REPORT OF THE PARLIAMENTARY TASK GROUP ON THE SEXUAL ABUSE OF CHILDREN

12 June 2002

3. The Task Group's Findings and Recommendations

3.1 Introduction

South Africans all over the country have been united in their condemnation of sexual violence against children. This nationwide condemnation of sexual violence was apparent in the large numbers of individuals and organisations that contributed to the public hearings despite the considerable time constraints within which the process was concluded. The contributions have been of a high standard, and the Task Group's understanding of sexual abuse of children has been enhanced by each of these contributions.

The Task Group finds that the incidence of sexual abuse of children in South Africa is unacceptably high. More than twenty thousand cases of abuse were reported to the South African Police Service in 2001, and statistics of reported cases of abuse are very similar for the preceding years. The Task Group notes with particular concern the suggestion that the abuse reported is only a fraction of the real incidence.

There is often an assumption that the increase in rape and child abuse is a result of South Africa's new democratic dispensation. However, it was argued before the Task Group that the phenomenon is not new, and that the real difference since the democratic transition has been that there has been a greater openness and awareness on the issue of children's rights, with the result that children and communities speak out about abuse more readily. In addition, there has been a much higher level of media coverage of incidences of child abuse.

In relation to international trends, the Task Group notes the global report of the International Tribunal for Children's Rights released in 2001, which stated that despite the nearly universal ratification of the UN Convention on the Rights of the Child, all indications are that violence against children worldwide is on the increase.

Before proceeding to more specific findings with regard to the different sectors involved in the protection of children, the Task Group notes that it is necessary to understand the sexual abuse of children in its broader social context, nature, and magnitude, and to develop interventions for primary prevention and prevention of its long-term consequences.

3.1.1 Socio-economic factors

Some presenters suggested that child abuse occurs in particular socio-economic conditions. However, a study that took into consideration the effect of socio-economic conditions and its relationship with abuse, found that sexual abuse occurs in all communities irrespective of socio-economic status. This argument was supported by a number of other presenters, who indicated that there is no simplistic linear relationship between poverty and abuse, although abject social conditions, together with substance abuse, may contribute to abuse.

The Task Group finds that the socio-political and economic history of the country has impacted negatively on family and community life, resulting in a society characterised by extreme forms of violence. Conditions of social deprivation contribute significantly to the erosion of self-esteem, causing loss of respect for the right that women and children have to sexual self-determination. Such conditions also impact on women's ability to protect themselves and their children against an abusive partner or father.

There have been suggestions that mothers, who allow their children to be abused, must be liable for prosecution. While not in a position to come to a conclusion on the matter of criminal liability for those persons who are aware of abuse but do not prevent it, the Task Group finds that dependency on an abuser may prevent either the abused child or an adult family member who is aware of the abuse from reporting the abuse; this applies to both emotional and economic dependency. The Task Group also finds that in situations where the family has no access to reliable and affordable childcare services, this increases children's vulnerability to sexual abuse. Another factor that has been linked to the incidence of sexual violence against children is alcohol and substance abuse. Submissions have argued that being under the influence of alcohol or drugs erodes people's ability to respect themselves and those around them. The Task Group recognises that in the context of alcohol and drug abuse children are particularly at risk of abuse.

3.1.2 Societal attitudes

It was argued that dominant attitudes around the power relations between men and women contribute to women and children being viewed as objects or possessions. The Task Group finds that the distorted patriarchal attitudes men have towards women and children contribute to the latter being vulnerable to all forms of violence. It notes the argument in one of the submissions that South Africans have yet to fundamentally interrogate patriarchal notions of power relations between men and women, such as the right of the man as head of the household to exercise his power as he sees fit.

The Task Group finds that while Section 9 of the South African Constitution guarantees equality for all its citizens, at the level of the family and the community this has to be translated into the universal acceptance of the inalienable right of women and children not to be subjected to abuse, whether physical, emotional or sexual. These rights also find their expression for instance in Article 27 of the African Charter on the Rights and Welfare of the Child and Article 34 of the UN Convention on the Rights of the Child.

The Task Group heard a number of proposals that speak to longer-term solutions to the rebuilding of the social fabric. Among the submissions on the matter were arguments that stated that sexual violence against children is an extension of violence against women. Efforts at eradicating sexual abuse would therefore focus on, among others, changing attitudes through sustained, mass campaigns that challenge the way men see women, and how women see themselves.

Representatives from the faith-based sector suggested that this sector has a particular role to play in the way that they impart the values of their faith to young people. This would include teaching equality between men and women, condemning the commodification of women and educating children and youth about appropriate forms of behaviour and interaction.

A significant number of submissions focused on the need for long term public campaigns aimed at raising awareness of sexual abuse and informing the public in general and children in particular about sexual abuse and children's right to be heard when they report abuse. The Task Group finds that the silence concerning sexual violence, has a negative impact on children's ability to disclose abuse, and that it is critical that children are taught and encouraged to speak out about abuse. It also finds that the process of changing attitudes and behaviour is likely to take many years, and that strategies aimed at reducing the incidence of child rape must take this into account.

Many of the submissions to the Task Group suggested that the myth stating that sex with a virgin cleanses a man of HIV/Aids is a major factor in the incidence of child rape. The Task Group notes the comments by researchers from the Medical Research Council that would indicate that there are some serious misconceptions around the incidence of baby rape and its link to HIV/Aids. Although the idea that having sex with a virgin cleanses you of Aids does exist in South Africa, and there have been reported cases of this as a motivating factor for child rape, the predominant evidence suggests that this is infrequently the case. The MRC researchers further argue that there is no evidence overall that any of the recent infant rape perpetrators, some of whom have been apprehended, knew that they were HIV-positive.

The Task Group also heard from presenters who argued that the practice of virginity testing was potentially harmful to girls in that it makes them vulnerable to being raped within the context of this myth.

The Task Group recognises the importance of the role that traditional healers play in communities' efforts to cope with HIV/Aids. It further acknowledges that traditional healers could add a powerful voice to the message that sex with a virgin cannot cure any person who has been infected with HIV, and that public awareness campaigns around living with HIV could benefit from the contributions of traditional healers. The Task Group commends the statement made by a gathering of 600 traditional healers at Vlakplaas from 15-17 December 2001 where they emphatically state that HIV/Aids can never be cured by having sex with children or babies, young girls who have not reached puberty, or older women.

3.1.3 Recommendations

The Task Group recommends -

3.2 Social Development Services

3.2.1 Introduction

Much was said at the hearings about the role that the social service sector in South Africa should play in preventing abuse as well as protecting the child survivor of abuse. This section of the findings will focus on the preventative role of social development services.

Although the Task Group does not find that there is a direct correlation between socio-economic conditions and child abuse, it is of the opinion that particular conditions of social deprivation contribute to rendering children more vulnerable to abuse. Addressing abuse at the level of prevention therefore means addressing some of the socio-economic difficulties that South African communities experience.

There are a number of government programmes that are aimed at providing developmental services to communities. Policy documents like the 1997 White Paper on Social Welfare or the National Policy Framework for Families, which although still in a draft form, are clear about the paradigm within which services to families should be provided. However, the budgetary allocation to the Department of Social Development seems to suggest that there is little room for full implementation of programmes envisaged in policy documents because 90% of the budget is currently being spent on social security benefits.

In view of the policy thrust towards family preservation and early intervention, the Task Group notes that unfortunately interventions which tend to disrupt family life, such as the removal of children from their families, are still more readily available than those that are aimed at prevention and early intervention.

The Task Group recognises that there is a lack of coordination of services between the different government agencies. Presenters repeatedly noted that the lack of coordination was one of the main obstacles to tackling the issue of sexual violence effectively, and it was suggested that resources are not effectively spent because of a possible duplication of services. There was a strong call for the completion and implementation of the National Plan of Action for Children, as well as the implementation of the Draft Strategy on Child Abuse and Neglect. The Task Group finds that the responsibility for services to vulnerable children are fragmented between the Presidency, the national Department of Social Development, the provincial Departments of Social Development as well as the child protection agencies in the criminal justice system. It finds that there is little coordination between Departments and no clear consensus on who is responsible for which service. Nor is there a clear, integrated strategy for both preventative and protective interventions to ensure adequate provision of services.

The Task Group notes the concern raised in various submissions that social workers have to deal with extremely high caseloads under often very difficult circumstances. Social workers tend to react to situations of abuse but are unable to implement preventative strategies; it was further suggested that in many instances, the reactions are too late. Various presenters also focused on the difficulties caused with regard to morale among social service professionals because of the low levels of remuneration in relation to their training and the volume of work expected of them. The Task Group finds that these difficulties have a severe impact on the effectiveness of those services that are in place. It also finds that the current caseloads hamper organisations' ability to advance community development work, which is one of the areas identified as a possible site for preventative programmes.

The availability of safe accommodation for children in need of care is one of the critical elements in both the preventative and protective service framework. Civil society organisations provide a significant portion of these safe houses; there is also a system where members of the community make their homes available to accommodate children in distress. Presenters from this sector have argued that there seems to be little State recognition of their contribution in this regard. The Task Group is of the opinion that it is the State's responsibility to provide a sound policy framework for this service, and to support and fund the service adequately.

The Task Group is of the opinion that preventative services such as family preservation programmes, parenting skills programmes, child care programmes for single working parents, and programmes that focus on alcohol and substance abuse could contribute to addressing some of the conditions that make children more vulnerable to abuse. It further finds that these services should be provided in an integrated manner in order to make them most effective.

However, this requires that there be a clear agreement among stakeholders such as social workers, police officers and medical personnel on the nature of the services to be provided, and clear agreement on who has the responsibility for which aspects of services. It also requires that adequate resources are made available to ensure that services like the 24-hour service pilot programme, which provides for social workers to be on call to assist police officers in cases of child abuse, can be rolled out to all the provinces. There must also be clear efforts to target the disparity in resources and services between the urban and rural areas.

3.2.2 Legislative framework

The Child Care Act (Act No 74 of 1983) provides the primary legislative framework through which children are protected by the State. However, it focuses mainly on interventions after a child has been abused or found in need of care.

Section 11 of the Act provides for the removal by way of court order of a child at risk of significant harm. In terms of Section 42 certain categories of professionals like health care workers, social workers or teachers must report the suspected "ill-treatment" or "injury" of any child. However, this section of the Act is silent about which aspects of ill-treatment constitute sexual abuse; in fact, the Act does not mention sexual abuse as a distinct form of abuse that may require particular responses. In addition, Section 50 states that any person who ill-treats a child shall be guilty of an offence; however, this section is equally silent on the specific issue of sexual abuse. The Task Group finds that these are serious omissions in the Act, especially in light of the obligations that South Africa has under Article 16 of the African Charter on the Rights and Welfare of the Child and Article 19 of the UN Convention on the Rights of the Child.

The removal clauses in the Child Care Act (Sections 11 and 12) do not make provision for the abuser to be removed from the child's immediate environment, but rather for the child to be removed. This seems to be in conflict with the concept expressed in policy that every attempt must be made to allow the child to stay with the family, and therefore this omission may not be in the best interest of the child. The Task Group is of the opinion that a provision similar to that in Section 7 of the Domestic Violence Act (Act No 116 of 1998) with regard to protection orders, for example, which make specific provision for the abuser to be removed from the environment in which the child lives, may have to be considered during deliberations on a new children's statute.

The question of reporting abuse was mentioned repeatedly during the hearings, with presenters making the point that the provisions of the Prevention of Family Violence Act (Act No 133 of 1993) create confusion about the obligation to report abuse. The Task Group notes that there is considerable divergence in the debate on reporting, with proposals going as far as saying that persons who are aware of or facilitate the occurrence of a rape must be prosecuted even if they did not directly participate in the rape. There have also been proposals that persons outside of the categories of professionals listed in legislation be compelled to report abuse, and that any person who fails to report abuse should be guilty of an offence.

Another proposal was that new children's legislation limit mandatory reporting to certain professional categories. The list of professionals that would be compelled to report abuse would need to be refined during the legislative process. The submission further proposes voluntary reporting for persons outside these specific categories. In view of the damage that could ensue from wrongful reporting of abuse, the Task Group finds this position with regard to reporting the most reasonable.

3.2.3 Civil Society Organisations

A very substantial portion of social development work is carried out by civil society organisations, and the Task Group accepts that Government alone is not in a position to do all the work in this field. However, a large number of organisations have registered their concern that the relationship between the State and civil society organisations is characterised by significant difficulties.

Civil society organisations have a critical role to play in providing services to our communities. This role will be optimised if there is a clear understanding of partnership between Government and civil society organisations. The challenges organisations faced in accessing funding are having a drastic impact on the effectiveness with which services are delivered.

The financing regime in relation to organisations is currently unclear, with the result that they are struggling to provide services at their past level, or to expand services into formerly under-serviced areas. The Task Group takes note of the Department of Social Development's commitment to finalising a financing policy that is clear, accessible and that will foster an equitable distribution of resources for the provision of social development services. However it notes that in the absence of such a policy, the work of a substantial number of organisations is threatened by financial instability.

Presenters referred to the fact that the National Lottery should have provided civil society organisations with funding, but that the distribution of funds has been slow to get off the ground. Very serious questions can also be asked about how funding decisions are made, considering the fact that social service organisations that have emerged in disadvantaged areas are still being under-resourced. The Task Group finds that in view of the importance of social service delivery, it is difficult to understand the rationale behind awarding large sports associations that have ready access to private sector sponsorships large amounts of money from the National Lottery Fund.

The Task Group notes that a number of the organisations of civil society are not functioning effectively because they are not rooted in the communities that they serve. Many of these organisations were established in a pre-democratic South Africa and are still in the process of transforming the paradigm within which they work to suit the current context. Linked to the question of transformation is also the issue of whether social service professionals are appropriately trained.

The Task Group is aware that a number of organisations are making use of volunteers to assist social workers in dealing with cases of child abuse, neglect and family care. The Task Group is of the opinion that the use of volunteers could assist significantly in getting communities involved in fighting abuse and raising awareness of abuse in communities, and that it is important for professionals in the social services sector to recognise and acknowledge the value of volunteers who do not necessarily have tertiary education. However, it finds that the volunteer programmes must be managed in such a manner that continued training is available to volunteers who work in this very difficult and sensitive area, and that they must have access to ongoing support to assist them to deal with the emotional effects of working in the area of child abuse.

It also notes that there is still a large disparity between the provision of services in urban areas and those in rural areas.

3.2.4 Recommendations

The Task Group recommends in relation to the legislative and policy framework

The Task Group recommends in relation to social services -

The Task Group recommends in relation to civil society organisations -

3.3 Education

3.3.1 Introduction

A 1998 study by the Medical Research Council (MRC) found that school teachers perpetrate 33% of rapes against children under 15 years. The release of these statistics has caused considerable concern among education authorities and members of the public alike. And although the Task Group notes that reliable data on the extent of sexual abuse in South African schools is hard to find, there is compelling evidence, such as highlighted in the MRC study to indicate that both the nature and levels of abuse require immediate and urgent action.

According to the MRC, not only is the girl's body violated through sexual abuse in schools, but also her right to education as enshrined in Section 29 of the Constitution, and in various international instruments such as the International Covenant on Social, Economic and Cultural Rights (Article 10). Many girls are forced to leave school because of pregnancies fathered by teachers and because of harassment by teachers. A girl's ability to reach her economic and social potential is reduced, which may impact on her subsequent vulnerability to being dependent on sex or the abuser for economic survival.

The Task Group was informed that this type of research does not suggest that the incidence of sexual abuse in South African schools is significantly higher than in other countries. It should be acknowledged, however, that the incidence of children being abused in schools is enough to raise serious concern.

3.3.2 Legislative Framework

The amendment to the Employment of Educators Act (Act No 76 of 1998) should enable education authorities to combat abuse in schools. This Act provides for the dismissal of a teacher who has been found guilty of engaging in a sexual relationship with a learner, with or without the consent of such learner. In addition, the South African Council for Educators Act (Act No 31 of 2000) allows for the deregistration of a teacher when such teacher has been found guilty of the sexual abuse of a learner.

The Task Group was informed that despite the legislative framework and a number of programmes and guidelines that have been developed by the Department of Education, the situation in some schools has not necessarily improved, and enforcement still presents a substantial challenge. A recent study conducted by the Human Sciences Research Council indicated that there are considerable differences in the manner in which schools respond to allegations of abuse perpetrated by both teachers and learners. Some showed zero tolerance, with set disciplinary procedures and structures, and strong links with Social Development offices and the SAPS Child Protection Unit. Other schools used verbal reprimands, random corporal punishment of learners (which is illegal) and parental summonses, while some showed no response at all.

At the same time, the Task Group must note the announcement by the South African Council of Educators that it has deregistered a number of educators found guilty of sexual abuse of learners, because it is of the opinion that this form of action will contribute to changing the patterns of abuse prevalent in schools. It encourages the Council to apply all the legislative measures at its disposal to ensure that educators who are deregistered in this manner are not able to teach in South African schools again. It also encourages the Council to continue speaking out against sexual abuse in schools.

The difficulty education authorities have in enforcing provisions in legislation include a lack of openness, ambiguous attitudes towards violence against girls, and the lack of clear definitions and preventative procedures. The Task Group therefore welcomes the Department of Education's plan to ensure a common understanding of what constitutes sexual harassment through the development of a national sexual harassment policy.

3.3.3 Life Skills Education

Much of the discussion around the education system focused on the manner in which educational programmes and curricula impact on public awareness of sexual abuse. There have been differing opinions as to the nature and content of the life orientation/life skills learning area, with some presenters arguing for greater openness about sexuality, while other presentations submitted that pro-abstinence, pro-family and pro-marriage sex education should replace the current sex education programmes in schools.

The Task Group finds that the school environment is an extremely important arena in which to raise consciousness about human rights, gender equality and sexuality. It recognises that there are divergent views about the content of sex education but supports the principle that learning areas should be designed in such a manner that they foster the ability of learners to engage with material in a critical and independent manner. The Task Group therefore cautions against a retreat into silence and denial where issues of sexual abuse are concerned.

The Task Group was not presented with any research to suggest that there is a causal relationship between sex education and learners' greater vulnerability to sexual abuse; the contrary has been suggested by several commentators, namely that the ability to understand the relationship between sexuality and power enables more children to speak out about abuse.

3.3.4 Recommendations

The Task Group therefore recommends -

3.4 Health issues related to sexual abuse of children

3.4.1 Introduction

The Task Group notes that a large number of submissions focused on a myth present in the country that having sex with a virgin cures HIV/Aids, which is said to cause some infected men to abuse children. The Task Group is not able to establish whether the myth has a significant influence on the number of instances of child rape seen recently in South Africa or whether it is only in rare cases an underlying reason for abuse. In view of the severity of the consequences, however, if a single case emerges out of this perception, it is one too many. Therefore, the Task Group wants to reiterate that all indications from research are that having sex with a virgin does not cure HIV/Aids. It also commends once again the clear and unified statement that a significant number of traditional healers have made in this regard.

The Task Group has heard that sexual abuse of children carries a high risk of infecting the children with HIV/Aids and other sexually transmitted diseases. The abuse can lead not only to infectious disease, but also to pregnancy. Either carrying the pregnancy to term or obtaining an abortion could lead to serious health and emotional problems.

The Task Group also heard submissions that suggested that practices such as virginity testing exposes young girls to a high risk of sexual abuse. Especially for the already abused child, such practices enhance the possibility of further stigmatisation, trauma and suffering. In this instance, the Task Group wants to recall Article 21 of the African Charter on the Rights and Welfare of the Child, which obliges South Africa to strive for the total elimination of all "harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child".

3.4.2 Medical response to abuse

Presenters have pointed out that gaps in the responses by police and medical personnel with regard to the immediate health needs of the sexually abused child lead to situations where the health risk for the child is increased. Some presenters have argued that this is due to inadequate training and a lack of sensitivity on the part of these personnel. In these circumstances, the abused child faces the risk of secondary abuse.

It was also pointed out that especially in rural areas, facilities for reporting and treating the abused child are not available or easily accessible. Presenters informed the Task Group that they often simply clean the child, rather than to wait for the child to be examined by a medical doctor. There also appears to be no clarity about which level of medical personnel would be authorised to treat a survivor of abuse while at the same time securing credible forensic evidence that will contribute to a successful prosecution in cases where a district surgeon is not immediately available to see the survivor. The Task Group was further informed that in some cases survivors are simply refused medical attention. Section 28(1)(c) of the Constitution recognises the child's right to basic health care services. These should include medical treatment for the sexually abused child. Without treatment, the physical, mental and developmental well-being of the child is at serious risk, and without evidence such as blood and semen samples, the case may be seriously compromised. The Task Group therefore recognises that in the absence of adequately resourced facilities and proper evidentiary training for the relevant medical personnel, and clear guidelines concerning the needs of rape survivors, such survivors may be suffering secondary abuse at the hands of those who must care for them.

3.4.3 Recommendations

The Task Group recommends -

3.5 Criminal Justice System

The Task Group recalls and emphasises that in all cases involving child survivors and/or witnesses, the best interest of the child, as required by Section 28 (2) of the Constitution, as well as international instruments such as the African Charter on the Rights and Welfare of the Child in its Article 4 and the UN Convention on the Rights of the Child in its Article 3 forms the guiding principle in all decisions made in relation to such children.

3.5.1 South African Police Service

3.5.1.1 Introduction

A number of presenters felt very strongly that the criminal justice system is not conducive to protecting the rights of survivors of abuse, and in fact suggest that survivors often suffer secondary abuse at the hands of insensitive and inappropriately trained police officials. It appears, for example, that there is little cognisance among police officials that disclosure of abuse is a complex process, and not a one-off event. In many cases, survivors do not have ready access to counselling support in a child-friendly environment, despite the efforts being made to equip police stations with facilities for survivors. The Task Group acknowledges that the police service is engaged in a transformation process, and that the establishment of a human rights culture - including a child rights culture - with members of the South African Police Service is part of that transformation process. It further acknowledges that resource constraints impact on the process of equipping police stations with facilities that cater for the needs of survivors of sexual violence, especially crucial in previously under-resourced areas.

Despite very hard work by committed police personnel, the discrepancy between the numbers of actual reported cases of abuse and conviction statistics for rape and sexual offences suggests that the majority of reported cases are not successfully prosecuted. It was repeatedly reported that cases are withdrawn because of a lack of evidence, or in cases where the prosecutor was of the opinion that the prosecution of the matter would do significant harm to the survivor. The situation is further compounded by the incidence of corruption among police officers, which has a direct influence on the high rate of case withdrawals. The Department of Safety and Security argued that it was a decision of the prosecuting authority to withdraw cases where there was insufficient evidence to secure a conviction, and the Report will address this issue in the Section that deals with the justice system. However, the Task Group is of the opinion that the police have an equally important responsibility to ensure that through investigative work, adequate evidence is gathered to make successful prosecution possible.

The Task Group welcomes the establishment of the new Family Violence, Child Protection and Sexual Offences Units (FCS), and expresses the hope that these units will be established in as many provinces as possible to ensure that there is a more equitable distribution of this very crucial resource. The Task Group acknowledges that the strain on SAPS resources, exacerbated by extremely high caseloads, impedes the law enforcement agencies' ability to properly follow up cases and secure sufficient evidence to ensure convictions.

3.5.1.2 Review of the Sexual Offences Act:

The Task Group recognises that the Sexual Offences Act is under review, with an aim to strengthening the definition and scheduling of sexual offences. The Task Group supports proposals that rape be codified and defined free from gender bias. The criminalisation of commercial sexual exploitation of children in addition to other forms of sexual exploitation should also assist in combating the growing trend of vulnerable children becoming the victims of this form of exploitation within as well as across South Africa's borders. Specific reference to this issue will be made in the section of this Report that deals with international treaties for the protection of children, and on commercial sexual exploitation.

The Task Group supports further proposals concerning the management of the pre-trial process. It has been argued that secondary abuse of survivors results from the fact that South Africa has no clear strategy for inclusively dealing with child and adult survivors of sexual offences, either on a primary, preventative level or on a secondary, protective level. There is therefore no guarantee that a survivor of a sexual offence entering the criminal justice system will be dealt with in terms of acceptable procedures or be protected from further harm. In view of this, the Task Group supports the proposal with regard to the development of a basic framework or code of conduct, contained in the Sexual Offences Act, within which multi-disciplinary teams deal with cases of abuse.

3.5.1.3 Recommendations

The Task Group recommends

  • that the amendments to the Sexual Offences Act be tabled in Parliament as soon as possible, and that this legislation be processed as a matter of priority to ensure that a national strategy for dealing with abuse at the level of the criminal justice system can be developed and implemented as soon as possible.
  • that the legislation address the need for intersectoral cooperation between the police, medical personnel, social service professionals and justice officers.
  • that Schedule 6 of the Criminal Procedure Amendment Act (Act No 85 of 1997), which legislation deals with conditions of bail, be amended to include the rape of boys under 16.
  • that sexual consensual relations with a male under the age of 16 years be criminalised as statutory rape.
  • that the Department of Safety and Security brief the relevant Parliamentary Committees with regard to the implementation or completion of the its programmes aimed at improving the manner in which members of the SAPS deal with sexual offences. The Department must also be clear about who will be responsible for the implementation of these timeframes.
  • that the Department of Safety and Security prioritise in a programmatic manner the roll-out of facilities and equipment aimed at providing for the needs of survivors at police stations.
  • that the Department of Safety and Security ensure that both the Family Violence, Child Protection and Sexual Offences Unit and the Child Protection Units are adequately funded to extend their work in the provinces where the need is the greatest.
  • that the Department strengthen its disciplinary procedures for instances where police officials are implicated in the obstruction of a sexual offence matter either by way of ineffective police work or corruption.

3.5.2 Court system

3.5.2.1 General issues and effective prosecution

The Task Group finds that there is cause for serious concern around the manner in which cases involving the sexual abuse of children are dealt with in the court system. Seemingly divergent standards and procedures for both survivors and witnesses suggest that the South African criminal justice system does not have a clear and integrated approach to criminal offences of a sexual nature. What further compounds the situation is the fact that rural communities do not have ready access to courts, which makes participation in a court process a sometimes expensive and challenging experience.

Survivors of rape and other forms of sexual abuse are often made to endure lengthy court proceedings under circumstances that do not necessarily cater to their emotional needs. Justice officials are not always appropriately trained in dealing with child a witness, which makes it more difficult for such court officials to make appropriate decisions concerning the competence of child witnesses.

The Task Group heard different arguments concerning the role of technology in effective prosecution of cases involving sexual violence. In relation to DNA testing, for example, some presenters argued that the service should be decentralised in order to expedite the prosecution of alleged offenders. However, it must be noted that such decentralisation would have cost implications that have to be carefully considered. Furthermore decentralisation could result in the compromising national standard of DNA testing and undermine the value that this kind of evidence can have in court proceedings.

3.5.2.2 Evidence

The Task Group concurs with the contention that the general practice in South African courts to treat the evidence given by children with caution is outdated. The cautionary rule in sexual offence cases rests mainly on the assumption that complainants in sexual offence cases, and particularly female complainants, have an "innate" inclination to lie in matters relating to sexual offences. This contention, which according to presenters has found no empirical support in studies comparing the prevalence of false claims in sexual offence cases with those in other criminal offences, suggests that this approach is linked to the age?old stereotyping of women.

The Task Group is also concerned that the adversarial nature of leading evidence and cross-examination in South African courts does not take into account the fact that disclosure of abuse has been shown to be severely traumatic to survivors, or the traumatised state in which the survivor may originally have first reported the sexual abuse.

The Task Group further finds that the introduction of a complainant's previous sexual history may seriously prejudice the finding of the court. This happened in a recent case in the Pretoria High Court that dealt with the abuse of a five year old girl, where the defence suggested that she had invited the abuse by her promiscuous lifestyle, and the Magistrate took these suggestions into consideration in sentencing. The Task Group is of the opinion that calling into question the testimony of a survivor of sexual abuse on the grounds of their previous sexual history may significantly contribute to the continued stigmatisation of survivors, and negatively impact on public perceptions as to the seriousness with which the State treats allegations of abuse.

3.5.2.3 Protection of survivors and witnesses

Because of the emotional trauma attached to giving evidence in a sexual offence matter, the Task Group finds that the silence of the law on the protection of particularly vulnerable witnesses is a serious omission. There is therefore no legal framework within which to offer such witnesses the special protection they need. It has further been reported that while a court will generally order that a rape survivor's testimony be heard behind closed doors, there is in practice very little control over the movement of people in and out of court, even when a child survivor is giving evidence. It was argued at the public hearings that persons with disabilities have particular special needs that are currently not provided for.

Notwithstanding the various provisions of the Criminal Procedure Act (Act No 51 of 1977) it has become commonplace for the media to report on sexual offences or alleged sexual offences, sometimes by including names or identifying details of the survivor and/or the alleged offender and/or graphic details of the assault.

It has been argued that the current legislation should be adequate to protect witnesses. In practice, however, details of survivors of sexual offences, and in particular children, and of persons alleged to be the accused, but not yet formally identified as such or charged, are regularly published despite the provisions of the law. This suggests that the law is not being implemented effectively, and that the imposition of higher penalties for such offences may be necessary to ensure that the provisions are treated with the seriousness they merit.

3.5.2.4 Bail

The Task Group finds the manner in which bail legislation is implemented unsatisfactory. Presenters have argued that the ease with which bail is granted, and the divergent application of bail provisions in different courts, suggests that there is no single national understanding of the seriousness of sexual violence against children. A significant number of cases were cited where offences are repeated after an accused has been granted bail.

The Department of Justice indicated in their presentation that the existing bail legislation (contained in section 60 of the Criminal Procedure Act) is adequate. Section 60 provides for persons accused of offences listed in Schedules 5 and 6 to remain in custody, and the onus is on the accused to prove that extraordinary circumstances exist why they should be granted bail. The Department also argued that bail provisions have been tightened to deal, among others, with repeat offenders. However, the Task Group notes the number of instances where both in the media and during the public hearings the granting of bail was identified as one of the exacerbating factors in the fight against child rape and abuse. Some presentations called for the establishment of the principle that no person accused of sexual abuse will be granted bail. The Task Group is of the opinion that this issue needs further investigation by the relevant SALC project committee.

The protection of complainants from an alleged abuser once bail has been granted is another matter that must be noted here. Although the Domestic Violence Act (no 116 of 1998) makes provision for the removal of the abusive person from the home environment, in most cases the abuser is returned to the same environment as the abused child - be it at home, the school or the broader community. Presenters have argued that the best interest of the child extends to this level, and that protecting them while the trial is under way, must form part of a holistic approach to the issue of sexual violence against children.

3.5.2.5 Sentencing

There is currently the perception among members of the public that sentences imposed for sexual offences are too lenient, and many calls were made at the public hearings for the imposition of life sentences for persons found guilty of sexual abuse of children. The Task Group finds that the inconsistency in meting out sentence contributes to the trauma the complainants in such cases experience. It is of the opinion that a serious effort must be made to ensure that the legislative framework for sentencing is adhered to by all members of the judiciary.

Some presenters argued that rapists believe that they are able to cite the influence of alcohol or drugs as a mitigating factor when they are apprehended and tried. The Task Group heard some very strong recommendations regarding the control of alcohol as well as the kind of jail sentences that would be appropriate for offenders who claim to have committed sexual violence while under the influence of alcohol. The Task Group feels strongly that alcohol and drug abuse should serve as an aggravating rather than a mitigating factor in sentencing.

The Task Group notes a study by the SALC, which suggests that maximum sentences alone do not necessarily act as a deterrent to serious crime, because since the introduction of mandatory minimum sentences for offences including rape in 1997, the incidence of rape with aggravating circumstances has increased. However, in view of the marked increase in reporting of rape, the Task Group is of the opinion that the above conclusions do not necessarily reflect accurately on the correlation between heavier sentences and the incidence of serious crime.

This particular study by the SALC Project Committee on Sentencing also found that despite the minimum sentences introduced by the Criminal Law Act (Act No 105 of 1997), and despite the specific reference in the legislation to the seriousness of sexual offences, there is still considerable divergence in the compliance with the Act. The Task Group acknowledges that the question of the effectiveness of minimum sentences, and the consistency with which the provisions of the Criminal Law Act as well as the Criminal Procedure Act are applied insofar as sentencing of sex offenders is concerned, is a complex matter, most of which is covered in depth in the discussion paper by the SALC Project Committee on Sentencing.

3.5.2.6 Recommendations

The Task Group recommends -

in relation to effective prosecution of cases

  • that the Department of Justice and Constitutional Development establish clear guidelines for the handling of cases involving sexual offences, that training in these guidelines be made mandatory for all levels of personnel in the courts system and that the guidelines are communicated clearly to all complainants and witnesses before the commencement of a trial. It is further recommended that the Department give the relevant Parliamentary Committees a clear commitment about timeframes for the completion and implementation of such guidelines.
  • that the Department of Justice and Constitutional Development, in view of the low conviction rates in relation to sexual offences, provide the relevant Parliamentary Committees with precise statistical information in this regard in order to explore strategies for improving conviction rates.
  • that the National Directorate of Public Prosecutions issue a directive to the effect that when an action is brought against an alleged perpetrator of sexual abuse, the action should not be allowed to be withdrawn without the consent of the Director of Public Prosecutions.
  • that the National Directorate of Public Prosecutions issue a directive instructing officials in the justice system to report all knowledge of corruption concerning the withdrawal of a sexual offence case.
  • that the Department of Justice and Constitutional Development brief the relevant Parliamentary Committees on the progress it is making with regard to eliminating inefficiencies and corruption among justice officials, as well as the status of the Draft Anti-Corruption Bill.
  • that officials in the court system give priority to processing cases related to sexual violence, and that they ensure that such cases are completed within the shortest possible time.
  • that officials in the criminal prosecuting system have access to adequate resources and advanced technology to secure convictions.
  • that DNA testing remain centralised and located with one specialised agency in order to ensure that national standards of testing are established and maintained.
  • that the Department of Justice and Constitutional Development continues with the establishment of a system of specialised sexual offences courts on the model of the Wynberg Sexual Offences Court, and brief the relevant Parliamentary Committees on the progress made with the national implementation of this programme;

in relation to evidence

  • that the cautionary rule with regard to evidence by women, children and single witnesses in cases of sexual abuse be abolished through a specific provision in the Sexual Offences Act to this effect.
  • that the previous sexual history of a complainant in a sexual violence case not be admissible as evidence either in the pre-finding stage of a trial or in mitigation of sentencing;

in relation to the protection of survivors of sexual violence

  • that all personnel at courts dealing with sexual offence cases undergo mandatory training to equip them with the necessary skills to deal with survivors of sexual violence, and that this process of skills upgrading form part of a system of performance appraisal to ensure that the State employs the most appropriately skilled personnel in such courts.
  • that cultural and language aspects be taken into account by personnel involved in dealing with both survivors and witnesses in cases of sexual abuse, and that the Department of Justice and Constitutional Development give consideration to providing personnel with the relevant training in this regard.
  • that provision be made in the Sexual Offences Act for the category of vulnerable witnesses, that this category include all children involved in court proceedings, and that such witnesses be able to claim special protection during the trial. The Task Group also recommends that the needs of persons with disabilities be given special attention when drafting the provisions concerning "vulnerable witnesses".
  • that amendments to the Criminal Procedure Act include provisions that will not only make it illegal to make public the identity of survivors in sexual violence cases, and/or the identity of the accused before they have been found guilty/formally charged, but also makes explicit provision for publishers contravening this legislation to be criminally prosecuted and fined.

in relation to bail

  • that the National Directorate of Public Prosecutions consider measures that will ensure that the granting of bail, especially in relation to persons accused of committing sexual offences, is administered uniformly throughout the country.
  • that the National Directorate of Public Prosecutions consider measures that will ensure that when bail conditions for sex offenders are determined, each decision give attention to the principle contained in Section 7 of the Domestic Violence Act, which provides for the removal of the abuser from the home shared with the complainant when this is in the best interest of the abused child.
  • that the Department of Justice and Constitutional Development brief the relevant Parliamentary Committees on the scope of existing bail legislation with a view to identifying and amending possible weaknesses in the legislation.

in relation to sentencing

  • that the SALC Project Committee on Sentencing brief the relevant Parliamentary Committees with regard to the progress they are making with the proposed Sentencing Framework Bill, that timeframes be established for the completion of the Bill and that the manner in which the current perceptions around inconsistent and inappropriate sentencing of sex offenders can be addressed, be explored.
  • that serious attention be given at the level of the judiciary to the manner in which provisions concerning minimum sentencing are interpreted to ensure that sentences are commensurate with the seriousness of a crime like sexual violence against children.
  • that the influence of alcohol and drugs be considered as an aggravating factor in the sentencing of sex offenders.
  • that the cost of anti-HIV/Aids prophylaxis treatment for rape survivors be reclaimed from the perpetrator upon conviction.

3.5.3 Correctional Services

3.5.3.1 Introduction

The Department of Correctional Services did not make a submission at the public hearings. In view of the importance of the debate around rehabilitation, and the wider debate in South Africa around restorative justice, the absence of Correctional Services is recognised as unfortunate.

3.5.3.2 Child sex offenders

Some presenters made reference to the position of child sex offenders in the correctional service system, and argued that the system currently does not cater for them adequately. The provisions of the Constitution makes it imperative that Government use detention or imprisonment of children only as a last resort and for the shortest appropriate period of time, and to accommodate children separately from adult inmates (Section 28(1)(g) of the Constitution). Despite a programme to establish secure care facilities in all of the provinces to ensure that children in trouble with the law are accommodated in a manner that takes into account their developmental needs, the reality that hundreds of children are still accommodated in South African prisons is a cause for grave concern. Because of a lack of resources with which to completely develop the programme of secure care, there seems to be little distinction between children in custody and children in care, which results in children in both categories being accommodated in the same facilities.

It was put to the Task Group that there are currently only two programmes that deal with the rehabilitation of child sex offenders nationally. The Task Group finds completely inadequate, and supports the position that early intervention in relation to child sex offenders plays an important role in enhancing the offender's chances to be reintegrated into society. The Task Group also finds that the large numbers of children in adult prisons implies that they are vulnerable to be abused themselves, and their exposure in this setting to sexual violence which may reinforce the anti-social behaviour at the root of their offence in the first place.

The Task Group is of the opinion that the punishment of the child sex offender has to be appropriate to their developmental capacity and age, and proportionate to the seriousness of the crime. The Task Group notes that the proposed Child Justice Bill contains extensive proposals on the sentencing of child offenders and the diversion of children out of the prison system. In terms of this Bill, the purposes of sentencing children would be in line with the concept of restorative justice - encouraging the child, through a sentence proportionate to the circumstances surrounding the crime, to accept individual responsibility for their actions and to facilitate the reintegration of that child into the family and community.

3.5.3.3 Adult sex offenders

The Task Group again takes cognisance of the assertion that conditions in South African prisons are not conducive to the rehabilitation of sexual offenders, and that the high levels of violence, including sexual violence, may in fact reduce their chances of rehabilitation. It further notes the comments made in various submissions with regard to the suitability of current rehabilitation programmes for adult sex offenders. Of specific importance here is the argument that courts should consider the treatment and rehabilitation of all sexual offenders as part of the sentencing process to ensure that survivors and the community in general are protected against repeat offending once the offender has been released from prison.

The Task Group takes into account a number of recommendations regarding the way Government deals with sex offenders. One of these recommendations contained in a detailed submission is that rehabilitation programmes aimed at sex offenders must be established in correctional facilities as a matter of urgency. There has been a further recommendation that all sex offenders should be required to undergo treatment in an accredited treatment programme, preferably in a community setting, when released on parole or under correctional supervision. The submission also gives attention to the procedures to be followed in sentencing when considering the appropriateness of rehabilitation programmes for a particular offender. The Task Group notes the recommendation that the offender should bear the cost of treatment should he or she be in a position to do so, and that the State should bear the cost of treatment for offenders who cannot afford to pay for it themselves. At the same time, it acknowledges that severe resource constraints may seriously affect the feasibility of such proposals.

The Task Group recognises that where a "treatment order" forms part of a sentence, this would have to be followed up to ensure that a lack of resources or a lack of insight into the need for rehabilitation are not the reasons why such rehabilitative treatment are not implemented. In addition, there would have to be considerable campaigns aimed at reaching consensus among both correctional services staff and the public in general that such rehabilitation programmes do not constitute a mere waste of money on the offender at the cost of the taxpayer, but that it forms a vital part of a completely new paradigm within which there will be elements of both punitive and restorative justice.

The Task Group further acknowledges that the comments above do not elaborate on all the different aspects of the debate around rehabilitation, and that the issue of effective rehabilitation of sex offenders, the cost of such programmes and the conditions in correctional facilities merit further investigation by both the Departments of Correctional Services and Social Development.

3.5.3.4 Register of Sex Offenders

In media reports as well as in discussions before the Task Group, the establishment of a national register of sex offenders has been suggested as one of the preventative measures that could be used to combat the sexual abuse of children. It has been argued that there are a number of examples of how such a register could operate, and the example of the United Kingdom was put as the kind of system that could most benefit the South African context.

In the UK, the Sex Offenders Act 1997 requires those convicted of specified sexual offences involving children, and of other serious sexual offences against adults, to register their names and addresses with the police. At present the registration rules in the UK include the following: sex offenders must register their name and address with a designated police station within 72 hours of their release from jail. Failure to register can lead to a six-month jail term or fine. In addition, the police can apply for a community protection order, which lasts for a minimum of five years, and can bar an individual from areas frequented by children. Head teachers, doctors, youth leaders, sports-club managers and others are notified on a confidential basis of the presence of a local sex offender.

At the core of the argument in favour of such a register is the belief that informing the child protection agencies and certain other professionals who work with children of the whereabouts of a convicted sex offender will enable these agencies and individuals to keep sex offenders away from children. The Task Group notes the contention that rehabilitation of sex offenders in the current prison environment has had little success, and that a significant number of sex offenders become repeat offenders once they have been released from prison.

While noting the arguments in favour of a register of sex offenders, the Task Group has also considered the arguments against it. It has been shown, for example, that there is little to stop a sex offender giving a false address when complying with their mandatory registration requirements. Another important factor that has to be noted is the question of what the public does with the information in a register, should the general public have access to it, as is the case in some states in the United States of America. Even where access to the register is limited to certain categories of people, there have been numerous cases of misidentification, vigilante attacks on sex offenders, and even suicides of people who have been subjected to public attack after their names were included in a public register of sex offenders. The Task Group notes that placing information concerning offenders on the Internet must be approached very carefully, as such information is accessible not only to the community that it is aimed at protecting, but nationally and internationally, which opens it to abuse.

A third argument is that such a register may drive the activities of sex offenders even more underground, which could make the work of protection agencies all the more difficult.

The Task Group recognises proposals that a register of sex offenders could be useful as a means of keeping serial offenders out of children's services. Such a register should be available to assist with the screening of prospective staff members, volunteers or substitute caregivers for children within schools, designated child care services and major youth organisations, and for no other purpose whatever. In addition, the proposals hold that strict controls on access to this information and strong sanctions for any breach of the limitations should be put in place, and that severe criminal penalties should apply to malicious reporting.

It must be noted that the efficacy of such a register has not been established, nor has the cost implications for South Africa.

3.5.3.5 Recommendations

The Task Group recommends -

in relation to child sex offenders

  • that the Department of Justice and Constitutional Development brief the relevant Parliamentary Committees on the measures the Department intends to take with a view to fulfil South Africa's obligations under Section 28(1)(g) of the Constitution with regard to sentencing of child offenders.
  • that the Department of Correctional Services brief the relevant Parliamentary Committees on the measures the Department intends to take with a view to fulfil South Africa's constitutional under Section 28 of the obligations with regard to detained children.
  • that the Department of Correctional Services brief the relevant Parliamentary Committees on its programmes for the rehabilitation of child sex offenders, as well as the facilities available for the removal of children out of adult prisons.
  • that the draft Child Justice Bill be finalised as soon as possible, and that the Department of Constitutional Development brief the relevant Parliamentary Committees on the contents of the Bill, as well as the reasons for the delay in processing this legislation.
  • that this proposed legislation also include explicit reference to the mandatory responsibilities of different government agencies to ensure that programmes of restorative justice can be successfully implemented;

in relation to adult sex offenders

  • that the Department of Correctional Services brief the relevant Parliamentary Committees on its programmes for the rehabilitation of adult sex offenders, including cost implications of existing and envisaged rehabilitation programmes.
  • that the recommendations with regard to the mandatory rehabilitative treatment of sex offenders, where upon assessment found appropriate, be considered for inclusion in the proposed Sentencing Framework Bill, and that members of the judiciary as well as correctional services personnel be trained with regard to the importance of rehabilitative treatment.
  • that proposed changes to legislation to allow for more effective rehabilitation of sex offenders include explicit reference to the mandatory responsibilities of different government agencies to ensure that rehabilitation programmes can be successfully implemented;

in relation to a register of sex offenders

  • that the establishment of a register of sex offenders be investigated by a task team comprising the Departments of Correctional Services, Safety and Security, Social Development and Justice and Constitutional Development, and that this task team report to the relevant Parliamentary Committees.
  • that the effectiveness of such registers in countries where they exist be investigated by the above-mentioned task team.
  • that should a register of sex offenders be established, this register not be open to the public, but managed by the Departments of Correctional Services, Social Development and Safety and Security for the purposes of keeping sex offenders out of schools, designated child care services and youth organisations. It further recommends that such a register include an updated history of the offender's offences as well as his or her participation in rehabilitative programmes.
  • that this task team investigate the question of including in a register of sex offenders the names and details of persons against whom allegations of abuse have been made, but who have not been found guilty by a court.

3.6 International instruments for the protection of children

3.6.1 Introduction

The Task Group finds that sexual abuse of children can have an international dimension or cross border implications. That is why international cooperation and a common legal standard of norms in relation to these issues are needed in order to properly address the problems involved. The Task Group therefore takes note of the international legal framework with regard to sexual abuse of children within which State authorities and private individuals act.

One of the areas of sexual abuse of children that could have a direct international dimension is the area of commercial sexual exploitation and trafficking in persons. Unfortunately the Task Group was offered no empirical data in relation to the problem. It could therefore not be assessed during the Public Hearings how widespread these problems are. The Task Group, however, notes that the impact of commercial sexual exploitation on the well being of affected and vulnerable children is devastating and needs to be properly addressed by cooperation of all State authorities on a national and on an international level.

3.6.2 International Law Framework

3.6.2.1 International treaties binding on South Africa

South Africa is bound by the 1990 African Charter on the Rights and Welfare of the Child which provides in Article 16 that

  1. States Parties to the present Charter shall take specific legislative, administrative, social and educational measures to protect the child from all forms of torture, inhuman or degrading treatment and especially physical or mental injury or abuse, neglect or maltreatment including sexual abuse, while in the care of a parent, legal guardian or school authority or any other person who has the care of the child.
  2. Protective measures under this Article shall include effective procedures for the establishment of special monitoring units to provide necessary support for the child and for those who have the care of the child, as well as other forms of prevention and for identification, reporting, referral, investigation, treatment, and follow-up of instances of child abuse and neglect.

South Africa is furthermore party to the 1989 UN Convention on the Rights of the Child which contains in Article 19 the obligation that

  1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
  2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

South Africa is moreover bound by the 1999 Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO No. 182), to

  • […] take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.
  • In the context of this provision the term "worst forms of child labour" comprises
  • […] the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances […]
  • and
  • […] work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.
  • It must be noted therefore that South Africa already committed itself on an international level to put into place these above mentioned protective measures for children.

3.6.2.2 Instruments not signed or ratified by South Africa and therefore not binding on the Republic

It must, however, be further noted that other instruments exist on the level of international law that deal more specifically with the topic of commercial sexual exploitation and trafficking in children than the above-mentioned Conventions. In this context two international legal instruments must be taken into account.

The 2000 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography entered into force on 18 January 2002 without the signature or the ratification of South Africa. This Protocol was drafted by the United Nations because there was a general concern that the Convention on the Rights of the Child does not provide for safeguards effective enough to address and deal with the problem of sale of children, child prostitution and child pornography. It therefore aims at extending the measures that States Parties of the Convention on the Rights of the Child should undertake with regard to the problem. Concrete measures proscribed by the Protocol include the unconditional extradition of perpetrators of sexual abuse of children (article 5) and the deepening of international collaboration and assistance in the fight against the mentioned crimes and its criminal punishment (article 6). Furthermore, the Protocol places concrete obligations on States Parties to protect the child survivors of such crimes in the course of the establishment of criminal proceedings against perpetrators (article 8), an issue that was raised by various presenters during the public hearings, who expressed major concern in relation to possible secondary abuse of the child survivor.

The Task Group further takes note of the existence of the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime. The Convention Against Transnational Organized Crime was signed by South Africa, but has not yet been ratified. Trafficking is defined in article 3 of the Optional Protocol as including

[…] the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of the position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploition.

In the context of the Protocol, exploitation comprises

[…] the exploitation of the prostitution of others or other forms of sexual exploitation […].

The Protocol aims specifically at criminalising all forms of trafficking in children (see article 5) and at assisting and protecting survivors of trafficking (see article 6). In doing so the Protocol has the potential to extend the protection of sexually abused children beyond what is already granted and provided for by other international treaties such as the more general African Charter on the Rights and Welfare of the Child and the UN Convention on the Rights of the Child.

The coming into force of these two above-mentioned international law instruments for South Africa would therefore add to the protection of children from all kinds of sexual abuse, both nationally and internationally.

With regard to the specific problem of commercial sexual exploitation of children through the use of modern communication technology, it must be noted that South Africa has signed the Council of Europe Convention on Cybercrime. This Convention aims at closing existing loopholes in legislation that emerge through the rapid advancement and development of modern technology. Article 9 of the Convention would place the country under obligation to act against child pornography on the Internet. This Convention could therefore be an answer to questions in relation to crimes committed using the Internet as highlighted earlier in this Report. South Africa, however, has not yet ratified this Convention

3.6.3 Recommendations

The Task Group recommends

3.7 Commercial sexual exploitation

3.7.1 Introduction

Several presenters raised the question of sexual exploitation of children in a commercial context, for example child pornography and child prostitution. Furthermore, the problem of international trafficking in children for the purpose of commercial sexual exploitation was raised. The Task Group takes note of contentions that South African children are increasingly being trafficked into slavery or prostitution.

However, the Task Group found that the research presented at the hearings did not necessarily reflect the situation in South Africa with regard to the trafficking of children accurately, and that it could not assess the extent of commercial sexual exploitation in South Africa. The Task Group, however, notes that the impact of commercial sexual exploitation on the well being of affected and vulnerable children is devastating and needs to be properly addressed by cooperation of all State authorities on a national and international level. One must not forget that a child does not prostitute her or himself out of free choice but is always a victim of criminal activities of other people.

The problem of child pornography and the State responses to the production, proliferation, and consumption thereof, will be discussed in the context of issues related to the mass media. The Task Group notes that it is a serious criminal offence to use children for the production of pornography, and that the distribution and consumption of this kind of pornography should be punished severely.

With regard to the specific distribution of child pornography through electronic media, the Task Group is of the opinion that there are shortcomings in the national legislation currently in existence. The Film and Publications Act (Act No 65 of 1996), does not properly address the risks imposed by modern technological developments and needs to be updated. Section 27 of the Act creates the offence of knowingly creating, producing, importing or being in possession of a publication or film that contains a visual presentation of child pornography. The definition of the term "film" seems to be broad enough to encompass visual presentations and images relayed on the Internet. However, given its special focus and the nature of the classification system, it is clear that the Act does not, and cannot, specifically regulate Internet material, including advertisements, accessible to children.

3.7.2 Recommendations

The Task Group therefore recommends

3.8 Media

3.8.1 Introduction

The role of the media in promoting sexual violence against women and children was raised in different submissions; at the same time, some presenters believed that the media has a positive role to play in campaigns aimed at combating these forms of violence. It was argued before the Task Group that the media is contributing to the image of women and children as commodities and that the unequal power relations between men and women exacerbate the situation. This adds to the perception that men have the right to claim sexual subservience from women and children.

The Task Group notes the concern expressed about the content of programming on the national television channels, especially as it relates to violence or sexually explicit material. It also notes the submission that the South African Broadcasting Complaints Commission is not sufficiently effective in dealing with complaints from the public, and that its Code of Conduct is regularly breached. However, the Task Group did not receive any submission that details such instances.

The Task Group notes at this juncture that it is important to use the media as an effective tool for raising public awareness around sexual violence. It further notes that the media has a responsibility to report regularly and consistently on matters surrounding sexual violence against children, rather than predominantly covering sensational cases. Recommendations on the role of the media in changing attitudes about gender roles, power relations and sexuality are contained elsewhere in this Report.

A substantial portion of the submissions that focused on the media, however, dealt with the question of pornography and its possible link to sexual violence against women and children. The question was raised whether pornography and other media exposure cause rape, and different arguments were put forward at the hearings.

The South African Government made a clear decision around the legality of adult pornography with the introduction of the Films and Publications Act in 1996. While it wanted to make a clear break with the censorship laws of the past, it sought to ensure, among others, that the right to freedom of expression, as it pertains to the right to be in possession of adult material depicting adults in non-violent sexual acts, is protected. At the same time, the legislation sought to prohibit the possession or distribution of child pornography, material that depicts sexual violence and material that depicts bestiality or excessive violence.

The Task Group recognises of the opinion that Government policy, the Films and Publications Board, and the judicial system armed with the Films and Publications Act in turn, has had to balance the individual freedom of expression guaranteed in the Constitution (Section 16) with the need to protect vulnerable sections of society against abuses of that freedom. This tension provides some of the context within which discussions of pornography have taken place, and continues to inform the debate about pornography in South Africa.

Although it considers this a serious and ongoing debate, the Task Group also notes the concern expressed that our laws do not sufficiently protect children against adult pornography. With regard to child pornography, the Task Group emphatically supports Government's position: child pornography is not a matter of freedom of expression, nor is it a genre of erotica. It is both a form of sexual exploitation of children and a representation of that exploitation. The Task Group agrees with the position that child pornography is often used to abuse more children, noting various studies that suggest a direct link between child pornography and abuse.

The Task Group believes that any child pornographic image constitutes child abuse. The image degrades and dehumanises children, whether it involves real children in its production or whether it is simulated. It also notes suggestions that having been abused through child pornography leaves an indelible mark on the child, and could result in severe behavioural consequences for the child in later life. Therefore the Task Group believes that there can be no tolerance for the production, distribution or possession of child pornography.

The distribution of child pornography continues to abuse the child long after the perpetrator may have been apprehended. In view of the operation of the Internet as a worldwide and virtually immediate distribution tool, and the overwhelming evidence that pornographic sites on the Internet are increasingly easy to access, the Task Group expresses great concern that South Africa still has no legislation in place to deal with the distribution of child pornography on the Internet. It notes the proposals contained in the draft Films and Publications Amendment Bill, but finds no satisfactory answer to why this Bill has still not been tabled in Parliament for consideration and adoption.

South Africa is bound by the UN Convention on the Rights of the Child (Article 34) of which places it under further obligation to put in place legislation that will expressly protect children against child pornography - a form of commercial sexual exploitation of children. The African Charter on the Rights and Welfare of the Child also makes very clear reference (Article 27) to the obligation on States parties to protect children by preventing the use of children in pornographic activities, performances and materials. The link between child pornography and commercial sexual exploitation of children is further established in the International Labour Organization's Convention 182 to which South Africa is party.

These international instruments, already binding upon our country have been discussed more fully elsewhere in this Report.

3.8.2 Protecting survivors from media exposure

The question of the role of the media in identifying sexual abuse survivors and their families is discussed elsewhere in the report within the context of the criminal justice system, and findings and recommendations with regard to appropriate conduct for the media are elaborated there.

However, the Task Group was particularly concerned about the submission made by the producer of a BBC-commissioned documentary film about child rape in South Africa. Members expressed their deep concern about the protection of the identity of survivors or their families in such films. There was also concern about whether participants in documentary films of this nature are being encouraged to participate by way of financial incentive, and whether they are afforded the opportunity to make informed decisions about the implications of their participation in such a film.

3.8.3 Recommendations

The Task Group recommends

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