Hon members, I dedicate this speech this afternoon to all mothers who teach their sons to treasure girls, to all the wonderful South African men, fathers and husbands who love and protect their wives and daughters, and to rape victims everywhere who, having been violated in the most demeaning way, show amazing resilience to us all and who choose to live in dignity, thereby giving us all hope; hope for the boundlessness of the human spirit and hope for a world without violence. [Applause.]
While we do what we can in the legislation before us, there is, as the Minister says, a limitation to what legislation can achieve. By itself the Bill is not going to completely halt the high incidence of sexual violence reported every day at our police stations. If we hope to prevent sexual violence, we will have to look very deeply within ourselves, within our communities, and trace our historic path to this space in time.
Given our previous intimate relationship with violence, we might have failed to teach our children healthy alternatives to violence. Perhaps we have underestimated the devastating role played by alcohol and drugs, and we might even have misunderstood the effect of the permissive influences of images, films and advertisements so glaring in our daily lives. How else, members, do we explain the rape of an 18-month-old baby by a 15-year-old boy a few days ago in Limpopo province? How else do we explain the rape and setting alight of a seven-year-old not 20 kilometres away from this House? These are amongst the issues that, I think, need serious and committed thought from all of us. [Inaudible.] ... it really is very disturbing. Madam Deputy Speaker, I can't hear myself.
It is time, perhaps, that we became more vigilant as to the kinds of things that we feed into our children's minds, and in order for us to rescue our souls it is important that we try to find some time, perhaps, in this House to focus our thoughts more keenly in this regard.
The Bill before us aims in a single piece of legislation to deal with the law on sexual offences and related matters. Having said that, it is important to note that parts of the old Sexual Offences Act of 1957 that criminalised prostitution still remain, although it bears noting that the SA Law Commission is reviewing the legal aspects relating to adult prostitution and its implications in our new democracy.
We therefore, in this Bill, do not deal with adult prostitution, except as it pertains to the decision of the Constitutional Court in the Jordan case in which the hiring of the sexual services of prostitutes was found to be as much a crime as the crime of prostitution itself.
The Sexual Offences Act of 1957 is silent on the matter of the clients of prostitutes, and a grave inequality exists in how the criminal justice system treats the crime of prostitution. Currently in our country only prostitutes, who are mostly women, and not their clients, who are mostly men, are arrested, charged and prosecuted.
In a constitutional democracy it is an affront to treat women who are prostitutes as criminals, but not their clients as well. These clients in any case, for all intents and purposes, seem to go on blissfully with their otherwise model lives, completely unaffected.
The last prosecution in this country of a person who hired the services of a prostitute was in 1987 - gender bias in its most blatant form, I would say. Unless and until there is a comprehensive review of the law on prostitution and while such unequal practices exist, we in this House are compelled to act in a manner that accords with what is just and what is proper, and in accordance with the decision of the Constitutional Court.
The Bill is further divided into seven chapters, the first of which sets out certain definitions which relate to our attempt to modernise the law on sexual offences. The definition of sexual penetration, in particular, is a departure from the current common law definition and extends penetration to include oral and anal penetration. Consequently, the crime of rape, which is essentially the unlawful and intentional act of sexual penetration, is broadened significantly. Rape will now cover forced oral sex and the situation in which a man is sexually penetrated against his will or when an object such as a gun is used to penetrate a victim.
New crimes of compelled rape and compelled sexual assault are created to specifically deal with an instigator of the crime who compels, through the use of force or some other means, someone else to commit rape or sexual assault. This new crime is not to be confused with aiding, abetting or accomplice crimes.
A victim may also be compelled to engage in acts of self-penetration or acts of sexual self-degradation. The instigator will henceforth face a charge of compelled sexual self-assault. Compelling a husband to watch his wife or daughter being raped will henceforth require the perpetrators to be charged with both rape as well as the crime of compelling a person to witness a sexual offence. There are a host of other crimes in the chapter relating to adult persons flashing, exposure of child pornography, incest, bestiality and the crime of committing a sexual act with a corpse.
Crimes against children are dealt with specifically in recognition of the fact that children are vulnerable. Statutory rape and sexual assault are two crimes that have been preserved in this law to provide further protection to children between 12 and 16.
The Bill regards children under 12 as incapable of consenting to any sexual act. This means, of course, that children above 12 can factually consent. However, if the child is between the ages of 12 and 16 and the consent of the child has been established, any person found to have engaged in a sexual act with such a child will nonetheless be guilty of statutory rape or statutory sexual assault.
A very compelling case was made for the extension of this provision to children under the age of 18, and we did consider this. However, given the diversity of our society and the prevalence of sexual activity amongst children in the category between 16 and 18, it was felt that extending statutory rape and sexual assault in this way would have the unintended consequence of criminalising 16-year-olds to 18-year-olds engaging in sexual behaviour.
Statutory rape, we hope, will no longer apply to the proverbial teenage boy who, having been intimate with his teenage girlfriend, finds himself hauled to the police station by the girlfriend's irate father. Indeed, if prosecution is to follow in this kind of circumstance, both the young man as well as the young lady would have committed a crime, and both are now required to be charged. More and more, we hope the crime of statutory rape will be used to convict adults who entice and seduce young children into sexual behaviour.
Children and persons who are mentally disabled are the two categories which have been dealt with specifically in recognition of their inherent vulnerability. Persons who are mentally disabled are defined as those who are affected by any disorder or disability of the mind to the extent that they, at the time of the alleged commission of the offence, were unable to appreciate the nature and reasonably foreseeable consequences of a sexual act, unable to act in accordance with such appreciation, and unable to resist or communicate their unwillingness to participate in such an act.
Specific crimes created for both these vulnerable categories include sexual grooming, prostitution, benefiting or living off the proceeds of such prostitution, creating pornography using children or persons who are mentally disabled and benefiting financially from such pornography. Exposing children and persons who are mentally disabled to pornography and harmful material is now also criminalised. Both these vulnerable groups are further protected by the introduction of the register of sex offenders. This register will, hopefully, be in operation within six months of the Act being enacted.
The register will contain names of sex offenders who offend against children and persons with mental disabilities. The register will be established specifically to enable employers to screen potential employees who work with or have excess to children prior to employing them. The law provides that such employers must screen potential employees. Existing employees are enjoined to disclose any conviction, failing which they are liable to be criminally convicted and also lose their jobs.
Licensing authorities granting licences to businesses which provide supervision or care services to either of the vulnerable categories will be required to apply for a clearance for applicants prior to the relevant licences being granted. Likewise, people who adopt children or foster them are also in future to be cleared by the register.
It should at this juncture be stressed that this register is not a naming and shaming tool akin to the paedophile registers that operate in other countries. There are strict confidentiality provisions that are crafted to avoid the terrible experiences of those in other countries who have been falsely tagged because of administrative errors and commonly shared names.
As this register will contain names of offenders within our borders as well as without, it is hoped that it will evolve into a sound preventative and protective mechanism for our children and persons who are mentally disabled, and that our country will no longer be seen to be a safe haven for paedophiles.
In regard to treatment, the Bill provides for a whole protocol to be developed around the administration of post-exposure prophylaxis - Pep - to victims of certain sexual offences. In future, any such victim who may potentially have been exposed to the HI virus, who presents herself within 72 hours of the offence occurring at a designated clinic or police station and who lays a charge, will be provided with the Pep treatment.
The Compulsory HIV Testing of Alleged Sexual Offenders Bill of 2003 was collapsed into this Bill due to its close relationship with the main aim and purport of this Bill.
Provision is made for a mechanism to allow victims, who may have been exposed to the bodily fluids of a perpetrator, to obtain the HIV status of such offender whose identity may be known to them. Such a mechanism will kick in upon the granting of a court order. Criticisms have, inter alia, been raised to suggest that a negative result of the perpetrator would dissuade victims from receiving the Pep treatment. This argument, I believe, is a shocking assault on the intelligence of victims of sexual offences, who are mainly women.
While this mechanism is not perfect, it is certainly worthwhile. Its advantages to rape victims are obvious. Rape victims will be given information as to whether or not they have been exposed to the HI virus, and this is an important psychological tool.
Rape victims will also be empowered thereby to make certain decisions about their lives, lifestyles and loved ones. While there is no doubt that this provision will be challenged, we are confident that our courts will see the finely balanced checks and balances provided for in this regard.
Most unusually for legislation, we provide a comprehensive national policy framework in recognition of the fact that one of the most critical challenges in the criminal justice system is the lack of interdepartmental co-ordination with regard to sensitive and efficient service delivery, particularly when it comes to sexual offences.
The establishment of an intersectoral committee, consisting of the Directors-General of Justice, Social Welfare and Health, the National Commissioners of Police and Correctional Services and the National Director of Public Prosecutions, is meant to ensure the implementation of the objects of this Act.
The objects are, inter alia, to ensure intersectoral co-ordination and enhancement of service delivery at the level of our criminal justice system. If we succeed in the attainment of synergies in the criminal justice system, I want to submit that half of the battle against crime and sexual offenders in particular would have been won.
We have introduced in this Bill some changes to the law of procedure and evidence, which I don't have time to go into right now, but my colleague Mr J B Sibanyoni will be dealing with this at some length. I do, however, want to deal with one further very important aspect of this legislation, which is the transitional provision that we have included relating to human trafficking. Again, in a bizarre turn of events, the inclusion of this provision has been criticised by those who claim to be fighting for the protection of women and children. The crux of the argument seems to be that trafficking should be a stand-alone crime, while we only deal with it in the context of trafficking in persons for sexual purposes.
While it is true that human trafficking may be for purposes other than sexual exploitation - and, in that sense, the provisions could be said to be narrow in their scope - there is, however, an undeniable link between trafficking and sexual exploitation, in particular the prostitution of women and children.
Countries that have legalised prostitution rank as high or very high receivers of trafficked persons in the UN report on global trafficking published this year, while our own country, where prostitution is unlawful, and countries like Sweden, which regard prostitution as violence against women and children, rank far lower as potential receiver countries for trafficked persons.
I say again: there is an undeniable link between prostitution and human trafficking. This is a very sobering thought for those of us who are policy- makers and those of us who are listening, particularly in the light of the Law Commission's review on the matter of adult prostitution. As this is meant to be a transitional provision, it will be replaced once a comprehensive piece of law dealing with human trafficking is enacted. But, until then, these clauses that we have placed in the Bill will remain an important weapon in our efforts, alongside those of other countries, to eliminate human trafficking.
Finally, I want to take this opportunity in the last few minutes that I have left to thank, firstly, all those individuals who have made comments and who have made submissions to the portfolio committee. I believe that a lot of the good suggestions have, in fact, enhanced the quality of the Bill.
Secondly, I want to take the time to really recognise the sterling efforts of the legal drafters in the Department of Justice and Constitutional Development, in particular Mr Lawrence Bassett, Mr Henk du Preez, Ms Dalene Clark and Mr Hennie Potgieter, who have really gone over and above the call of duty and have worked weekends to try to get this Bill sorted. I do thank you very, very much. [Applause.]
Thanks also go to the Deputy Minister and the Minister for their guidance and assistance, and, lastly, thanks go to all the members of the portfolio committee who, when the rest of Parliament was away, were the only ones warming the seats of this House. Thank you for putting up with me and thank you for the dedication shown. I want to conclude by wishing everybody a happy festive season. Look after your children, and may it be a safe season for all of us. Thank you very much. [Applause.]