The Sexual Offences Amendment Act: Implications for Children
31 Mar 2008
31 Mar 2008
The Criminal Law (Sexual Offences and Related Matters) Amendment Act, commonly referred to as the Sexual Offences Amendment Act came into effect in June 2008. Historically the reform process relating to this Act was initiated by concerns about the high levels of sexual abuse of children. The original reform process began in January 1998 when the then Minister of Justice, Dullah Omar, appointed a committee of experts to assist the South African Law Reform Commission with an investigation into and the drafting of further legislation to deal with "Sexual Offences On and By Children."
The expansion of the terms of reference for the SA Law Reform Commission process and for the drafting of the legislation may have contributed to the fact that, over the decade of law reform relating to sexual offences and their management, the special needs of sexually abused children to some extent "fell off the map."
The final Act has both positive and negative implications for the care and protection of children - both those who are victims and "perpetrators" of sexual offences.
Positive implications include:
* The expanded definition of rape is a definite step forward. Childline works with both girl and boy victims of penetrative sexual assaults - the exclusion of anal and oral "rape" from the legal definition of rape prior to the passing of the Act was discriminatory and resulted particularly in the neglect of male children as victims of penetrative sexual crimes. The expanded definition thus affords both male and female children equal consideration in the adjudication of sexual crimes committed against them;
* An expansion of the list of possible sexual crimes against children ensures that a broader range of sexually exploitive acts against children are able to be prosecuted;
* A very comprehensive section criminalising every aspect of child prostitution;
* Provision for a National Policy Framework in order to improve and coordinate the criminal justice system response to sexual offending. This will be developed by an Inter-sector Committee whose membership is constituted by senior personnel from the government departments that deal with the management of sexual offences;
* National directives for police, health professionals and prosecutors with regard to the management of sexual offences.
However, there are aspects of the Act in which are concerning including:
* The absence of psycho-social services to victims (strongly proposed by the Expert Committee of the SA Law Reform Commission);
* No supervision or alcohol and drug testing of sexual offenders;
* The use of the intermediary is still dependent on the discretion of judicial officers who may have no training in working with children and how they respond to traumatic events;
* The failure to remove the cautionary rule attached to the evidence of children (research into the reliability of the evidence of children indicates that they are as reliable, if not more so, than adult witnesses);
* The failure to ensure that all child witnesses may testify "in camera";
* The failure to remove the "competency test" for young children who may be screened out as able to testify;
* The exclusion of civil society from the Inter-sector Committee which will draft the National Policy Framework for the management of sexual offences. This is a critical omission considering the range of services offered to sexual assault victims, particularly children, by the NGO sector;
* The Act is written in complex language, making it difficult for even qualified legal professionals to comprehend.
Another matter of great concern is the duplication of the offender register. Despite bringing the duplication of this provision to the attention of the Parliamentary Portfolio Committee on Justice and Constitutional Development, the Act retained the sections that establish a second child sex offender register, the first being provided for in the Children's Act no 38 of 2005.
Concerns about this duplication include:
* Registers are expensive to establish and maintain. In a country so short of resources that psycho-social care to the majority of victims of sexual assault cannot be provided, it is impossible to justify this duplication;
* In a country in which 1 in 9 child victims report crimes against themselves (www.cjcp.org.za) and in which there is a 4-6 percent conviction rate for those sexual offences that are reported, very few offenders will appear on such a register. Most perpetrators of sexual crimes will be unknown persons in the community;
* All employers of any person to work with children, paid or volunteer, in government or civil society, have to check all existing and all prospective employees against two registers - both a time consuming and expensive process;
* Research indicates that registers in themselves contribute very little to child protection.
However considerable encouragement can be gained from the Bertelsmann judgment relating to the management of sexual offences against children. Although some of the findings in this judgment will be tested in the Constitutional Court, for example his finding that the discretionary use of the intermediary system and the "in camera" provision are unconstitutional, the judgment highlights the need to afford greater protection to the child witness as well as the need for greater consultation between government and civil society.
The expansion of the terms of reference for the SA Law Reform Commission process and for the drafting of the legislation may have contributed to the fact that, over the decade of law reform relating to sexual offences and their management, the special needs of sexually abused children to some extent "fell off the map."
The final Act has both positive and negative implications for the care and protection of children - both those who are victims and "perpetrators" of sexual offences.
Positive implications include:
* The expanded definition of rape is a definite step forward. Childline works with both girl and boy victims of penetrative sexual assaults - the exclusion of anal and oral "rape" from the legal definition of rape prior to the passing of the Act was discriminatory and resulted particularly in the neglect of male children as victims of penetrative sexual crimes. The expanded definition thus affords both male and female children equal consideration in the adjudication of sexual crimes committed against them;
* An expansion of the list of possible sexual crimes against children ensures that a broader range of sexually exploitive acts against children are able to be prosecuted;
* A very comprehensive section criminalising every aspect of child prostitution;
* Provision for a National Policy Framework in order to improve and coordinate the criminal justice system response to sexual offending. This will be developed by an Inter-sector Committee whose membership is constituted by senior personnel from the government departments that deal with the management of sexual offences;
* National directives for police, health professionals and prosecutors with regard to the management of sexual offences.
However, there are aspects of the Act in which are concerning including:
* The absence of psycho-social services to victims (strongly proposed by the Expert Committee of the SA Law Reform Commission);
* No supervision or alcohol and drug testing of sexual offenders;
* The use of the intermediary is still dependent on the discretion of judicial officers who may have no training in working with children and how they respond to traumatic events;
* The failure to remove the cautionary rule attached to the evidence of children (research into the reliability of the evidence of children indicates that they are as reliable, if not more so, than adult witnesses);
* The failure to ensure that all child witnesses may testify "in camera";
* The failure to remove the "competency test" for young children who may be screened out as able to testify;
* The exclusion of civil society from the Inter-sector Committee which will draft the National Policy Framework for the management of sexual offences. This is a critical omission considering the range of services offered to sexual assault victims, particularly children, by the NGO sector;
* The Act is written in complex language, making it difficult for even qualified legal professionals to comprehend.
Another matter of great concern is the duplication of the offender register. Despite bringing the duplication of this provision to the attention of the Parliamentary Portfolio Committee on Justice and Constitutional Development, the Act retained the sections that establish a second child sex offender register, the first being provided for in the Children's Act no 38 of 2005.
Concerns about this duplication include:
* Registers are expensive to establish and maintain. In a country so short of resources that psycho-social care to the majority of victims of sexual assault cannot be provided, it is impossible to justify this duplication;
* In a country in which 1 in 9 child victims report crimes against themselves (www.cjcp.org.za) and in which there is a 4-6 percent conviction rate for those sexual offences that are reported, very few offenders will appear on such a register. Most perpetrators of sexual crimes will be unknown persons in the community;
* All employers of any person to work with children, paid or volunteer, in government or civil society, have to check all existing and all prospective employees against two registers - both a time consuming and expensive process;
* Research indicates that registers in themselves contribute very little to child protection.
However considerable encouragement can be gained from the Bertelsmann judgment relating to the management of sexual offences against children. Although some of the findings in this judgment will be tested in the Constitutional Court, for example his finding that the discretionary use of the intermediary system and the "in camera" provision are unconstitutional, the judgment highlights the need to afford greater protection to the child witness as well as the need for greater consultation between government and civil society.
Organisation
SANGONeT
Source: SANGONeT
Additional information
The Criminal Law (Sexual Offences and Related Matters) Amendment Act, commonly referred to as the Sexual Offences Amendment Act came into effect in June 2008. Historically the reform process relating to this Act was initiated by concerns about the high levels of sexual abuse of children.
