J de Lange: Second Reading of Criminal Law (Sexual Offences and Related
Matters) Amendment Bill

20 November 2007,

Chairperson;
Honourable Members;
Comrades and friends;
Ladies and gentlemen;

Honourable members, I feel privileged to introduce this debate, particularly
at this time of the year when we stand on the eve of the commencement of the
annual 16 Days of Activism for No Violence against Women and Child Abuse. This
campaign, generating as it does, an increased awareness of the negative impact
of violence against women and children, can, this year, be enriched by
celebrating this House’s willingness and commitment to address the plight of
women, children and other vulnerable groups who are so often the victims of
sexual atrocities, when it approves the Criminal Law (Sexual Offences and
Related Matters) Amendment Bill.

As indicated in the long title, the preamble and the clause setting out the
objects of the proposed legislation, the Bill aims to review and amend the
existing body of law relating to sexual offences comprehensively and
extensively. The aim is to have a single statute, dealing with all aspects
relating to this important and sensitive area of the law.

Honourable Members,
Time simply does not allow me to say all I would like to. I have consequently
decided to focus on some aspects which I consider to be ground-breaking,
particularly those areas which have been hailed as victories in our commitment
to achieving gender equality and to protect vulnerable groups, most notably
women, children and persons who are mentally disabled, from the scourge of
sexual violence in its many manifestations.

Before dealing with some of these ground-breaking issues contained in the
Bill, I would like to share an observation that has been made, namely that for
the first time in South African legal history we will have codified a
substantial portion of our criminal law in a single statute. The approval of
this Bill by the National Council of Provinces today will indeed be an historic
event.

Chapters 2, 3 and 4 of the Bill contain many examples of how the
shortcomings in our common law crimes dealing with sexual offences have been
addressed in the Bill, with the view to bringing them into line with our
constitutional dispensation and ensuring that we have as many quick and
successful prosecutions as possible, with the least secondary trauma for the
victims thereof. For example, the common law offence of rape is gender
specific. Only a male can commit the offence and the victim can only be a
female. Clause 3 addresses these shortcomings to the extent that it will now be
possible for a man to be raped by another man, for a woman to be raped by
another woman and for a man to be raped by a woman. This major departure from
what the law currently is, is to be welcomed. Persons who commit horrific acts
of sexual penetration, which at the moment do not qualify as rape, will, if
convicted, in terms of the proposed new offence, be justifiably stigmatised as
"rapists" for the rest of their lives.

The extension of the common law definition of rape necessitated revisiting
the common law crime of indecent assault, eventually leading to the creation of
a new statutory crime, namely sexual assault, which covers non-penetrative
sexual acts, committed unlawfully and intentionally as contemplated in clause 5
of the Bill.

Chairperson,
The destructive nature of crime and especially the barbaric mentality of
criminals can never be underestimated. In many instances it is not enough for
criminals to commit rape and, as a result thereof, to devastate the lives of
innocent victims. They go further and sometimes force a loved one of the victim
to watch the rape taking place. Clause 8 of the Bill, therefore, among others,
prohibits any person from compelling another to witness a sexual offence being
committed in his or her presence.

Two chapters of the Bill have been devoted exclusively to victims of sexual
offences who are particularly vulnerable, that is children and persons who are
mentally disabled. While the Bill singles out these vulnerable groups, I trust
that our courts and the prosecuting authority will leave no stone unturned to
ensure that persons who commit sexual offences against other vulnerable
victims, such as the elderly and the physically disabled, also get their just
deserts.

There are four new crimes in Chapter 3, dealing with child victims, which
deserve particular mention.

The first of these four is the crime of sexual exploitation of children. In
terms of clause 17 a person who purchases or, on behalf of a child, sells the
sexual services of a child, is guilty of the offence of sexual exploitation of
a child. This clause aims to criminalise the actions of clients and other role
players who are involved in the exploitation of children, for instance "pimps."
A person who engages the sexual services of a child for reward and then goes on
to commit a sexual act with that child, can also be charged, prosecuted and
convicted of a further offence, for example, rape or statutory rape, in
addition to sexual exploitation. I welcome this extra protection afforded to
children.

The second crime deals with the sexual grooming of a child. This is
something entirely new in our law. It is specifically aimed at providing
additional protection to children against an ever-increasing threat. Our
children are increasingly becoming exposed to the risk of persons who, through
their own devious methods, systematically prepare or "soften" children in order
to eventually satisfy their deviant sexual needs. With the age of electronic
communication in full swing it has become even more important to protect our
children from the very real dangers that lurk behind apparently innocent
communication tools such as cellular phones and the Internet. Clause 18 firstly
aims to draw a distinction between persons who promote or facilitate the
grooming of a child and those who actively groom children. It further aims to
address the grooming of a child over the Internet, for example, by placing
greater emphasis on the process of inviting, persuading or enticing a child to
respond to certain sexual overtures.

The last two crimes deal with pornography, that is the display or exposure
of pornography and more particularly child pornography to children and using
children in any manner whatsoever for the creation of child pornography. I
welcome the provisions that clarify what constitutes child pornography. These
two provisions, clauses 19 and 20, will undoubtedly contribute to more
successful prosecutions in this area where children are so open to
exploitation.

Chapter 4 of the Bill, focussing on victims who are persons with mental
disabilities, to a large extent, mirrors the provisions I have just
highlighted.

Honourable Members,
In debates of this nature, one tends to concentrate on the substantive
provisions contained in the Bill. I would, however, like to draw attention to
some provisions in the Schedule to the Bill. These seemingly less important or
incidental provisions should not be overlooked. There are three provisions
almost hidden at the back of the Bill, which I support wholeheartedly and which
will go a long way in reducing the secondary trauma victims of sexual offences
so often have to experience. I welcome the overhaul of section 227 of the
Criminal Procedure Act of 1977, which is intended to set out the circumstances
when evidence relating to the previous sexual history of a complainant is
deemed to be relevant. I welcome the criteria which a court must take into
account before it can admit such evidence, for instance, whether such evidence
is in the interests of justice, with due regard to the accused’s right to a
fair trial and whether the evidence is in the interests of society in
encouraging the reporting of sexual offences. The amendments proposed to
sections 158 and 170A of the same Act will also assist complainants, the former
dealing with the giving of evidence by means of a close circuit television and
the latter dealing with the appointment of intermediaries through which
complainants can testify. These amendments require a court to provide reasons
for refusing an application to invoke the protection envisaged by the two
mechanisms in question in cases where the complainant is particularly young and
vulnerable, namely under 14 years.

I am also heartened by the provisions of clause 60 that, once and for all,
abolishes the cautionary rule in sexual offences; another victory for gender
equality. This clause confirms the decision of the Supreme Court of Appeal in S
v Jackson 1998. The evidence of complainants in sexual offences cases was,
prior to the Jackson case, treated with caution merely because of the nature of
the offence. The Supreme Court of Appeal, in the Jackson case, abolished the
rule and stated that, in sexual assault cases, the rule is based "… on an
irrational and outdated perception. It unjustly stereotypes complainants in
sexual assault cases (overwhelmingly women) as particularly unreliable." The
repeal of the common law rule was confirmed in the cases of S v M 1999 and S v
M 2000. However, this approach was not followed in S v Van der Ross. Clause 60
eliminates any doubt as to what the law is in this regard.

I mentioned earlier that the time available to us simply does not allow me
to say all I would like to with regard to the content of this Bill. I would
like to also briefly highlight the importance of Chapters 5 and 6 of the Bill.
Chapter 5 of the Bill, among others, provides that victims of sexual offences
are entitled to—
* be provided with Post Exposure Prophylaxis at State expense at public health
establishments designated by the Minister of Health on condition that they
report the offence within 72 hours of its commission; and
* apply to court for an order directing that the alleged sex offender be tested
for HIV, with the view to having the test results made available to him or her
for purposes of making personal lifestyle decisions.
It needs to be stressed that the provisions contained in Chapter 5, dealing
with the compulsory HIV testing of alleged sex offenders, should not be
interpreted as detracting from the importance of a victim determining his or
her own HIV status, notwithstanding the outcome of the HIV testing, and receive
the necessary medical advice and treatment, after the commission of a sexual
offence against him or her.

Chapter 6 of the Bill, dealing with the creation of a National Register for
Sex Offenders, reflects Government’s resolve to promote the safety and security
of certain vulnerable groups by prohibiting certain sex offenders from being
placed in positions of authority, supervision or care of children or person who
are mentally disabled. The Chapter therefore aims to establish a record of
persons who have been convicted of sexual offences against children or persons
who are mentally disabled, whether such offences were committed before or after
the commencement of the Chapter and whether they were committed in or outside
the Republic.

I commenced my speech by referring to the 16 Days of Activism Campaign. I
would like to conclude on the same topic, again with reference to the Bill. One
of the key messages of this year’s Campaign is that Government, in creating an
extensive policy and legislative framework that deals with crime, sends a
strong message to offenders that violent abuse will not be tolerated. The
enactment of this Bill will, among others, enhance Government’s resolve to
address the abuse of women and children by criminalising the various
manifestations of sexual violence and abuse. I hope that this Bill, when it
becomes law soon, will be applied with vigour by all role-players. The portion
of the Bill to which this is particularly relevant is Part 3 of Chapter 7,
dealing with the adoption of a National Policy Framework. The Minister for
Justice and Constitutional Development must, in terms of the said Part 3,
liaise with my colleagues, the Ministers for Safety and Security, Correctional
Services, Social Development and Health, as well as the NDPP, with the view to
adopting a national policy framework relating to all matters dealt with in this
Act in order to –
"(a) ensure a uniform and co-ordinated approach by all Government departments
and institutions in dealing with matters relating to sexual offences;
(b) guide the implementation, enforcement and administration of this Act;
and
(c) enhance the delivery of service as envisaged in this Act by the development
of a plan for the progressive realisation of services for victims of sexual
offences within available resources.".
An intersectoral committee, consisting of the Directors-General of these
departments and the NDPP is envisaged, which will play a major role in this
regard. I see this committee and the national policy framework contributing
towards making a success of translating the envisaged line function
responsibilities of all role-players into reality.

The development of this Bill has spanned the administration of three
Ministries. Honourable members are aware that this Bill has its origins in an
investigation and report of the South African Law Reform Commission. The Law
Reform Commission was originally requested to investigate the reform of the
criminal justice system in relation to sexual offences by and against children.
This initial mandate was expanded at the request of the then Deputy Minister
and the Portfolio Committee on Justice and Constitutional Development, to
include sexual offences against adults. Many individuals have worked tirelessly
on this very important matter. Their efforts are appreciated.

I would also like to take a moment to thank members of the Select Committee
who have shown their commitment to ensuring that the end product
comprehensively and extensively reviews and amends all aspects of the laws
relating to sexual offences. I commend the Committee for doing just that, under
the leadership of its Chairperson, the Honourable Kgoshi Mokoena. Your efforts
and hard work have not gone unnoticed. I also wish to express my appreciation
to the many interested parties who unselfishly shared their knowledge,
expertise and experiences by submitting their comments during the investigative
stage that preceded the report of the Law Reform Commission, as well as during
the entire Parliamentary process to date. I venture to say that this Bill has
been the subject of what one could almost regard as unprecedented
consultation.

Thank you.

Issued by: Ministry for Justice and Constitutional Development
20 November 2007