Fine-tuning a progressive act

2017-11-26 06:13

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Laws related to sexual crimes have come a long way since the 1927 Immorality Act, which prohibited sex between ‘Europeans’ and ‘natives’. Michelle Solomon examines the successes and shortcomings of the current Sexual Offences Act.

South Africa currently has some of the most progressive legislation when it comes to sexual violence. But this was not always the case. As forward-thinking as the current laws may be, various sections still negatively affect South Africans, including the victims and survivors of sexual violence. These are, after all, the people whom such laws are meant to protect.

The Sexual Offences Act of 2007 represents the core legislation defining what sexual offences are and the sentences attached to these crimes. It replaced the infamous Immorality Act, promulgated in 1957. That act was preceded by a similar one, enforced from 1927 – the first Immorality Act.

The 1927 legislation was the first to prohibit specifically unmarried sex between so-called Europeans and natives.

It also criminalised “procuring” women for interracial intercourse, and even contained a proposed sentence of up to six years’ imprisonment for women of colour who were thought to be “provoking” white men to have sex with them.

In 1950, an amendment was made forbidding sexual intercourse between Europeans and anyone not European. And in 1957, a clause was inserted prohibiting sexual intercourse or “immoral or indecent acts” between white people and people of colour.

These acts, and their subsequent amendments, were not only racist and misogynistic, but also homophobic. Sex between men had long been criminalised under the common law crime of sodomy, but a 1969 amendment introduced the infamous “three men at a party” clause, which prohibited any sexual activity between men at a party – where party was defined as any occasion at which more than two people were present.

All of these enactments served to deny victims and survivors of sexual violence access to justice, while persecuting those who engaged in consensual acts wrongfully criminalised in law.

The most substantial changes to sexual violence legislation came in the form of the Sexual Offences Act of 2007, which saw most provisions of the previous versions repealed or replaced – leaving only those sections relating to prostitution and brothel-keeping intact.

Some of the most significant changes included broadening the definitions of sexual offences such as rape and sexual assault, as well as decriminalising homosexuality.

The act will continue to be amended and fine-tuned

While this act has radically changed how sexual offences are defined and prosecuted, the constitutionality of some of its sections have been challenged over the past decade.

The challenge currently being presided over by Constitutional Court judges concerns section 18, which limits the right to prosecute all sexual offences, other than rape, once 20 years have passed since the offence was perpetrated.

The case was initially brought before the Johannesburg High Court in June by eight alleged victims of billionaire stockbroker Sidney Frankel, who accused him of having sexually assaulted them between 1976 and 1991, when they were children.

The court ruled in favour of the so-called Frankel 8. It is now up to the Constitutional Court to confirm this judgment.

The Women’s Legal Centre and others argue that section 18 denies the right of the applicants to human dignity by arbitrarily distinguishing between nonpenetrative and penetrative sexual offences.

They claim that the protection afforded to survivors of nonpenetrative sexual offences – as opposed to survivors of rape – infringes on the formers’ right to equality, rendering section 18 unconstitutional and therefore invalid.

In 2013, sections 15 and 16 – relating to the criminalisation of consensual sexual activity between teenagers aged 12 to 15 – were impugned. These laws had prohibited children of this age from engaging in voluntary and consensual sexual conduct with each other. The prohibited conduct included anything from holding hands to penetrative sex, as well as any consensual behaviour that an adult might consider sexual.

Human rights activists had expressed concern that under sections 15 and 16, teenage rape survivors, especially girls, ran the risk of being criminally charged for being raped. Sanja Bornman, then an attorney at the Women’s Legal Centre, said these sections played a part in denying health services to young teen rape survivors.

And since girls bear the physical markers of sex – both in terms of falling pregnant and having a higher chance of contracting a sexually transmitted disease – they were also more likely to be prosecuted under this legislation, said Bornman.

“Clearly, section 15 and 16 affect girls disproportionately to boys, and for that reason alone the sections violate all girls’ constitutional right to equality before the law,” she argued.

In a unanimous judgment, the Constitutional Court found that sections 15 and 16 served to deny teenagers their right to privacy and dignity.

While the Sexual Offences Act sets one of the most progressive legal frameworks globally with regard to the definition and prosecution of sexual offences, this does not necessarily translate into effective implementation of the law.

A 2008 research report, conducted by the Centre for the Study of Violence and Reconciliation, found that the conviction rate for rapes reported in Gauteng in 2003 was only 4.1%. A conviction for any sexual offence resulted in just over 6.2% of cases.

In a similar study released this year, the centre found that the conviction rate for any sexual offence reported in Gauteng in 2012 was only 6.5%.

These results are alarming as they point to a failure of the police and justice system to adequately prosecute sexual offences.

As happens with legislation, the act will continue to be amended and fine-tuned. But all this work will amount to nought if the state – including the police, the National Prosecuting Authority and the judicial system – continue to fail to implement and defend the law for the sake of protecting victims and survivors of sexual violence.

Solomon is a subeditor at City Press.

Follow her on Twitter @mishsolomon

Read more on:    16 days of activism  |  women abuse  |  violence

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