Resources Aimed at the Prevention of Child Abuse and Neglect Promoting Crime Prevention and Responding to Sexual Offences in the Child Justice Bill RAPCAN Resources Aimed at the Prevention of Child Abuse and Neglect Presentation to the Portfolio Committee on Justice and Constitutional Development Cheryl Frank, Executive Director and Samantha Waterhouse, Advocacy Manager

About RAPCAN Focus is primarily on child victims, especially victims of sexual offences RAPCAN’s agenda: crime prevention, victims RAPCAN delivers services to over 4000 people annually in Sexual Offences Courts Train over 3000 people a year – professionals (social workers, psychologists, educators) in the system Characterisation of civil society organisations Information relating to the functioning of the system

Focus of this Presentation How the Child Justice Bill may promote crime prevention and safety in South Africa for all citizens, and particularly, for victims of crime. Submission also focuses on the provisions of the Bill relating to sexual offences.

Why the Child Justice Bill must promote crime prevention and a safer South Africa There are many positive aspects to this Bill which we have noted in our written submission Given the unusually high levels of crime and victimisation in the country, high levels of fear of crime, no criminal justice legislation or policy can afford to ignore the need to promote crime prevention, community safety and the rights and needs of victims. Given this situation, if there is area that we need to invest in, it is this one. The central effects that must be achieved by the administrative provisions that are created by the Child Justice Bill are: The protection of children that come into conflict with the law Holding children accountable for offending behaviour Preventing child offenders from repeating offending behaviour.

Crime Prevention: Why are offenders important? Offenders in the criminal justice system are extremely accessible for intervention. We can know many things about them including their names, where they live, their offending history, risk factors for offending, etc. Offers a critical opportunity for crime prevention. International trend: in developed and developing countries where this data is collected indicates that a relatively small percentage of offenders are responsible for a high proportion of offences. 6-7% of young males commit between 60-85% of crime. Interventions targeted at this group can have significant benefits.

Crime Prevention: Why are offenders important? Adolescence is the most common age period for law-breaking throughout the life-span. SA has a youthful population (42.3% of the population is under the age of 19) The vast majority of child offenders (including sexual offenders) will not grow up to become adult offenders. It is equally important to note the damage that can be done by the criminal justice system in terms of creating or exacerbating the risk factors for offending. There is a very strong relationship between child victimisation and child offending. Firstly, children and young people are twice as likely to be victimised as adults. Another trend: victims of violence were significantly more likely than non-victims to become violent offenders. RAPCAN’s experience.

Recommendations For the Bill to effectively promote crime prevention, our submission argues, like other submissions made yesterday, for: All children to be assessed Preliminary Inquiry for all children left in the system No restrictions on access to diversion Sentencing

Assessment Seriousness of the offence: Purpose of assessment is information gathering (no decision-making); information is needed for all later processes through to sentencing. Capacity to assess: Probation Services Amendment Act 2002 75 - 80% coverage Where assessment services do exist – all children are being assessed Monitoring research (3 sites): Assessment capacity exist, most children being assessed, but this varied.

First appearance in court Preliminary Inquiry First appearance in court Decision-making (involves prosecutor, magistrate and others) Data from the pilot of the Mangaung One-Stop Centre: 7% of cases that, no restriction on who goes through – value of PI for all children is self evident

Diversion There should be no restriction on diversion No substantial implications for practice (NPA has guidelines) There should be no restriction in law for children, as there is no restriction in law for adults. Children should not get less consideration than adults.

Why focus on Sex Offenders? Concerned with the needs of individual victims and their families (Stop abuse/ offending, Accountability, Acknowledgement, Apology, Reparation, Punishment) Concerned with prevention of offending and developing systems of safer communities Removing offenders from community for a limited period of time is not working Some offenders not held accountable at all Research indicates that young sex offenders respond well to treatment

Research on Young Sex Offenders Information systems are weak no accurate picture of the nature and scope of the problem or the ability of the system to respond to the situation. However research shows that: The Child Protection Unit in the East Metropole statistics of children arrested from April 2000 to January 2002, 23% were under 18 years old. Studies in USA, Canada and UK show that 20 – 30% of sexual offences are committed by children. Interventions focussed on this group can have impact on long term rates of sexual offending. Recidivism research indicates that YSO are about ½ as likely as young violent offenders to re-offend*. 11.8% recidivism rate for young sex offenders 22.5% recidivism rate for young violent offenders (non sexual) 29% recidivism rate for young offenders (non violent and non sexual) *Based on meta analysis of 33 studies from around the world

Assessment Young sex offenders are a heterogeneous group, with different pathways and different risk factors. The bill treats most young sex offenders in the same way. Policy must provide for different management options for these offenders. Research is clear that young sex offenders are not the same as adults and should not be treated in the same way as adults. Assessment of young offenders is important in order to make important decisions relating to the management of the case. Including decisions about diversion.

Treatment Programmes Sex offender treatment programmes could be used as a diversion option or as part of a sentence or as an alternative sentencing option. Research indicates that the timing of treatment can be important to the effectiveness of a programme. Treatment is not a soft option Effective treatment programmes aim to reduce denial and increase accountability as well as change the behaviour of the young offender. Ultimately aimed at protecting the community.

Do Programmes Work? Evidence is very promising Young sex offenders who receive treatment are less than ½ as likely to re-offend as young sex offenders who receive no treatment. The recidivism rate for those who had received treatment was 8.6% (based on data on 3730 offenders in 29 studies) and those who did not receive treatment was 19.4% (based on 1605 offenders in 8 studies). Currently few treatment programmes for young sex offenders in the country. Legislative environment must enable further development of programmes. The capacity to provide treatment programmes as a diversion option could be developed over time Treatment must be available as part of a sentence

Treatment of sexual offences in the Bill

Table 1: Sexual Offences treated most seriously Schedule 3: Part I Item 4 Any rape or compelled rape by a child over 14. Rape or compelled rape by a child under 14 when: gang rape, multiple rape or repeated rape; there is a previous conviction for a sexual offence; victim is – physically, mentally disabled, a baby or elderly; infliction of grievous bodily harm; the child who knows they have HIV/AIDS Item 5 Sexual exploitation or grooming of a child, exposure or display of pornography to a child; using a child in or benefiting from child pornography. Item 6 Sexual exploitation or grooming of a person with a mental disability, exposure or display of pornography to a person with a mental disability; using or benefiting from pornography of persons with mental disability. Item 7 Trafficking or involvement in trafficking for sexual purposes Schedule 3: Part II Item 2 Sexual assault; compelled sexual assault or compelled self-sexual assault; when involving the infliction of grievous bodily harm Compelling and causing a child to witness a sexual offence, a sexual act or self masturbation and exposure or display of genital organs, anus or female breasts to children (flashing a child). Exposure or display of or causing exposure or display of child pornography to a person over 18.

Table 2: Sexual Offences at the second level of seriousness Schedule 3: Part II Item 1 Rape or compelled rape by a child under 14 excluding circumstances listed in item 4 of Part I above. Item 3 Sexual assault; compelled sexual assault or compelled self-sexual assault on a person under the age of 16 years. Item 4 Acts of consensual sexual penetration with certain children (statutory rape) and acts of consensual sexual violation with certain children (statutory sexual assault). Schedule 2 Item 10 Sexual assault, compelled sexual assault or compelled self-sexual assault other than contemplated in items 2 and 3 of Part II of Schedule 3 Item 11 Compelling or causing persons 18 years or older to witness sexual offences, sexual acts or self-masturbation. Item 12 Exposure or display of or causing exposure or display of genital organs, anus or female breasts to persons 18 years or older (“flashing” and adult) Item 13 Engaging sexual services of persons 18 years or older Item 14 Incest, bestiality and sexual acts with a corpse

Table 3: Other Sexual Offences Schedule 1 Item 9 Bestiality

Levels of Seriousness Less serious crimes are included in categories with very serious crimes. Divisions between the schedules do not correspond with the divisions in the way in which offences are generally dealt with in the Bill. See table 1 Display of pornography to a child. Exposure of display (flashing) to a child. Considered to be as serious as: gang rape. Any rape and certain extremely serious forms of rape by a child under 14 (e.g. gang rape)

Sexual Offences in Schedule 2 Act 105 of 1997 Sexual Offences in Schedule 2 Act 105 of 1997. Minimum Sentencing as Amended by SOA 2007 Part I Offences for which life sentences apply Rape or compelled rape which results in the death of the victim Rape or compelled rape where the victim was raped more than once or by more than one person, where the person has been convicted of two or more offences of rape but not yet sentenced, where the victim was under 16 years old, is physically or mentally disabled or involving the infliction of grievous bodily harm. Trafficking in persons for sexual purposes Part III Offences for which 10, 15 and 20 year sentences apply for 1st, 2nd and 3rd convictions. Rape or compelled rape in circumstances other than those described above Sexual exploitation of a child or a person who is mentally disabled Using a child or person who is mentally disabled for pornographic purposes

Access to Assessment, PI, Diversion and Alternative Sentencing Regarding table 1 Children over 14 accused of these offences are denied assessment (35) preliminary inquiry (44), the possibility of diversion (11(e); 68, 50). Do not qualify for automatic expungement of their criminal record.(88) Certain offences are offences for which a child is likely to respond well to treatment or other diversion programmes Displaying pornography to a child or using a child in pornography Flashing a child Offences developed in the SOA to protect children from exploitation and manipulation by adults now being translated to disadvantage children. Depending on the age of the adolescent some of these behaviours are not problematic. Selected offences within item 4, 5 and 6 of Part I require a sentence of imprisonment if the child is 16 years or older. Thus imprisonment is a first and not a last resort for these children (78(3)).

Access to Diversion for Certain Offences Re Table 2. Children accused of these offences have access to assessment and preliminary inquiry. Clause 57(1) limits access to diversion for children who are 14 or older and who have been accused of committing the offences listed in items 1, 3 and 4 of Part II of Schedule 3. Sexual Assault refers to acts for which appropriate diversion programmes may be applicable and effective. Children aged 14 to 18 are most likely to commit these acts on children of similar age and thus often against children under the age of 16. Alarmingly the exclusion of children from 14 years who engage in consensual sexual acts from diversion, clause forces these children’s cases into the formal criminal trial process without the option of diversion. This clause precludes these children from accessing diversion and requires formal criminal proceedings with potentially harmful results to the child and the community.