By Reports By Angela Quintal
The battle to improve the criminal justice system for victims of sexual violence is far from over.
The Sexual Offences Bill was approved by the cabinet on Wednesday and is likely to be tabled in parliament this week, but gender and children's activists believe it can and should go further.
The bill remains at the very least "a golden opportunity lost" and at worst "has the potential to continue unabated the secondary victimisation that children experience as they go through the criminal justice system".
This is according to Joan van Niekerk, Childline South Africa's national co-ordinator, who helped draft the original bill presented to the then justice minister in January 2003 and which differs substantially from the one approved by cabinet this week.
"I have worked eight-and-a-half years on this. To see what has been taken out of this bill is, for me, quite devastating," Van Niekerk said.
Samantha Waterhouse of Resources Aimed at the Prevention of Child Abuse (Rapcan) said while it was an improvement, the bill failed to address several shortcomings in the system. This related in particular to rules of evidence and procedure in court.
"I am horrified to see that only survivors who report a rape to police will have access to HIV post-exposure prophylaxis. This means the majority of people who need it will not access it."
Waterhouse said the bill also did not do much to improve the response of the police to rape, which was one of the reasons why people did not report rapes in the first place.
"The department of health policy that exists does not require this, so it represents a step backward," she said.
Civil society organisations and NGOs like Childline and Rapcan will probably still have an opportunity to push for changes when the national assembly and the National Council of Provinces' justice committees process the bill in parliament.
This week 260 representatives of government, NGOs, business, traditional authorities and international aid agencies, among others, adopted the so-called Kopanong Declaration on 365 days of action to end violence against women and children.
They committed themselves to ensuring that before November 25 this year - the start of the "16 days of activism" campaign - the Sexual Offences Bill would be adopted in parliament "after a further round of public comment".
Indications are that the duplication in this bill and the Children's Act in relation to a register that will protect children from those found to be unsuitable to work with them will be resolved.
Lakela Kaunda, the spokesperson for the social development department, told Independent Newspapers that the department was in talks with its justice counterpart on the need to have a single child register for the country.
A spokesperson for Zolile Nqayi, the deputy minister of justice, confirmed that the issue was not cast in stone: "I am sure this will come up and we may well end up with one or both depending on the necessity, but we will definitely not duplicate the existing register under social development."
He said, however, there were differences between the Child Protection Register, which falls under social development, and the proposed national register for sex offenders, which would fall under the justice minister.
The need for one register is supported by Van Niekerk and Waterhouse.
"It is best to have a single register in one place and that meets all the needs that we have," Waterhouse said.
Van Niekerk said it was iniquitous to have two registers, given the shortage of resources and the expense of setting up and running one.
The one in the Children's Act was better because it was broader, she said.
Others shortcomings included the bill's failure to provide that children should have the automatic right to use the intermediary system.
The Criminal Procedure Act provides that children up to 18 can have access to the intermediary system, which includes using a CCTV system and a person trained to relate what is being said to the child in court.
However, the actual practice was that courts were reluctant to use the system for children who were older than 12, said Waterhouse.
Waterhouse would like the CCTV system to be extended to adults.
Currently the system is used only in the most dire adult cases, where a complainant is being intimidated or harassed or is in serious danger.
"It is not as though we do not have the facilities available," Waterhouse said, referring to the specialised sex offences court.
"It is simply that the courts prefer to have the victim in front of them."
This often gave rise to secondary victimisation and caused more trauma for the complainant.
Waterhouse said she believed that such protective measures would not undermine the constitutional rights of the accused.
"There is enough practice to show that it does not undermine the accused's right to give evidence, to see his accuser and hear what the accuser says and to question and cross-examine."
However, Van Niekerk believed something more sinister was at play.
"I think the bill is gearing up to dismantle our specialised sexual offences court," she said. "That is what I see on the wall with this bill. We really need a public outcry."
Van Niekerk would also have liked to see the removal of the need to link the "undue trauma of a child" to the use of the intermediary system, as provided for in the Criminal Procedure Act.
In fact she would like a system whereby the majority of children, and many adult victims, have the right to use the intermediary system without following a process that assesses whether or not they will experience undue trauma if they testify in the normal way.
Van Niekerk recalls how a five-year-old girl who witnessed her father murder her mother was forced to testify in her father's presence after a high court judge rejected the trauma report.
"The child came to court to testify, took one look at her father standing in the dock, and that was then the end of the child's evidence. She just could not testify.
"To leave this up to discretion is a cause of enormous secondary abuse for children."
With all eyes on the Johannesburg high court tomorrow for the verdict in the Jacob Zuma rape trial, the bill - had it been law - would have made it more difficult for the complainant to be unnecessarily questioned on her previous sexual history, Waterhouse said.
Noting that the bill provides for a judicial discretion, she said: "There is no telling what a presiding officer would do, but it would have been much more difficult for some of that information to be adduced as evidence. Some of it might have got in, but certainly who she had sex with over the previous five years would not have been allowed."
Meanwhile, Van Niekerk and Waterhouse are concerned about the exclusion of civil society organisations from the development of a national policy framework.
Given that they are the ones who provide the bulk of services to victims, civil society organisations would bring into the process some of the real issues that need to be addressed.
This week Johnny de Lange, the deputy justice minister, said he was very proud of the Sexual Offences Bill, which he described as progressive.