Official Launch of the Boschfontein Sexual Offences Court

The Rape Survivors’ Justice Campaign (RSJC) welcomes the official launch of the Boschfontein Sexual Offences Court on 24 March 2017 by the Department of Justice and Constitutional Development. The RSJC holds government accountable for the promised rollout of sexual offences courts across the country in order to ensure that survivors of sexual offences have access to such a specialised court. In the light hereof, we applaud government for honouring its commitment.

However, we note with concern that there are still, according to the Department of Justice and Constitutional Development’s official website, only 49 sexual offences courts nationally. This means that the vast majority of communities still do not have access to a survivor-centred criminal justice system to address sexual offences. One such community is Khayelitsha, where we gathered during 16 Days of Activism 2016 to demand that a sexual offences court be established to serve this community. Unfortunately it is still unclear when this will happen.

The RSJC (Rape Survivors’ Justice Campaign) calls on the South African Government to put the necessary legislation into effect so that the courts are re-established within a framework that is clear and transparent. We are also asking:

  • that government develop a fully costed plan to make sure these courts are delivered within a clear timeframe,
  • that government prioritise the areas with the highest rates of sexual assault and roll out Sexual Offences Courts there first
  • that government ensure the necessary budget for establishing these courts is allocated annually until all 298 courts are in place and functional
  • That all established courts meet the criteria for a sexual offences court and remain fully functional

To support our demand access to Sexual Offences Courts for all survivors, please go to http://bit.ly/2frRPYU. If you want to follow the activities of the RSJC and support us, please visit Facebook at RSJC.

 

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Jeanne Bodenstein

Jeanne is the Advocacy Coordinator at the Rape Crisis Cape Town Trust and heads the Rape Survivors’ Justice Campaign. She likes wine, pizza and recently started growing herbs.

Empowering women to advocate for change in South Africa

This year’s theme for International Women’s Day is #BeBoldForChange. Rape Crisis Cape Town Trust has embodied this by launching our Rape Survivors’ Justice Campaign in 2016 to lobby for a significant change in how South Africa’s criminal justice system deals with sexual offences cases. The Rape Survivors’ Justice Campaign calls for access to sexual offences courts for all survivors and holds the government accountable for the national rollout of these courts, as was promised in 2013.

These Sexual Offences Courts are crucial in ensuring justice, because they focus on the needs of the survivor and aim to provide survivor-centred justice. These courts have specialised personnel, services and infrastructure. Some of the special features of these courts, are that the sexual offences courtrooms have separate entrances so that survivors do not have to walk past the defendant on their way to the courtroom. In addition, the survivor is able to testify from a separate room using CCTV. We believe that these courts will provide support to survivors throughout the court process and Rape Crisis Cape Town Trust provides court supporters at 5 courts in the Cape Town. These court supporters are trained to help survivors navigate the criminal justice system and offer much needed emotional support to survivors.

The specialised personnel and services that makes up a sexual offences court is centred around the survivor and we therefore refer to it as survivor-centred justice. These resources also include a friendly, welcoming environment that makes it easier for survivors who are children and/or mentally challenged to testify, because it reduces the secondary trauma that survivors experience as a result of entering the criminal justice system.

Pelisa who has been a court supporter at Parow Magistrates Court for six years knows the importance of Sexual Offences Courts. She first got involved with the court support programme because she recognized a “need” for change after hearing stories from community members in Khayelitsha, where she lives. Pelisa is a passionate supporter for survivors of sexual offences who has always helped others heal and become stronger. Her role in the court support programme has been to explain to the survivor why they are there, how they can handle the situation better and, most importantly, help them “learn to love again”. According to Pelisa, her favourite parts about being a court supporter is “when [she] sees a smile on the survivor’s face” and “when [she] talks to them and sees that they have become free and strong”.

Rape Crisis Cape Town Trust welcomed the promise by government to re-establish sexual offences courts. These services, personnel and infrastructure are vital to survivors seeking justice. Rape Crisis Cape Town Trust has continually been in the forefront of empowering women to advocate for change in South Africa. However, there is still a lot of work that needs to be done. There are only 49 Sexual Offences Courts, and other services offered to survivors of sexual offences are still inadequate. A donation to Rape Crisis Cape Town Trust will go a long way to help us continue our work to hold government accountable for the rollout of sexual offences courts and to offer much needed support to survivors through our counselling and court support services.

Image above: Pelisa Nokoyo – Rape Crisis Court Supporter

Written by: Adam Kirschner – Communications Intern at Rape Crisis

If you would like to contribute to our programmes, Donate now and find out more here: http://rapecrisis.org.za/donate/

 

 

TRAFFICKING DEFINITION CHANGED IN WORKING DRAFT OF BILL

By Monica de Souza

A working draft (version as at 27 October 2011) of the Prevention and Combating of Trafficking in Persons Bill [B7-2010] has recently been debated by the National Assembly’s Portfolio Committee for Justice and Constitutional Development.   While the recent discussions have focussed on issues such as the status and residence rights of foreign trafficking victims and the penalties that should be imposed for convicted traffickers, the draft reveals that important changes had previously been made by the Committee to narrow the definition of “trafficking”, which, in the original Bill, had encompassed a broad range of conduct.[1]

What is meant by the term “trafficking”?

This question is of great significance because the scope of conduct included in the Bill’s definition of “trafficking” is the same conduct that the Bill criminalises.  Effectively, the definition sets out the elements that need to be proven in order to say that a crime has been committed.  Where the definition is too narrow the risk is that genuine trafficking victims are denied access to the criminal justice system.  On the other hand, where the definition is too broad, unclear or confusing, the trafficking offences based on that definition are difficult to apply and the Bill’s prevention, prosecution and protection aims are unlikely to be achieved.  Police do not know whether the behaviour they encounter is legal or illegal, prosecutors do not know how to prove a suspect’s guilt and citizens do not know what conduct they will be punished for.  Perhaps more importantly, the victims of “trafficking” cannot be identified, their rights to dignity and security, amongst others, cannot be protected and no assistance can be provided to them after the trafficking ordeal.

In terms of both the original version of the Bill and the working draft, the trafficking definition contains three elements: the trafficking acts (for example, transportation or sale), the means used to commit the acts (for example, coercion or fraud) and the purpose of the acts (most often, exploitation).  Each element then lists various conditions that would satisfy the element.  This formulation is closely based on the definition of “trafficking in persons” contained in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol), to which South Africa is a party.

How does the working draft change the Bill’s definition?

In its original form, published early in 2010, the Bill contained a definition for “trafficking” in clause 1 and an offence for “trafficking in persons”, to which that definition had to be applied, in clause 4(1).  In other words, the definition of the crime and the criminalisation provision were dealt with separately in the Bill.  The working draft does away with this separation and incorporates the definitional elements of “trafficking” into the criminalisation provision at clause 4(1).  This eliminates the confusion of having to jump between two different clauses in order to determine the full content of the trafficking offence.  It also has the effect of closing the list of acts that could satisfy the first element of the trafficking offence.  Whereas the Bill’s definition of “trafficking” introduced the list of acts with the word “includes”, this word does not appear in the working draft’s trafficking criminalisation clause.  According to Constitutional Court jurisprudence, the word “includes” potentially introduces a non-exhaustive list of terms.  The new formulation of the trafficking definition thus removes this potential and, as such, also removes the potential for a crime that is stated in overly broad terms and rendered ineffective, at least in respect of the first element.

An important change to the third element should also be noted.  While the Bill recognised three possible purposes for committing the trafficking acts (exploitation, sexual grooming or abuse), the working draft lists only one purpose – exploitation.  The inclusion of “sexual grooming” and “abuse” as purposes was problematic because no definitions were given in the Bill for these terms, and the scope for interpretation was potentially infinite.  It was unclear whether “sexual grooming” was equivalent to the offence of sexual grooming included in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (SORMA), in which case only the sexual grooming of children and mentally disabled persons could be applicable.  The inclusion of “abuse” as a purpose also broadened the scope of the trafficking definition considerably, because it is often used as a blanket term for any kind of sustained harm and because the original Bill explicitly stated that sexual acts (such as kissing) could constitute “abuse”, without stipulating a non-consent requirement.

The meaning of “exploitation” has also been adjusted in the working draft, with the removal of forced marriage and debt bondage as forms of exploitation that could satisfy the purpose element.  However, it should be noted that the list of exploitative purposes is non-exhaustive, which means that other forms of exploitation could be included in an interpretation of “exploitation” where these have been removed. The meaning of “sexual exploitation” (a listed form of “exploitation”) is essentially the same as in the original Bill, and refers to any sexual offence contained in SORMA and also “any offence of a sexual nature in any other law”.  This could cover a number of offences, some more serious than others, and all of these would satisfy the purpose element of trafficking.  While this would provide protection to victims who were trafficked for a range of different sexual reasons, it could also adversely affect the state’s ability to effectively apply and implement the trafficking definition, with the result that victims are unlikely to benefit as the legislation intends them to.

Thus, while some adjustments have been made to narrow the scope of the trafficking offence’s definitional elements, there are other aspects of the definition that are still convoluted and open to much interpretation.  It is understandable that the legislature is trying to account for the many different forms and processes of human trafficking.  However, where inclusiveness comes at the expense of effectiveness and there is a danger of over-criminalisation and legal uncertainty, the scope of conduct prohibited in the Bill should rather be limited – especially in light of arguments that the three trafficking elements can be prosecuted separately via various other existing laws.  This would better protect the rights of trafficking victims.


[1] Information about the Bill, the working draft and Portfolio Committee discussions can be found at www.pmg.org.za.

Sexuality amongst minors, how young is too young?

Sexuality amongst minors, how young is too young?

By Jen Thorpe

I went to a thrilling dialogue at the Commission for Gender Equality last week. The topic was the ages of consent for sex, in terms of our legislation, and the complications that the current legislation has.

At the moment the law (the Sexual Offences Act) says that if you are sixteen years and older you can consent to sex.  This means that if you are sixteen and older, and having sex with someone 16 years and older, and the sex is consensual, then in terms of our law all is fine and well. It also means that from 16 years and older, if someone has sex with you (including oral sex) without your consent, and you report it they will be charged with rape.

If you are younger than 12 years old (i.e. up to 11 years 11 months and 31 days old) in terms of the law, you are too young to consent to sex, and any person that forces you to have sex with them or to engage in sexual acts is committing rape or sexual assault. This applies even if you have told them that you would like to do this, or agreed to perform the sexual act.  Despite your agreement or willing participation, the law says that you are too young to agree, and so what they are doing is rape. What this also means is that two children who are younger than twelve who have sex with one another are technically breaking the law. However, the Child Justice Act deems these two below the age of criminal capacity, and so alternative justice processes such as diversion programmes must be pursued.

Therefore according to the law, if you’re younger than 12 you can’t say yes, and if you’re 16 and older you can. What about if you’re between 12 and 15 years, 11 months and 31 days? What does the law say about this age group? Well, it’s quite complicated.

If you are between 12 and 15yrs, 11 months and 31 days you are still legally too young to consent to sex, and yet according to research done on children, sexuality is part of normal childhood growth. Indeed most South Africans have their first sexual experience in adolescence. What our law says is that anyone older who has consensual sex, or commits sexual acts, with someone between 12 and 15yrs, 11 months and 31 days is committing statutory rape or statutory sexual assault.  The complexity arises if the two people having sex fall within this age bracket.  Technically they can both be charged with statutory rape or assault, even if they have both consented to sex or the sexual acts (including kissing as defined under our law).  If they are convicted of this crime, then they will never ever be able to work in a position that allows them contact with children.

The legislation as it stands was formulated with the intention of protecting children from sexual predators, however the unintended consequence of this legislation is that it criminalises consensual sexual activity between adolescents. Even more problematic are further clauses in legislation that aim to increase the reporting of the abuse of children.

The Sexual Offences Act says that any person must report knowledge of a sexual offences to the SAPS. The Children’s Act says that certain professionals (specified in the law, social and health care workers for example) must report a reasonable belief to a choice of org from a range of people (DSD, SAPS, Child services). In addition, The Constitution says that all measures in response to child abuse must be performed with the best interest of the child in mind. At the same time we have other legislation that entitles adolescents to termination of pregnancy and condom access, without the health care workers being legally required to tell those seeking access’ parents. It is all a bit murky when it comes to this age group.

It was for this reason that the CGE held the dialogue in the first place. At present the Teddy Bear Clinic and RAPCAN are working with the Centre for Child Law are working on a test case that will attempt to illustrate the legal difficulty with this section of the law. Keep your eyes out in the media for more on this case.