Criminal Law (Sexual Offences and Related Matters) Amendment Act: introductory briefing

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Justice and Correctional Services

03 February 2015
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Meeting Summary

The Department of Justice said the Bill aimed to amend the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, by giving effect to the two separate judgments of the Constitutional Court, namely the Teddy Bear case dealing with sections 15 and 16 of the Act and the J case in connection with section 50(2)(a) of the Act. Although parts of sections 15 and 16 were declared invalid, ‘justice and equity warrant that their invalidity should be suspended for a period of 18 months in order to allow Parliament to remedy the defects in the statute’.

Teddy Bear case
The Constitutional Court found that sections 15 and 16 of the Act infringed on the rights of adolescence in terms of section 10 (right to human dignity), section 14 (right to privacy) and section 28(2), the ‘best interest of the child’ principle of the Constitution. The Bill's proposed amendments (clauses 1, 2, 3 and 9) aimed to amend sections 15, 16 and 56 to provide that adolescents who engaged in consensual sexual acts with each other should not be prosecuted. It would mean that 16 or 17 year olds who engaged in the same consensual sexual acts with adolescents could be prosecuted if the age difference between the 16 or 17 year old and the adolescent was more than two years. Where a 16 or 17 year old engaged in a consensual sexual act with an adolescent and the age gap was more than two years, the Director of Public Prosecutions would decide whether a prosecution should be instituted or not. If an adult engaged in such consensual sexual acts it remained statutory rape or statutory sexual violation.

The Bill's amendments in clauses 1, 2, 3 and 9 decriminalised consensual sexual conduct between persons 12 years and older but under the age of 16 years. It did not lower the age of consent to engage in consensual sexual conduct. This was in line with the parameters set by the Constitutional Court in the Teddy Bear case.

 J Case
The Constitutional Court found that the limitation of the right of the child offenders contained in section 50(2)(a) of the Act, namely that they were not afforded an opportunity to be heard regarding the placement of their names on the National Register for Sex Offenders, was not justified in an open and democratic society. Clauses 4, 5 and 6 of the Bill amended sections 46, 47 and 48 of the Act in order to clarify the extent of the obligation of a person whose particulars appear in the Register to disclose that fact in certain circumstances. Clause 7 amended section 50(2) to give the courts discretion to order that the particulars of a person who was a child at the time of the commission of a sexual offence against another child or a person who was mentally disabled, might not be included in the Register. Such an order could only be after the convicted person had been given the opportunity to address the court. Clause 8 amended section 51 which dealt with the removal of the particulars of a person from the Register. Clause 10 amended section 67 by providing that the Minister might make regulations on the procedure to be followed on applications for the removal of particulars from the Register.

The Bill's amendments in clauses 1, 2, 3 and 9 decriminalised consensual sexual conduct between persons 12 years and older but under the age of 16 years. It did not lower the age of consent to engage in consensual sexual conduct. This was in line with the parameters set by the Constitutional Court in the Teddy Bear case.

The Committee debated whether the implication of the judgment in the Teddy Bear case inadvertently meant that the age of consent would be lowered to 12 years and that the onus would rest on the young child to prove non-consent in court. The Department clarified the law and stated that a child under the age of 12 could not consent. It further stated that although a child aged between 12 and 16 could willingly engage in sexual activity based on consent, sections 15 and 16 held that that consent was irrelevant.

Members debated the best guideline to follow when making this law. Some members felt that the supremacy of the Constitutional Court and the ‘best interest of the child’ guidelines were the most important. Adv S Swart (ACDP) was of the view that the judgment in the Teddy Bear case was based on uncontested expert evidence which many South Africans might not agree with. He put it forward that although the Constitutional Court should be respected, the Committee should also hear other expert evidence.

The Committee further discussed the lack of representativeness of the submissions received and feared that there would not be adequate time to do proper consultation and finalise the legislation by the April 2015 deadline. Members proposed and agreed that an application for extension would be made to the Constitutional Court.

 

Meeting report

The Chairperson said the Committee was faced with a tight schedule to finalise the Bill and sufficient consultation was very important.

Department of Justice Chief Director: Legislative Drafting, Adv Lawrence Bassett, said the Department had engaged in various internal and external consultations in the preparation of the Bill. The Bill dealt with difficult issues and there had been a lot opposition to the proposed amendments. These proposed amendments were in response to a Constitutional Court judgment which had set clear parameters for such amendments.

The Chairperson said already more than 400 submissions had been received and it was also important that the Constitutional Court judgments be properly explained.

Introductory Briefing: Criminal Law (Sexual Offences and Related Matters) Amendment Act
Department of Justice Senior State Law Advisor, Mr Henk du Preez, said the Bill aimed to amend the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, by giving effect to the two separate judgments of the Constitutional Court, namely the Teddy Bear case dealing with sections 15 and 16 of the Act and the J case in connection with section 50(2)(a) of the Act.

He referred to the extract of the provisions of the Act relevant to the briefing. Provision 1 dealt with the definitions of ‘child’, ‘sexual act’, ‘sexual penetration’ and ‘sexual violation’. A ‘child’ generally referred to a person under the age of 18 years, but with reference to sections 15 and 16, a person 12 years or older, but under the age of 16 years. Sections 15 and 16 stated that a person who committed an act of consensual sexual penetration or consensual sexual violation with a child was, despite the consent of the child to the commission of such an act, guilty of the offence of consensual sexual penetration or consensual sexual violation with a child. The primary aim of sections 15 and 16 (statutory rape and statutory sexual assault, respectively) was to protect children between the ages of 12 and 16 years from exploitation by adults. Section 56(2)(b) stated that whenever an accused person was charged under sections 16, it was a valid defence to such a charge to contend that both the accused persons were children and the age difference between them was not more than two years at the time of the alleged commission of the offence.

Section 50(2)(a) placed an obligation on a court to order that the particulars of a convicted person or a person in respect of whom the court had given a direction in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1977, should be included in the National Register for Sex Offenders. A court that had in terms of the Act, or any other law convicted a person of a sexual offence against a child or a person who was mentally disabled and, after sentence had been imposed, should make an order that the particulars of the person be included in the Register. The J case referred to the conviction of a fourteen year old of the rape of three young boys and the assault with the intent to do grievous bodily harm of a 12 year old. The Constitutional Court held that section 50(2) of the Sexual Offences Act might violate the child offender’s rights by requiring the particulars of a child offender to be included in the Register.

Teddy Bear case
The Constitutional Court found that sections 15 and 16 of the Act infringed on the rights of adolescence in terms of section 10 (right to human dignity), section 14 (right to privacy) and section 28(2), the ‘best interest of the child’ principle of the Constitution. The proposed amendments (clauses 1, 2, 3 and 9) aimed to amend sections 15, 16 and 56 to provide that adolescents who engaged in consensual sexual acts with each other should not be prosecuted. It would mean that 16 or 17 year olds who engaged in the same consensual sexual acts with adolescents could be prosecuted if the age difference between the 16 or 17 year old and the adolescent was more than two years. Where a 16 or 17 year old engaged in a consensual sexual act with an adolescent and the age gap was more than two years, the Director of Public Prosecutions would decide whether a prosecution should be instituted or not. If an adult engaged in such consensual sexual acts it remained statutory rape or statutory sexual violation.

 J Case
The Constitutional court found that the limitation of the right of the child offenders contained in section 50(2)(a) of the Act, namely that they were not afforded an opportunity to be heard regarding the placement of their names in the National Register for Sex Offenders, was not justified in an open and democratic society. Clauses 4, 5 and 6 of the Bill aimed to amend sections 46, 47 and 48 of the Act in order to clarify the extent of the obligation of a person whose particulars appear in the Register to disclose that fact in certain circumstances. Clause 7 aimed to amend section 50(2) of the Act to give the courts discretion to order that the particulars of a person who was a child at the time of the commission of a sexual offence against another child or a person who was mentally disabled, might not be included in the Register. Such an order could only be after the convicted person had been given the opportunity to address the court in this regard. Clause 8 aimed to amend section 51 of the Act which dealt with the removal of the particulars of a person from the Register. Clause 10 aimed to amend section 67 of the Act by providing that the Minister might make regulations regarding the procedure to be followed on applications for the removal of particulars from the Register.

Mr du Preez said It should be stressed that the amendments contained in clauses 1, 2, 3 and 9 decriminalised consensual sexual conduct between persons 12 years and older but under the age of 16 years. It did not lower the age of consent to engage in consensual sexual conduct. This was in line with the parameters set by the Constitutional Court in the Teddy Bear case.

Discussion

Adv S Swart (ACDP) said it was important that the particular sections should be viewed within the context of the Act. The object of the Act when it was passed was to protect vulnerable adults and children. There needed to be engagement on the judgments at some stage, because the expert evidence led by the applicants in the Teddy Bear case was not contradicted and Parliament also had the right to hear other expert evidence within the constraints of the judgment. It was important to understand how the court reached that decision of decriminalising consensual adolescent sex and how that decision balanced with the goals of the Act when it was passed. When the Act was passed, the then Portfolio Committee wrestled with thousands of submissions and requests that the age of consent be lifted to 18. It should also be noted that it dealt with both heterosexual and homosexual sex and it could not be denied that the age of consent for children would be lowered to 12 years with this decision.

The Chairperson asked if the initial internal consultations were done with government departments.

Mr du Preez confirmed that the initial internal consultations in preparation of the Bill were done with certain government institutions.

The Chairperson said the other external consultations lacked significant input from diverse cultural and religious groups.

Adv Swart began by saying that adolescent sex was morally wrong and Parliament had the right to raise the age of consent, unlike the Constitutional Court. When the Act was passed, an outstanding Committee resolution remained to re-look at the age of consent. There was a general inconsistency regarding age in South Africa, because there was a legally determined age to be able to drive, to vote and engage in sexual activities, but there was no legal age determined to undergo an abortion. Decriminalising adolescent sex directly influenced the age of consent, because 12 year olds would now be able to have sex where it was previously illegal. The objects of the Act was not only to protect children from adults, it was also designed to protect children from child offenders. The Minister of Health had made the comment that many rural young girls did not know they could say no and yet no consultations had been done in that regard. Many South Africans would not agree with the accepted expert evidence that ‘sexual experiences during adolescence, in the context of some form of intimate relationship, are not only developmentally significant, it was also developmentally normative’. There was no input from either the Ministers of Health or Education and Parliament had the right to hear other expert opinions on this matter. The judgment clearly stated that “Parliament has clearly determined that a particular group of children – adolescents – are vulnerable and merit special protection from sexual predation, by both adults and other children”. Paragraph 97 of the judgment also stated that “assuming criminalisation could be shown to be an appropriate response to deter consensual acts which carry the risk of psychological harm, pregnancy or the contraction of sexually transmitted diseases, a narrowly focussed provision would target only those acts where these are potential risks”. There were a number of differences between the Bill that was tabled before Cabinet and the Bill that was tabled before Parliament. The main differences were the fact that 16 and 17 year olds with the two year difference were now included in this Bill and the removal of the two year age difference from section 15 and he asked the Department to comment on the discrepancy. It was never the intention for children that engaged in consensual sex to go to jail, but it served as a deterrent for premature sexual activities.

Mr du Preez replied if the Committee at this point was considering constricting the ambit of sections 15 and 16, then the definitions of ‘sexual penetration’ and sexual violation’ would have to be technically amended and that would be extremely difficult. He asked to consult with Adv Swart to compare notes after the meeting, because the Minister published the Bill on the department website that formed the basis for consultation, prior to approaching Cabinet for approval to introduce the Bill in Parliament. That version of the Bill contained the two year age difference in both sections 15 and 16. It was pointed out to the Department by the majority of the commentators that the two year age difference was not in line with the Constitutional Court judgment. The Bill was adapted and finalised and submitted to the Minister. The differences that were made were discussed with the Minister and after approval, the Minister submitted the Bill to Cabinet for approval. There might be slight technical changes in terms of drafting or formatting.

The Chairperson asked that the Department prepare a document that explained the process for circulation to all the Members.

Adv Swart asked why 17 year olds were also included, because the judgment clearly excluded them in paragraph 114.

Mr du Preez explained it was a quality issue to avoid the fact that 15 or 16 year old might not be criminally liable, but would become so on their birthdays.

Ms K Litchfield-Tshabalala (EFF) said decriminalising adolescent sex effectively lowered the age of consent and it tied in with the fact that a girl as young as 13 could have multiple abortions. The line between childhood and adulthood was becoming blurred because it seems that a person not legally able to drive or vote would now be able to have sex and undergo abortions. The consultations lacked input from various religious, non-religious and cultural groups. The Minister of Social Development should be able to have some input, because these amendments could have an impact on an already unsustainable social grant system with children having children.

Mr W Horn (DA) said the Committee was faced with these amendments because of the supremacy of the Constitution and the apex role of the Constitutional Court. The parameters set by the Constitutional Court judgments were the ultimate guidelines and the Committee did not have much room to maneuver. There was a very important difference between decriminalisation and legalisation. To decriminalise did not mean that Parliament wanted to promote consensual sexual activity. If the Teddy Bear case was carefully read, it was quite clear that the Constitutional Court itself pushed it forward that other policy choices were available to government. In terms of morality, it was to be expected that various religious groups would object to these amendments, but it was not Parliament’s job to legislate morality. It was ultimately up to the parents, churches and religious groups to take charge of the morality of their followers. The Committee should find a way to give meaningful effect to the judgments, specifically the Teddy Bear case, within the bounds of the Constitution.

Mr M Redlinghuys (DA) agreed that the ultimate consideration should be the supremacy of the Constitution. The Constitutional Court balanced various rights such as privacy, human dignity, freedom and the best interest of the child and it was not up to the Committee to review Constitutional Court judgments. The original Act created an incredibly complex layer of criminality which was at best confusing and at worst, arbitrary. The original Act not only criminalised nonconsensual sexual penetration and violation, but also consensual sexual expression between adolescents. The Act essentially stated if adolescents were kissing, fondling or sexually arousing one another, they were now criminals according to statute. They would have criminal records for life and it set them up to fail. Nonconsensual sexual penetration or violation of a child against another child should be prosecuted because there was no argument against it. The State should not usurp the role of the parent and this law basically inserted the State and the public into the private and intimate lives of adolescents. There are various other government policies to promote abstinence and responsible sexual conduct.

The Chairperson asked what would happen if upon consultation the overwhelming majority of people disagreed with the Constitutional Court. It was important to make organisations and communities aware of their own social responsibilities toward the education of children. The Committee should guard against creating laws that seemed good on paper, but did not resonate with the reality children face every day.

Adv Swart said the Constitutional Court based its decision on very narrow evidence. It created the question as to what degree the Committee had maneuvering space if other evidence contradicted the expert evidence accepted by the Court. Parents and societies should be primarily responsible for the sexual education of their children, but in reality the State had had to deal with teenage pregnancies and safe sexual practices. The Constitutional Court stated that government could and should intervene and the question became ‘how’ government should intervene. Paragraph 97 of the judgment afforded Parliament room to move without undermining the supremacy of the Constitution. Debates should happen around this concern and the time afforded to Parliament to develop this legislation was a concern.

The Chairperson said the Court would not tell Parliament what to do, because Parliament represented the people of South Africa and their views.

Ms Litchfield-Tshabalala said in light of the planned consultations, the Committee would need to find the time to have a thorough process of consultation. If consensual sex between adolescent were decriminalised, it was essentially permissible and there was no real distinction between decriminalisation and legalisation. It might not be the job of Parliament to legislate morality, but it was the job of Parliament to create and regulate laws that enhanced the values and interactions of adults and children, as well as preempt the consequences of changing laws.

Ms C Pilane-Majake (ANC) said South Africa was governed through its Constitution and section 50(2)(a) was an example of violating the rights of a child while trying to protect the rights of children and other vulnerable individuals. Children will make mistakes and experiment and it was a challenge for parents and teachers to educate children and make them aware of right and wrong. This process should be approached with the ‘best interest of the child’ guideline within the human rights culture this country had developed. The issue of ‘predator children’ should be dealt with through other legislation and policies because it spoke to societal problems. This discussion should focus on the judgment and the process of consultation Parliament planned to undertake.

Mr du Preez said the legislation was not dealt with in isolation, the Children’s Act and the Child Justice Act formed a basis for the treatment of children and child offenders.

The Chairperson noted that human rights did not exist in a vacuum, but it existed in environments that often created predatory children.

Adv Swart said the social context was another matter that was not fully explored by the Constitutional Court. It was a complex issue that should not be rushed and there was a binding order currently in place where no child could be prosecuted. Should the need arise, with the help of the Speaker, a compelling argument could be made to the Constitutional Court that it was unfair to expect Parliament to finalise the legislation in the set amount of time given the level of public interest in this specific law. Morality had always been legislated through personal value systems by different parties with different viewpoints driven by different value systems. South Africa had a very high level of rape offences and only one out of 10 cases was reported because women did not want to go through the secondary trauma of a trial. The perpetrator in those cases often says ‘she consented’. By decriminalising, the ambit was opened to a predatory 15 or 16 or even 30 year old that would say to a young girl ‘you consented’. The onus would thus be on a young girl to prove non-consent and this proposed amendment would remove this protection from having that added burden.

Mr du Preex disagreed and said the law stated that a child under the age of 12 could not consent. It further stated that although a child aged between 12 and 16 could willingly engaged in sexual activity based on consent, sections 15 and 16 held that that consent was irrelevant.

Ms Litchfield-Tshabalala said it should be contained in the argument that Parliament was not here to regulate morality, but it should be a rights issue and a constitutional issue. The question should be asked however if the Constitution was immoral and non-religious.

The Chairperson said the Constitution gave everybody the right to practice their religion and by implication it meant that the Constitution protected religion.

The Chairperson asked if it was possible to formulate the critical issues in simple language and approach the South African Broadcasting Commission (SABC) to engage the public to take part in the debate.

Ms Litchfield-Tshabalala supported the proposal and asked that community radio stations also be included because it was a matter of public interest.

The Chairperson suggested that these radio stations also included campus radio stations at universities to open dialogue and debate among students. A proposal was made to apply for an extension of time in dealing with the legislation, because over 400 submissions had been received and consultation was not yet done.

Mr Horn said it was not an official proposal and perhaps the date should be put on the table and the Committee could deliberate whether an extension was needed.

Mr L Mpumlwana (ANC) proposed that an extension was applied for, because it was imperative that proper consultation took place.

Mr B Bongo (ANC) seconded the proposal and said consultation was the most important element in the process and the Committee should have a clear path on how the process would develop.

Ms Litchfield-Tshabalala and Adv Swart agreed because there had already been feedback from the public who were reporting problems sending through their submissions.

The Chairperson said the ‘best interest of the people’ guideline should apply and the Committee would apply for an extension. Thursday’s meeting would be cancelled and the time would be used to summarise the submissions and check the representativeness of those submissions.

Adv Swart said it would perhaps mean that the call for submissions be extended and the Chairperson agreed that late submissions would be accepted.

The Chairperson also said that the Committee would have to be aligned to the programme to accommodate the process, because work would have to continue in case the application for extension was not granted so Parliament would need to be able to conclude the process by April 2015 as the Constitutional Court ordered. The point of departure was that it should be an optimally inclusive process of consultation so that the law that would be eventually passed was representative of the people of South Africa.

The meeting was adjourned.

 

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