Taking stock of the Sexual Offences Bill

An earlier draft of the long-in-the-making Sexual Offences Bill caused a stir in the media recently, especially when it was revealed that the rape of males was not covered. Now a tweaked version has been passed by the National Assembly, and is ready to go through the legislative mill. We asked our Gender, Health and Justice Research Unit in the Department of Medicine to share some insights into the bill's details, and what lies ahead. Here the unit's MARIANNE BRUINS weighs up its pros and cons.

On 22 May 2007, after five years of discussions and debates in the South African Law Reform Commission (SALRC) and a further four years in Parliament, the Criminal Law (Sexual Offences and Related Matters) Amendment Bill, often referred to as the Sexual Offences Bill, was passed by the National Assembly. The Bill now has to go to the National Council of Provinces (NCOP) for concurrence, after which it can be signed by President Thabo Mbeki.

While the bill racks up some important achievements in its codification and update of the law relating to sexual offences, it does not live up to one of its primary objectives, to provide protection and treatment for victims of rape and other sexual offences.

What does the Bill do?

The bill substantially broadens the definition of rape, bringing it in line with internationally accepted views. In this new definition both the victim and perpetrator are defined in neutral terms, thus including the rape of men, and rape by women. Furthermore, the term 'sexual penetration' replaces the term 'vaginal penetration', recognising forced anal penetration as rape and including penetration with objects, not just body parts. These long overdue changes will significantly affect jurisprudence on sexual offences. Only recently, the Constitutional Court, in the Masiya case, declined to extend the common law definition of rape to cover forced anal penetration of a male. This unacceptable state of affairs will be remedied under the new legislation.

The bill also introduces a number of new crimes, making it an offence, for example, to compel another person to rape or sexually assault a third person. New offences are created to protect vulnerable groups such as children and people with mental disabilities, example 'sexual exploitation of children'.

In terms of rules of evidence and procedure, the bill has finally scrapped the use of the cautionary rule in sexual offence cases, meaning that the evidence of a rape complainant cannot be treated with caution solely because they are the victim of a sexual offence. Although the Supreme Court of Appeal ruled in 1998 that the use of the cautionary rule in cases of sexual offences was based on obsolete and irrational assumptions, it was still possible to use it if the applicant incited the application of the rule. The bill now acknowledges that a complainant in sexual offence cases should not be treated any differently from a complainant in other cases since there is no reason to believe that they are less credible than a victim of another crime.

In the past, delayed police reporting of the crime was interpreted as indicating a false complaint and was used to discredit the victim in the criminal proceedings. It is commendable that with the introduction of the bill the courts will no longer be allowed to draw any negative inference from delayed reporting.

Another positive important development is the right granted to rape victims to receive post-exposure prophylaxis (PEP) to prevent the possible transmission of HIV. This antiretroviral medication will be available at designated health facilities.

With regard to sex work, the bill criminalises provision of sexual services as well as the conduct of the clients. Unfortunately the relevant clauses were included at a late stage in the Portfolio Committee's deliberations and were not preceded by the necessary public participation. This approach also pre-empts the recommendations of a current investigation of the South African Law Reform Commission into whether sex work constitutes criminal behaviour.

What doesn't it do?

One of the major shortfalls of the bill is its lack of a comprehensive package of care for victims of sexual violence. Not only is PEP the only service provided, but the PEP provisions do not adequately deal with the provision of this medication to children.

The bill fails to address the psycho-social and broader medical needs of the victim. In spite of the comprehensive submissions made to the SALRC in this regard, no psychological counselling and no medical treatment besides the PEP, like treatment for other STDs, are provided for in the bill.

Unfortunately, provisions designed to shield the victim from facing confrontation with the accused were removed from the bill. Comprehensive protection measures, such as the right to testify via CCTV, intermediaries and in-camera hearings, have all been replaced with a provision authorising the National Directory of Public Prosecutions to issue directives on these matters to the members of the National Prosecuting Authority. This is disappointing because the outdated norms and laws require legislation, not merely protocol. In spite of submissions urging the legislator to recognise the unique vulnerability and needs of many rape victims, no special provision was provided. Likewise, rape victims will remain unentitled to legal representation to protect their particular interests during criminal proceedings. Guiding principles, emphasising for instance that complainants of sexual offences should not be discriminated against but should be treated with dignity and respect, have been omitted from the final version of the bill.

The envisioned victim-initiated compulsory HIV testing of the perpetrator bears more risks than benefits. First, the provisions create a false sense of security for the victim by suggesting that an HIV-negative test result means there is no risk of HIV transmission. As the alleged offender may be in the 'window' period when tested for HIV, the victim cannot rely on the result when making decisions around PEP and safer sex. It is also alarming that the bill makes it an offence to apply for compulsory testing of the alleged offender, with malicious intent. Since only between 5% and 9% of reported rape cases result in conviction, those who are acquitted and were forced to undergo compulsory HIV testing may try to sue the victim for damages, or have them prosecuted for requesting an HIV test. This shifts the blame from the perpetrator to the victim and may have a 'chilling' effect on victims, who will be afraid to seek this relief.

Although the bill's update of the definition of rape and other positive procedural aspects are welcome, it seems to miss out on a number of opportunities to improve the lives of victims of sexual offences. Much work still has to be done to ensure that the rights of the victim are properly addressed. Hopefully, the regulations yet to be drafted for the implementation of the bill will help overcome some of its shortcomings, thereby providing crucial protection for the victim.