Criminalisation – Realising Rights

The Day Human Rights Became Immoral

On 3 March 2015, the Portfolio Committee for Justice began the public consultation process on the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill 18 of 2014. The Legal Resources Centre attended Parliament and presented oral submissions which were based upon our written submissions of 4 March 2015.

The Amendment Bill seeks to implement two Constitutional Court judgments which have become known as the Teddy Bear Clinic case and J v the NDPP case. Both of these cases dealt with aspects of the constitutionality of certain provisions of the “Sexual Offences Act”. The Teddy Bear Clinic matter dealt with the constitutionality of criminalising consensual sexual behaviour of adolescents between the ages of 12 years and 16 years, and J dealt with the automatic recording of the details of minors convicted of sexual offences on the National Register of Sex Offenders. The amendment that will address the constitutional concerns raised in the Teddy Bear Clinic case has received much more media attention than the issue of recording minors’ details.

It seems that the reason for this was on full display during the public consultation process this past week, when a number of religious organisations, churches and institutions came to Parliament to object to the amendment which, in essence, seeks to recognise normal sexual behaviour between consenting adolescents. The Constitutional Court has recognised adolescence as a difficult period in a person’s growth and that adolescents require support and not prosecution. These particular amendments will give adolescents the ability to experience their normal sexual exploration and development by not criminalising this behaviour.

Those who attended on behalf of the religious community did not afford the same recognition to sexual behaviour between adolescents. This apparently normal period in the development of human beings became “episodes of consensual abuse”, “unnatural urges and needs” and “immoral and sinful”.

Repeatedly, those of us who believe in human rights and the Constitution where told that we hold no moral compass. At one point in the presentations, it was stated that civil society organisations funded by the west have become “agents of Satan”. They referred to a Constitution in which “the moral values of the majority were not reflected in the liberties contained in the Constitution”. One could almost forget that the Constitution, in fact, recognises rights for South Africans and instead begin to believe that they were in fact liberties; liberties that we can either be deprived of or which we are happy to give up, if only government would allow us to do so.

We recognise and acknowledge that, as South Africans, we have a wonderful opportunity and right to participate and engage in the process of enacting legislation. This is a right that was hard won and we continue to struggle for its realisation.

But we further recognise that we need to ensure that the values in the Constitution and the rights enshrined therein are protected by taking a proactive stance in engaging at the parliamentary level in order to ensure that legislation that is passed within its halls are indeed in compliance with the Constitution. If we do not, we run the risk of parliamentarians only hearing the voices of those who are too eager to give up rights on our behalf.

The amendments to the Sexual Offences Act will, in all likelihood, be adopted by Parliament; there is, after all, a Constitutional Court order mandating them to do so. We ask that Parliament implement the tolerant and accepting nature of the Constitutional Court in both its recognition of the support needed for adolescents during a difficult time in their lives, as well as the need to de-criminalise their normal sexual behaviour.

We echo the sentiments of the Chairperson of the Portfolio Committee in saying that religious leaders and institutions have a duty not only to educate their members on their religious duties, but also to ensure that they use their platforms to educate the public on our Constitution and the rights enshrined therein.

By: Charlene May

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

16 Days: Gay in the DRC

During 16 Days of Activism for No Violence against Women and Children, the Legal Resources Centre will be sharing the stories of survivors of gender based violence who fled their countries to seek asylum in South Africa. Many women, children and sexual and gender non-conforming persons endure horrific hardship, sexual persecution, assault, rape and discrimination in their countries. When they arrive in South Africa their hardship does not end. Some women experience sexual persecution while crossing the border, while others may experience oppression, intolerance and discrimination while trying to create a life in South Africa. When they enter the asylum seeker process, they often endure further persecution. These are their stories.

Gay in the DRC

K is a gay man who was born in the Democratic Republic of Congo. He suffered persecution at the hands of his family and community for being in a homosexual relationship with another man. He was forced to conceal his sexuality because it is illegal to conduct an openly gay relationship in the DRC and K had witnessed a friend stoned to death at University.

K’s brother-in-law discovered him and his lover one day and became so incensed that he locked the door to the house and proceeded towards the kitchen to get a knife and threatened to hurt them. K managed to escape and went to the police to report the incident. He told them the details of what had happened but struggled to admit his sexuality to the police. Finally, as fearful as he was, he admitted his sexual orientation to the police, who laughed at him and told him that he deserved to die for his actions. He quickly left the police station and went to his friend’s house to spend the night. The next day, K was told that the friend’s business had been ransacked and vandalised. K was convinced that his life was in danger and his friends advised him to flee to safety in South Africa.

K arrived in South Africa in June 2010. He applied for asylum and was interviewed by a Refugee Status Determination Officer. The interview consisted of questions interrogating K as to why he was gay and whether he knew that being gay was a sin before God. The RSDO noted in the decision that K had left his country of origin due to discrimination suffered, but failed to expand on the nature of the discrimination suffered.

The RSDO rejected his asylum claim. He approached the Legal Resources Centre and was assisted to make submissions to the Standing Committee of Refugee Affairs. The LRC explained why he should have been granted refugee status in light of both his personal experiences of persecution and the objective country assessment of the DRC, where homosexuality is criminalised. As of January 2014, Amnesty International indicated that same-sex relations were illegal in 36 countries in Africa. Chad could become the 37th.

K cannot openly live as a gay man in the DRC without suffering persecution. He should not be expected to hide his sexuality which, in itself, would amount to persecution. Unfortunately, the SCRA rejected these arguments. The LRC filed a review application in the Western Cape High Court and hope for a more humane outcome.

Do we need to Criminalise HIV Transmission?

In what the Herald refers to a “precedent setting” matter, a Port Elizabeth man has been charged with attempted murder for allegedly infecting his niece with HIV. The criminalisation of the transmission of HIV is an issue which has already been considered by the South African Law Commission. In 2001, the Commission developed a report dealing with this issue of whether to enact legislation to punish those who transmit HIV. “The need for a Statutory Offence aimed at Harmful HIV-related behaviour” report concluded that there is no statutory intervention needed.

They noted that specific concerns were raised: The lack of scientific basis for the proposed reform; the overestimation of the role of the criminal law in reducing the high rate of HIV infection, in reducing the high rate of violence against women, and in changing risk behaviour; the possible detrimental effect of an HIV-specific offence/s on the position of women already affected by or vulnerable to HIV; and problems inherent in attempting to target consensual conduct with criminal sanctions.

It must be noted then, that the first draft of the Sexual Offences Bill contained a clause stipulating that a person who intentionally fails to disclose, to the person with whom they have intercourse, that they have a life-threatening sexually transmitted infection is guilty of unlawful conduct. However, this clause was not included in the Act that has been passed. Why?

There are criminal and civil laws that may be used to deal with the effects of intentional and malicious HIV transmission. Laws are not the problem. Where proof of the intention to cause harm exists, these laws can be applied. But in most instances, although there are allegations, beliefs and assumptions of intent, the problem has been with providing the proof. Adding another law to our statute books will not solve this problem.

If one added another law, maybe one that is more specifically targeted and only points to HIV transmission as an offence, what harm could such a new law do? Such a law cannot remove the need to provide proof, but some people argue that we should have such a law as it would “send out a clear message”. True. But this message would not solve the problem of proof and there is no indication that it will result in a new awareness of the responsibilities a person has towards others. There is no indication that adding laws to express what is already known, namely that if a person intentionally harms another this is an offence, will reduce the spread of HIV.

Instead such a law, rather than helping to reduce infections and promoting responsible behaviour, could perpetuate the stigmatisation of those living with HIV. Justice Edwin Cameron has come out strongly on the issue of the criminalisation of HIV transmission, appealing to states not to enact criminal laws specifically dealing with HIV transmission for a number of reasons. The criminalisation will not reduce the spread of HIV and, he argues, will instead result in the entrenchment of the stigmatisation of those living with HIV and may become a barrier to testing and treatment. It is likely to become a reason not to test, not to know and not to treat.

In South Africa, we no longer see HIV as a life sentence, but as a chronic, treatable illness. We need to focus on promoting this idea in order to reduce the stigma associated with HIV. Any policy that has the potential to discourage people from learning their HIV status via voluntary and confidential testing would appear to be counterproductive to public health. Stigma is what cripples our education and prevention efforts. Stigma is what encourages ignorance. Stigma is what can lead to a person to believe that there is nothing they can do about their own health. Today, the stigma is around HIV. Tomorrow it may be around TB. And where will it end?

We need to ensure that people know the dangers of alcohol and drugs in making it more difficult to be responsible and to prevent infection. In order to contribute to the reduction of HIV infection rates, we need to be encouraging people to get tested and to use contraceptives which reduce their exposure to HIV. People who are infected with HIV need to know their status so that they can obtain treatment and need to take responsibility for managing their health.