Child sex offenders: Legal reform for better or worse?
Louise Ehlers, formerly of South Africa's NICRO, writing here in her personal capacity, looks at the impact of current reforms of legislation dealing with child sex offenders on the government, services delivery agencies and, particularly, children.
In recent months the media has raised the profile of young sex offenders and has increasingly been asserting that ‘child rapists’ are getting younger. Anecdotal information from service provision agencies also indicates an increase in the number of children referred for sexual offences. A worrying trend is that the age of victims appears to be getting younger. However, very little empirical evidence exists to prove this.
The management of young sex offenders is a complex issue that requires a co-ordinated national response that takes cognisance of both legislative provisions and the current capacity for service provision to this client group. Children accused of committing sexual offences are a category of offenders for whom the changes to current legislation will have a profound effect. It is therefore important for child rights activists to monitor the developments that are currently taking place with regard to the Child Justice Bill and the Sexual Offences Amendment Bill, as well as the implications of the mandatory minimum sentencing legislation for this particular group of children. The intention of this article is, therefore, to reflect on the impact of the current legislative reform on government, service delivery agencies and more importantly, the children themselves.
The Child Justice Bill
The Child Justice Bill was first conceptualised in 1996. The aim was to create a legislative framework for managing children within the criminal justice system and to move away from the tradition of punitive sanctions to a more restorative and rehabilitative approach.
It was initially envisaged by the drafters of the Bill that the decision to divert children would be based on a range of criteria and not simply on the crime category. The latest draft of the Bill, however, directly links the mandate of the court to divert a child to the offence with which the child has been charged. This goes against the original spirit and intention of the legislation in that, in some cases, it puts the offence category at the centre of the decision as to whether or not a child can be diverted, to the exclusion of any other factors.
According to Skelton1, it was at one time the intention of the Justice Portfolio Committee to exclude rape entirely from the diversion provisions. However, it has now been proposed that in certain circumstances rape could be diverted: for example, when committed by an offender below the age of 14 or 16-years (the age has not been agreed upon) and there was not more than one offender or more than one rape, and there was no serious injury. So, in her opinion it looks likely that it may be possible to divert cases of rape, but only in certain defined circumstances. Given that this possibility now exists, it is vital that government and civil society stakeholders apply their minds to the development of appropriate responses in relation to both diversion and alternative sentencing.
Despite indications that some sexual offences may be diverted as described above, it would seem that the Justice Portfolio Committee is pushing for harsher measures for young sex offenders. More specifically, the Committee is currently considering including children who are 16 or 17-years who have committed rape under the mandatory minimum sentencing legislation. While it is acknowledged that there may very well be cases where the appropriate sanction for a child who has committed rape or sexual assault is imprisonment, it is important that the decision to incarcerate a child offender be taken within the context of both the Convention on the Rights of the Child and the Constitution. These instruments lay down a basic children’s rights tenet, namely, that imprisonment should be used as a measure of last resort and more importantly for the shortest appropriate period of time.2 Contrary to this, mandatory minimum sentencing laws allow judges very little discretion in deciding on the appropriate length of sentence in an individual case. This legislation places the onus on the court to find ‘compelling and substantial circumstances’ in order to waive the handing down of the mandatory minimum – currently a 15-year prison term.
It is also important to reflect on the wisdom of sanctioning legislation that may lead to an increase in the number of children serving long terms of imprisonment. Before promoting such concepts as a mandatory minimum sentencing for child offenders, there is a need to recognise the fact that sexual offences are wide ranging with varying degrees of severity and a host of different causal factors. Also, it is important to acknowledge the failure of incarceration to have any impact on the levels of recidivism in this country. It is worth noting here that imprisonment has been found to be particularly damaging and corrupting for young people.3 Furthermore, international studies have shown that over half of adult child molesters began their offending behaviour before the age of 18 and that early intervention occurring during a child’s development can prevent the entrenchment of sexually abusive behaviour,4 thus making the case for constructive programmatic interventions, as opposed to imprisonment.
The Sexual Offences Bill In terms of the Sexual Offences Bill, it is important to take note of the proposed changes and particularly the broadening of the definition of rape. While the redrafting of the definitions relating to sexual offences is welcomed and long overdue, it is necessary to guard against the possibility of a net-widening effect that could see an increase in the number of children being subjected to long terms of imprisonment. In addition to this, a range of new offences has been created, including compelled rape, and deliberate exposure to HIV. It is not yet clear whether the Justice Portfolio Committee, when deliberating on the Child Justice Bill, will consider these as offences for which minimum sentencing should apply. It would be useful for civil society organisations to follow the debate in this regard.
Diversion and alternative sentencing In all probability, the Child Justice Bill will allow for the diversion of some sexual offence categories. Be that as it may, the current reality is that the courts have almost no appropriate alternatives at their disposal.
International literature strongly indicates the need for a multi-disciplinary approach to the treatment of young sex offenders with a range of services presented to both the offender and his/her family. According to Meys5 (a child psychiatrist in private practice with extensive experience of treating young sex offenders and their families), effective interventions include peer group therapy, cognitive behaviour therapy, the social skills approach, group therapy, and multisystemic therapy – including individual, family, and peer relationships. Further, international literature commonly recommends that the programme should be long in duration.
It is important that interventions with young sex offenders be grounded in theory and best practice and it is desirable that we continue to strive for the ideal. However, it is counterproductive to pretend that the constraints created by the South African context do not exist. Do we really believe that a therapeutic team consisting of psychologists, social workers and family counsellors will be available to a child in, for example, rural Mpumalanga for extended periods of time, while it simultaneously renders services to all other children in the province, who may be scattered across hundreds of kilometres? The obvious answer is ‘No’, so what is the solution? How do we satisfy the need of the public for retribution, meet the needs of victims and at the same time ensure that the sanction handed down to the offender will be effective in ensuring that he/she does not re-offend?
Where does the responsibility for service provision lie? Clearly, terms of imprisonment are ineffective and would serve none of the above-mentioned purposes. However, the state has been slow to recognise the service delivery gap and has not as yet conceptualised a co-ordinated strategy for providing appropriate programmes from within their own ranks. So the question remains: who will ultimately take responsibility for ensuring services to these children?
The legislation makes it incumbent on the state to create and provide services to children in the criminal justice system but, at the same time, it recognises that there is limited capacity and expertise on their part. In the absence of funding or a clear statement of intent from the state, the alternative would be to look at the capacity of civil society organisations to take responsibility for young sex offenders.
The current range of organisations offering services to young sex offenders is extremely limited and none have any guarantee of sustainability in the long term. SAYSTOP is a consortium of organisations that has, since 1997, attempted to develop a model for managing this client group.
Unfortunately, the consortium is made up largely of members of academic institutions with no service provision capacity. The two-service delivery NGOs involved in this project, namely NICRO and RAPCAN, have not absorbed the programme into their core functioning. RAPCAN has a very small staff and focuses mainly on resource development and training. They are, therefore, only able to offer extremely limited service delivery. NICRO, the second service delivery organisation in the consortium, is well-positioned to provide diversion services to children in all of the nine provinces. While the organisation does provide some capacity for facilitation of the SAYSTOP programme in the Western and Eastern Cape, it has never taken on the responsibility for this group of offenders as a national competency.
Childline (in KwaZulu-Natal, Gauteng, and Eastern Cape) is by all accounts committed to serving this client group and has done so for a number of years with very little financial support. However, its programme predominantly serves the metropolitan areas and children in rural areas have difficulty accessing these services; though efforts are being made to extend them to some rural areas in KwaZulu-Natal.
Efforts by the Teddy Bear Clinic in Gauteng to provide services to sexual offenders focus mainly on prepubescent children. They too have limited capacity to deliver services on a provincial scale, let alone nationally.
While those NGOs and a handful of others have offered to take some responsibility for the management of young sex offenders, there is a need for a more co-ordinated national response to the problem. An ad hoc response with no sustained commitment or funding is highly problematic and goes against the notion in the Child Justice Bill that there should be equal access to diversion services for all children.
The question of how best service delivery to these children should be structured is extremely challenging. In the current climate of reduced funding and streamlining of services, the option of creating a set of new, struggling NGOs to provide specialised services to these children makes no sense. While sexual offending by children is a serious issue, the number of children who are arrested for these types of offences is miniscule in comparison to those arrested for property offences, for example. At present there are about 500 children in prison for sexual offences, while arrests of children for sexual offences in the Western Cape remain at under 500 per year.6 Treatment therefore does not warrant the establishment of organisations that focus only on this client group. However, incorporating these children into existing structures raises the old argument on the merits of generic versus specialised services. There can be no doubt that many young sex offenders require intensive interventions and the question needs to be raised as to whether they would receive this without specialist input. This in turn needs to be juxtaposed with what seems to be a relatively small numbers of children in this crime category, the contextual constraints and the current lack of capacity both within civil society and the state to render even the most basic services.
Very little is currently known about the nature of child sexual offending in this country, what the risk factors are and how these children are being dealt with in the system. In her research, Redpath7 notes that the number of children sentenced for sexual offences in prison is decreasing, albeit at a low rate. She goes on to say that ‘this is probably to some extent a reflection of the courts’ increasing unwillingness to sentence children to prison time. This decreasing number would not be cause for concern if it were clear that children accused of sexual offences were instead being dealt with in an appropriate manner (for example, via diversion to a youth programme), as prison time is seldom the most appropriate sentence for a child.’ However, her report indicates that this is not the case: in the Western Cape the proportion of children arrested for sexual offences who are subsequently diverted, remained at 5% or less between 1998 and 2001.
Given the above data, the question needs to be raised as to what is happening to these children. Prosecutors, unwilling to have children sentenced to terms of imprisonment, are frequently at a loss as to what to do with children accused of committing sexual offences, particularly in cases where the accused is very young. Indications from the then Deputy Director of Public Prosecutions in the Western Cape (1997) is that cases are withdrawn or children are given suspended sentences with no attempt made to deal with causal factors or to hold the child accountable.
In order for both government and the NGO sector to make informed decisions as to how they can best address this issue, there is a need for far more comprehensive research into this relatively unknown phenomenon. What is currently lacking in this country is a national survey of the number of children arrested for sexual offences, how they are currently being dealt with and what services will be required once the deliberations by the Justice Portfolio Committee are completed and a decision has been taken as to how they will be dealt with in terms of the new Child Justice legislation. This would require the co-operation of the SAPS, given that data is not readily available and available statistics do not make it easy for researchers to separate children from adults. It is also difficult to establish what happens to these children after arrest. Conducting this research would make it much easier to ascertain exactly what services are needed, thus allowing government to make decisions around service level agreements to existing NGOs. At the same time, it would provide real information upon which these NGOs could make decisions around their capacity to provide services. It would also provide a more concrete framework upon which to build programming.
1. Skelton A, Presentation at OSFSA workshop; ‘Managing Young Sexual Offenders: What Role for Government and Civil Society?’ 2004. Report forthcoming
2. Section 28 (1)g Constitution and Article 37 (b)
3. Penal Reform International: www.penalreform.org
4.Meys, U, Presentation at OSFSA workshop: ‘Managing Young Sex Offenders: What Role for Government and Civil Society?’ 2004. Report forthcoming
5.Meys, U. ibid
6. Redpath, J. ‘South Africa’s Heart of Darkness, Sex crimes and child offenders: some trends’. SA Crime Quarterly No.4. June 2003.
7. Redpath, J. ibid.
This feature: Ehlers, L. (2004) Child sex offenders: Legal reform for better or worse? ChildrenFIRST: Issue 54 (March/April 2004)