Chairperson, hon members, ladies and gentleman, comrades and friends, may I firstly apologise for the Minister not being here. She's busy with a debate in the other House; we thought it would dovetail, but it hasn't.
Hon members, I feel privileged to introduce this debate, particularly at this time of the year when we stand on the eve of the commencement of the annual 16 Days of Activism for No Violence Against Women and Children. This campaign, generating as it does an increased awareness of the negative impact of violence against women and children, can this year be enriched by celebrating this House's willingness and commitment to addressing the plight of women, children and other vulnerable groups who are so often the victims of sexual atrocities when it approves this Criminal Law (Sexual Offences and Related Matters) Amendment Bill.
As indicated in the long title, the preamble and the clause setting out the objects of the proposed legislation, the Bill aims to review and amend the existing body of law relating to sexual offences comprehensively and extensively. The aim is to have a single statute, dealing with all aspects relating to this important and sensitive area of the law and its implementation. Obviously, members realise that having everything in one Bill from now on is going to help the police, the prosecutors, the courts, as well as the victims.
Time simply does not allow me to say all I would like to. I have consequently decided to focus on some aspects which I consider to be ground- breaking, particularly those areas which have been hailed as victories in our commitment to achieving gender equality and to protecting vulnerable groups, most notably women, children and persons who are mentally disabled, from the scourge of sexual violence in its many manifestations.
Before dealing with some of these ground-breaking issues contained in the Bill, I would like to share an observation that has been made, namely that for the first time in South African legal history, we will have codified a substantial portion of our criminal law into a single statute. The approval of this Bill by the National Council of Provinces today will indeed be a historic event. Chapters 2, 3 and 4 of the Bill contain many examples of how the shortcomings in our common law dealing with sexual offences have been addressed in the Bill, with a view to bringing them into line with our constitutional dispensation and ensuring that we have as many quick and successful prosecutions as possible, with the least secondary trauma for the victims concerned. For example, the present common-law offence of rape is gender-specific. Only a male can commit the offence and the victim can only be a female. Clause 3 addresses these shortcomings to the extent that it will now be possible for a man to be raped by another man, for a woman to be raped by another woman and for a man to be raped by a woman. [Interjections.] Please, don't sound so enthusiastic on the last one. [Laughter.]
This major departure from what the law is currently is to be welcomed. Persons who commit horrific acts of sexual penetration, which at the moment do not qualify as rape will, if convicted in terms of the proposed new offence, be justifiably stigmatised as rapists for the rest of their lives. The extension of the common-law definition of rape necessitated revisiting the common-law crime of indecent assault, eventually leading to the creation of a new statutory crime, namely sexual assault, which covers nonpenetrative sexual acts, committed unlawfully and intentionally as contemplated in clause 5 of the Bill.
The destructive nature of crime and especially the barbaric mentality of some criminals can never be underestimated. In many instances it is not enough for criminals to commit rape and, as a result thereof, to devastate the lives of innocent victims. They go further and sometimes force a loved one of the victim to watch the rape taking place. Clause 8 of the Bill, therefore, among other things, prohibits any person from compelling another person to witness a sexual offence being committed in his or her presence.
Two chapters of the Bill have been devoted exclusively to victims of sexual offences who are particularly vulnerable, and those two groups are children and persons with mental disabilities. While the Bill singles out these vulnerable groups, I trust that our courts and the prosecuting authority will leave no stone unturned to ensure that persons who commit sexual offences against other vulnerable victims, such as the elderly and the physically disabled, also get their just deserts.
There are four new crimes in Chapter 3, dealing with child victims, which deserve particular mention. The first of these four is the crime of the sexual exploitation of children. In terms of clause 17, a person who purchases or, on behalf of a child, sells the sexual services of a child, is guilty of the offence of sexual exploitation of a child. This clause aims to criminalise the actions of clients and other players who are involved in the exploitation of children, for instance pimps. A person who engages the sexual services of a child for reward and then goes on to commit a sexual act with that child, can also be charged, prosecuted and convicted of a further offence, for example, rape or statutory rape, in addition to sexual exploitation. I welcome this extra protection afforded to children.
The second crime deals with the sexual grooming of a child. This is something entirely new in our law. It is specifically aimed at providing additional protection to children against an ever-increasing threat. Our children are increasingly becoming exposed to the risk of persons who, through their own devious methods, systematically prepare or soften children in order to eventually satisfy their deviant sexual needs.
With the age of electronic communication in full swing it has become even more important to protect our children from the very real dangers that lurk behind apparently innocent communication tools, such as cellular phones and the Internet. Clause 18, firstly, aims to draw a distinction between persons who promote or facilitate the grooming of a child and those who actively groom children. Here we are talking about people who use pornography, people who use books and comics and who try to entice children to look at these things and, in that way, make them used to sex and so on until the suggestion comes, "Well, why don't you try it yourself?" That is what we are talking about here.
The sexual grooming here is by people that use the Internet, for example the chatrooms, and then talk to the children and organise meetings with them. Do you remember a little while back with the cellphones? There was that special, and they found that a whole lot of paedophiles had been part of that. That is what we are talking about here: using the Internet, cellphones, comic strips and those types of things to try to soften children and make them used to sex, make them used to thinking about it and discussing it and not to make it as if it is something. And when they start getting used to it, then they of course seduce these children and do what they want to them. That is what we are talking about with the grooming of children.
The last two crimes deal with pornography, that is the display or exposure of pornography and more particularly pornography to children and using children in any manner whatsoever for the creation of child pornography. We have criminalised both: if you use children for pornography or you give it to them or distribute it to them. Chapter 4 of the Bill, focusing on victims who are persons with mental disabilities, to a large extent mirrors all the crimes that we have created for children. Obviously, persons with disabilities are a special category of people that are totally and utterly helpless, usually, when it comes to defending themselves and we have created a special chapter on people with disabilities to protect them as well.
In debates of this nature one tends to concentrate on the substantive provisions contained in the Bill. I would, however, like to draw attention to some provisions in the schedule to the Bill. These seemingly less important or incidental provisions should not be overlooked and my view is exactly what the Minister said here earlier, about important and unimportant Bills.
There are three provisions, almost hidden at the back of the Bill, which I support wholeheartedly and which will go a long way in reducing the secondary trauma victims of sexual offences so often have to experience. Firstly, I welcome the overhaul of section 227 of the Criminal Procedure Act of 1977, which is intended to set out the circumstances when evidence relating to the previous sexual history of a complainant is deemed to be relevant. I welcome the criteria which a court must take into account before it can admit such evidence, for instance, whether such evidence is in the interests of justice, with due regard to the accused person's right to a fair trial and whether the evidence is in the interests of society in encouraging the reporting of sexual offences.
The amendments proposed in sections 158 and 170A of the same Act will also assist complainants, the former dealing with the giving of evidence by means of closed-circuit television - and we want most children to be able to give evidence with a closed-circuit television - and the latter dealing with the appointment of intermediaries through which complainants can testify. These amendments require a court to provide reasons for refusing an application to invoke the protection envisaged by the two mechanisms in question in cases in which the complainant is particularly young and vulnerable, namely under 14 years.
I am also heartened by the provisions of clause 60 that, once and for all, abolish the cautionary rule in sexual offences, which is another victory for gender equality. You may not know this, but judges, when listening to the evidence of a complainant in a case of sexual offence, say: "I take particular caution in looking at the evidence of this witness as she is a woman and there is the possibility that she may have fabricated it." That is a horrible legacy that we have retained in our law. No other witness has to deal with that. When you as a man give evidence against someone, they don't say, "You are a man and you are involved in this sexual offence and you may just be lying" and so on.
That cautionary rule is being completely abolished in our law with this legislation. This clause confirms the decision of the Supreme Court of Appeal in S v Jackson 1998. The evidence of complainants in sexual offences cases was, prior to the Jackson case, treated with caution merely because of the nature of the offence. The Supreme Court of Appeal, in the Jackson case, abolished the rule and stated that, in sexual assault cases, the rule is based - ``... on an irrational and outdated perception. It unjustly stereotypes complainants in sexual assault cases - overwhelmingly women - as particularly unreliable."
The repeal of the common-law rule was confirmed in the cases of S v M 1999 and S v M 2000. However, this approach was not followed in S v Van der Ross. Therefore we have now introduced into law clause 60, which eliminates any doubt as to what the law should apply in this regard.
I mentioned earlier that the time available to us simply does not allow me to speak on all the contents of this Bill. I would also like to briefly highlight the importance of Chapters 5 and 6 of the Bill. Chapter 5 of the Bill, among other things, provides that victims of sexual offences are entitled to be provided with post-exposure prophylactics at state expense at public health establishments designated by the Minister of Health on condition that they report the offence within 72 hours of its commission and obviously receive the treatment within the 72 hours. Secondly, we are also allowing that someone can apply to a court for an order directing that an alleged offender be tested for HIV, with the view to having the test results made available to the victim so that the victim can make personal lifestyle decisions.
It needs to be stressed that the provisions contained in Chapter 5, dealing with the compulsory HIV testing of alleged sex offenders, should not be interpreted as detracting from the importance of a victim determining his or her own HIV status, notwithstanding the outcome of the HIV testing, and receiving the necessary medical advice and treatment after the commission of a sexual offence against him or her. It is just a further mechanism we are creating to try to create peace of mind for a person, whether the person needs to take special precautions because the person who raped her was HIV-positive or not.
Chapter 6 of the Bill, dealing with the creation of a national register of sex offenders, reflects the government's resolve to promote the safety and security of certain vulnerable groups by prohibiting certain sex offenders from being placed in positions of employment, authority, supervision or care of children or persons with mental disabilities. That is what this does. It allows you to check on someone you are employing or who is supervising your children. You can get hold of this office and find out whether this person has previous convictions of sexual offences, so it's that kind of protection. I commenced my speech by referring to the 16 Days of Activism Campaign. I would like to conclude on the same topic, again with reference to the Bill. One of the key messages of this year's campaign is that government, in creating an extensive policy and legislative framework that deals with crime, sends a strong message to offenders that violent abuse will not be tolerated. The enactment of this Bill will, among other things, enhance government's resolve to address the abuse of women and children by criminalising the various manifestations of sexual violence and abuse. I hope that this Bill, when it becomes law soon, will be applied with vigour by all role-players.
The portion of the Bill to which this is particularly relevant is Part 3 of Chapter 7, dealing with the adoption of a national policy framework. The Minister for Justice and Constitutional Development must, in terms of the said Part 3, liaise with her colleagues the Minister of Safety and Security, the Minister of Correctional Services, the Minister of Social Development and the Minister of Health, as well as the National Director of Public Prosecutions with the view to adopting a national policy framework relating to all matters dealing with the Act in order to try to create uniformity, consistency and enhanced delivery.
An intersectoral committee, consisting of the directors-general of all the departments and the NDPP is envisaged, which will play a major role in this regard. I see this committee and the national policy framework contributing towards making a success of translating the envisaged line function responsibilities of all role-players into reality. The development of this Bill has spanned the administration of three Ministries.
Hon members are aware that this Bill started with the SA Law Commission and has been here for a long time, and we have to thank the many individuals who have worked tirelessly to get this very important matter to the stage where we are now at. Their efforts are appreciated.
I would also like to take a moment to thank members of the select committee who have shown their commitment to ensuring that the end product comprehensively and extensively reviews and amends all aspects of laws relating to sexual offences. I commend the committee for doing just that, under the able leadership of its chairperson, the hon Kgoshi Mokoena. Your efforts and hard work have not gone unnoticed.
I also wish to express my appreciation to the many interested parties who unselfishly shared their knowledge, expertise and experiences by submitting their comments during the investigative stage and the parliamentary process. I venture to say that this Bill has been the subject of what one could almost regard as unprecedented consultation. I thank everyone so much; please support the Bill. Thank you. [Applause.]