Making strides in fighting for sexual offences courts

The Rape Survivors’ Justice Campaign was conceived and established in 2016. We have one aim: the planned and funded rollout of sexual offences courts as promised by the government.

This is a big ask and we envision that this long-term advocacy campaign will probably take at least ten years. Since our launch on Women’s Day in 2016 we have made great strides and progress and we will continue to build on this in the future.

Our campaign advocates for the national rollout of sexual offences courts to such an extent that all rape survivors will eventually have access to a specialised court. We believe that these courts should first be established in areas with high rates of reported sexual offences, which is one of the issues that we advocate for in the regulations and our engagement with the Department of Justice.

Locally, we have also chosen to specifically lobby for a sexual offences court to be established in Khayelitsha. Rape Crisis has an office in Khayelitsha and the police stations in the area consistently have some of the highest rates of reported sexual offences in the country without a specialist court to serve the community.

Here are some highlights of our achievements from the past two years:

August 2016: Launch of the Rape Survivors’ Justice Campaign. We made submissions to the High Level Panel on Key Legislation about the importance of having a legislative framework for sexual offences courts in South Africa.

November 2016: We gathered in front of the Khayelitsha Regional Court to demand that it be upgraded to a sexual offences court.

December 2016: We made oral submissions to the High Level Panel on Key Legislation about the importance of a legislative framework for sexual offences courts.

March 2017: We made written submissions to the Parliamentary Portfolio Committee on Justice and Correctional Services on the legislation for courts that deal exclusively with sexual offences.

May 2017: We made additional oral submissions to the Portfolio Committee regarding the exclusivity of sexual offences courts. We also engaged with Regional Court Presidents and the Deputy Minister of Justice to assist with the drafting of the sections of the Judicial Matters Amendment Bill 2016, that gives the Minister the power to establish these courts, including a definition of the courts.

September 2017: We Lobbied the Department of Justice to release the Regulations for sexual offences courts for public comment.

October 2017: We attended the National Forum on the Implementation of the Sexual Offences Act to lobby for the draft regulations to be released and to lobby the Deputy Minister of Justice for the establishment of a sexual offences court in Khayelitsha.

November 2017: Community activists gathered in front of the Khayelitsha Court and handed over a memorandum to the Deputy Minister of Justice to demand the upgrade to the Khayelitsha Court.

December 2017 to January 2018: The draft regulations were released for public comment. We made submissions on the regulations, specifically lobbying for a meeting with the relevant departments.

February 2018: We met with the Deputy Minister at the Khayelitsha Court to discuss proposed changes and upgrades.

March 2018: A meeting with the Departments of Justice, Police, Social Development, NPA and fellow Shukumisa Coalition members to lobby for the regulations to reflect attainable minimum standards as well as lobbying for specialist court support.

April 2018: We directly lobbied the Deputy Minister of Justice for the regulations to be finalised. We engaged with the drafters of the regulations regarding next steps and hosted a research panel discussion to highlight the successes and challenges of how courts deal with sexual offences.

May 2018: We submitted a report to the Deputy Minister setting out recommendations for the upgrades at the Khayelitsha Court.

July 2018: A meeting with the relevant Departments again to workshop the regulations. The main wins from this have been; the inclusion of court support in the regulations, the regulations will be a set of “minimum requirements” for sexual offences courts and the Department is tasked to come up with a list of minimum criteria for how to decide where to establish sexual offences courts.

September 2018: Consult with Rape Crisis’s court support team and coalition partners to on how the role of court support should be described in the regulations.

October 2018: Submit input to Department of Justice setting out the regulations relating to court support in sexual offences courts.

Initially the Rape Survivors’ Justice Campaign demanded that government rollout sexual offences courts in accordance with their own Blue Print set out in the MATTSO report[1]. However, through engagement with government decision makers in different departments as well as research done by academic institutions, we discovered that there was real concern that the model might very well be unattainable in the country’s current financial position. While the specialised personnel and services are key in reducing secondary trauma and ensuring that complainants continue to testify in a sexual

[1] Ministerial Advisory Task Team on the Adjudication of Sexual Offence Matters. The Report on the Re-Establishment of Sexual Offences Courts. 2013 offences case, the Blue Print also contains extensive and very costly infrastructural requirements. At most Regional Courts in the Country, these are simply not implementable.

We used the opportunity to lobby for the release of the Draft Regulations for Sexual Offences Courts, which will give detailed instructions on achievable requirements. While the regulations are still in draft form, we are pushing for them to contain minimum requirements for services, personnel and infrastructure at sexual offences courts with one goal: to reduce secondary trauma suffered by survivors. This way the objectives of sexual offences courts can be achieved within resource constraints.

The Departments of Justice and Constitutional Development as well as the National Prosecuting Authority includes the rollout of sexual offences courts in their Departments’ Annual Performance Plans (APP) and also report on the achievements of these targets at the end of their financial year. The rollout of sexual offences courts includes a staffing component as well as an infrastructure component and therefore the APPs will speak to these issues.

Hopefully by the end of the year, the regulations will be finalised and then Section 55A of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007 can come into operation.

 

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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.