The automatic inclusion of child offenders on the sex offender register is an unjustifiable violation of their rights, says the Centre for Child Law, which is arguing that proper assessment and treatment will yield better results.
This is part of the argument which will be advanced on Thursday to the Constitutional Court by the head of the University of Pretoria’s Centre for Child Law, Professor Ann Skelton.
She will act on behalf of Childline South Africa, the Teddy Bear Clinic for Abused Children and the National Institute for Crime Prevention in a challenge brought by a young rapist in his bid to stay off the sex offender register.
The three organisations will enter the fray as friends of the court.
The boy was 14 when he raped three boys. In August 2012 the youngster pleaded guilty and was sentenced to five years at a youth care facility in the Western Cape.
He spent a further three years in the youth facility, but received a suspended sentence for assault.
In terms of the Sexual Offences Act, the trial court ordered that his name be entered in the national register for sexual offenders, which means he may never work with children or have access to places where children are present, adopt or foster children or be a caregiver.
On review, two Western Cape judges declared the provisions of Section 50(2) of the act inconsistent with the constitution, as it was broad and did not afford the teenager the opportunity to state his case.
It was, however, ruled that their order was not retrospective and its effect was suspended for 18 months to give Parliament time to amend that section of the act. As it is a constitutional issue, the highest court has to have a second look at the judges’ order.
Part of the case to the Concourt is that sexual penetration and sexual violence are defined in broad terms, and could include anything from hugging and kissing to masturbation and sexual intercourse in cases where there is no consent.
The primary aim of the register is to protect children and people with mental disabilities from predatory adults by limiting such adults’ employment opportunities to job categories which do not involve access to children.
Skelton, in her heads of argument to the Concourt, said they were opposed to the automatic inclusion of a child sex offender’s name on the register without an assessment of that child by a professional.
She said the offender’s lawyer should place reasons before a court as to why the child’s name should not be included.
Skelton said child offenders’ names should not be included unless the State proved there were substantial circumstances to do so. She said the best interests of children always came first, and automatically adding their names to the register contradicted the principle that they should be treated differently from adult offenders.
It was widely accepted that adolescents were especially vulnerable to stigma, and being placed on the register may place an additional burden on young offenders.
Skelton said there was no evidence to suggest that child sex offenders became adult sex offenders who preyed on children.
She asked the court to declare the provisions unconstitutional and give Parliament a year to place this on the law books. Skelton asked that a moratorium be placed on including a child’s name on the register.