SA Sexual Offences Bill violates offenders' rights
In its present form, the Sexual Offences Bill could face constitutional challenges as it violated certain entrenched rights of alleged offenders, the Institute for Security Studies (ISS) warned on Friday.
Crime and justice programme head Anton du Plessis said the draft bill, currently serving before Parliament’s justice portfolio committee, placed the burden on offenders in some instances to prove their innocence.
This was in violation of the right to be presumed innocent until proven guilty by a court, and the right of an accused to remain silent.
In the past, legislation placed the onus on the rape victim to prove that no consent had been given for sex.
This had been changed, with the bill stating penetration was prima facie (on the face of it) unlawful in coercive circumstances, if it took place under false pretences, or if the victim was drunk or mentally disabled.
“The onus now shifts to the accused to prove what happened,” he told an ISS seminar in Pretoria.
Other changes brought about by the bill included broadening the definition of rape to include male victims, as well as the actions of any man or woman who forced another person to penetrate them.
Some other sexual violations, such as sexual penetration of a victim by an object, would now be punishable under the same maximum sentencing laws applicable to rape—between 25 years and life in jail, Du Plessis said.
The bill also introduces changes regarding the crime of consensual sex with a child between the ages of 12 and 16, stating it was no longer enough for the offender to say he believed the child to have been older. He would now have to prove he was actively deceived.
The bill extended protection offered to children—changing the means test to determine whether they were competent to testify.
In the past, children’s competency was measured by asking if they knew the difference between truth and a lie. Traumatised children often misunderstood the question, Du Plessis said.
In future, children would be considered competent witnesses if they were able to answer questions in an understandable way.
The bill allows a court to declare a convicted person a dangerous offender, allowing for them to be monitored in the event of early release.
Sex offenders would be obliged to disclose their convictions when applying for employment involving the care of children—or face a jail term.
This has replaced a proposed paedophile register, which has proven ineffective as a preventative measure in other countries.
Only about 17% of sexual crimes against children were perpetrated by paedophiles.
Du Plessis said the bill was regarded as one of the most progressive of its kind in the world.
But, he warned that bigger budgets, more sexual offence courts and specialised training was crucial for its effective execution.
Joan van Niekerk, who led the SA Law Commission’s sexual offences project committee, expressed dismay at the Cabinet’s decision not to include a clause in the bill which compelled the government to provide rape victims with anti-retroviral drugs.
Also worrying was the exclusion of a provision stating that convicted offenders should pay towards their victims’ therapy, and other allowing courts to ask for expert assessments of victim trauma for purposes of judgment and sentencing.
These provisions held cost-implications for the government, Van Niekerk told the seminar.
“No department wants to be presenting proposals with a higher budget in a pre-election year.”
She said the government would be lobbied to rethink its decision.
After consideration by the portfolio committee, the bill is to be submitted to Parliament at its next session. - Sapa