THE RELEASE OF THE DISCUSSION PAPER ON THE REVIEW OF THE CHILD CARE ACT

19 December 2001

The Commission has approved the publication of a discussion paper on the procedural law relating to sexual offences for comment. As part of an incremental approach, the South African Law Commission is releasing the discussion paper on process and procedure relating to sexual offences, this being the second of a four part series, for general information and comment. The first discussion paper dealt with the substantive law relating to sexual offences, while the third and fourth papers will address the controversial issues of adult prostitution and pornography.

The discussion paper contains a draft Bill which embodies some progressive recommendations on the reform of the law relating to sexual offences. Although the discussion paper concentrates on aspects of the procedural law in relation to sexual offences the Bill which accompanies the discussion paper includes substantive law provisions, all of which have been revised following the integration of submissions received on the discussion paper on the substantive law. An explanatory memorandum clearly sets out the reasons for the revision of the substantive law provisions.

The release of the discussion paper on process and procedure relating to sexual offences will be followed by a joint report on both the substantive and procedural law relating to sexual offences. The joint report on sexual offences will contain the final recommendations of the Commission and will be accompanied by a Bill on Sexual Offences. The report and the Bill will, once approved by the Commission, be handed to the Minister for Justice and Constitutional Development for his consideration.

The discussion paper on the procedural law relating to sexual offences includes a discussion of the various agencies or service providers responsible for dealing with the victims and offenders of sexual offences and the procedures for disclosure, reporting and investigation of sexual offences, the court hearing, rules of evidence and sentencing of the sexual offender.

The aim of the discussion paper is to test the preliminary recommendations contained in the discussion paper and to elicit comments, which will be used to assist the Commission in preparing a report.

The revised substantive law provisions now include the following:

• A revised statutory definition of the offence of rape. (See clause 3 of the attached Bill). The revision of this offence includes the following:
• Penetration of a person by objects or human bodily parts should be limited to the anus and genital organs - in a manner, which simulates sexual intercourse. In order to avoid any speculation as to whether penetration extends to animal bodily parts, the Commission has decided to make it clear that objects include any part of the body of an animal.
• The definition of indecent act now provides for the indemnification of health professionals who employ these acts for proper medical purposes.
• The list of factors indicating the presence of coercive circumstances, originally proposed, has now been categorised in three categories, these being coercive circumstances; circumstances in which an act of sexual penetration is committed under false pretences, and finally, circumstances in which a person is incapable in law to understand the nature of an act of sexual penetration.
• The Commission holds the view that the non-disclosure by a person that he or she is infected with a sexually transmissible disease prior to sexual relations with another (consenting) person would amount to sexual relations by false pretences and would therefore constitute rape.
• Child prostitution now constitutes what was previously referred to as Commercial Sexual Exploitation of Children due to the fact that the divergent role-players targeted in the original provisions are all in some way involved in child prostitution. These would include pimps, clients, brothel-keepers and people trafficking in children for purposes of sexual offences.
• Provision has been made for the prohibition of the organisation or promotion of child sex tours. This provision criminalises the actions of both persons and bodies that facilitate such tours within or to South Africa in any way, whether by making travel arrangements for potential perpetrators or advertising such tours.
• The Commission is of the opinion that everybody is in need of increased protection as far as sexual offences are concerned - both locally and internationally. Therefore the original provision allowing for extra-territorial jurisdiction in respect of all offences under the Act and not only those committed in relation to children, is retained.

Some of the areas of the process and procedural law relating to sexual offences that have received attention are as follows:

• Agencies or service providers who are involved with or play a key role in the prosecution of a sexual offence, including those tasked with providing services to victims of sexual offences, are identified and critically analysed in respect of existing practices. This analysis is followed, where applicable, by recommendations for change.
• The Commission holds the opinion that it is the responsibility of the state to provide the financial means to cover the cost of prescribed medication for victims of rape, as well as costs for treatment and counselling as a result of the rape.
• The Commission recommends that criminal sexual activity compounded by deliberate or reckless exposure to HIV/AIDS should be subject to criminal sanction. It provisionally endorses the view that a separate offence should be created which specifically criminalises harmful HIV-related behaviour in the context of committing a sexual offence, coupled to the proviso that HIV should not be singled out to the exclusion of any other life-threatening sexually transmissible disease or condition.
• Due to numerous problems in practice, which have been brought to the Commissions attention, it has considered the system of criminal procedure that should govern the conduct of trials in relation to sexual offences. In doing so the Commission has critically assessed the rules of evidence and procedure, which govern and/or are applied in sexual offence trials. In this regard the discussion paper gives attention, amongst others, to the following:
• The creation of a category of vulnerable witnesses which will include all complainants in sexual offence cases and which will afford them new protective measures, in addition to protective measures already provided for in the Criminal Procedure Act, 1977 (such as in camera hearings, the appointment of intermediaries and the use of closed circuit television). The new protective measures would include the appointment of a support person to assist the witness during the trial as well as at pre-trial procedures.
• The abolition of the cautionary rule in relation to complainants in sexual offence cases, single witnesses and children, which currently requires or allows that such evidence should or can be treated with caution.
• Some of the issues which have received attention in relation to sentencing and the post-trial phase of the criminal procedure process in relation to sexual offences are:
• Drug and alcohol rehabilitation orders where it appears that a person convicted of a sexual offence may benefit from treatment for the misuse of alcohol and drugs.
• Sex offender orders, which will prohibit a person, convicted of a sexual offence from acting in a way that may cause harm to others, from frequenting specified locations and from contacting specified persons.
• The possibility of increasing the penalties for persons contravening the prohibition against publication of information or revealing the identities of complainants and witnesses in sexual offence cases.
• The possibility of providing compensation to the victims of sexual offences who suffered physical, psychological or other injury, loss of income or support.
• The placement of dangerous sexual offenders under long-term supervision upon their release from imprisonment or release on parole.

These are a few of the issues that the Commission addresses in the discussion paper. It should not be seen as representative of all of its proposals.

Attached to this media statement is a copy of the executive summary of the discussion paper, the proposed sexual offences Bill and an explanatory memorandum on the revised substantive law provisions contained in the Bill.

Copies of an executive summary on the process and procedural law relating to sexual offences are available free of charge from the office of the Law Commission. The telephone number of the Law Commission is (012) 322 6440 or fax (012) 320 0936. The executive summary will be made available on the Internet at: http://www.law.wits.ac.za/salc/salc.html. Given the length of the discussion paper, it will not be made available on the Internet. Those wishing to access the complete text of the discussion paper will be provided with a WinZip file on request.

A full media briefing will be held in early January. Details will follow in due course.

The closing date for comment on this discussion paper is 28 February 2001. Comments and submissions are invited and can be addressed to:

The Secretary
South African Law Commission
Private Bag X668
Pretoria 0001

Telephone: (012)322-6440
Fax: (012)320-0936
E-mail: lawcom@salawcom.org.za
Internet: www.law.wits.ac.za/salc/salc.html

SUMMARY OF POINTS RAISED IN THE DISCUSSION PAPER

The Discussion Paper is a substantial document of 1274 pages. Given the broad scope of the investigation, the Discussion Paper covers a wide range of issues:

1. It considers the difficult issue of when childhood begins and when it ends. It further addresses the question of the best interests of the child, children's rights and responsibilities, and the principles underpinning the new children's statute.

2. It considers aspects such as legitimacy of children, artificial insemination and surrogate motherhood.

3. It deals with the diversity of family forms in South Africa, the shift from parental power to parental responsibility, the acquisition of parental responsibility by persons other than biological parents and the termination of parental responsibility.

4. It recognises prevention and early intervention services as vitally important components of a future children's statute.

5. Formal measures for the protection of children from abuse and neglect are the central focus of the Discussion Paper. The Discussion Paper considers legal provisions and interventions, which are designed to deal with situations in which specific children are being harmed, or are at immediate risk of harm, through abuse or neglect. Exploitation and abandonment, being forms of abuse and neglect respectively, are included within the ambit of these protective measures. The Discussion Paper further addresses issues such as the protection of the health rights of children, the protection of children as consumers, children in need of special protection, and the protection of children affected by the divorce or separation of their parents.

6. It examines the issues of legislative support for early childhood development services and temporary care of children by persons other than their parents or ordinary caregivers.

7. It deals with the following forms of substitute care: foster care, adoption, and residential care. More specifically, it addresses aspects such as professional foster care, cluster foster care, parental rights and responsibilities for foster parents, the foster care grant, who may be adopted, who may adopt, subsidised adoptions, the rights of children to care and protection in residential care facilities, minimum standards and quality assurance in residential care, and funding of residential care.

8. It considers the issues of religious laws and customary laws affecting children. It further addresses international issues affecting children. These include, inter alia, inter-country adoptions, trafficking of children across borders, child abductions and refugee children.

9. It proposes a new court structure with extensive powers, and addresses the issues of grants and social security for children, and a monitoring system to ensure the effective implementation of the new children's statute.

The Discussion Paper specifically addresses the care of sexually exploited children. In this regard, the recommendations made in respect of child prostitution, child pornography and child trafficking focus on the child as a victim who may be in need of care. These are closely linked to the Discussion Paper on Sexual Offences, which focuses on the criminal law aspects, which has also been released for public comment. Both these Discussion Papers aim to address holistically and in an integrative manner child sexual abuse, albeit from different perspectives.

Among the more contentious preliminary recommendations made in the Discussion Paper on the Review of the Child Care Act are the recommendations that the age of majority be lowered to 18; that more than one (even more than two) persons be allowed to acquire and manage parental rights and responsibilities, or components thereof, in respect of the same child at the same time; that mothers and married fathers be accorded such parental rights and responsibilities automatically, while some unmarried fathers and other persons will have to apply to court to acquire such rights and responsibilities; that local government be empowered and compelled to provide primary prevention and early intervention services for children and their families; that the common law defence of the right of reasonable parental chastisement to a charge of assault be repealed in order to protect children from serious breaches of physical integrity, which in effect will make some forms of parental chastisement a criminal offence; that all children over the age of 12 years may consent to HIV testing, with proper pre- and post-test counselling; that confidential access to contraceptives should be provided to all sexually-active persons, regardless of age; and that safety at places of entertainment should be regulated.

The Discussion Paper does not contain a draft Bill. The preliminary recommendations in the Discussion Paper, however, contain clear legislative proposals for inclusion in such a comprehensive children's Bill. The preparation of the comprehensive draft children's Bill is receiving attention.

The Commission will conduct a consultation process with the Discussion Paper as basis during February and March 2002. An inter-sectoral workshop is planned for each province during this period and those interested in attending are invited to register with the Commission. At the conclusion of this consultation process, the Commission will prepare a report, which will contain its final recommendations and a refined children's statute. This report will be submitted no later than June 2002 to the Minister for Social Development.