Commission proposes tightening South African laws to protect child pornography victims

Proposed new laws on child pornography will expand definitions of the crime and tighten existing regulations to protect child victims and sexually active teenagers from being wrongly prosecuted and stigmatised.

This was among the amendments South African Law Reform Commission (SALRC) chairperson Justice Jody Kollapen highlighted when he handed its Project 107 report on sexual offences (pornography and children) to Justice and Correctional Services Minister  Ronald Lamola on Tuesday.  

Kollapen also handed Lamola three additional reports, including one on forced marriage and another that focuses on the difficulty ordinary citizens face in accessing  justice because of high legal fees.

He said the report on sexual offences involving children, which aims to close gaps in existing laws by covering all related criminal offences under the Sexual Offences Act, rather than through multiple laws, including the Film and Publications Act regulations, focused on improving child protection and differentiating between consensual sexual practices between minor teenagers.

“The report deals with the production of pornographic material involving children and the dissemination of that material and, in a growing age of the ease of technology, one sees the impact that this could have on broader society but also on the interests and rights of children,” Kollapen said.

“Our Constitution carries within it the paramount principle that the best interests of the child matter — and matter significantly. It’s an important area for us to consider in the context of our society. 

“The report covers a variety of areas in how the law could best be regulated to protect children but also recognises that children may be involved in the production of this material — because children are naturally curious — and how to best deal with that other than through the strict structures of the criminal justice system, but recognising that we need to deal with children in a way that recognises their youth, their vulnerability and the need not to stigmatise them permanently.”

Among the commission’s 11 recommendations included in the report, which covers the legal obligation of citizens, electronic communication service providers and financial institutions to report child pornography, the need for a multidisciplinary approach to deal with the crime, protection for children who create their own sexual content and new definitions of the crime, was a call for the South African Police Service to fast-track the establishment of its victim identification database. 

The SALRC also proposed that the database be linked to Interpol’s international child sexual exploitation image database.

To align with international definitions, the commission suggested that the term “child pornography” be substituted with the expanded term “child sexual abuse material” in the Criminal Law Sexual Offences and Related Matters Amendment Act and in related legislation. 

“The commission recommends the revision of the definition of ‘child pornography’ in the Sexual Offences Act to include live displays, sequences of images and any of the listed conduct that could be used to advocate, advertise or promote a child for sexual purposes. In line with this amendment the commission recommends the repeal of the definition of ‘child pornography’ in the Films and Publications Act 65 of 1996 and the substitution thereof by reference to the proposed definition of ‘child sexual abuse material’ in the Sexual Offences Act,” the report said.

The SALRC said, for the purpose of investigations, a child should continue to be defined as a person under the age of 18 and not be revised downwards to align with the age of sexual consent. It was also of the view that the intention of the creator of child sexual abuse material or pornography was irrelevant to a definitional clause. 

“All existing and newly created offences in the Sexual Offences Act should sufficiently provide for criminal acts committed through the use of present-day technologies such as the internet, webcams, USBs and mobile phones and technology yet to be developed. The aim is to draft legislative proposals in such a way that the crimes are not technology dependent or specific,” it said.

However, the commission said that it was mindful of the need to differentiate between child sexual abuse material and the creation or sharing of consensual self-generated child sexual abuse material (sexting) between children who engage legally in sexual activity. A non-prosecution clause for certain children recognising age parameters in the Sexual Offences Act for legal sexual acts between adolescents had, therefore, been included in the proposed regulations. 

Receiving the SALRC documents, Lamola said the government welcomed the “critical reports”, which advised on changes to the content of law to match the ideal of justice for citizens.

“We will go through the reports and process them in our systems for necessary legislative changes and also take them further for public engagement in the legislative processes,” the minister added.

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