Durban - The Constitutional Court’s declaration that the merits of a case should determine whether a child’s name would be placed on the National Register for sex offenders was not sufficient, law lecturer Danielle de Bruyn has argued.
“The court should have gone further and ruled that placing a juvenile on the register is, in itself, unconstitutional,” University of Pretoria law lecturer De Bruyn told delegates on Monday at the conference of the Society of Law Teachers of Southern Africa, which is being held in Durban.
De Bruyn was one of the presenters on the first day of the three-day conference, hosted by Varsity College.
Last year the Constitutional Court declared section 50(2) of the Sexual Offences Act unconstitutional.
The section demanded that when a person had been convicted of a sexual offence against a child or mentally disabled person, the courts had to order that their details be included in the National Register for Sex Offenders.
“Why do we make use of criminal justice mechanisms specifically intended for adult offenders to punish the actions of juvenile offenders?” De Bruyn argued.
She asked delegates to consider the scenario of Marc, a 10-year-old boy, and Sally, his 9-year-old neighbour, who had decided to play “doctor doctor”.
Marc inspected Sally’s entire body, to determine what “disease” she had.
Sally’s mother then walked into the playroom, and saw Sally naked on the carpet and Marc examining and touching Sally’s body.
According to the Sexual Offences Act, Marc’s conduct amounted to a sexual violation, which meant that the 10-year-old would be put on the register.
While De Bruyn criticised the ambit of the register, she conceded it was currently the only viable mechanism to address and monitor the existence of sexual offenders - whether adult or juvenile.
“The fact that the criminal justice system fails to provide sufficient and sustainable alternatives does not justify the use of a mechanism infringing upon the rights of the juvenile offender,” she said.
For child offenders such as 10-year-old Marc, diversion and restorative justice were two possible alternatives.
Diversion was a technique which deferred cases away from the criminal justice system to protect children from being exposed to the courts.
The Child Justice Act provided for various diversion options which included that a child offender would be placed under the supervision of someone who kept track of and guided their behaviour.
“If the child agrees to diversion, it is one of the best ways to achieve restorative justice, and to address the cycle of crime,” De Bruyn argued.
Restorative justice was grounded in the argument that punishment through criminal law was insufficient as a deterrent to sexual crimes, she said, quoting earlier research.
Restorative justice, unlike imprisonment, viewed a criminal offence as a harm done to the community.
The aim was to identify this harm done and find ways to redress the harm inflicted by the sexual offender.
“It has been proven that restorative justice lessens either the severity of recidivism rates or the frequency of sexual crimes, but evidence has shown these statistics are more successful when it comes to juvenile offenders than adult offenders,” she argued.
The Mercury