear Clinic and Rapcan v Minister of Justice and the National Director of Public Prosecutions - J v National Director of Public Prosecutions • The Court found aspects of the law unconstitutional and referred them back to Parliament • The Centre for Child Law was legal representative of the Applicants in the first case, and for the amici curiae (friends of the court) in the second case

  3. Background • Sections 15 (1) and 16 (1) of Sexual Offences Act sets the age of consent for penetrative and non-penetrative sexual acts • S 15(1) – a person who commits an act of sexual penetration with a person below the age of 16 is guilty despite the consent of the child • S16(1) – a person who commits an act of sexual violation with a person below the age of 16 is guilty despite the consent of the child • Purpose was to protect children from older persons • Remove discrimination based on sexual orientation

  4. Definitions: • For purposes of sections 15 and 16, a child is defined as a person who is 12 years or older but not yet 16. • Sexual penetration: any act which causes penetration to any extent including, oral sex, genital or anal penetration, digital penetration and penetration with an object • Sexual violation: very broad but basically any contact, direct or indirect, which could causes sexual arousal or stimulation, including kissing, fondling and masturbation of one person by another

  5. Section 15(2) and 16(2) • S 15(2) Consensual sexual penetration: If both persons involved are children, National Director of Public Prosecutions authorises; Provided that both children must be charged if a prosecution is authorised (There is no close-in age defence against a charge in terms of section 15) • S 16(2) Consensual sexual violation: Director of Public Prosecutions authorises Provided that both children must be charged if a prosecution is authorised

  6. Constitutional Court • Teddy Bear Clinic and Rapcan (both organisations that deal with child victims) brought the application because they believed it was harmful to children • NB: The case was NOT about reducing the age of sexual consent – that remains 16 years • NB: The case was NOT saying adolescents (12-16 year olds) have a right to have sex – but rather that if they participate in consensual sexual activities, they should not be treated as criminals • NB: This case was only about CONSENSUAL acts

  7. Constitutional Court – Human dignity • The court (Khampepe J) started out by making it clear the Court views children as individual bearers of all the fundamental rights in the Constitution • Human dignity of adolescents was clearly infringed • Criminalisation of private sexual choices is a form of stigmatisation which is degrading and invasive • Categories of activities prohibited are so broad it includes much of what constitutes activities undertaken in the course of normal development • Punishing sexual expression that is developmentally normal inflicts a state of disgrace on the child

  8. Constitutional Court - Privacy • “Inner sanctum” of personhood - protected by the right to privacy, includes right to sexual expression • Ss 15 and 16 apply to the most intimate sphere of personal relationships • The sections allow public officials to assume control of intimate relationships of adolescents thereby intruding into a deeply personal realm of their lives • Dignity and privacy are interconnected – privacy fosters human dignity and protect a sphere of private intimacy and autonomy.

  9. Constitutional Court – Best Interests • S28(2) is a standard against which to test provisions which affect children in general • If there is evidence that exposing children to the criminal justice system for consensual sexual conduct has a negative impact on children in general, the then court may declare the scheme contrary to the best interests of the child • The court was convinced that the law infringed best interests on five grounds: • The evidence showed that criminalisation exacerbate harm and risk to adolescents by undermining support structures and potentially driving sexual behaviour underground

  10. Constitutional Court – Best Interests 2. Adolescents will not communicate freely – the legislation causes a rupture in family life and a breakdown in parental care by severing the lines of communication 3. Even diversion cannot save the provisions – there is intensive interaction with state institutions from the arrest to the decision to divert during which the child has to disclose and have scrutinize intimate affairs 4. Prosecutorial discretion cannot save unconstitutional provisions – the spectre of prosecution remains 5. Prosecution of both adolescents is irrational – it is contrary to the purpose of the act and is exacerbated when one looks at the impact of the s56(2)(b) defence when the children are between 12 and 16, the younger must be prosecuted with the older child

  11. Important points from judgment • It is fundamentally irrational to state that adolescents do not have the capacity to make choices about their sexual activity, yet in the same breath contend that they can be criminally liable • As part of the limitations analysis the court found that there are less restrictive means the state could use that do not involve criminalisation to protect children and help them to lead responsible sexual lives. Criminalisation does not pass constitutional scrutiny

  12. Close in age defence • Court clearly condemns criminalisation of children under 16 • Applicants wanted to extend the close in age defence to sexual penetration to protect 16& 17 yr olds • Although the Court did not make a direct finding on this, Khampepe J opens the door: • “Parliament may wish to reconsider the close-in-age defence in light of the finding set out above”

  13. Constitutional Court Order • Ss 15 and 16 are declared inconsistent with the Constitution and invalid to the extent that they impose criminal liability on children under the age of 16 • Suspended for 18 months to allow Parliament to remedy the defects in light of the judgment • Judgment was handed down on 18 October 2013 • New legislation should be in place by 17 April 2015

  14. J v National Director of Public Prosecutions (2014) • A quick reminder about the law • A quick explanation about the High Court judgment • Highlights from the Constitutional judgments • Possible approach to the amendments

  15. Getting on the register • Section 50(2) of the Sexual Offences Act provides that a court ‘must make an order’ to include the particulars of a person convicted of a sexual offence against a child/mentally disabled person on the National Register for Sex Offenders

  16. Removal of name • The particulars of a person whose name appears on the Register may only be removed after the elapse of a defined timeframe. • A person sentenced to any form of imprisonment (without the option of a fine) or correctional supervision for at least 6 months but not exceeding 18 months (irrespective of whether it was suspended) can apply to have his/her name removed after 10 years; • A person sentenced to any form of imprisonment (without the option of a fine) or correctional supervision for less than 6 months (irrespective of whether it was suspended) can apply to have his/her name removed after 7 years

  17. Removal of name • A person who is alleged to have committed a sexual offence against a child but was found not to have criminal capacity can apply to have his/her name removed after 5 years after having recovered from his/her mental illness; • A person sentenced to any lesser form of punishment or court order (including a sentence to a CYCC) can apply to have his/her name removed after 5 years; • A person sentenced to any form of imprisonment (without the option of a fine) or correctional supervision in excess of 18 months or has two or more convictions of a sexual offence against a child may not have their particulars removed (i.e. on the register for life)

  18. IJ case • A sentence of a boy charged with 4 counts and sentenced to 5 years in a CYCC and a further 3 years in prison thereafter • Went on automatic review • Reviewing judge (Henney J) set it down before a full bench • The High Court declared the section unconstitutional for both adults and children • Rejected the idea that children need special treatment • Rationale rested on audi alterem partem

  19. Constitutional Court • Section 50(2)(a) of the Sexual Offence Act declared unconstitutional and invalid to the extent that it unjustifiably limits the right of child sex offenders to have their best interests considered of paramount importance • Declaration of invalidity suspended from 15 months to give Parliament the opportunity to correct the defect in the light of this judgment (ie by July 2015)

  20. Minister of Justice did not oppose • It is relevant that no party opposed the declaration of invalidity. • Legal Aid (and initially MOJ) also agreed that it is unconstitutional vis-à-vis adults. • The amici argued that the constitutional invalidity should be limited to children in the context of the case– the Constitutional Court agreed with this.

  21. Does the provision infringe on rights of the child Para 35 ‘The amici are correct that the starting point for matters concerning the child is s 28(2)…. Para 36 ‘The contemporary foundations of children’s rights and the best-interests principle encapsulate the idea that the child is a developing being, capable of change and in need of appropriate nurturing to enable her to determine herself to the fullest extent and to develop her moral compass…..

  22. Para 36 (continued) Skweyiya J (for unanimous court) ‘This court has emphasised the developmental impetus of the best-interests principle in securing children’s right to “learn as they grow how they should conduct themselves and make choices in the wide and moral world of adulthood”. In the context of criminal justice, the Child Justice Act affirms the moral malleability or reformability of the child offender’

  23. Key principles re: best interests of child offender Para 37 onwards: • Law should distinguish between adults and children • Law ought to make allowance for an individuated approach to child offenders(best interests always flexible), and individualised justice is foreseen by Child Justice Act

  24. Principles cont (para 40…) • Child (or representative) must be afforded opportunity to be heard at every stage of justice process, participation is a guiding principle under CJA (International law quoted here, incl GC 10 and 12 fn 45) • So then the court goes on applies these principles to the s 50 of the SOA, and finds as follows….

  25. Why s 50 violates best interests • Para 41-42. There is no discretion, therefore no opportunity for individuated response. • Not clear that there is logic in applying the effects to a child when still a child, but has implications into adulthood and therefore rights of child implicated.

  26. Child’s best interests violated • Para 44 ‘Child offenders who have served their sentences will remain tarred with the sanction of exclusion from areas of life and livelihood that may be formative of their personal dignity, family life and abilities to pursue a living. An important factor in realising the reformative aims of child justice is for child offenders o be afforded an appropriate opportunity to be reintegrated into society….

  27. Child’s best interests violated • Para 44 ‘Child offenders who have served their sentences will remain tarred with the sanction of exclusion from areas of life and livelihood that may be formative of their personal dignity, family life and abilities to pursue a living. An important factor in realising the reformative aims of child justice is for child offenders o be afforded an appropriate opportunity to be reintegrated into society…. See footnote 54 on restorative justice

  28. Child’s best interests violated Para 44 continued: ‘Furthermore, it is undoubted that there is a stigma attached to being listed on the Register, even if the Sexual Offences Act closely guards the confidentiality of its contents. Given that a child’s moral landscape is still capable of being shaped, the compulsory registration of the child sex offender in all circumstances is an infringement of the best-interests principle’.

  29. Is limitation justifiable? Para 47 ‘The importance of the best-interests principle cannot be gainsaid, particularly when, as here, one is dealing with children exposed to the criminal justice system. How we treat and nurture children today, including child offenders, impacts the shared dignity of the broader community for years to come. It is nevertheless a laudable and legitimate constitutional aim that the Register seeks to achieve’

  30. Aim of register Para 47 cont ‘..-to provide spaces for children and persons with mental disabilities to learn and grow, be it in schools, in foster homes or places to play and socialise. Caring for and educating children and persons with disabilities is a responsibility that should not be afforded to persons who will harm them’

  31. Valuable purpose but…. [48 cont] ‘I can think of few endeavours more important for a community than protecting vulnerable persons in particular, such as children and persons with mental disabilities, from sexual abuse’. [49] The limitation aims to achieve a valuable purpose, but are premised on the idea that the relevant offenders pose a risk to children & persons w mental disabilities..

  32. Less restrictive means [49] Court points out recidivism varies between adults and children (footnote 62) [50] There are less restrictive means to achieve the aims of the register: • Affording courts discretion (individuation) • Affording an opportunity to child offender to lead evidence and make argument • Modifications to registration parametres such as when registration is triggered and how it is terminated)

  33. Remedy [54] ‘The legislature must be afforded time to correct the constitutional defect, taking into account expert opinion on the unique circumstances of child sex offenders and victims in South Africa’. [56] Parliament must remedy the defect within 15 months. Given that the rights infringements to child offenders will continue in interim, ‘a shorter period for the remedying of the defect is preferred’

  34. Time frames [56] Because the constitutionality of certain provisions of the SOA in relation to children is already under consideration (TBC/Rapcan case), it is feasible that the Legislature is positioned to move on the correction of the defects. In doing so, Parliament should be mindful of the operation of the SOA as a whole the disclosure provisions, and the definition of ‘employer’ in particular.

  35. What Parliament should do [56] Cont: Parliament would be advised to consider the creation of a provision for child offenders included on the Register to have the opportunity to motivate that their particulars be expunged upon application Footnote 65: Court notes existence of the National Child Protection Register and says ‘Insofar as there is any similarity or overlap with the Register currently under consideration, it would be prudent for the Legislature not to consider section 50(2)(a) of the SOA in isolation’

  36. Recommendation for J case • It appears that something along the following lines arises as a solution: • General rule no child on register, unless the state can show that there are substantial and compelling circumstances that warrant it, based on evidence and child must have an opportunity to argue why not.

  37. Conclusion • There is a civil society working group that consists of children’s rights organisations that work with child victims and child offenders • They are keen to participate in the process going forward: • Will comment on any draft Bills • Would like to make oral and written submissions on the Bill to this Portfolio Committee

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