Submission to the Parliamentary Portfolio Committee on Justice and Constitutional Development on the Criminal Law (Sexual Offences and Related Matters) Amendment Act

We would firstly like to commend the Portfolio Committee on Justice and Constitutional Development [“the Committee”] for facilitating written submissions on the proposed amendments The Criminal Law (Sexual Offences And Related Matters) Amendment Act Amendment Bill [“the Bill”].

We further support the action of the Committee to amend the Criminal Law (Sexual Offences and Related Matters) Amendment Act [herein referred to as “the Act”] in order to address the penalty clauses as a matter of urgency and specifically applaud the Committee on taking prompt action in addressing the impact of the Western Cape High Court’s judgment in the case of the Director of Public Prosecutions, Western Cape v Arnold Prins on the Act handed down on 11 May 2012 by declaring certain sexual offences contained in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (herein referred to as the “SOA” or “the Act”) legally uncertain due to the lack of disclosure of criminal offences.

The Bill (B – 2012) proposes substantive amendments to the Act. Section 11 [Engaging the sexual services of persons 18 years or older]; section 17(1) [The unlawful and intentional engagement of the services of a child complainant, for financial or other reward, favour of compensation]; section 23(1) [The unlawful and intentional engagement of the services of a complainant who is mentally disabled for financial or other reward, favour of compensation]; and section 56 [Defences and sentencing].

In this submission we will comment on the proposed amendments, the emphasis of which lies with the amendment to Section 56 of the Act. However, we would also like to draw the attention of the Committee to a number of challenges facing the implementation of the Act. It is not our intention, in raising these other areas of concern, to delay the process of amending the Act to address the immediate issues surrounding defences and sentencing. Rather we hope to alert the Committee to these additional issues and to appeal to the Committee to put in place a strategy to address with these, and other weaknesses, of the Act.