ZALC - Issue Paper 10 (Project 108): Sexual Offences Against Children

2.1.1 It is believed that this investigation - with its focus on changes to the present system, structure, process and legislation - should be guided by some basic principles relating to children and their special needs. The Project Committee would like to highlight the desirability of such a set of principles and include for discussion such a set of principles at the end of this Chapter. The principles are derived from the UN Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, 1990, the Constitution of the Republic of South Africa, 1996, and workshops and should be debated extensively.

2.2 The UN Convention on the Rights of the Child, 1989

2.2.1 On 16 June 1995 the South African Government of National Unity ratified the United Nations Convention on the Rights of the Child.^[13] In order to fulfil our international obligations under the Convention, we are bound to the monitoring, promoting, protecting and reporting of the status of our country’s children.

2.2.2 For present purposes, two provisions of the Convention are of particular importance. First, Article 19 of the Convention, which reads as follows:

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.

States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

(a) the inducement or coercion of a child to engage in any unlawful sexual activity;

(b) the exploitative use of children in prostitution or other unlawful sexual practices;

What should be done to ensure that South Africa complies with its international obligations in terms of the UN Convention on the Rights of the Child? What other international instruments signed, acceded to or ratified by South Africa can play a role in preventing and responding to the sexual abuse of children?

2.3 The African Charter on the Rights and Welfare of the Child, 1990^1[4]

2.3.1 The Organisation of African States has adopted the first regional declaration and treaty on the rights of the child.^[15] Article 16 of the African Children’s Charter follows the wording of Article 19 of the UN Convention on the Rights of the Child and protects children against abuse and torture. Article 27 of the African Children’s Charter likewise repeats the content of the prohibition on the sexual exploitation of children contained in Article 34 of the UN Convention quoted above.

2.3.2 What is interesting about the African Children’s Charter is that the rights of children are placed in cultural perspective. Children are, for instance, protected against harmful social and cultural practices.^[16] Article 21 of the African Children’s Charter reads as follows:

1. States Parties to the present Charter shall take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child and in particular:

(a) those customs and practices prejudicial to the health or life of the child; and

(b) those customs and practices discriminatory to the child on the grounds of sex or other status.

2. Child marriage and the betrothal of girls and boys shall be prohibited and effective action, including legislation, shall be taken to specify the minimum age of marriage to be eighteen years and make registration of all marriages in an official registry compulsory.

2.4 The impact of the Constitution of the Republic of South Africa, 1996

2.4.1 South Africa’s ratification of the UN Convention on the Rights of the Child can in many respects be seen as a logical corollary to the inclusion of a section dealing with children’s rights in the Constitution, 1993.^[17] This tandem development is bound to extend the influence of international norms over many areas of our domestic law dealing with children. The Constitution, 1996 is the supreme law of the land and any law or administrative act in conflict with any of its provisions can be declared invalid. Children are entitled to all the constitutional guarantees, the cornerstone of which is respect for human dignity and equality before the law.

2.4.2 Children receive special protection in terms of the Constitution, 1996. Section 28 of the Constitution, 1996 reads as follows:

(b) to family care or parental care, or to appropriate alternative care when removed from the family environment;

(ii) place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development;

(g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be-

(ii) treated in a manner, and kept in conditions, that take account of the child's age;

(h) to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and

(i) not to be used directly in armed conflict, and to be protected in times of armed conflict.

(2) A child's best interests are of paramount importance in every matter concerning the child.

2.4.3 This section now serves as the benchmark against which all legislation and administrative conduct dealing with children have to comply. It constitutionalises the “best interest of the child”-concept and provides additional guarantees to children to be detained.

Does this constitutional provision sufficiently protect our children with regard to sexual offences? How can this provision be made more effective? How can, for instance, the guarantee in the Constitution, 1996 that every child has the right to be protected from maltreatment, neglect, abuse or degradation be implemented and enforced?

What does it mean to a child to have a right to family care or parental care, or “to appropriate alternative care when removed from the family environment”? And what does it mean for a child not to be detained except as a measure of last resort?

Why is the child not afforded the constitutional right to legal representation assigned by the state, and at state expense, in all criminal, civil, and administrative proceedings affecting the child?

How should the principle “the child’s best interests are of paramount importance” find application in our law? What does the phrase mean?

2.4.4 Constitutional guarantees provide a vehicle for implementation of children’s rights in practice. The problem is, however, that children as legal subjects are unlikely litigants by reason of their status as children. Furthermore, the Constitution, 1996 and especially the Bill of Rights also impact on existing legislation dealing with children.^[18] Likewise, the right to a fair trial and the presumption of innocence; the rights of accused, detained and convicted persons; etc. are accorded not only the juvenile sexual offender, but also the previously multiple convicted paedophile.

How should the rights of victims of sexual abuse be protected both before, during and after the criminal and the children’s court process without compromising the rights of the accused?

2.5 Developing a set of principles

2.5.1 The following principles were originally developed by a working group in Kwa-Zulu Natal that got together after the conference “Sexual offences against children, the legal system and the management of the offender and the victim” held at the University of Durban-Westville in 1994. The Project Committee believes these principles can be used as a basis for discussion and would like to advance it. It reads as follows:

Any person involved with the management of sexual offences against and / or by children shall be guided by the following principles:

2. Unless the safety of the child and the community requires otherwise, restorative and rehabilitative alternatives should be applied.

3. As abused children have suffered trauma, the avoidance of secondary trauma through systems involved in the management of abuse is of paramount importance.

4. All professionals and role players involved in the management of sexual offences against children should be appropriately trained.

5. Children may not be discriminated against, either directly or indirectly, on the grounds of race, colour, gender, ethnic or social origin, sexual orientation, age and developmental level, disability, religion, conscience, belief, culture or language.

6. The vulnerability of children entitles them to special protection and provision by all disciplines during all phases of the investigation and court process, including the implementation and implications of sentencing the sexual offender.

7. Children have the right to express an opinion, to be involved in all decisions, and to have their opinion taken seriously in any matter affecting them.

8. Together with all due process and constitutional rights, children have these additional rights:

a. To have present at all decisions affecting them a person or persons important to their lives, except where that participation would not be in the best interests of the child or where the safety of the community requires otherwise;

b. To have matters explained to them in a clear understandable manner appropriate to their age and in a language which they understand;

c. Where it is in the best interests of the child, the child remains in the family during the investigation and whilst awaiting a final resolution of the matter. However, there should be periodic review of placement.

d. A child is entitled to have procedures dealt with expeditiously in time frames appropriate to that child and the offence.

e. Children have the right to legal representation in civil, criminal, and administrative proceedings.

9. The family and the community are central to the well-being of the child. Therefore in any decisions consideration should be given to:

a. Ensuring that the family, community and other significant role players are consulted in all decisions relating to the child.

b. How decisions affecting the offender will affect the child, family and community.

c. The particular relationship between the offender and the child must be considered.

d. Keeping disruptive intervention into child, family and community life to a minimum in order to avoid secondary victimisation of the child.

10. A person who commits a sexual offence must be held accountable for his or her actions and should be encouraged to wholly accept responsibility for his or her behaviour, and to develop insight into the impact of such behaviour on the child and family.

11. In deciding sanctions for a person who has been found guilty of committing a sexual offence against a child:

a. The sanctions applied should ensure the safety and security of the child, family and community;

b. The sanctions should promote the restoration of the child, family and community.

c. The young sexual offender bears special consideration in respect of sanctions and rehabilitation.

d. In considering the long-term goal of safety and security of children, families and communities, the possibility of rehabilitating the sexual offender should be considered.

e. The interests of the victim should be considered in any decision regarding sanctions.

12. In all actions, in the investigation, the procedures, penalties and other actions, there should be awareness of, respect for, and cognizance taken of the needs, values and beliefs of particular cultural and ethnic groups applicable to the victim, the offender, and to their communities.

14. The child and family are entitled to receive such therapeutic assistance as is necessary to promote healthy functioning. Where possible the offender should make a financial or material contribution to such assistance.

2.6 Conclusion

2.6.1 The principles embodied in the UN Convention on the Rights of the Child, 1989; the African Children’s Charter, 1990; the Constitution, 1996; and the above set of principles should underlie all legislative reforms. It should further guide the conduct of all actors involved in this field.

[13] For the text, see Van Bueren (ed) International Documents on Children 7 et seq.

1[4] For the text, see Van Bueren (ed) International Documents on Children 33 et seq.

[15] The possibility of a Community Charter of Rights of Children is being discussed within Europe: European Parliament Doc. EN\PR\122138.

[16] In accordance with African tradition, the responsibilities of children are also recognised. See Article 31 of the African Charter on the Rights and Welfare of the Child, 1990.

[17] For a description of the genesis of the section on children’s rights, see Lourens du Plessis and Hugh Corder Understanding South Africa’s Transitional Bill of Rights 186. The section was incorporated basically unchanged as section 28 of the new Constitution, 1996. See further Julia Sloth-Nielsen “Chicken soup or chainsaws: Some implications of the constitutionalisation of children’s rights in South Africa” 1996 Acta Juridica 7 et seq.

[18] See, for instance, Fraser v Children’s Court, Pretoria North 1997 2 SA 218 (T) on the constitutionality of section 18(4)(d) of the Child Care Act, 1983.

South African Law Commission

CHAPTER 2

THE UNDERLYING PRINCIPLES

2.1 Introduction

2.2 The UN Convention on the Rights of the Child, 1989

2.3 The African Charter on the Rights and Welfare of the Child, 1990^1[4]

2.4 The impact of the Constitution of the Republic of South Africa, 1996

2.5 Developing a set of principles

2.6 Conclusion