Submission to the Portfolio Committee on Justice and Constitutional Development

Introduction

1. The South African Council of Churches (SACC) is the facilitating body for a fellowship of 23 Christian churches, together with one observer-member and associated para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, Independent, and Pentecostal churches, representing the majority of Christians in South Africa. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, especially in matters of national debate.



2. The SACC welcomes the tabling of the Criminal Law (Sexual Offences) Amendment Bill [B50-2003] (hereafter, "the Bill") and appreciates the opportunity to comment on the proposed legislation. Sexuality and human intimacy are gifts from God. Sadly, they are often abused by human beings as instruments of power and oppression. Consequently, there is an undoubted need for legislation to regulate sexual relations in our society, even though the criminal justice system is not always best equipped to deal with sexual offences in a healing and restorative manner.



3. Recognising that common law definitions of sexual offences have often failed to keep pace with our current commitment to sexual equality and equal protection for all before the law, we support, in general, the objects of the Bill, as set out in the accompanying memo.


4. At the same time, we raise concerns here about a number of technical aspects of the Bill, which seem to impair its potential effectiveness in achieving its stated objectives. In particular, we highlight issues related to:
   • Failure to disclose life-threatening sexually transmissible diseases;
   • The breadth of the definition of "indecent act";
   • Defence against a charge of committing an indecent act with a child;
   • Age of consent; and
   • Treatment for survivors of rape and sexual assault.

Failure to disclose life-threatening sexually transmissible diseases

5. Sec. 2 of the Bill would replace the common law definition of rape with a new definition that is more consistent with the non-discrimination clauses of the South African Constitution. In terms of the new definition, any unlawful and intentional act of sexual penetration would constitute rape. An act of penetration is presumed to be unlawful if it is committed through coercion, under false pretences, or in respect of a person who is incapable of appreciating the nature of the act. The section goes on to define each of these three unlawful conditions in greater detail.



6. One of the potential grounds for finding an act of penetration to have been committed under false pretences is a situation where a person "intentionally fails to disclose to the person in respect of whom an act which causes penetration is being committed, that he or she is infected by a life-threatening sexually transmissible infection in circumstances in which there is a significant risk of transmission of such infection to that person." Thus, a person who knows him or herself to be infected by a life-threatening sexually transmissible infection (STI) but does not disclose this fact to his or her partner prior to an act of sexual penetration would be guilty of rape, even if that act was otherwise consensual.



7. The SACC appreciates the principle behind this provision: that people living with life-threatening sexually transmissible infections have an obligation to behave responsibly, not recklessly, toward prospective sexual partners. However, the current formulation goes beyond the recommendation made by the South African Law Commission Project Committee in its Discussion Paper on Sexual Offences. That body proposed that "criminal [i.e., non-consensual] sexual activity compounded by deliberate or reckless exposure to HIV/AIDS should be subject to criminal sanction" (para. 44.4.7). The overly broad language of the Bill, which also embraces otherwise consensual acts, creates a number of potential problems.



8. First, the language is obscure. It is not clear if the phrase, "the person in respect of whom an act which causes penetration is being committed", applies equally to both sexual partners. In other words, in a consensual relationship, is there an equal obligation on both the partners to disclose their STI or HIV/AIDS status? Although clinical evidence suggests that the person being penetrated is placed at much greater risk of infection than the penetrator, the risk to the penetrator is apparently non-negligible. If there is to be a duty to disclose, this must be a shared responsibility - and the wording of the Act must make this clear.



9. Second, the term "life-threatening sexually transmissible infection" is not defined. Undoubtedly, the HI virus would qualify in the present context, where no cure for the disease is known. But what about other sexually transmitted diseases? Though most STIs are now treatable, they can be just as dangerous as they were in earlier times if left untreated. If AIDS treatments become more effective, will sexual partners continue to be legally obliged to tell each other if they were infected with HIV? Will it matter how affordable and accessible such treatment is? What criteria must courts use in applying this provision?



10. Third, what constitutes a "significant risk of transmission"? If a man who knows that he is infected with HIV fails to disclose this to his partner but also makes careful use of a condom during sexual intercourse, has he reduced the risk of transmission sufficiently that he is no longer bound by a legal duty to disclose his status? Once again, what criteria must the courts apply in determining the significance of the risk to which his partner has been exposed?



11. Fourth, intentionality is associated with disclosure ("intentionally fails to disclose") not with infection. Given the enormous social stigma that is still attached to being identified as HIV+, a person might be reluctant to disclose his or her HIV status to a partner. The current formulation does not distinguish between those who hide their status due to a fear of rejection and those who do so in an intentional and reckless effort to infect others.



12. Finally, and most important, the criminalisation of concealment in otherwise consensual relationships may create a perverse incentive, particularly in the context of the AIDS pandemic. With the significant improvement in our capacity to manage the effects of HIV infection, most medical practitioners now encourage people to undergo testing so that they know their HIV status. The law should reinforce this message. But a person who suspects that he or she is HIV+ might be dissuaded from being tested if a positive result imposes a legal obligation to disclose one's status to all future sexual partners. In short, those who remain ignorant of their status - either wilfully or due to of lack of access to affordable testing - cannot be penalised under this provision, while those who seek to establish their status may open themselves to legal sanctions even if they take steps to minimise their partners' risk of infection. Similarly, a legal obligation to disclose might actually increase the risk of infection by an irresponsible partner if it creates a false sense of security or further undermines the capacity of vulnerable groups (such as women) to insist that their sexual partners use condoms or other preventative measures at all times.



13. Trust and openness should be hallmarks of all intimate relationships. Clearly, there is a moral obligation on those infected with any STD to reveal this fact to their sexual partners. The ultimate question is: Is the criminal justice system the most effective and desirable mechanism to use to enforce this moral obligation? At the same time, society has an ethical duty to combat the stigmatisation of people living with HIV and to respond humanely to those who have taken the step of determining their HIV status.

Definition of indecent act

14. The Bill defines an indecent act to include any "exposure or display of the genital organs of one person to another person". A person who unlawfully and intentionally causes another person to engage in such an indecent act would be guilty of an offence under certain circumstances, including where that other person is incapable of appreciating the nature of the indecent act. A person below the age of 12 year is presumed to be incapable of appreciating the nature of such an act.



15. Once again, the SACC supports the intent of this provision, but has technical concerns about its lack of precision. In particular, it assumes that the exposure of the genitals is inherently sexual (and, hence, indecent) in intent. But this is not always the case. Consider, for instance, a public changing room, such as might be found at a beach or a swimming bath or even a public toilet or other types of shared ablution facilities. A father who takes his ten-year-old son with him into such a venue might well expect that the child might be exposed to the genitals of others using these facilities. Given the child's age and, therefore, his incapacity to appreciate the nature of such "indecent" exposure, the father would technically be in violation of section 6 of the Bill. Confusingly, he would also be in breach of section 9(4) of the Bill, which imposes a slightly lower penalty (up to four years imprisonment, as opposed to the five-year penalty in section 6). Section 9(5), which sets out possible defences to charges in terms of section 9(4), would offer him no relief.

Age of consent

16. Section 9 effectively lowers the age of sexual consent to 16. Although we support the notion of a uniform age of consent, we believe that this should be set at 18. We are increasingly and painfully aware of teenagers' vulnerability to sexual overtures from older people, including teachers, taxi drivers - even religious officials. Lowering the age of consent to 16 would exacerbate this problem, as older adults would no longer face the threat of statutory rape charges for pursuing 16 or 17 year old children. Furthermore, since the constitution defines a person under the age of 18 as a child and the pending Children's Bill proposes to set 18 as the age of majority, there is compelling logic to establishing 18 as the age of sexual consent. We therefore recommend that "16" be replaced with "18" throughout sections 8 and 9, with the exception of section 9(5)(a), which is discussed further below.

Defence against a charge of committing an indecent act with a child

17. Section 9(5)(a) limits the liability of a person under the age of 16 who commits an indecent act with another child who is also under the age of 16 but no less than three years his or her junior. This provision has reportedly been included to ensure that youthful sexual experimentation is not inappropriately criminalized. Note that it does not cover acts of penetration nor does it condone such experimentation; rather, it acknowledges that the criminal justice system is not necessarily best equipped to deal with such acts.



18. Whilst we accept the principle underlying this provision - provided the age of consent is adjusted to 18 - we have technical concerns about the way it has been expressed. The current wording would, for instance, provide a defence for an indecent act committed by a child of 15 with a child aged 12, but it would provide no defence to a child who, on his or her 16^th birthday committed an indecent act with another child a day younger.



19. This problem cannot be remedied simply by adjusting the reference in 9(5)(a)(i) to a person below the age of 18 years. Instead, we propose that the 9(5)(a) be amended to read:
    (5) (a) It is a defence to a charge under subsection (4) if the age of the accused does not exceed the age of such child by more than three years; or
    This would decriminalise some forms of consensual sexual contact between children aged 12 to 18, provided there is no more than a three year age gap between the two. It also avoids the anomaly cited above (where two people quite close in age can still violate the law because they fall on either side of the age of consent divide). Obviously, once a child reaches adulthood, this section no longer applies.

Treatment for survivors of rape and sexual assault

20. Section 19 of the Bill provides for a court to order drug or alcohol abuse treatment for sexual offenders who would benefit from such treatment. Whilst we fully support such rehabilitative efforts, the SACC has an equal concern for the survivors of rape and sexual assault. We would therefore appeal to the government to ensure that survivors of rape and sexual assault have a statutory right to counselling and medical treatment through the public health system, including access to post-exposure prophylaxis where clinically indicated.