The Criminal Law (Sexual Offences and Related Matters) Amendment Bill was passed by the portfolio committee on justice and constitutional development on November 10. But, on referral to the National Assembly on November 16, it was held up because of a technicality. It looks unlikely that the Bill will be passed this year.
Civil society has raised a number of concerns, chiefly around the removal of provisions that deal with medical treatment and counselling for survivors of sexual violence, and measures designed to reduce secondary trauma during the tria. These omissions will subject survivors to trauma, and conviction rates are unlikely to increase.
Rape is the most serious offence in the sexual-offence hierarchy, and a conviction on this charge invokes minimum sentence legislation. The Bill repeals the common-law offence of rape (penetration of the vagina without consent) and replaces it with an expanded statutory offence of rape, which includes all acts of nonconsensual sexual penetration — of the vagina, anus or mouth by a penis or other objects such as bottles and sticks.
The new definition is said to reflect more accurately women’s and children’s experience of rape. It also recognises that men and boys can be raped.
In addition, the Bill sets out a list of offences against women and children. It creates the lesser offence of sexual assault, which is defined as an act of sexual violation. This includes forced masturbation. Other offences include exposure to sexual acts, incest, bestiality and necrophilia.
A chapter is devoted to offences against children. These include:
- Acts of sexual penetration with children aged 12 to 16. The age of consent is retained at 16 years. Where two children are between the ages of 12 and 16, prosecution may not be instituted without the written instruction of the national director of public prosecutions.
- Sexual exploitation of a child.
- Child prostitution.
- Exposure or display of pornography or sexual acts to a child.
- Grooming of a child to commit a sexual offence. Of concern is that the offence currently provides that the perpetrator must have communicated with the child on at least two occasions prior to travelling to meet or meeting the child with the intention of committing a sexual offence.
Consent is defined as ”voluntary and uncoerced agreement”. The Bill sets out circumstances where consent is understood to be lacking. This includes situations where the perpetrator abuses a position of power that inhibits the survivor of sexual violence from indicating her willingness. This recognises that women and young girls and boys, and in certain circumstances men, may find it hard to say ”no” in situations where there is an imbalance of power.
Sexual violence causes physical and psychological trauma. After a sexual offence, the victim/survivor may require medical and psycho-social treatment for the following:
- HIV — including pre- and post-test counselling, and post-exposure prophylaxis (PEP);
- the possible transmission of sexually transmitted infections;
- injuries to any part of the body;
- the prevention of pregnancy;
- the termination or management of pregnancy;
- psychological shock (including post-traumatic stress disorder, disturbed sleep and eating patterns, anxiety and depression); and
- disturbance in relationships.
The Bill aims to afford to survivors of rape and sexual assault the maximum and least traumatising protection the law can provide. But it contains few measures providing for medical treatment and counselling. The only medical treatment provided for is PEP to prevent HIV transmission. But to access PEP the survivors must report the rape to the police or a designated health site within 72 hours.
The Bill does provide for the survivor of rape or sexual assault to request that the perpetrator be tested for HIV where there has been an exchange of bodily fluids. The process it sets out is, however, cumbersome.
Some provisions intended to support and protect complainants have been removed from the draft of the Bill. These are aimed at recognising the vulnerability of certain witnesses and complainants by allowing for protective measures to reduce secondary trauma. These include giving evidence via closed-circuit television, evidence in camera, evidence through the use of an intermediary, having a support person in court, and protecting the identity of the complainant.
Finally, the Bill also provides for a register of offenders to be kept.
Shereen Mills is a senior legal researcher at the Centre for Applied Legal Studies