MPs pass Sexual Offences Bill

Date: January 1, 1970
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Johannesburg, 28 May 2007; Gender activists across the country received last week’s news of the passing of the Sexual Offences Bill by parliament with jubilation. After ten long years in the making, this means that, if assented by the National Council of Provinces (NCOP) and the President of South Africa, the bill will finally become a reality À“ a much-needed step toward greater protection against sexual offences.

Yet, there are still a number of areas of concern about what the bill contains, and what it does not. For example, the bill does not provide for what kind of care and treatment survivors of gender violence can expect to receive, and how to go about the complex implementation process needed to make a difference on the ground.
There are undoubtedly many progressive provisions contained in the bill. Firstly, it broadens the definition of rape, including providing that men and boys can be raped, and women can be convicted of rape.  If made into law, the Bill means that penetration of the genital organs, or anus, of one person, male or female, with the penis, other body part (including animals’), or any object will constitute rape. Penetration of a person’s mouth with a penis, human or animal, will also constitute rape.
This bill is a significant milestone because its continued absence has meant too-light sentences under indecent assault laws, as well as a piecemeal approach to sentencing sexual offences. In the worst cases, the lack of such a bill has meant no sentence at all. 
The introduction of new offences is commendable. This includes compelled rape, which criminalises the conduct of someone who forces another person to rape a third person. Sexual assault and violation will replace ‘indecent assault’.
Had the bill been made into law sometime in the last ten years, cases like the 44 year old man who got away with a lighter sentence – indecent assault – on the 10th of May for raping a nine year old girl through anal sex would not have happened.  There would be no piecemeal approach to sentencing sexual offences, but rather a holistic one.
For example, as reported in the Mail and Guardian online on 10 May 2007, the above-mentioned case saw that the eventual extension of the common-law definition of rape to include non-consensual penile penetration of the female anus.  
Unfortunately, despite conceding that "focusing on anal penetration of females should not be seen as being disrespectful to male bodily integrity or insensitive to the trauma suffered by male victims of anal violation," the Constitutional Court refused to find that non-consensual anal penetration of a man is rape. They stated that the facts of the case at hand did not include such deliberations, and that such a decision was a function of the legislators, and not the court.
This is yet another indicator of why we need the Sexual Offences made into law. Therefore, the challenge remains with legislators, as it goes to the NCOP, to ensure that the timely passing of the bill into law. In the meantime, the question remains, what happens to men who face anal violation or rape and will they get the justice they deserve?
There are now offences relating to sexual exploitation of children, sexual grooming of children and the exposure and display of pornography to children and the use of children in pornography. These provisions are quite critical as preparations of the Soccer World Cup 2010 gear up. This law would be pertinent in dealing with women and child trafficking that is likely to rise during this time.
The bill states that the court may no longer draw any inference if there is a delay in the reporting of the sexual offence.  In the past, such a delay in reporting was frequently used to discredit women and suggest that they had manufactured charges.
In terms of the Rules of Evidence and Procedure, the Bill has scrapped the use of the cautionary rule in sexual offence cases. Yet, what is concerning is that the cautionary rules relating to the evidence of a single witness and to children remain. The law believes that children are more likely than adults to lie. 
However, this is not necessarily true and only serves to discriminate against children in an already very difficult process. While the Child Protection register and testing of alleged perpetrators are positive steps, implementation of these may pose challenges that need to be looked at more closely.
There is no comprehensive package of care for victims of sexual violence – the only service legislated for is the provision of post-exposure prophylaxis (PEP) to reduce the risk of HIV transmission.  The psycho-social needs of adult and child survivors of sexual violence are not addressed, leaving many victims without adequate support.
Another anomaly is that the bill states that “designated” health facilities will provide PEP. It is currently unclear how and which facilities will receive such a designation, and it is unclear how the designation will affect the provision of other sexual assault services in the health sector.  
In addition, only once victims have laid a charge with the police or reported to a designated health facility in a “prescribed manner,” will they receive PEP.  This provision is ambiguous and potentially contradicts Department of Health policy, which specifically states that laying a charge is not a prerequisite to obtaining PEP.
As we move into the final stages of putting the Sexual Offences Bill in place, we hope that the NCOP addresses these few remaining concerns of this very important piece of legislation. At the same time, we hope that the bill is not delayed any further before it becomes law.
Loveness Jambaya is the Gender Justice Programme Manager at Gender Links. This article is part of the Gender Links Opinion and Commentary Service that provides fresh views on everyday news.

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