Sexual Offences Act reviewed

February 1st, 2018

Deputy Minister of Justice and Constitutional Development, John Jeffery, briefing media on the National Forum on the Implementation of the Sexual Offences Act in Pretoria.

By Kgomotso Ramotsho

Deputy Minister of the Department of Justice and Constitutional Development, John Jeffery, said laws are only as good as the people who implement them. He was briefing media in Pretoria about the National Forum on the Implementation of the Sexual Offences Act in November 2017. He added that Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 relies heavily on various role-players, at different stages, within the criminal justice system to make such implementation effective.

Mr Jeffery noted that many different people play different roles at various stages in the process, everyone from the police who register reported sexual offences cases, to the investigation of cases by detectives, to the doctors and nurses who collect forensic evidence and medically treat sexual violence victims, to civil society organisations providing victim support services, and to the prosecutors in the courts, all these role-players are crucial. ‘It is, therefore, imperative that we hear from them how the Act is working, what the shortcomings and challenges are, and how to address these,’ Mr Jeffery added.

Mr Jeffery pointed out that the Act was enacted in 2007 in response to the view that South Africa’s (SA) common and statutory law did not deal adequately or effectively with many aspects of the commission and adjudication of sexual offences. He said the Act changed many things, it reformed and codified the law relating to sexual offences and expanded the definition of rape to include all non-consensual sexual penetration. The Act also equalised the age of consent for females and males to 16 years of age. Mr Jeffery added that the Act sought to provide a uniform and coordinated approach to the implementation of laws relating to sexual offences so as to provide adequate and effective protection to the victims of sexual offences and thus preventing secondary victimisation and traumatisation.

Mr Jeffery noted that the Act provides for various services to the victims of sexual offences, including free post-exposure prophylaxis for HIV, and the ability to obtain a court order to compel HIV testing of the alleged offender. He said in terms of the Act, national instructions for the South African Police Service (SAPS), as well as national directives for the National Prosecuting Authority (NPA) have been implemented for the practical management of sexual offences cases. He added that the Act came into operation in December 2007 and that now is an opportune time, a decade later, to reflect on the extent to which the Act has succeeded in achieving its objectives.

Mr Jeffery said it is for this reason that the Department of Justice and Constitutional Development, in partnership with the NPA, conducted a two day National Forum on the implementation of the Act at Emperors Palace in Kempton Park on 30 and 31 October 2017. He added that the forum was attended by approximately 250 participants, including 50 organisations from civil society, regional magistrates and officials from the relevant departments that play an important role in the implementation of the Act. Government departments, included, the SAPS, the NPA, the departments of Health, Social Development and Women.

Mr Jeffery said the purpose of the National Forum was to critically evaluate the implementation and impact of the Act since it came into operation, and to identify the challenges that continue to compromise its successful implementation. The focus of the National Forum was on the different phases of the criminal justice system in relation to a sexual offences case:

  • reporting/investigation;
  • medico-legal/support services to the victims; and
  • court processes (prosecution and adjudication of sexual offences).

Mr Jeffery added that stakeholders were requested to identify and propose innovative solutions to identified challenges that would not require additional funding, given current economic realities. The outcomes of the forum were as follows:

  • It was noted by stakeholders that the criminal justice system is complex, and involves many role-players and several interlinking stages and factors influencing the outcome of cases. Each role-player, either independently and/or collectively, will have a specific impact on how the people, in the criminal justice system, respond to these matters.
  • The National Forum resolved that continuous stakeholder cooperation is paramount in the management of sexual offences. Although performance management is essential, the crucial question is whether the current performance indicators used by government role-players are appropriate and relevant for sexual offences cases. In other words, are the different performance indicators used by the SAPS, prosecutors and health services providers reflecting an accurate and trustworthy picture of the impact of the implementation of the Act; and are the strategic and operational plans of the different departments complementing each other and working towards common objectives?
  • Although there was some agreement that the current legislative framework is sufficient to provide for effective implementation of the Act, the following legislative provisions need to be evaluated and possibly amended, inter alia:

– the competency assessment of children to testify in court, particularly s 164 of the Criminal Procedure Act 51 of 1977; and

– extending the state’s right to appeal cases on matters of fact (currently the state may only appeal cases on a matter of law).

  • Stakeholders highlighted the absence of professional skills and sensitive attitudes towards victims on the part of some government officials tasked with managing sexual offences. This highlights the need for ongoing social context training for all role-players.
  • In certain instances there is a lack of specific legal knowledge relating to sexual offences laws and procedures. In addition, basic skills in statement-taking and trial advocacy were identified as lacking, indicating the need for ongoing and continuous skills development, including training and mentoring.
  • There is a need for adequate protocols and its related application among stakeholders at all levels.
  • The development of minimum standards to ensure improved service delivery by all stakeholders is needed.
  • Stakeholder engagement at all fora (local, provincial and national) is needed to create a platform to discuss challenges and find solutions holistically.
  • The need for specialisation within the criminal justice system when dealing with sexual offences was reiterated and encouraged by all stakeholders. Emphasis should be placed on a victim-centred approach in supporting the seven rights contained in the Victims of Crime Charter, reflecting the rights of victims in the Bill of Rights.

Mr Jeffery said as a way forward the resolutions of the National Forum are to be included in a National Action Plan, which will be monitored by the National Forum Steering Committee. He added that the Steering Committee will have representatives from all relevant government departments, as well as civil society. ‘The National Action Plan aims to address and seek to eliminate the challenges to the implementation of the Act. The recently released crime stats indicate that there were 49 660 reported sexual offences in SA in 2016/17,’ said Mr Jeffery. He added that the reported figure belies the true extent of sexual offences, with the real number estimated to be much higher. ‘Suffice to say that the prevalence of sexual offences in SA remains unacceptably high. We owe it to the victims of sexual offences to make sure the Act works,’ he said.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2018 (Jan/Feb) DR 13.