REPORT OF THE PARLIAMENTARY TASK GROUP ON THE SEXUAL ABUSE OF CHILDREN
Table of contents
Structure of the Report *1 Introduction *
1.1 Composition of the Task Group on Sexual Abuse of Children *
1.2 Public Hearings *
1.2.1 Aims *
1.2.2 Process *
2.1 ACCESS *
2.1.1 Problems *
2.1.2 Recommendations *
2.2 Aids Orphans Community Programme *
2.2.1 Recommendations *
2.3 Anonymous *
2.4 Baby Rape and Child Abuse Investigation Task Team *
2.4.1 Proposals *
2.5 Cape Town Child Welfare Society *
2.5.1 The Isolobantwana approach *
2.5.2 Problems previously experienced *
2.5.3 Attempts to address the concerns *
2.5.4 Benefits of the Programme *
2.6 Child Abuse Action Group *
2.6.1 Problems –Social Services *
2.6.2 Problems - Education *
2.6.3 Problems – Judicial System *
2.6.4 Recommendations *
2.7 Child and Family Welfare Society of Pietermaritzburg *
2.8 Child Protection Programme, University of the Western Cape *
2.8.1 Problems *
2.8.2 Recommendations *
2.9 Childline-South Africa *
2.9.1 Childline’s services *
2.9.2 Childline’s experiences *
2.9.3 Causal factors *
2.9.4 Solutions to the problems *
2.10 Children’s Institute, University of Cape Town *
2.10.1 Underlying causes of sexual abuse of children *
2.10.2 Recommendations *
2.11 Children’s Rights Centre *
2.12 CIET Africa *
2.12.1 Findings *
2.12.2 Social implications *
2.12.3 Responses *
2.12.4 Additional findings *
2.13 Clemenshaw, Dot *
2.14 Commun-‘I’-Care Project 2002 *
2.15 Community Law Centre, University of the Western Cape *
2.15.1 Problems *
2.15.2 Recommendations *
2.16 Concerned Citizens Against Pornography (CCAP) *
2.17 Department of Education *
2.17.1 Policies *
2.17.2 Programmes *
2.17.3 Legislation *
2.17.4 Inter-Departmental Initiatives *
2.18 Department of Health *
2.18.1 Problems *
2.18.2 Programmes *
2.19 Department of Home Affairs *
2.19.1 Defining Child Pornography *
2.19.2 Effects of Child Pornography *
2.19.3 Legislation and Conventions Dealing with Child Pornography *
2.19.4 Findings *
2.19.5 Recommendations *
2.20 Department of Justice and Constitutional Development *
2.20.1 Policies and Legislation *
2.20.2 Minimum sentences *
2.20.3 Repeat offenders. *
2.20.4 Provisions for rape victims to testify. *
2.20.5 Sexual Offences and Community Affairs Unit (SOCA) *
2.20.6 Inter-Departmental initiatives *
2.21 Department of Safety and Security *
2.21.1 Policies and Legislation *
2.21.2 Programmes *
220.127.116.11 Internal Programmes *
18.104.22.168 External Programmes *
2.21.3 Inter-Departmental initiatives *
2.22 Department of Social Development *
2.22.1 Introduction *
2.22.2 Policies *
2.22.3 Programmes *
2.22.4 Legislation *
2.22.5 Inter-Departmental Initiatives *
2.23 Domestic Violence Helpline, Durban *
2.23.1 Problems *
2.23.2 Recommendations *
2.24 Donald Fraser Hospital *
2.25 Dr Yusuf Dadoo Primary School *
2.26 Dyanti, Felicia *
2.26.1 Problems *
2.27 Far North Regional Network on Violence Against Women *
2.27.1 Challenges Facing Rural Areas *
2.27.2 Recommendations *
2.28 It’s Your Move Youth Action Group *
2.28.1 Target groups for CSEC *
2.28.2 Factors that impact on the CSEC *
2.28.3 Who are the offenders? *
2.28.4 Challenges *
2.28.5 Recommendations *
2.29 Johannesburg Child Welfare Society *
2.29.1 Problems *
2.29.2 Recommendations *
2.30 Kadalie, Rhoda *
2.30.1 Defining abuse *
2.30.2 Causes of child abuse *
2.30.3 The institutions responsible for protecting children *
2.30.4 Proposed measures to protect children *
2.30.5 Recommendations for the prevention of child sexual violence *
2.31 Kandawn, Masego *
2.32 Khosa, L *
2.33 Khuma Multi-Purpose Organisation *
2.33.1 Recommendations *
2.34 Lucas, Shabalala *
2.35 Maister, Dolly *
2.36 Maklina, P M *
2.37 Mayne, Anne *
2.37.1 Recommendation *
2.38 Medical Research Council (MRC) *
2.38.1 Problems *
2.38.2 Causes of rape: *
2.38.3 Recommendations *
2.39 Mkhabela, Pleasure *
2.40 Molo Songololo *
2.40.1 Definition of sexual exploitation *
2.40.2 Actions that constitute trafficking of children *
2.40.3 United Nations statistics on Trafficking of children *
2.40.4 Factors that contribute to trafficking *
2.40.5 Who are the affected children? *
2.40.6 Legislation and Conventions *
2.40.7 Perpetrators and methods used *
2.40.8 Findings *
2.40.9 Recommendations *
2.41 Moseki, Joshua *
2.42 Mrwebi, Ms. *
2.43 Msibi, Prudence *
2.44 Nadel *
2.44.1 Problems *
2.44.2 Child Care Act *
2.44.3 Sexual Offences Act *
2.44.4 Recommendations *
22.214.171.124 Child Care act *
126.96.36.199 Sexual Offences Act *
2.45 National House of Traditional Leaders (NHTL) *
2.45.1 Problems *
2.45.2 Recommendations *
2.46 Palliative Medical Institute *
2.46.1 Problems *
2.46.2 Recommendations *
2.47 Pandor, Naledi *
2.47.1 Recommendations *
2.48 Phaphamani Rape Crisis Counselling Centre *
2.49 Professional Board for Psychology *
2.49.1 Aim of the Study *
2.49.2 Findings of the Study *
2.49.3 Recommendations *
2.50 RAPCAN *
2.50.1 Problems *
2.50.2 Reasons for the high rape statistics of children: *
2.50.3 Factors influencing low reporting rate: *
2.50.4 Recommendations *
2.51 Regional Child Abuse Protection Committee – KwaZulu Natal Midlands *
2.52 Santho-Qhokotswane, Mamokhothu *
2.53 Shabangu, Jimmy *
2.54 Shadow Pictures *
2.54.1 Problems *
2.54.2 Recommendations *
2.55 Sigwela, S G *
2.56 Silangwe, Nozipho *
2.57 Smith, Charlene *
2.58 Social Workers’ Association of South Africa *
2.58.1 Concerns and problems experienced *
2.58.2 Recommendations *
2.59 Soul City *
2.59.1 Problems *
2.59.2 Recommendations *
2.60 South African Catholic Bishops’ Conference *
2.60.1 Problems *
2.60.2 Recommendations *
2.61 South African Human Rights Commission *
2.61.1 Findings *
2.61.2 Recommendations *
2.62 South African Law Commission (SALC) *
2.62.1 Draft Sexual Offences Act *
188.8.131.52 Problems *
184.108.40.206 Recommendations *
2.62.2 Child Care Legislation *
220.127.116.11 Key provisions of the Act: *
2.63 South African National Council for Child Welfare *
2.63.1 Causes of Sexual Violence *
2.63.2 Factors Preventing Effective Service Delivery *
2.63.3 Recommendations *
2.64 Standing Together to Oppose Pornography (STOP) *
2.64.1 Recommendations *
2.65 Third Law *
2.65.1 Recommendations *
2.66 Tjabane, Thembeka *
2.66.1 Recommendations *
2.67 Trollip, J E *
2.68 UN Child Justice Project *
2.68.1 Problems *
2.68.2 Legislation - Child Justice Bill *
2.68.3 Recommendations *
2.69 United Christian Action *
2.69.1 Problems *
2.69.2 Recommendations *
2.70 University of Fort Hare. Department of Private Law *
2.70.1 Causes and contributing factors *
2.70.2 Legal considerations *
2.70.3 Recommendations *
2.71 University of Zululand *
2.72 Van Rensburg, Pat *
2.73 White, Rose *
2.74 Women Against Children and Community Abuse (WACCA) Advice Centre *
2.74.1 Causes of Child Rape *
2.74.2 Gaps in Existing Legislation *
2.74.3 Recommendations *
2.75 Youngleson, Michele *
2.75.1 Recommendations *
3.1 Introduction *
3.1.1 Socio-economic factors *
3.1.2 Societal attitudes *
3.1.3 Recommendations *
3.2 Social Development Services *
3.2.1 Introduction *
3.2.2 Legislative framework *
3.2.3 Civil Society Organisations *
3.2.4 Recommendations *
3.3 Education *
3.3.1 Introduction *
3.3.2 Legislative Framework *
3.3.3 Life Skills Education *
3.3.4 Recommendations *
3.4 Health issues related to sexual abuse of children *
3.4.1 Introduction *
3.4.2 Medical response to abuse *
3.4.3 Recommendations *
3.5 Criminal Justice System *
3.5.1 South African Police Service *
18.104.22.168 Introduction *
22.214.171.124 Review of the Sexual Offences Act: *
126.96.36.199 Recommendations *
3.5.2 Court system *
188.8.131.52 General issues and effective prosecution *
184.108.40.206 Evidence *
220.127.116.11 Protection of survivors and witnesses *
18.104.22.168 Bail *
22.214.171.124 Sentencing *
126.96.36.199 Recommendations *
3.5.3 Correctional Services *
188.8.131.52 Introduction *
184.108.40.206 Child sex offenders *
220.127.116.11 Adult sex offenders *
18.104.22.168 Register of Sex Offenders *
22.214.171.124 Recommendations *
International instruments for the protection of children *
3.5.4 Introduction *
3.5.5 International Law Framework *
126.96.36.199 International treaties binding on South Africa *
188.8.131.52 Instruments not signed or ratified by South Africa and therefore not binding on the Republic *
3.5.6 Recommendations *
3.6 Commercial sexual exploitation *
3.6.1 Introduction *
3.6.2 Recommendations *
3.7 Media *
3.7.1 Introduction *
3.7.2 Protecting survivors from media exposure *
3.7.3 Recommendations *
4.1 Overall Findings *
4.2 Overall Recommendations *
We, the members of the Parliamentary Task Group on Sexual Abuse of Children,
Taking note with the greatest concern of the repeated instances of sexual abuse of ever-younger children in our country,
Considering that to protect our children from all instances of such heinous crimes is not only a moral obligation of the highest priority but a legal obligation as well,
Taking into account the rights of the child and values contained in international instruments such as the African Charter on the Rights and Welfare of the Child and the UN Convention on the Rights of the Child, which are legally binding upon the Republic of South Africa,
Recalling section 28 of the Constitution of South Africa that enshrines the rights of the child and must underpin and inspire all legislation of the Republic,
Having been convened by a decision of the Speaker of the National Assembly of 11 February 2002, and in order to give effect to a motion of the National Assembly of 14 November 2001
Having held public hearings on the issue,
Condemn once again strongly all forms of sexual abuse and violence against children of all ages, irrespective of motivation and person of the perpetrator, and issue the following report for consideration by the National Assembly.
Structure of the Report
The first part of the report will give an introduction that sets out the composition of the Task Group and process of the Public Hearings.
The second part will provide an overview of all the submissions received by the Task Group in the course of the hearings. The views expressed and the recommendations made in these submissions do not necessarily mirror the Task Group’s opinion.
The third part contains the views, findings and recommendations of the Task Group with regard to sexual abuse of children.
The final part of this document will set up a framework for the manner in which the Task Group will take forward its recommendations.
The Task Group includes representatives from different political parties present in Parliament and comprises the following members:
Mr S Dithebe (ANC), Mr C Morkel (NNP) - Joint Monitoring Committee on Improvement of Quality of Life and Status of Children, Youth and Disabled Persons;
Ms P Cupido (DP), Prof S Mayatula (ANC) - Portfolio Committee on Education;
Dr O Baloy (IFP), Ms SK Mnumzana (ANC) - Portfolio Committee on Health;
Ms L Mabe (ANC), Mr M Masutha (ANC) - Portfolio Committee on Justice and Constitutional Development;
Mr M George (ANC), Ms A Van Wyk (UDM) - Portfolio Committee on Safety and Security;
Ms S Kalyan (DP), Mr E Saloojee (ANC) - Portfolio Committee on Social Development;
Ms P Govender (ANC), Ms R Southgate (ACDP) - Joint Monitoring Committee on the Improvement of Quality of Life and Status of Women.
The hearings were also attended by a number of other Members of Parliament who were not officially members of the Task Group, but whose contributions over the four days enriched the process significantly.
The aims of the hearings as defined by the resolution of the National Assembly of 14 November 2001 were to analyse the causes of child rape and abuse, and inform the parliamentary counter-strategies appropriately. The Task Group saw the aims of the hearings more specifically as
Establishing what is needed to change behaviour in respect of the sexual abuse of children.
At the first meeting of the Task Group on 6 February 2002, Mr E Saloojee was unanimously elected as chairperson and it was agreed that he would take the responsibility of setting up the hearings. It was decided at this meeting that the hearings should be publicised as widely as possible and that the relevant government departments should be invited to brief the Task Group on their programmes aimed at combating the sexual abuse of children as well as the legislative framework within which these programmes operate.
Advertisements were placed in the Sunday Times and City Press on 10 and 17 February 2002 indicating a cut-off date for submissions of 3 March 2002. In addition, in the week of 11-15 February 2002 approximately 150 letters were faxed and emailed to a range of organisations and individuals throughout the country who would be interested in the issue of rape and abuse of children. The five relevant Ministers and Departments were invited to make very brief submissions on the first day of the hearings. In addition, the South African Law Commission was invited to talk about their work on the Review of the Child Care Act and the Sexual Offences Act.
Each Member of Parliament was given a batch of ten copies of the print advert with a covering letter asking them to publicise the hearings in their constituencies. The Task Group made every effort to ensure that it would benefit form as wide a range of inputs as possible. The Chairperson engaged the services of the Public Education Department at Parliament, which organised public information radio spots about the issue on 14 radio stations in all the official languages during the week of 23 February 2002 to 3 March 2002. The Public Education Department also facilitated the placement of extensive coverage of the hearings in the Independent Newspaper Group, which includes the Star and the Cape Argus. This was done using the resources of the Public Education Department.
Notwithstanding the time constraints within which the process had to be completed in order for the Task Group to report to the National Assembly by 15 March 2002, 51 responses in terms of applications to make oral submissions were received. Through a process of careful selection, the Chairperson’s office and the Committee section decided on which organisations and individuals would be accorded a time slot. This decision was taken with a view to ensure the participation of the broadest spectrum of society possible, and included members of the academic sphere, non-governmental organisations, representatives of the Executive, and concerned or directly affected people from rural and urban environments. Those persons and organisations who could not be accommodated in the programme were invited to submit written submissions.
The Task Group agreed to fund eight individuals who were not able to afford to travel to Cape Town so that people are not excluded due to economic reasons. In all about 76 submissions had been received. The Task Group agreed to accept written submissions in any of the official languages, and in cases where people are unable to write, to accept recorded submissions so that as many voices were heard as possible.
The Task Group was supported in the extensive preparations of the hearings by the Parliamentary Research Unit.
The hearings were held from Monday, 11 March 2002 until Wednesday, 13 March 2002 from 09:00 to 17:00 each day, and from 14:00 until 18:00 on Thursday, 14 March 2002. Although there were serious time constraints, the Task Group is satisfied that it was able to extract from the hearings the relevant information to achieve the aims of the hearings. The meeting on 14 March 2002, at which the Task Group heard submissions from a group of children, was not open to the public. This was done in order to protect the identities of the children, some of who were survivors of abuse including sexual abuse. The Afrika Cultural Trust facilitated the children’s participation.
The Task Group heard oral submissions from the following persons and organisations:
Monday, 11 March 2002
Tuesday, 12 March 2002
Wednesday, 13 March 2002
Thursday, 14 March 2002
A summary of all submissions received by the Task Group listed in alphabetical order follows in section 2 of this Report.
This submission pointed out that there has been a notable increase in the incidence of child rape, with girls younger than eight years increasingly being targets. It further maintains that in many cases, the rights and protection of children are ignored by government officials, police, teachers, nurses, justice officials and University Law Clinics.
The submission outlines the conditions that lead to the increase in sexual abuse of children in South Africa as being:
The anonymous writer of a letter to the Task Group mentions that his or her grandchild was raped, allegedly by a preacher, but that despite numerous attempts to bring the matter to the attention of the Police, there has been no movement on the case. The writer suggests that there may have been collusion between the accused and the corrupt police officials.
The submission does not make any recommendations.
The submission focused on the role that society plays in creating the environment for such abuse. It argued that South African society is "sick" since it views children as disposable, views sex as casual, tolerates degrading depiction of women and to a large extent tolerates rape. The submission calls for the introduction of stricter sentences but acknowledges that it will not solve the problem. The problem lies in the religious faith of our society that has weakened, thereby negatively affecting the moral fibre.
The presentation concludes by showing the links between pornography and the abuse of children. A number of local and international case studies are used.
The submission was based on the need for developing effective capacity building programmes at community level. These programmes have to be cost effective and integrated within the broader legal and justice areas in terms of the protection agencies and courts of law. The Society manages a number of programmes, the latest of which is the Isolobantwana (The Eye on the Children) Programme. This is an innovative, cost effective community capacity building programme aimed at preventing and eradicating child abuse in the communities that the Society serves. The Society impressed upon members of the Task Group the critical importance of social workers and volunteers to ensure successful outreach and programme operations.
The programme is structured in such a way that communities identify selected volunteers. These volunteers are trained by the social workers to enable them to deal with cases of child abuse, neglect and family care. The training focuses on topics such as the signs and symptoms of child abuse, parenting skills, legislation and conflict management. After training, the volunteers’ knowledge is tested before they are authorised by the Commissioner of Child Welfare to legally remove a child from the primary caregiver in the case of a threat to the child’s safety. This is a major breakthrough for the programme, as previously, legislation allowed only police officers and social workers to perform this function. Trained volunteers fulfil specific roles among which would be to:
The submission provides a perspective of gaps in existing legislation/service providers in protecting children in South Africa.
Although the Department of Education has embarked on the Life Skills Programme to highlight the aspects of child abuse, it is also important that communities understand that it is also their duty to protect the children. However, many communities are unable to recognise abuse, as it is a way of life.
This submission makes recommendations and suggestions about the adoption of a model of better management of child abuse cases. The paper outlines the problems encountered in South Africa when dealing with the issue of sexual abuse of children and thereafter provides a model of managing child abuse based on the Child Advocacy Centre (CAC) Concept. Research has been conducted on the way in which the system currently operates in the United States of America. The Child and Family Welfare Society of Pietermaritzburg is currently engaged in a national project co-ordinated by the South African Society for the Prevention of Child Abuse and Neglect (SASPCAN), which is looking at the viability and establishment of such centres. The paper argues that because of the problems encountered with the present system, the Children’s Advocacy Centres (CACs) model provides a useful tool to replicate in the South African context.
The model argues for a comprehensive, multi-disciplinary response to child abuse, ranging from interviews, case tracking, medical services etc. The envisaged model is based on the concept of the one-stop centres but this model’s primarily focus will be on strengthening children who are sexually abused.
The Organisation represents six regional Childline structures that provide 24-hour toll-free crisis telephone counselling services to children and their families or caretakers, throughout the country. A total of 50 000 calls are received each month.
Other services offered include:
Sexual abuse is the single largest category of child problems that Childline deals with. Their services tend to be used by the poorer sections of our communities as services are free. Any child or caregiver, who has access to a telephone, has access to Childline.
After conducting an overview of statistics of reported child abuse over the last 10 years Childline has noted:
Professor Andy Dawes represented the University of Cape Town Children’s Institute. The Institute is a multi-disciplinary research institute established within the Health Sciences Faculty of UCT. Its primary mission is to conduct research to inform policies and programmatic interventions that will enhance children’s well-being and rights. The Institute focuses, in particular, on children rendered vulnerable by poverty and difficult circumstances.
The Children’s Rights Centre presented a submission supporting the reform proposals made by the South African Law Commission. The Centre mentioned the various agencies or service providers responsible for dealing with the victims and offenders of sexual offences and the procedure for disclosure, reporting, investigating and the court hearings, rules of evidence and sentencing of the sexual offender. They particularly supported the call for a multi disciplinary approach and for child sensitive one-stop centres. The Centre supported the broader definition of rape, handing of victims, treatment against HIV infection and long term monitoring of sex offenders.
Dr. Neil Anderson made presentations on behalf of CIET Africa. He provided a summary of a national pilot study on sexual violence and HIV risk in school going youth aged 12-21 years.
The study dealt with various themes including:
He looked at the question whether victims would become villains, and stated that on average victims were three times more likely to commit the crime. He noted that all the findings were based on self-reports and admissions, thereby making the results fairly reliable.
He stated that the results pointed to the fact that children did not have anyone to talk to about the problems. This called for guidance counsellors.
The submission highlights the following causes for the abuse of children:
This submission details a proposal made to the Gauteng Provincial Government for a multi-disciplinary approach to caring for survivors of child abuse. The programme aims to provide abused children and rape victims a complete, specialised and compassionate service under one roof.
The problems related to child abuse and rape victims identified in the submission include:
It is therefore recommended that
Ms. Jackie Gallinetti, co-ordinator of the Children’s Rights Project at the University of the Western Cape, concentrated on the judicial aspects to combat sexual abuse of children.
The submission raises the following concerns:
A range of strategies and polices have been put into place by the Department, shortly after receipt of the Gender Equity Task team Report in 1997. In 2000, a module on Managing Sexual Harassment and Gender-based Violence was developed for schools. The module has been piloted in Gauteng, the Free State and Mpumalanga and will be taken to the rest of the provinces in 2002. It provides schools with the knowledge and skills needed to deal with the different facets of sexual harassment and violence.
The Department, together with the South African Police Service, completed a workbook on Signposts to Safe Schools in 2001. The workbook serves as a reference for action to be taken by schools on a range of school safety matters, including sexual abuse. All schools should receive a copy by the end of May 2002. A teacher’s manual on gender equity in education has been developed to ensure that schools become friendly to girl learners.
The Department will work to ensure a common understanding of what constitutes sexual harassment through the development of a national sexual harassment policy.
An amendment to the Employment of Educators Act of 1998 was introduced in November 2000. The amendment provides for the dismissal of a teacher who has been found guilty of engaging in a sexual relationship with a learner, with or without the consent of such learner. The South African Council for Educators Act of 2000 ensures that when a teacher is found guilty of the sexual abuse of a learner, s/he is deregistered as a teacher and may never be appointed as a teacher.
The Safe Schools Project focuses on establishing partnerships between the Department of Education and other government departments as well as civil society organisations.
The Department proposes collaborating with other Departments in order to monitor how survivors experience processes relating to the report of sexual abuse outside schools.
In addressing the above, the Department has implemented the following:
Attention will be given to the reduction of abuse of alcohol and other substances which impact on the sexual abuse of children.
Child pornography is defined as any image, real or simulated, however created, depicting a person who is or who is shown as being under the age of 18 years engaged in sexual conduct or a display of genitals which amounts to sexual conduct.
Once a pornographic image is in the public domain, it is likely to be distributed and reproduced, regardless of the fact that the perpetrator has already been caught. These images will therefore inevitably follow the child up to and through adulthood causing immense humiliation and pain. Most children who are sexually abused suffer physical harm including various infections, genital sensitivity and soreness, as well as anal irritation. The child may also be infected with HIV/Aids. The abuse has a negative effect on a child’s intellectual and emotional well-being.
The Department views the protection of the victims of sexual offences as a matter of the great importance. It has thus tasked the South African Law Commission to conduct urgent investigations with the view to improve the legal framework relevant to dealing with sexual offences. The Commission subsequently published a discussion Paper on Sexual Offences. The Discussion paper contains a draft Sexual Offences Bill that embodies some progressive recommendations on the reform of the law relating to sexual offences.
The Bill includes revised substantive law provisions such as:
In addition, the Department has tasked the South African Law Commission (SALC) to develop a comprehensive new law relating to children accused of crimes (Child Justice Bill). The new system emphasises individual assessment of each child and tries to find alternative ways to deal with children. The idea is to keep them within their families and communities and to protect them from the damaging effects of courts and prison as far as possible. Diversion options and programmes embody restorative justice principles, which focus on reconciliation and restitution rather than on retribution and punishment.
The Criminal Law Amendment Act provides for the imposition of minimum sentences in respect of certain serious offences. Section 51 of the Act states that persons convicted of certain serious offences listed in Schedule 2 of the Act must be given a mandatory minimum sentence, unless the judicial officer imposing the sentence is ‘satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence’. Rape is one of the offences listed in this Schedule. However, an empirical study by the South African Law Commission (SALC) has shown that the severity of incidents of rape with aggravating circumstances committed after implementation of the Act has increased when compared to pre-implementation sentences. The study thus questions the effectiveness of the minimum sentence approach prescribed by the Act as a crime reduction mechanism.
The SALC has proposed a draft Sentencing Framework Bill, which seeks to address sentencing disparities in a number of ways. It lays down explicitly as a prime sentencing principle that all sentences must be proportionate to the seriousness of the offence. Seriousness, in terms of the draft Bill, is to be determined by the degree of harmfulness of the offence and the degree of culpability of the offender. According to the extended legislative programme of the Department, the Bill will be introduced into Parliament as soon as circumstances permit, either during 2002 or later.
The Criminal Law Amendment Act provides for a mandatory life sentence of persons convicted of two or more offences of rape, but who have not yet been sentenced in respect of such convictions. Repeat sex offenders for rape are therefore liable to a minimum sentence of life imprisonment. In 1997 the Department tightened bail provisions. Section 60 of the Criminal Procedure Act was amended to provide that where an accused person is charged with an offence listed in Schedule 6 of the Act, such a person must remain in custody. The onus is on the accused to prove to the court that exceptional circumstances exist that permit his or her release. Schedule 6 offences include rape where the victim was raped more than once or by more than one person; where the victim was raped by a person charged with having committed two or more offences of rape or by a person knowing he has Aids or HIV.
The focus areas of the SALC’s discussion paper on Sexual Offences are on process and procedure. Specific recommendations are made in this discussion paper and the draft Sexual Offences Bill to make it easier for victims of sexual offences to testify in court. This includes, amongst others, the creation of a category of vulnerable witnesses, removal of cautionary rules and one-way mirrors. Section 170A of the Criminal Procedure Act makes provision for the appointment of competent persons as intermediaries. Where the court is of the opinion that a witness under the age of 18 years may suffer undue mental stress if he or she testifies, such intermediaries may be appointed to testify on behalf of the child. The insertion of this section ensures that survivors of sexual offences testify in victim-friendly environments and that secondary victimisation through participation in the criminal justice process is eliminated.
This Unit is one of the Operational Units within the National Directorate for Public Prosecutions. It was established in 1999 to focus on violent and indecent offences against women and children, as well as family violence in general. It ensures that victims and witnesses are treated fairly in court. The main priorities of SOCA are to reduce sexual offences, increase the reporting rate, improve the conviction rate, reduce secondary victimisation and reduce the time taken to finalise cases.
The Unit has established three Multi-Disciplinary Care Centres for the victims of sexual offences and domestic violence at hospitals in the Eastern and Western Cape. These Centres constitute a co-ordinated approach that brings together different service providers in a ‘one-stop’ model.
The Department believes that curbing the escalation of violent crimes and rape against women and children requires a common approach by the relevant stakeholders. These are the Department of Justice and Constitutional Development, the South African Police Services (SAPS), Correctional Services, Social Development, Home Affairs, the Office on the Status of Women and the Office on the Rights of the Child in the Presidency.
The National Crime Prevention Strategy (NCPS) has prioritised crimes against women and children. This priority area consists of a number of interdepartmental programmes, supported by departmental action. These programmes are interdependent and complement each other. However, each has a distinct focus and cannot be collapsed into one programme with one approach. They include:
A South African Victim Charter was finalised during 2001 and an implementation plan is being developed. Agreement has been reached on a framework for the development of a set of minimum standards for victim empowerment.
Further steps to deal with children awaiting trial include the establishment of additional One-Stop Child Justice Centres, improved legal representation for children and providing more diversion programmes.
The National Commissioner of Police, Mr. J Selebi, assisted by various staff members, represented the South African Police Service (SAPS). The Department’s presentation centred on the three aspects of the work of SAPS in relation to rape and sexual offences, namely:
In addition, members of SAPS are providing input and comments into the following legislative processes:
The SAPS acknowledges the fact that sexism and gender inequality impact negatively on human rights. It has thus committed itself to vigorously fight to eliminate unfair discrimination and to uproot sexual harassment. To this end, it has initiated various programmes and measures. These include:
The Department listed various problems that hamper the effective handling of sexual offence cases. These include a guilt feeling of the victim who thus does not go for support, withholding of progress reports from the victim, blackmailing of victims and the attitude of management.
The Department emphasised the need to mobilize other partners from all government departments and civil society.
Specialised Child Protection Units
As a response to the letter of the Chairperson of the Task Group on Sexual Abuse of Children, the following table gives details on the units located in different provinces. These special units are well equipped with personnel.
Number of Child Protection Units
North West Province
Convictions and sentences
In the year 2000, 1 551 convictions were made by the Child Protection Units. In the year 2001, 2112 convictions were made. However in 2001only 369 out of 1551 cases were finalized while 378 out of 2112 cases were finalised. The sentences imposed on offenders include fines and imprisonment.
The Act also requires the SAPS to record all incidents of domestic violence in a register, and report to Parliament every six months on complaints against police officers for non-compliance with the National Instruction on Domestic Violence.
The Department stressed the crucial importance of adopting an integrated and multi-sectoral approach to fighting the scourge of rape and sexual violence. The main objectives of such an approach are prevention and co-operation. As such, it is one of the role players in various programmes with other government departments, non-governmental organizations and community-based organizations.
Inter-departmental initiatives in which the Department participates include:
The Department is also represented on the Inter-Departmental Management Team (IDMT) for rape and sexual offences, lead by the Directorate for Sexual Offences and Community Affairs in the National Prosecuting Authority. The IDMT has developed an information-based approach to develop a strategy to address rape and sexual offences.
The Department has management processes in place for each programme to ensure that the work is done in an integrated and inclusive manner.
The Department of Social Development stated that the Parliamentary hearings were significant in that they provided an opportunity to find solutions to child abuse and reflected a greater willingness to have the issue of sexual abuse discussed more openly.
The Department has based its policies on the Constitution of the Republic of South Africa, the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. The Department’s policies on child abuse are not confined to sexual abuse, but also include neglect and exploitation. Protocols for the management of child abuse cases have been developed in all Provinces. The protocols make provision for a multi-disciplinary and integrated service to child victims and their families. A similar protocol has been developed for the national departments and is awaiting final comments from the relevant Ministers. The NCCAN has developed a draft strategy. While the principles and intentions of the strategy are agreed upon, a Programme of Action with specific objectives, targets and time frames must support it.
There are a range of services provided by the Department, including trauma counselling, clinical assessment, interim placement of children if required and support in dealing with investigative authorities.
The Child Protection Register has been established in all provinces in terms of section 42 of the Child Care Act. The purpose of the register is to monitor each reported case on sexual abuse. The register operates on a manual system. However, the system will be computerised by November 2002. The Inter-Departmental Committee has identified the need to strengthen the legislative framework and harmonise all laws. The Child Care Act is widely regarded as being inadequate and therefore needs to be replaced by new comprehensive childcare legislation. Section 4 of the Prevention of Family Violence Act of 1993 needs to be repealed since it has created confusion with respect to reporting cases of sexual abuse.
The Hospital receives an average of 25 cases a month. They have a paediatric nurse and a social work team to deal with them, but are in need of assistance to train them in forensic medicine. The Hospital has listed 15 cases, which they have received. 14 of which deal with sexual violence. The single case dealing with neglect involves the only boy child. All 14 showed physical symptoms of sexual violence. The ages of the survivors range from two to 14. The alleged perpetrators include nine relatives, three persons known to the survivors, four strangers and 1 minor. Predisposing factors include mental disabilities and the parents living in another town. All but 1 case was reported to the police. All are pending, except the one where the accused was a minor, who as a result was not charged. Ten of the complainants have been threatened to varying degrees subsequent to laying charges.
The principal, Dr Yusuf Ismail, has proposed that the following topic be included in the discussions: "The link between sexual molestation and poverty of children in informal settlements".
The presenter from Langa, spoke about her own childhood experience of being abused.
She related the story of being given away by her mother at the age of five years to live with her great-aunt and uncle. She was promised an education but was made to fend for herself and was used as a slave in the house. She was beaten by her aunt and was not allowed to play with other children.
She was raped four times by the aunt’s son. Circumstances in the home forced her to run away. She was taken back after being found by a herdsman in the forest. At the age of 11, the great uncle abused her. At the age of 19 years, she went back home.
The organization is the youth component of the Molo Songololo NGO and works against the commercial sexual exploitation of children. It consists of approximately 50 t0 60 young people. The programme has three funders, namely Molo Songololo, Terres des Hommes and Save the Children, Sweden.
According to the group, all children and young people (girls and boys) are vulnerable, especially street children. However, children from stable homes are also at risk. In fact, some children are even ‘pimped’ by their own parents. Often, children are made false promises of work. They end up being trafficked inside South Africa and across its borders.
The group listed a number of factors that, in the opinion of young children, impact on the commercial sexual exploitation of children. These include:
The group believes that children could be sexually exploited for commercial purposes by individuals at all levels. These include parents, teachers, taxi drivers and club owners. Organised gangs or syndicates and criminal networks are also responsible for the scourge.
Concern and awareness have escalated in the area of child abuse yet services have deteriorated. There was a lack of questioning around whether existing child protection services are equipped to deal effectively with the problem and there seems little commitment in allocating resources to this area. The child protection system is in neglect and there is no inter-sectoral budgetary process for this. A large number of State child social services are transferred by the State to the NGO sector. These organisations only receive discretionary subsidies that have decreased over the years. There is a de-linking of state subsidies from civil service salaries. The salaries offered to staff of these NGOs are extremely low. This results in a loss of staff often to the State, which offers more competitive salaries. This creates a gap within the organisation and results in secondary victimization for the children, as the children now have to build a relationship with new (often not fully trained) staff.
Budget cuts affect the level of training that can be offered to staff. Training is an essential component of developing skills in order to deliver an effective service and minimize the risk of secondary abuse. Child social service organisations are no longer able to access traditional funding sources such as corporate donations, subsidies and per capita grants and proceeds from scratch cards. The Lotteries Act relegates child protection organisations to the status of charities, which means that they receive a limited contribution from the proceeds.
The Department of Education has restricted their Early Childhood development responsibility to the reception year. The remainder has to be provided by the Department of Social Development. The contribution for Early Childhood Development programmes is at the discretion of provinces. Early Childhood Development programmes therefore often fall between the Department of Social Development and the Department of Education. Numerous services by NGO’s are closing around the country.
Abuse occurs when adults, either physically, or in some other way, hurt children or young people under the age of 18 years. The presenter distinguished between four kinds of abuse, namely physical abuse, emotional abuse, neglect and sexual abuse. These four types of abuse are often interrelated. The presenter thus argued for a multi-pronged approach to address the problem.
According to the presenter, there are no definitive reasons why people abuse children, since these reasons may be different for different abusers. However, she pointed to the following common factors that have been identified as causing adults to abuse children:
The presenter cited three main institutions that should bear the responsibility to protect children from all forms of abuse. These are the family, schools and the State.
This submission deals with abandonment and neglect of children by an unemployed mother who has left these vulnerable children to survive on their own. The result of this abuse is that the children are unresponsive and withdrawn.
The presenter is a teacher from a township in Newcastle, which is characterized by unemployment and poverty. She listed seven cases of abuse which she has confronted in her work and raised the following concerns:
Mr Lucas raises the concern about parental neglect of school children and notes that the non-payment of maintenance severely impedes physiological development of children. Reporting to social workers in the area yield no results and the probability of turning to crime to survive is high. This submission raises the issue of the culture of non-payment and maintenance defaulters who deprive their children of basic necessities of life.
She believes that the high levels of sexual abuse are due to overpopulation, breaking down of norms, unemployment, lack of formal housing, child prostitution, environmental destruction and poverty. She states that a "prestigious world population survey" 10 years ago, recommended that South Africa adopts a one child per family policy, as China has, in order to deal with some of these challenges. The submission recommends that Government provide incentives and disincentives to support a two-child per family policy. Government should also promote the ABC campaign and testing with regard to HIV/Aids. The use of abortion should be encouraged for accidental pregnancies.
The submission raises the concern about the failure of the justice system to arrest suspects and the release of arrested suspects. It also questions the myth that "sleeping with virgins would cure Aids". It recommends that the minimum sentence for child rapists should not be less than 20 years.
This submission focuses on the connection between child pornography, prostitution and gangsterism in the organized systematic abuse of children. Ms Mayne’s research emphasises the strong link between pornography and violent sex crimes against females and children. This is supported by police statistics, which indicate that there has been a steady rise in child sex abuse crimes from 1992 to the present, in the region of 65%.
Some of the issues that need to be addressed are advertising in mainstream newspapers of teenage girls for sex and families using children as cash commodities to earn an income.
The practice of trafficking of children from the rural areas under the guise of finding them employment as domestics is rife in the Western Cape. These children are then sexually abused and forced into prostitution
Dr. Rachel Jewkes presented on behalf of the Gender and Health Group at the MRC. Her presentation was based on the numerous research projects undertaken on child rape.
This submission illustrates the effects that child abuse has on victims. It cites the example of a case in the North West Province where the relatives knew about the abuse but did nothing, as there was a financial benefit to the victim. The perpetrator paid his victim’s school fees. The victim often regards home as an unsuitable place to live and sees the prison environment as a safer. The perception is that it is useless to report the case to the police since nothing would get done and it only exacerbates the situation.
This presentation focused on the organisation’s report, which emanated from their research into the "Trafficking of Children for Sexual Exploitation".
The presenter defined sexual exploitation as the sexual, emotional and physical abuse of children through forms of sexual violence. This includes rape, sexual battery, inappropriate sexual contact, exposure to inappropriate sexual acts, pornography and prostitution.
All acts involving the recruitment, transportation, transfer, harbouring and receiving of children constitutes trafficking of children. This can happen through any means, including the abduction, sale, use of force, threats, deception and use or abuse of power or authority.
The United Nations estimates that between two and four million people per year are traded against their will into some form of slavery, be it domestic, labour, begging or prostitution. According to the United Nations, many of these are children.
These children are trafficked for their organs, as drug runners, prostitutes, child brides and to work in sweatshops, agriculture, domestic service and in the informal economy.
South Africa does not have legislation that expressly prohibits the trafficking of people. However, South African children are offered protection from sexual exploitation in several pieces of legislation such as the Constitution, the Child Care Act, the Films and Publications Act and the Prevention of Organised Crime Act. Protection is also extended through International Instruments such as the United Nations Convention on the Rights of the Child, the Organisation of African Unity (OAU) Convention on Refugees, the African Charter on The Rights and Welfare of the Child, the Hague Convention on the Civil Aspects of Child Abduction. An Optional Protocol to the Convention on the Rights of the Child deals with the sale of children, child prostitution & pornography. The Protocol emphasises that State parties must strengthen international and regional co-operation by multi-lateral, regional, and bi-lateral agreements and arrangements to combat the sale of children, child prostitution and child pornography. It further emphasises the importance of protecting the rights and interests of child victims.
The perpetrators are usually parents (mainly mothers), family members, older sex workers, gangs, brothel owners, syndicates and agents, government officials and local and foreign nationals. Children are sold, abducted, held in captivity and debt-bonded (Traffickers pays parents for prostituting the child. Children are sold for up to R60 000 – when the debt is nearly paid, they get re-sold). Children are transported via surface, air and sea routes. The report indicates that these girls are debt-bonded for R12 000. Job offers were made to the parents for their children to work in restaurants, domestic service and on farms. Instead they were sold into the sex industry.
This submission illustrates neglect of children in the household. The deprivation of food results in children resorting to desperate measures in order to have a meal. This submission highlights how the economic plight of parents impact on the ability to provide adequate care for their children.
The submission details a number of cases where children have been abused, but makes no comments about the causes or recommendations regarding the prevention of sexual abuse of children.
This submission raises a concern about the Justice Department’s sentencing procedure by arguing that the sentences handed out to perpetrators are too lenient. It indicates that within the context of a rights-based approach, it appears that the rights of rapists are given precedence over the victim. She recommends that the minimum sentence for victims aged one month to 10 years should be 20 years and 15 – 20 years for victims aged 11 years upwards.
The submission by Nadel was presented by Ms Johanna Kehler who stated that there are gaps in the existing legislation regarding child rape. The urgency of this issue requires action to be taken before the new Sexual Offences Bill is passed by Parliament.
Dr Selma Browde presented the submission from the Palliative Medical Institute. This institute offers training for community workers and people involved in home-based care. The submission dealt with two main issues:
Ms Naledi Pandor, motivated for the establishment of a South African Sex Offenders Act and a national register of sex offenders.
The sexual abuse and rape of girl children is so widespread in our society that out of 20,000 estimated cases reported each year, nearly half are rapes committed on children.
In schools, sexual violence directed at girls erodes their right to education. Although some of the teachers are to blame, the entire teaching profession should not be condemned. Further research needs to be conducted in this area.
Moreover, South Africa has laws against rape, incest and sexual assault. But there is more that can be done. More so, in view of the fact that paedophiles and rapists are not cured by imprisonment. They are released to commit their heinous crimes once more. By recommending the abrogation of the similar-fact doctrine the Law Commission project team on sexual offences law throws its weight behind the belief that sex offenders are repeat offenders. And that is why we need a Sex Offenders Register Act.
Compile a national register of sex offenders to ensure that everything was being done to protect children from sexual abuse. Such a register will complement the positive steps already being taken by the police and other government agencies.
The Centre believes that its host town, Uitenhage, is the "rape capital" of South Africa and that this perception is having a negative effect on the town’s economy. They also highlight the problems rape survivors face in terms of how they are treated by society, especially those from disadvantaged areas. Some of the problems they highlighted in this regard include lack of dignified debriefing rooms at police stations as well as problems with District Surgeons, crisis kits, counselling and support for rape survivors, as well as the geographical remoteness of these services for survivors.
The Psychological Society of South Africa, the Professional Board of Psychology and members of the media are undertaking a research study in the sexually violent attacks against minor children and will work in close collaboration with relevant government departments and civil society institutions. The study will cover the actual incidences of such attacks against children under 10 between 2000 and 2001 and the profiling of the perpetrators. This report will be available in March 2002. The research team consists of numerous distinguished academics.
This submission outlines the meeting held between this group and the Department of Social Development on the 25 February 2002, where it was recommended that children who are subjected to sexual assault and/or rape should automatically be given access to anti-retroviral drugs and counselling – all of which should be facilitated and provided free of charge by the South African Government.
This was a joint submission by: Health Services, Law Enforcement Officials, Welfare (State and NGO sectors), Justice and other Legal Representatives, operating within the KwaZulu Natal Midlands Region.
Ms Santho-Qhotswane is a survivor of domestic violence and believes that domestic violence is the main source of child and sexual abuse. Her submission includes documents detailing her experiences of abuse by her husband and her four-year struggle to obtain justice. She points to inefficiency and corruption in the police force and court officials in Bloemfontein as reasons for this.
She notes that decision makers involved in cases of abuse often play a destructive role and cause further trauma to the victims because they lack sensitivity and empathy.
The submission indicates that inefficiency and corruption in the courts inhibit justice and protection of victims. She argues that women are still regarded as inferior and seen as objects. Her concern is that the children growing up in families where there is violence and abuse see it as the norm.
Mr Shabangu is a Councillor of Ward 15 in Middleburg, Mpumalanga Province. His submission raises concerns about the poor response and inefficiency by police personnel in the Middleburg Child Protection Unit. The concern arises from the case of Ms Deliwe Maseko, whose child was raped. Although the police was given all the relevant information, the suspect was not arrested.
Mr Shabangu lodged a formal complaint with the Child Protection Unit in December 2001and has not received any response to date.
Shadow Pictures have been commissioned by the BBC to make a documentary on child rape. This follows the television and international press coverage of the rape of baby Tshepang. The aim of the documentary is to expose the issue and raise certain questions.
Mr. Sigwela’s submission raised the issue of sexual abuse of children within the family. The submission makes the following points:
The submission highlights the need for strong campaigns and workshops to raise awareness about protecting children from sexual abuse. The main source of child abuse is men and as most men have lost economic control and dominance over women they are taking out their frustrations on weaker persons, which are children. They also abuse children to fulfil their sexual fantasies.
Awareness campaigns should target men so that they will recognize their responsibility and have a positive view to life and the rights of children. The submission recommends that key male personalities and leaders should be used to campaign against child and women abuse in order to achieve positive results.
The submission looks at the role of society in creating an enabling environment for dealing with rape. It focuses on the role of parents, government, religious communities, big business, the medical community, alcohol industry in dealing with the child. It illustrates statistically the high incidences of child abuse accompanied by the low conviction rate of child abusers.
Ms Smith argues that in most cases the majority of abusers are not strangers but are persons known to the victims. In several cases they are the caregivers of the abused children. The Child Care Act addresses these issues but local communities need to take more responsibility in enforcing the protection of children.
The submission also looked at the role of government and big business in providing the necessary trained personnel, improving departmental budgets, providing forensic laboratories and forensic kits to police stations and health workers, training personnel and the provision of child care facilities.
She criticises the current training of medical personnel and calls for the improving of rape forensic and rape care training at medical teaching institutions. It calls on the pharmaceutical companies to help fund the proposed training.
The submission suggests that there is a strong link between violent crime and the use of alcohol. It quotes the Medical Research Council study that found alcohol as a common factor in 60% of the murders reported last year. The document proposes that liquor manufacturers fund welfare, training and criminal justice projects through the government tax or other levies imposed.
It is reported that children who are abused are often likely to become abusers themselves. The submission proposes that the Department of Education and Correctional Services should ensure that children do not go to jail and should provide adequate alternative facilities. The presentation argues that children should not be exposed to violence and abuse.
The presentation recommends counselling and peer mediation in schools and calls for the establishment of trauma groups in schools. Teachers need to also be trained. Sexual violence against children is inextricably linked to the high prevalence of violence in our society.
The submission suggests that the current system of handling the sexual abuse of children is inadequate and further traumatises the child. There are too few social workers with specialised training to deal with the survivor’s immediate needs as well as longer-term therapy. The coordination between social service agencies and the CPU is lacking, and there seems to be no recognition that the social worker is a professional equipped to deal with a child’s emotional needs.
The submission further notes that there was no standard interview protocol, that the medical personnel are sometimes not properly trained for this specialised area or simply too thinly spread especially in the rural areas.
With reference to the court system, the submission states that courts are not child-friendly and the court process takes much too long. The survivor could be exposed to the perpetrator because they have to use the same entrance to the court and sometimes the same waiting room. The manner in which the testimony given by a child is treated, suggests that members of the legal profession regard children as unreliable witnesses.
Dealing with abuse on a regular basis causes severe trauma to social workers, who feel that they are fighting a losing battle. This results in social workers feeling burnt-out.
The presentation was based on the knowledge accumulated through research on issues such as child and women abuse, HIV/Aids and sexuality education.
Advocate Tlakula presented the findings of the South African Human Rights Commission (SAHRC) Report on Sexual Offences Against Children to the Task Group. She indicated that the SAHRC used its mandate with respect to upholding and implementing human rights and held an inquiry to investigate whether the criminal justice system actually protects children.
The legislation deals with a range of children’s issues including child sexual abuse. The focus of the legislation is on children rather than perpetrators and therefore is does not deal with criminal law aspects of the punishment of offenders.
The submission was made in the context of there not being any systematic collection of national figures on child sexual abuse. It was stated that 5000 cases of sexual abuse were dealt with annually at the 166 Child Welfare societies across the country. The most fundamental issue that needed to be dealt with was the manner in which children are viewed and perceived. It was submitted that children were currently viewed as inferior and as a commodity.
The mission of STOP is to promote a society in which children are nurtured in an environment of sound family values and in which women and children in particular are protected from sexual crime, sexual exploitation, abuse and violence in accordance with their constitutional rights. STOP opposes the proliferation of pornographic and related sexually explicit material that has become available since 1994.
The organization notes that the Films and Publications Act contributed to the creation of a social climate of "sexual freedom" which degenerated into a culture of "anything goes."
They oppose the availability of pornographic material and feel that the internet is a great source of pornography, which should be obstructed. They note that young boys are vulnerable to the effects of pornography. The television has also contributed to altering standards of sexual behaviour by pushing the limits from the sexually suggestive to overt pornography.
The submission states that rape of children can no longer be viewed as predominantly an act of violence rather that a crime of motivated by passion or lust. With the decline in standards of sexual behaviour, "date rape" has increasingly become common, and the rape of school children by teachers, for instance, are unlikely to be attributable to the underlying need of the perpetrator to commit an act of violence. Like drugs pornography has an addictive effect, followed by an escalation in the need for "stronger" material. Overtime, desensitisation occurs and lastly there is an increased tendency to put into action the sexual activities seen in the pornography. Thus fantasy can become reality – especially dangerous to the community where the addiction has been to child pornography.
Dr William Marshall, a respected child psychologist stated that 87 per cent of girl-child molesters and 72 per cent of boy child molesters regularly use pornography and 86 per cent of rapists regularly used pornography and 57 per cent copied pornographic scenes in the commission of rape. In a 10-year study, the Los Angeles Police Department found that in 60 per cent of child molestation cases, adult or child pornography was used to destroy the conscience of the child and teach them to model perverse behaviour.
Closer to home, in the Western Cape an Attorney-General’s Office stated that every case of consensual child abuse she had handled involved the use of pornography. A 1991 study by the Institute of Child and Family Development revealed that prostitution is rife in South Africa, and escalating since our country became known as a premier sex-tourism destination.
Third Law is a protest action group of concerned community members responding to the rape of baby Tshepang last year. The Third Law submission argues that the causes of child rape include alcohol abuse, the criminal justice system namely the ineffectiveness of bail, consequences not proportionate to the crime in that criminals are jailed at the expense of tax payers.
The presenter, from the Free State Province, related evidence based on her own experience. She presented two cases.
In the first case, a child was abused by her uncle, which ultimately resulted in her pregnancy. She is currently 13 years old. The case was reported to SAPS but withdrawn on the basis of lack of evidence.
Ms Tjabane is acting as a foster parent to five children in addition to her own two but has been unable to access the foster grant.
The submission focuses on existing laws and the role that the community can play to eradicate the problem of child sexual abuse. It argues that the existing laws do not give communities an active role in dealing with child sexual abuse. It raises a concern about the discretionary nature of the Magistrate’s Court Amendment Act No: 67 of 1998, which provides for the summoning of assessors who are reliable and capable persons from the community. This needs to be corrected. Another concern is that in reality the assessors are not being regularly summoned for child abuse cases.
The submission also raises a concern about the low rate of conviction of perpetrators of child sexual abuse. Where perpetrators are convicted, the sentences are often lenient and thus not sending a strong messages to potential offenders.
The project provides technical assistance to the South African Government for the implementation of the proposed child justice legislation.
The submission focused on:
The Bill proposes the following:
The submission was based on empirical research done in the greater King Williams Town area. Visits were made to the Department of Justice offices where cases of child abuse are reported. One of the primary aims of the research was to identify gaps in the legal process and to examine some of the contributing factors.
The presentation notes that rape and child rape is a direct consequence of the silence prevalent in our society. The paper argues that children do not have a voice and that the justice system downgrades their legal evidence. Other causes of child rape cited include: paedophilia, financial dependence, sleeping with a virgin can cure Aids, sexual awareness of children and the misguided sex education of children.
The paper recommends that children should not be placed in alternative places of care, as this can constitute secondary victimization. It is further recommended that the perpetrator should be placed in a rehabilitation programme and forced to provide for his family and the sustainability of such a programme. If the perpetrator did not have a job then the person should be sentenced to a minimum of five years. The paper also recommends that trials take place within 24 hours and that children can testify by closed circuit cameras.
The submission argues that there is a link between pornography and the abuse of women and children. It details a number of newspaper reports from across the world that would suggest that the majority of rapists use pornography, and that their habit of viewing pornography is at the root of the violent rape that they perpetrate. The violent sexual scenes are said to be the model that the rapist attempts to emulate what can be seen in the pornographic material he habitually looks at.
The submission also argues that pornography is addictive and that it gives rise to tendencies of sexual sadism, because the person who has become addicted to pornography eventually needs to act out the deviant behaviour depicted in the material.
In addition, the submission deals with the use of pornography in child abuse, noting that in a substantial number of sexual abuse cases, the perpetrator showed the abused children pornographic material as a coercive device.
The submission does not make any recommendations.
The submission highlights the inadequate public relations campaign on child rape issues. Although issues around sex and Aids are covered extensively in schools and on television, there is no strong preventive component in the message conveyed. The perception exists that people offering this guidance in schools are not properly trained and the facilitation used is not adequate for the classroom. She feels that children need to be informed of their rights and about what to do should they be raped. She suggested that research should be done to look at comparative statistics of South African child rape cases compared to Africa and the rest of the world.
This submission is based on a journal article entitled "The History of Child Abuse" written by Lloyd deMause in 1998 which chronicles child abuse from ancient times to the present. Child abuse has been depicted as a cycle, which is difficult to break. Parents themselves have to work through their own childhood pain if this cycle is to be broken. The reasons why children are abused, issues of causation and intervention in terms of supporting parents and teaching parenting is explored in detailed. Within each culture and nation child abuse occurs in various forms. This may range form sexual to physical violence and neglect.
Childrearing practices, and the role of the mother and father in supporting child development are integral to solving some of the problems encountered. Various modes of childrearing ranging from projectionist to socialization are mentioned.
South Africans all over the country have been united in their condemnation of sexual violence against children. This nationwide condemnation of sexual violence was apparent in the large numbers of individuals and organisations that contributed to the public hearings despite the considerable time constraints within which the process was concluded. The contributions have been of a high standard, and the Task Group’s understanding of sexual abuse of children has been enhanced by each of these contributions.
The Task Group finds that the incidence of sexual abuse of children in South Africa is unacceptably high. More than twenty thousand cases of abuse were reported to the South African Police Service in 2001, and statistics of reported cases of abuse are very similar for the preceding years. The Task Group notes with particular concern the suggestion that the abuse reported is only a fraction of the real incidence.
There is often an assumption that the increase in rape and child abuse is a result of South Africa’s new democratic dispensation. However, it was argued before the Task Group that the phenomenon is not new, and that the real difference since the democratic transition has been that there has been a greater openness and awareness on the issue of children’s rights, with the result that children and communities speak out about abuse more readily. In addition, there has been a much higher level of media coverage of incidences of child abuse.
In relation to international trends, the Task Group notes the global report of the International Tribunal for Children’s Rights released in 2001, which stated that despite the nearly universal ratification of the UN Convention on the Rights of the Child, all indications are that violence against children worldwide is on the increase.
Before proceeding to more specific findings with regard to the different sectors involved in the protection of children, the Task Group notes that it is necessary to understand the sexual abuse of children in its broader social context, nature, and magnitude, and to develop interventions for primary prevention and prevention of its long-term consequences.
Some presenters suggested that child abuse occurs in particular socio-economic conditions. However, a study that took into consideration the effect of socio-economic conditions and its relationship with abuse, found that sexual abuse occurs in all communities irrespective of socio-economic status. This argument was supported by a number of other presenters, who indicated that there is no simplistic linear relationship between poverty and abuse, although abject social conditions, together with substance abuse, may contribute to abuse.
The Task Group finds that the socio-political and economic history of the country has impacted negatively on family and community life, resulting in a society characterised by extreme forms of violence. Conditions of social deprivation contribute significantly to the erosion of self-esteem, causing loss of respect for the right that women and children have to sexual self-determination. Such conditions also impact on women’s ability to protect themselves and their children against an abusive partner or father.
There have been suggestions that mothers, who allow their children to be abused, must be liable for prosecution. While not in a position to come to a conclusion on the matter of criminal liability for those persons who are aware of abuse but do not prevent it, the Task Group finds that dependency on an abuser may prevent either the abused child or an adult family member who is aware of the abuse from reporting the abuse; this applies to both emotional and economic dependency. The Task Group also finds that in situations where the family has no access to reliable and affordable childcare services, this increases children’s vulnerability to sexual abuse.
Another factor that has been linked to the incidence of sexual violence against children is alcohol and substance abuse. Submissions have argued that being under the influence of alcohol or drugs erodes people’s ability to respect themselves and those around them. The Task Group recognises that in the context of alcohol and drug abuse children are particularly at risk of abuse.
It was argued that dominant attitudes around the power relations between men and women contribute to women and children being viewed as objects or possessions. The Task Group finds that the distorted patriarchal attitudes men have towards women and children contribute to the latter being vulnerable to all forms of violence. It notes the argument in one of the submissions that South Africans have yet to fundamentally interrogate patriarchal notions of power relations between men and women, such as the right of the man as head of the household to exercise his power as he sees fit.
The Task Group finds that while Section 9 of the South African Constitution guarantees equality for all its citizens, at the level of the family and the community this has to be translated into the universal acceptance of the inalienable right of women and children not to be subjected to abuse, whether physical, emotional or sexual. These rights also find their expression for instance in Article 27 of the African Charter on the Rights and Welfare of the Child and Article 34 of the UN Convention on the Rights of the Child.
The Task Group heard a number of proposals that speak to longer-term solutions to the rebuilding of the social fabric. Among the submissions on the matter were arguments that stated that sexual violence against children is an extension of violence against women. Efforts at eradicating sexual abuse would therefore focus on, among others, changing attitudes through sustained, mass campaigns that challenge the way men see women, and how women see themselves.
Representatives from the faith-based sector suggested that this sector has a particular role to play in the way that they impart the values of their faith to young people. This would include teaching equality between men and women, condemning the commodification of women and educating children and youth about appropriate forms of behaviour and interaction.
A significant number of submissions focused on the need for long term public campaigns aimed at raising awareness of sexual abuse and informing the public in general and children in particular about sexual abuse and children’s right to be heard when they report abuse. The Task Group finds that the silence concerning sexual violence, has a negative impact on children’s ability to disclose abuse, and that it is critical that children are taught and encouraged to speak out about abuse. It also finds that the process of changing attitudes and behaviour is likely to take many years, and that strategies aimed at reducing the incidence of child rape must take this into account.
Many of the submissions to the Task Group suggested that the myth stating that sex with a virgin cleanses a man of HIV/Aids is a major factor in the incidence of child rape. The Task Group notes the comments by researchers from the Medical Research Council that would indicate that there are some serious misconceptions around the incidence of baby rape and its link to HIV/Aids. Although the idea that having sex with a virgin cleanses you of Aids does exist in South Africa, and there have been reported cases of this as a motivating factor for child rape, the predominant evidence suggests that this is infrequently the case. The MRC researchers further argue that there is no evidence overall that any of the recent infant rape perpetrators, some of whom have been apprehended, knew that they were HIV-positive.
The Task Group also heard from presenters who argued that the practice of virginity testing was potentially harmful to girls in that it makes them vulnerable to being raped within the context of this myth.
The Task Group recognises the importance of the role that traditional healers play in communities’ efforts to cope with HIV/Aids. It further acknowledges that traditional healers could add a powerful voice to the message that sex with a virgin cannot cure any person who has been infected with HIV, and that public awareness campaigns around living with HIV could benefit from the contributions of traditional healers. The Task Group commends the statement made by a gathering of 600 traditional healers at Vlakplaas from 15-17 December 2001 where they emphatically state that HIV/Aids can never be cured by having sex with children or babies, young girls who have not reached puberty, or older women.
The Task Group recommends -
Much was said at the hearings about the role that the social service sector in South Africa should play in preventing abuse as well as protecting the child survivor of abuse. This section of the findings will focus on the preventative role of social development services.
Although the Task Group does not find that there is a direct correlation between socio-economic conditions and child abuse, it is of the opinion that particular conditions of social deprivation contribute to rendering children more vulnerable to abuse. Addressing abuse at the level of prevention therefore means addressing some of the socio-economic difficulties that South African communities experience.
There are a number of government programmes that are aimed at providing developmental services to communities. Policy documents like the 1997 White Paper on Social Welfare or the National Policy Framework for Families, which although still in a draft form, are clear about the paradigm within which services to families should be provided. However, the budgetary allocation to the Department of Social Development seems to suggest that there is little room for full implementation of programmes envisaged in policy documents because 90% of the budget is currently being spent on social security benefits.
In view of the policy thrust towards family preservation and early intervention, the Task Group notes that unfortunately interventions which tend to disrupt family life, such as the removal of children from their families, are still more readily available than those that are aimed at prevention and early intervention.
The Task Group recognises that there is a lack of coordination of services between the different government agencies. Presenters repeatedly noted that the lack of coordination was one of the main obstacles to tackling the issue of sexual violence effectively, and it was suggested that resources are not effectively spent because of a possible duplication of services. There was a strong call for the completion and implementation of the National Plan of Action for Children, as well as the implementation of the Draft Strategy on Child Abuse and Neglect. The Task Group finds that the responsibility for services to vulnerable children are fragmented between the Presidency, the national Department of Social Development, the provincial Departments of Social Development as well as the child protection agencies in the criminal justice system. It finds that there is little coordination between Departments and no clear consensus on who is responsible for which service. Nor is there a clear, integrated strategy for both preventative and protective interventions to ensure adequate provision of services.
The Task Group notes the concern raised in various submissions that social workers have to deal with extremely high caseloads under often very difficult circumstances. Social workers tend to react to situations of abuse but are unable to implement preventative strategies; it was further suggested that in many instances, the reactions are too late. Various presenters also focused on the difficulties caused with regard to morale among social service professionals because of the low levels of remuneration in relation to their training and the volume of work expected of them. The Task Group finds that these difficulties have a severe impact on the effectiveness of those services that are in place. It also finds that the current caseloads hamper organisations’ ability to advance community development work, which is one of the areas identified as a possible site for preventative programmes.
The availability of safe accommodation for children in need of care is one of the critical elements in both the preventative and protective service framework. Civil society organisations provide a significant portion of these safe houses; there is also a system where members of the community make their homes available to accommodate children in distress. Presenters from this sector have argued that there seems to be little State recognition of their contribution in this regard. The Task Group is of the opinion that it is the State’s responsibility to provide a sound policy framework for this service, and to support and fund the service adequately.
The Task Group is of the opinion that preventative services such as family preservation programmes, parenting skills programmes, child care programmes for single working parents, and programmes that focus on alcohol and substance abuse could contribute to addressing some of the conditions that make children more vulnerable to abuse. It further finds that these services should be provided in an integrated manner in order to make them most effective.
However, this requires that there be a clear agreement among stakeholders such as social workers, police officers and medical personnel on the nature of the services to be provided, and clear agreement on who has the responsibility for which aspects of services. It also requires that adequate resources are made available to ensure that services like the 24-hour service pilot programme, which provides for social workers to be on call to assist police officers in cases of child abuse, can be rolled out to all the provinces. There must also be clear efforts to target the disparity in resources and services between the urban and rural areas.
The Child Care Act (Act No 74 of 1983) provides the primary legislative framework through which children are protected by the State. However, it focuses mainly on interventions after a child has been abused or found in need of care.
Section 11 of the Act provides for the removal by way of court order of a child at risk of significant harm. In terms of Section 42 certain categories of professionals like health care workers, social workers or teachers must report the suspected "ill-treatment" or "injury" of any child. However, this section of the Act is silent about which aspects of ill-treatment constitute sexual abuse; in fact, the Act does not mention sexual abuse as a distinct form of abuse that may require particular responses. In addition, Section 50 states that any person who ill-treats a child shall be guilty of an offence; however, this section is equally silent on the specific issue of sexual abuse. The Task Group finds that these are serious omissions in the Act, especially in light of the obligations that South Africa has under Article 16 of the African Charter on the Rights and Welfare of the Child and Article 19 of the UN Convention on the Rights of the Child.
The removal clauses in the Child Care Act (Sections 11 and 12) do not make provision for the abuser to be removed from the child’s immediate environment, but rather for the child to be removed. This seems to be in conflict with the concept expressed in policy that every attempt must be made to allow the child to stay with the family, and therefore this omission may not be in the best interest of the child. The Task Group is of the opinion that a provision similar to that in Section 7 of the Domestic Violence Act (Act No 116 of 1998) with regard to protection orders, for example, which make specific provision for the abuser to be removed from the environment in which the child lives, may have to be considered during deliberations on a new children’s statute.
The question of reporting abuse was mentioned repeatedly during the hearings, with presenters making the point that the provisions of the Prevention of Family Violence Act (Act No 133 of 1993) create confusion about the obligation to report abuse. The Task Group notes that there is considerable divergence in the debate on reporting, with proposals going as far as saying that persons who are aware of or facilitate the occurrence of a rape must be prosecuted even if they did not directly participate in the rape. There have also been proposals that persons outside of the categories of professionals listed in legislation be compelled to report abuse, and that any person who fails to report abuse should be guilty of an offence.
Another proposal was that new children’s legislation limit mandatory reporting to certain professional categories. The list of professionals that would be compelled to report abuse would need to be refined during the legislative process. The submission further proposes voluntary reporting for persons outside these specific categories. In view of the damage that could ensue from wrongful reporting of abuse, the Task Group finds this position with regard to reporting the most reasonable.
A very substantial portion of social development work is carried out by civil society organisations, and the Task Group accepts that Government alone is not in a position to do all the work in this field. However, a large number of organisations have registered their concern that the relationship between the State and civil society organisations is characterised by significant difficulties.
Civil society organisations have a critical role to play in providing services to our communities. This role will be optimised if there is a clear understanding of partnership between Government and civil society organisations. The challenges organisations faced in accessing funding are having a drastic impact on the effectiveness with which services are delivered.
The financing regime in relation to organisations is currently unclear, with the result that they are struggling to provide services at their past level, or to expand services into formerly under-serviced areas. The Task Group takes note of the Department of Social Development’s commitment to finalising a financing policy that is clear, accessible and that will foster an equitable distribution of resources for the provision of social development services. However it notes that in the absence of such a policy, the work of a substantial number of organisations is threatened by financial instability.
Presenters referred to the fact that the National Lottery should have provided civil society organisations with funding, but that the distribution of funds has been slow to get off the ground. Very serious questions can also be asked about how funding decisions are made, considering the fact that social service organisations that have emerged in disadvantaged areas are still being under-resourced. The Task Group finds that in view of the importance of social service delivery, it is difficult to understand the rationale behind awarding large sports associations that have ready access to private sector sponsorships large amounts of money from the National Lottery Fund.
The Task Group notes that a number of the organisations of civil society are not functioning effectively because they are not rooted in the communities that they serve. Many of these organisations were established in a pre-democratic South Africa and are still in the process of transforming the paradigm within which they work to suit the current context. Linked to the question of transformation is also the issue of whether social service professionals are appropriately trained.
The Task Group is aware that a number of organisations are making use of volunteers to assist social workers in dealing with cases of child abuse, neglect and family care. The Task Group is of the opinion that the use of volunteers could assist significantly in getting communities involved in fighting abuse and raising awareness of abuse in communities, and that it is important for professionals in the social services sector to recognise and acknowledge the value of volunteers who do not necessarily have tertiary education. However, it finds that the volunteer programmes must be managed in such a manner that continued training is available to volunteers who work in this very difficult and sensitive area, and that they must have access to ongoing support to assist them to deal with the emotional effects of working in the area of child abuse.
It also notes that there is still a large disparity between the provision of services in urban areas and those in rural areas.
The Task Group recommends in relation to the legislative and policy framework
The Task Group recommends in relation to social services -
The Task Group recommends in relation to civil society organisations -
A 1998 study by the Medical Research Council (MRC) found that school teachers perpetrate 33% of rapes against children under 15 years. The release of these statistics has caused considerable concern among education authorities and members of the public alike. And although the Task Group notes that reliable data on the extent of sexual abuse in South African schools is hard to find, there is compelling evidence, such as highlighted in the MRC study to indicate that both the nature and levels of abuse require immediate and urgent action.
According to the MRC, not only is the girl’s body violated through sexual abuse in schools, but also her right to education as enshrined in Section 29 of the Constitution, and in various international instruments such as the International Covenant on Social, Economic and Cultural Rights (Article 10). Many girls are forced to leave school because of pregnancies fathered by teachers and because of harassment by teachers. A girl's ability to reach her economic and social potential is reduced, which may impact on her subsequent vulnerability to being dependent on sex or the abuser for economic survival.
The Task Group was informed that this type of research does not suggest that the incidence of sexual abuse in South African schools is significantly higher than in other countries. It should be acknowledged, however, that the incidence of children being abused in schools is enough to raise serious concern.
The amendment to the Employment of Educators Act (Act No 76 of 1998) should enable education authorities to combat abuse in schools. This Act provides for the dismissal of a teacher who has been found guilty of engaging in a sexual relationship with a learner, with or without the consent of such learner. In addition, the South African Council for Educators Act (Act No 31 of 2000) allows for the deregistration of a teacher when such teacher has been found guilty of the sexual abuse of a learner.
The Task Group was informed that despite the legislative framework and a number of programmes and guidelines that have been developed by the Department of Education, the situation in some schools has not necessarily improved, and enforcement still presents a substantial challenge. A recent study conducted by the Human Sciences Research Council indicated that there are considerable differences in the manner in which schools respond to allegations of abuse perpetrated by both teachers and learners. Some showed zero tolerance, with set disciplinary procedures and structures, and strong links with Social Development offices and the SAPS Child Protection Unit. Other schools used verbal reprimands, random corporal punishment of learners (which is illegal) and parental summonses, while some showed no response at all.
At the same time, the Task Group must note the announcement by the South African Council of Educators that it has deregistered a number of educators found guilty of sexual abuse of learners, because it is of the opinion that this form of action will contribute to changing the patterns of abuse prevalent in schools. It encourages the Council to apply all the legislative measures at its disposal to ensure that educators who are deregistered in this manner are not able to teach in South African schools again. It also encourages the Council to continue speaking out against sexual abuse in schools.
The difficulty education authorities have in enforcing provisions in legislation include a lack of openness, ambiguous attitudes towards violence against girls, and the lack of clear definitions and preventative procedures. The Task Group therefore welcomes the Department of Education’s plan to ensure a common understanding of what constitutes sexual harassment through the development of a national sexual harassment policy.
Much of the discussion around the education system focused on the manner in which educational programmes and curricula impact on public awareness of sexual abuse. There have been differing opinions as to the nature and content of the life orientation/life skills learning area, with some presenters arguing for greater openness about sexuality, while other presentations submitted that pro-abstinence, pro-family and pro-marriage sex education should replace the current sex education programmes in schools.
The Task Group finds that the school environment is an extremely important arena in which to raise consciousness about human rights, gender equality and sexuality. It recognises that there are divergent views about the content of sex education but supports the principle that learning areas should be designed in such a manner that they foster the ability of learners to engage with material in a critical and independent manner. The Task Group therefore cautions against a retreat into silence and denial where issues of sexual abuse are concerned.
The Task Group was not presented with any research to suggest that there is a causal relationship between sex education and learners’ greater vulnerability to sexual abuse; the contrary has been suggested by several commentators, namely that the ability to understand the relationship between sexuality and power enables more children to speak out about abuse.
The Task Group therefore recommends -
The Task Group notes that a large number of submissions focused on a myth present in the country that having sex with a virgin cures HIV/Aids, which is said to cause some infected men to abuse children. The Task Group is not able to establish whether the myth has a significant influence on the number of instances of child rape seen recently in South Africa or whether it is only in rare cases an underlying reason for abuse. In view of the severity of the consequences, however, if a single case emerges out of this perception, it is one too many. Therefore, the Task Group wants to reiterate that all indications from research are that having sex with a virgin does not cure HIV/Aids. It also commends once again the clear and unified statement that a significant number of traditional healers have made in this regard.
The Task Group has heard that sexual abuse of children carries a high risk of infecting the children with HIV/Aids and other sexually transmitted diseases. The abuse can lead not only to infectious disease, but also to pregnancy. Either carrying the pregnancy to term or obtaining an abortion could lead to serious health and emotional problems.
The Task Group also heard submissions that suggested that practices such as virginity testing exposes young girls to a high risk of sexual abuse. Especially for the already abused child, such practices enhance the possibility of further stigmatisation, trauma and suffering. In this instance, the Task Group wants to recall Article 21 of the African Charter on the Rights and Welfare of the Child, which obliges South Africa to strive for the total elimination of all "harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child".
Presenters have pointed out that gaps in the responses by police and medical personnel with regard to the immediate health needs of the sexually abused child lead to situations where the health risk for the child is increased. Some presenters have argued that this is due to inadequate training and a lack of sensitivity on the part of these personnel. In these circumstances, the abused child faces the risk of secondary abuse.
It was also pointed out that especially in rural areas, facilities for reporting and treating the abused child are not available or easily accessible. Presenters informed the Task Group that they often simply clean the child, rather than to wait for the child to be examined by a medical doctor. There also appears to be no clarity about which level of medical personnel would be authorised to treat a survivor of abuse while at the same time securing credible forensic evidence that will contribute to a successful prosecution in cases where a district surgeon is not immediately available to see the survivor. The Task Group was further informed that in some cases survivors are simply refused medical attention. Section 28(1)(c) of the Constitution recognises the child’s right to basic health care services. These should include medical treatment for the sexually abused child. Without treatment, the physical, mental and developmental well-being of the child is at serious risk, and without evidence such as blood and semen samples, the case may be seriously compromised. The Task Group therefore recognises that in the absence of adequately resourced facilities and proper evidentiary training for the relevant medical personnel, and clear guidelines concerning the needs of rape survivors, such survivors may be suffering secondary abuse at the hands of those who must care for them.
The Task Group recommends -
The Task Group recalls and emphasises that in all cases involving child survivors and/or witnesses, the best interest of the child, as required by Section 28 (2) of the Constitution, as well as international instruments such as the African Charter on the Rights and Welfare of the Child in its Article 4 and the UN Convention on the Rights of the Child in its Article 3 forms the guiding principle in all decisions made in relation to such children.
A number of presenters felt very strongly that the criminal justice system is not conducive to protecting the rights of survivors of abuse, and in fact suggest that survivors often suffer secondary abuse at the hands of insensitive and inappropriately trained police officials. It appears, for example, that there is little cognisance among police officials that disclosure of abuse is a complex process, and not a one-off event. In many cases, survivors do not have ready access to counselling support in a child-friendly environment, despite the efforts being made to equip police stations with facilities for survivors. The Task Group acknowledges that the police service is engaged in a transformation process, and that the establishment of a human rights culture – including a child rights culture – with members of the South African Police Service is part of that transformation process. It further acknowledges that resource constraints impact on the process of equipping police stations with facilities that cater for the needs of survivors of sexual violence, especially crucial in previously under-resourced areas.
Despite very hard work by committed police personnel, the discrepancy between the numbers of actual reported cases of abuse and conviction statistics for rape and sexual offences suggests that the majority of reported cases are not successfully prosecuted. It was repeatedly reported that cases are withdrawn because of a lack of evidence, or in cases where the prosecutor was of the opinion that the prosecution of the matter would do significant harm to the survivor. The situation is further compounded by the incidence of corruption among police officers, which has a direct influence on the high rate of case withdrawals. The Department of Safety and Security argued that it was a decision of the prosecuting authority to withdraw cases where there was insufficient evidence to secure a conviction, and the Report will address this issue in the Section that deals with the justice system. However, the Task Group is of the opinion that the police have an equally important responsibility to ensure that through investigative work, adequate evidence is gathered to make successful prosecution possible.
The Task Group welcomes the establishment of the new Family Violence, Child Protection and Sexual Offences Units (FCS), and expresses the hope that these units will be established in as many provinces as possible to ensure that there is a more equitable distribution of this very crucial resource. The Task Group acknowledges that the strain on SAPS resources, exacerbated by extremely high caseloads, impedes the law enforcement agencies’ ability to properly follow up cases and secure sufficient evidence to ensure convictions.
The Task Group recognises that the Sexual Offences Act is under review, with an aim to strengthening the definition and scheduling of sexual offences. The Task Group supports proposals that rape be codified and defined free from gender bias. The criminalisation of commercial sexual exploitation of children in addition to other forms of sexual exploitation should also assist in combating the growing trend of vulnerable children becoming the victims of this form of exploitation within as well as across South Africa’s borders. Specific reference to this issue will be made in the section of this Report that deals with international treaties for the protection of children, and on commercial sexual exploitation.
The Task Group supports further proposals concerning the management of the pre-trial process. It has been argued that secondary abuse of survivors results from the fact that South Africa has no clear strategy for inclusively dealing with child and adult survivors of sexual offences, either on a primary, preventative level or on a secondary, protective level. There is therefore no guarantee that a survivor of a sexual offence entering the criminal justice system will be dealt with in terms of acceptable procedures or be protected from further harm. In view of this, the Task Group supports the proposal with regard to the development of a basic framework or code of conduct, contained in the Sexual Offences Act, within which multi-disciplinary teams deal with cases of abuse.
The Task Group recommends
The Task Group finds that there is cause for serious concern around the manner in which cases involving the sexual abuse of children are dealt with in the court system. Seemingly divergent standards and procedures for both survivors and witnesses suggest that the South African criminal justice system does not have a clear and integrated approach to criminal offences of a sexual nature. What further compounds the situation is the fact that rural communities do not have ready access to courts, which makes participation in a court process a sometimes expensive and challenging experience.
Survivors of rape and other forms of sexual abuse are often made to endure lengthy court proceedings under circumstances that do not necessarily cater to their emotional needs. Justice officials are not always appropriately trained in dealing with child a witness, which makes it more difficult for such court officials to make appropriate decisions concerning the competence of child witnesses.
The Task Group heard different arguments concerning the role of technology in effective prosecution of cases involving sexual violence. In relation to DNA testing, for example, some presenters argued that the service should be decentralised in order to expedite the prosecution of alleged offenders. However, it must be noted that such decentralisation would have cost implications that have to be carefully considered. Furthermore decentralisation could result in the compromising national standard of DNA testing and undermine the value that this kind of evidence can have in court proceedings.
The Task Group concurs with the contention that the general practice in South African courts to treat the evidence given by children with caution is outdated. The cautionary rule in sexual offence cases rests mainly on the assumption that complainants in sexual offence cases, and particularly female complainants, have an "innate" inclination to lie in matters relating to sexual offences. This contention, which according to presenters has found no empirical support in studies comparing the prevalence of false claims in sexual offence cases with those in other criminal offences, suggests that this approach is linked to the age-old stereotyping of women.
The Task Group is also concerned that the adversarial nature of leading evidence and cross-examination in South African courts does not take into account the fact that disclosure of abuse has been shown to be severely traumatic to survivors, or the traumatised state in which the survivor may originally have first reported the sexual abuse.
The Task Group further finds that the introduction of a complainant’s previous sexual history may seriously prejudice the finding of the court. This happened in a recent case in the Pretoria High Court that dealt with the abuse of a five year old girl, where the defence suggested that she had invited the abuse by her promiscuous lifestyle, and the Magistrate took these suggestions into consideration in sentencing. The Task Group is of the opinion that calling into question the testimony of a survivor of sexual abuse on the grounds of their previous sexual history may significantly contribute to the continued stigmatisation of survivors, and negatively impact on public perceptions as to the seriousness with which the State treats allegations of abuse.
Because of the emotional trauma attached to giving evidence in a sexual offence matter, the Task Group finds that the silence of the law on the protection of particularly vulnerable witnesses is a serious omission. There is therefore no legal framework within which to offer such witnesses the special protection they need. It has further been reported that while a court will generally order that a rape survivor’s testimony be heard behind closed doors, there is in practice very little control over the movement of people in and out of court, even when a child survivor is giving evidence. It was argued at the public hearings that persons with disabilities have particular special needs that are currently not provided for.
Notwithstanding the various provisions of the Criminal Procedure Act (Act No 51 of 1977) it has become commonplace for the media to report on sexual offences or alleged sexual offences, sometimes by including names or identifying details of the survivor and/or the alleged offender and/or graphic details of the assault.
It has been argued that the current legislation should be adequate to protect witnesses. In practice, however, details of survivors of sexual offences, and in particular children, and of persons alleged to be the accused, but not yet formally identified as such or charged, are regularly published despite the provisions of the law. This suggests that the law is not being implemented effectively, and that the imposition of higher penalties for such offences may be necessary to ensure that the provisions are treated with the seriousness they merit.
The Task Group finds the manner in which bail legislation is implemented unsatisfactory. Presenters have argued that the ease with which bail is granted, and the divergent application of bail provisions in different courts, suggests that there is no single national understanding of the seriousness of sexual violence against children. A significant number of cases were cited where offences are repeated after an accused has been granted bail.
The Department of Justice indicated in their presentation that the existing bail legislation (contained in section 60 of the Criminal Procedure Act) is adequate. Section 60 provides for persons accused of offences listed in Schedules 5 and 6 to remain in custody, and the onus is on the accused to prove that extraordinary circumstances exist why they should be granted bail. The Department also argued that bail provisions have been tightened to deal, among others, with repeat offenders. However, the Task Group notes the number of instances where both in the media and during the public hearings the granting of bail was identified as one of the exacerbating factors in the fight against child rape and abuse. Some presentations called for the establishment of the principle that no person accused of sexual abuse will be granted bail. The Task Group is of the opinion that this issue needs further investigation by the relevant SALC project committee.
The protection of complainants from an alleged abuser once bail has been granted is another matter that must be noted here. Although the Domestic Violence Act (no 116 of 1998) makes provision for the removal of the abusive person from the home environment, in most cases the abuser is returned to the same environment as the abused child – be it at home, the school or the broader community. Presenters have argued that the best interest of the child extends to this level, and that protecting them while the trial is under way, must form part of a holistic approach to the issue of sexual violence against children.
There is currently the perception among members of the public that sentences imposed for sexual offences are too lenient, and many calls were made at the public hearings for the imposition of life sentences for persons found guilty of sexual abuse of children. The Task Group finds that the inconsistency in meting out sentence contributes to the trauma the complainants in such cases experience. It is of the opinion that a serious effort must be made to ensure that the legislative framework for sentencing is adhered to by all members of the judiciary.
Some presenters argued that rapists believe that they are able to cite the influence of alcohol or drugs as a mitigating factor when they are apprehended and tried. The Task Group heard some very strong recommendations regarding the control of alcohol as well as the kind of jail sentences that would be appropriate for offenders who claim to have committed sexual violence while under the influence of alcohol. The Task Group feels strongly that alcohol and drug abuse should serve as an aggravating rather than a mitigating factor in sentencing.
The Task Group notes a study by the SALC, which suggests that maximum sentences alone do not necessarily act as a deterrent to serious crime, because since the introduction of mandatory minimum sentences for offences including rape in 1997, the incidence of rape with aggravating circumstances has increased. However, in view of the marked increase in reporting of rape, the Task Group is of the opinion that the above conclusions do not necessarily reflect accurately on the correlation between heavier sentences and the incidence of serious crime.
This particular study by the SALC Project Committee on Sentencing also found that despite the minimum sentences introduced by the Criminal Law Act (Act No 105 of 1997), and despite the specific reference in the legislation to the seriousness of sexual offences, there is still considerable divergence in the compliance with the Act. The Task Group acknowledges that the question of the effectiveness of minimum sentences, and the consistency with which the provisions of the Criminal Law Act as well as the Criminal Procedure Act are applied insofar as sentencing of sex offenders is concerned, is a complex matter, most of which is covered in depth in the discussion paper by the SALC Project Committee on Sentencing.
The Task Group recommends –
in relation to effective prosecution of cases
in relation to evidence
in relation to the protection of survivors of sexual violence
in relation to bail
in relation to sentencing
The Department of Correctional Services did not make a submission at the public hearings. In view of the importance of the debate around rehabilitation, and the wider debate in South Africa around restorative justice, the absence of Correctional Services is recognised as unfortunate.
Some presenters made reference to the position of child sex offenders in the correctional service system, and argued that the system currently does not cater for them adequately. The provisions of the Constitution makes it imperative that Government use detention or imprisonment of children only as a last resort and for the shortest appropriate period of time, and to accommodate children separately from adult inmates (Section 28(1)(g) of the Constitution). Despite a programme to establish secure care facilities in all of the provinces to ensure that children in trouble with the law are accommodated in a manner that takes into account their developmental needs, the reality that hundreds of children are still accommodated in South African prisons is a cause for grave concern. Because of a lack of resources with which to completely develop the programme of secure care, there seems to be little distinction between children in custody and children in care, which results in children in both categories being accommodated in the same facilities.
It was put to the Task Group that there are currently only two programmes that deal with the rehabilitation of child sex offenders nationally. The Task Group finds completely inadequate, and supports the position that early intervention in relation to child sex offenders plays an important role in enhancing the offender’s chances to be reintegrated into society. The Task Group also finds that the large numbers of children in adult prisons implies that they are vulnerable to be abused themselves, and their exposure in this setting to sexual violence which may reinforce the anti-social behaviour at the root of their offence in the first place.
The Task Group is of the opinion that the punishment of the child sex offender has to be appropriate to their developmental capacity and age, and proportionate to the seriousness of the crime. The Task Group notes that the proposed Child Justice Bill contains extensive proposals on the sentencing of child offenders and the diversion of children out of the prison system. In terms of this Bill, the purposes of sentencing children would be in line with the concept of restorative justice – encouraging the child, through a sentence proportionate to the circumstances surrounding the crime, to accept individual responsibility for their actions and to facilitate the reintegration of that child into the family and community.
The Task Group again takes cognisance of the assertion that conditions in South African prisons are not conducive to the rehabilitation of sexual offenders, and that the high levels of violence, including sexual violence, may in fact reduce their chances of rehabilitation. It further notes the comments made in various submissions with regard to the suitability of current rehabilitation programmes for adult sex offenders. Of specific importance here is the argument that courts should consider the treatment and rehabilitation of all sexual offenders as part of the sentencing process to ensure that survivors and the community in general are protected against repeat offending once the offender has been released from prison.
The Task Group takes into account a number of recommendations regarding the way Government deals with sex offenders. One of these recommendations contained in a detailed submission is that rehabilitation programmes aimed at sex offenders must be established in correctional facilities as a matter of urgency. There has been a further recommendation that all sex offenders should be required to undergo treatment in an accredited treatment programme, preferably in a community setting, when released on parole or under correctional supervision. The submission also gives attention to the procedures to be followed in sentencing when considering the appropriateness of rehabilitation programmes for a particular offender. The Task Group notes the recommendation that the offender should bear the cost of treatment should he or she be in a position to do so, and that the State should bear the cost of treatment for offenders who cannot afford to pay for it themselves. At the same time, it acknowledges that severe resource constraints may seriously affect the feasibility of such proposals.
The Task Group recognises that where a "treatment order" forms part of a sentence, this would have to be followed up to ensure that a lack of resources or a lack of insight into the need for rehabilitation are not the reasons why such rehabilitative treatment are not implemented. In addition, there would have to be considerable campaigns aimed at reaching consensus among both correctional services staff and the public in general that such rehabilitation programmes do not constitute a mere waste of money on the offender at the cost of the taxpayer, but that it forms a vital part of a completely new paradigm within which there will be elements of both punitive and restorative justice.
The Task Group further acknowledges that the comments above do not elaborate on all the different aspects of the debate around rehabilitation, and that the issue of effective rehabilitation of sex offenders, the cost of such programmes and the conditions in correctional facilities merit further investigation by both the Departments of Correctional Services and Social Development.
In media reports as well as in discussions before the Task Group, the establishment of a national register of sex offenders has been suggested as one of the preventative measures that could be used to combat the sexual abuse of children. It has been argued that there are a number of examples of how such a register could operate, and the example of the United Kingdom was put as the kind of system that could most benefit the South African context.
In the UK, the Sex Offenders Act 1997 requires those convicted of specified sexual offences involving children, and of other serious sexual offences against adults, to register their names and addresses with the police. At present the registration rules in the UK include the following: sex offenders must register their name and address with a designated police station within 72 hours of their release from jail. Failure to register can lead to a six-month jail term or fine. In addition, the police can apply for a community protection order, which lasts for a minimum of five years, and can bar an individual from areas frequented by children. Head teachers, doctors, youth leaders, sports-club managers and others are notified on a confidential basis of the presence of a local sex offender.
At the core of the argument in favour of such a register is the belief that informing the child protection agencies and certain other professionals who work with children of the whereabouts of a convicted sex offender will enable these agencies and individuals to keep sex offenders away from children. The Task Group notes the contention that rehabilitation of sex offenders in the current prison environment has had little success, and that a significant number of sex offenders become repeat offenders once they have been released from prison.
While noting the arguments in favour of a register of sex offenders, the Task Group has also considered the arguments against it. It has been shown, for example, that there is little to stop a sex offender giving a false address when complying with their mandatory registration requirements. Another important factor that has to be noted is the question of what the public does with the information in a register, should the general public have access to it, as is the case in some states in the United States of America. Even where access to the register is limited to certain categories of people, there have been numerous cases of misidentification, vigilante attacks on sex offenders, and even suicides of people who have been subjected to public attack after their names were included in a public register of sex offenders. The Task Group notes that placing information concerning offenders on the Internet must be approached very carefully, as such information is accessible not only to the community that it is aimed at protecting, but nationally and internationally, which opens it to abuse.
A third argument is that such a register may drive the activities of sex offenders even more underground, which could make the work of protection agencies all the more difficult.
The Task Group recognises proposals that a register of sex offenders could be useful as a means of keeping serial offenders out of children’s services. Such a register should be available to assist with the screening of prospective staff members, volunteers or substitute caregivers for children within schools, designated child care services and major youth organisations, and for no other purpose whatever. In addition, the proposals hold that strict controls on access to this information and strong sanctions for any breach of the limitations should be put in place, and that severe criminal penalties should apply to malicious reporting.
It must be noted that the efficacy of such a register has not been established, nor has the cost implications for South Africa.
The Task Group recommends -
in relation to child sex offenders
in relation to adult sex offenders
in relation to a register of sex offenders
International instruments for the protection of children
The Task Group finds that sexual abuse of children can have an international dimension or cross border implications. That is why international cooperation and a common legal standard of norms in relation to these issues are needed in order to properly address the problems involved. The Task Group therefore takes note of the international legal framework with regard to sexual abuse of children within which State authorities and private individuals act.
One of the areas of sexual abuse of children that could have a direct international dimension is the area of commercial sexual exploitation and trafficking in persons. Unfortunately the Task Group was offered no empirical data in relation to the problem. It could therefore not be assessed during the Public Hearings how widespread these problems are. The Task Group, however, notes that the impact of commercial sexual exploitation on the well being of affected and vulnerable children is devastating and needs to be properly addressed by cooperation of all State authorities on a national and on an international level.
South Africa is bound by the 1990 African Charter on the Rights and Welfare of the Child which provides in Article 16 that
1. States Parties to the present Charter shall take specific legislative, administrative, social and educational measures to protect the child from all forms of torture, inhuman or degrading treatment and especially physical or mental injury or abuse, neglect or maltreatment including sexual abuse, while in the care of a parent, legal guardian or school authority or any other person who has the care of the child.
2. Protective measures under this Article shall include effective procedures for the establishment of special monitoring units to provide necessary support for the child and for those who have the care of the child, as well as other forms of prevention and for identification, reporting, referral, investigation, treatment, and follow-up of instances of child abuse and neglect.
South Africa is furthermore party to the 1989 UN Convention on the Rights of the Child which contains in Article 19 the obligation that
1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
South Africa is moreover bound by the 1999 Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO No. 182), to
[…] take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.
In the context of this provision the term "worst forms of child labour" comprises
[…] the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances […]
[…] work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.
It must be noted therefore that South Africa already committed itself on an international level to put into place these above mentioned protective measures for children.
It must, however, be further noted that other instruments exist on the level of international law that deal more specifically with the topic of commercial sexual exploitation and trafficking in children than the above-mentioned Conventions. In this context two international legal instruments must be taken into account.
The 2000 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography entered into force on 18 January 2002 without the signature or the ratification of South Africa. This Protocol was drafted by the United Nations because there was a general concern that the Convention on the Rights of the Child does not provide for safeguards effective enough to address and deal with the problem of sale of children, child prostitution and child pornography. It therefore aims at extending the measures that States Parties of the Convention on the Rights of the Child should undertake with regard to the problem. Concrete measures proscribed by the Protocol include the unconditional extradition of perpetrators of sexual abuse of children (article 5) and the deepening of international collaboration and assistance in the fight against the mentioned crimes and its criminal punishment (article 6). Furthermore, the Protocol places concrete obligations on States Parties to protect the child survivors of such crimes in the course of the establishment of criminal proceedings against perpetrators (article 8), an issue that was raised by various presenters during the public hearings, who expressed major concern in relation to possible secondary abuse of the child survivor.
The Task Group further takes note of the existence of the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime. The Convention Against Transnational Organized Crime was signed by South Africa, but has not yet been ratified. Trafficking is defined in article 3 of the Optional Protocol as including
[…] the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of the position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploition.
In the context of the Protocol, exploitation comprises
[…] the exploitation of the prostitution of others or other forms of sexual exploitation […].
The Protocol aims specifically at criminalising all forms of trafficking in children (see article 5) and at assisting and protecting survivors of trafficking (see article 6). In doing so the Protocol has the potential to extend the protection of sexually abused children beyond what is already granted and provided for by other international treaties such as the more general African Charter on the Rights and Welfare of the Child and the UN Convention on the Rights of the Child.
The coming into force of these two above-mentioned international law instruments for South Africa would therefore add to the protection of children from all kinds of sexual abuse, both nationally and internationally.
With regard to the specific problem of commercial sexual exploitation of children through the use of modern communication technology, it must be noted that South Africa has signed the Council of Europe Convention on Cybercrime. This Convention aims at closing existing loopholes in legislation that emerge through the rapid advancement and development of modern technology. Article 9 of the Convention would place the country under obligation to act against child pornography on the Internet. This Convention could therefore be an answer to questions in relation to crimes committed using the Internet as highlighted earlier in this Report. South Africa, however, has not yet ratified this Convention.
The Task Group recommends
Several presenters raised the question of sexual exploitation of children in a commercial context, for example child pornography and child prostitution. Furthermore, the problem of international trafficking in children for the purpose of commercial sexual exploitation was raised. The Task Group takes note of contentions that South African children are increasingly being trafficked into slavery or prostitution.
However, the Task Group found that the research presented at the hearings did not necessarily reflect the situation in South Africa with regard to the trafficking of children accurately, and that it could not assess the extent of commercial sexual exploitation in South Africa. The Task Group, however, notes that the impact of commercial sexual exploitation on the well being of affected and vulnerable children is devastating and needs to be properly addressed by cooperation of all State authorities on a national and international level. One must not forget that a child does not prostitute her or himself out of free choice but is always a victim of criminal activities of other people.
The problem of child pornography and the State responses to the production, proliferation, and consumption thereof, will be discussed in the context of issues related to the mass media. The Task Group notes that it is a serious criminal offence to use children for the production of pornography, and that the distribution and consumption of this kind of pornography should be punished severely.
With regard to the specific distribution of child pornography through electronic media, the Task Group is of the opinion that there are shortcomings in the national legislation currently in existence. The Film and Publications Act (Act No 65 of 1996), does not properly address the risks imposed by modern technological developments and needs to be updated. Section 27 of the Act creates the offence of knowingly creating, producing, importing or being in possession of a publication or film that contains a visual presentation of child pornography. The definition of the term "film" seems to be broad enough to encompass visual presentations and images relayed on the Internet. However, given its special focus and the nature of the classification system, it is clear that the Act does not, and cannot, specifically regulate Internet material, including advertisements, accessible to children.
The Task Group therefore recommends
The role of the media in promoting sexual violence against women and children was raised in different submissions; at the same time, some presenters believed that the media has a positive role to play in campaigns aimed at combating these forms of violence. It was argued before the Task Group that the media is contributing to the image of women and children as commodities and that the unequal power relations between men and women exacerbate the situation. This adds to the perception that men have the right to claim sexual subservience from women and children.
The Task Group notes the concern expressed about the content of programming on the national television channels, especially as it relates to violence or sexually explicit material. It also notes the submission that the South African Broadcasting Complaints Commission is not sufficiently effective in dealing with complaints from the public, and that its Code of Conduct is regularly breached. However, the Task Group did not receive any submission that details such instances.
The Task Group notes at this juncture that it is important to use the media as an effective tool for raising public awareness around sexual violence. It further notes that the media has a responsibility to report regularly and consistently on matters surrounding sexual violence against children, rather than predominantly covering sensational cases. Recommendations on the role of the media in changing attitudes about gender roles, power relations and sexuality are contained elsewhere in this Report.
A substantial portion of the submissions that focused on the media, however, dealt with the question of pornography and its possible link to sexual violence against women and children. The question was raised whether pornography and other media exposure cause rape, and different arguments were put forward at the hearings.
The South African Government made a clear decision around the legality of adult pornography with the introduction of the Films and Publications Act in 1996. While it wanted to make a clear break with the censorship laws of the past, it sought to ensure, among others, that the right to freedom of expression, as it pertains to the right to be in possession of adult material depicting adults in non-violent sexual acts, is protected. At the same time, the legislation sought to prohibit the possession or distribution of child pornography, material that depicts sexual violence and material that depicts bestiality or excessive violence.
The Task Group recognises of the opinion that Government policy, the Films and Publications Board, and the judicial system armed with the Films and Publications Act in turn, has had to balance the individual freedom of expression guaranteed in the Constitution (Section 16) with the need to protect vulnerable sections of society against abuses of that freedom. This tension provides some of the context within which discussions of pornography have taken place, and continues to inform the debate about pornography in South Africa.
Although it considers this a serious and ongoing debate, the Task Group also notes the concern expressed that our laws do not sufficiently protect children against adult pornography. With regard to child pornography, the Task Group emphatically supports Government’s position: child pornography is not a matter of freedom of expression, nor is it a genre of erotica. It is both a form of sexual exploitation of children and a representation of that exploitation. The Task Group agrees with the position that child pornography is often used to abuse more children, noting various studies that suggest a direct link between child pornography and abuse.
The Task Group believes that any child pornographic image constitutes child abuse. The image degrades and dehumanises children, whether it involves real children in its production or whether it is simulated. It also notes suggestions that having been abused through child pornography leaves an indelible mark on the child, and could result in severe behavioural consequences for the child in later life. Therefore the Task Group believes that there can be no tolerance for the production, distribution or possession of child pornography.
The distribution of child pornography continues to abuse the child long after the perpetrator may have been apprehended. In view of the operation of the Internet as a worldwide and virtually immediate distribution tool, and the overwhelming evidence that pornographic sites on the Internet are increasingly easy to access, the Task Group expresses great concern that South Africa still has no legislation in place to deal with the distribution of child pornography on the Internet. It notes the proposals contained in the draft Films and Publications Amendment Bill, but finds no satisfactory answer to why this Bill has still not been tabled in Parliament for consideration and adoption.
South Africa is bound by the UN Convention on the Rights of the Child (Article 34) of which places it under further obligation to put in place legislation that will expressly protect children against child pornography – a form of commercial sexual exploitation of children. The African Charter on the Rights and Welfare of the Child also makes very clear reference (Article 27) to the obligation on States parties to protect children by preventing the use of children in pornographic activities, performances and materials. The link between child pornography and commercial sexual exploitation of children is further established in the International Labour Organization’s Convention 182 to which South Africa is party.
These international instruments, already binding upon our country have been discussed more fully elsewhere in this Report.
The question of the role of the media in identifying sexual abuse survivors and their families is discussed elsewhere in the report within the context of the criminal justice system, and findings and recommendations with regard to appropriate conduct for the media are elaborated there.
However, the Task Group was particularly concerned about the submission made by the producer of a BBC-commissioned documentary film about child rape in South Africa. Members expressed their deep concern about the protection of the identity of survivors or their families in such films. There was also concern about whether participants in documentary films of this nature are being encouraged to participate by way of financial incentive, and whether they are afforded the opportunity to make informed decisions about the implications of their participation in such a film.
The Task Group recommends
each Party shall designate a point of contact available on a twenty-four hour, seven-day-a-week basis, in order to ensure the provision of immediate assistance for the purpose of investigations or proceedings concerning criminal offences related to computer systems and data, or for the collection of evidence in electronic form of a criminal offence.
Children are our most valuable resource for the future of our country and we need to ensure that they are given the best care, attention, protection and love in order to ensure that the future of the country is in the hands of responsible and caring adults. This message of how precious and vulnerable our children are was brought home to the Task Group when it heard direct evidence from abused children. The Task Group was very moved and touched by the openness and strength of these children who had the courage to share their feelings at the hearings. The Task Group wishes to express its deepest gratitude to these children.
The Task Group is of the opinion that any efforts aimed at addressing the levels of violence in South African society must take cognisance of the conditions under which large numbers of people in South Africa live. The social disintegration that results from the legacy of Apartheid contributes to a situation where violence becomes a means of exerting and asserting power. A situation of poverty very often renders not only the child survivor powerless, but also those persons who must protect the child.
The vision that South Africa has for its children is that they will live in a society in which they can achieve their full potential by growing up in a secure, stable and loving environment where they have the opportunity to develop physically, intellectually, emotionally, socially and spiritually. The rights enshrined in the South African Constitution, and as set out in international instruments such as the African Charter on the Rights and Welfare of the Child and the UN Convention on the Rights of the Child must form the basis on which this vision is transformed into a reality. In terms of these instruments, both national and international, each child has the right to parental or family care, to grow up within the context of that family and his or her community, and to be protected against maltreatment, abuse, neglect and degradation.
South Africa has in many respects made significant advances in establishing the beginning of a rights-based culture through the passing of crucial legislation that addresses the State’s responsibility to give effect to the Constitutional rights. The establishment of a jurisprudence that speaks directly to the manner in which individuals are able to demand certain rights from the State, has been seen as a very important achievement for such a young democracy. However, the social reality that millions of South Africans face daily, and the reality that children are the most vulnerable under circumstances of social deprivation, severely impedes the realisation of those rights.
Government must therefore concentrate its efforts to enhance people’s developmental capacity by creating an environment where individuals are able to work, to participate in community life and to protect the families they form part of. Despite very real progress made in relation to improving people’s material conditions and thereby strengthening children’s developmental opportunities, every year thousands of children still experience emotional, physical and sexual abuse.
The Task Group has heard the concern, comments and recommendations of a broad number of individuals, organisations of civil society, as well as certain government departments. It has considered all the submissions presented to it, and makes the following findings and recommendations by way of conclusion:
The Task Group recommends -