Swaziland passed the Sexual Offences and Domestic Violence Bill in 2009 but has not made it into law yet. Instead, laws that are over 100 years old govern sexual abuse charges….SWAGAA and other NGO and agency partners are advocating for the Bill to be enacted right now. We have a workshop tomorrow explaining the bones of contention for some Parliment members. Here are some of the facts…
Sexual Offenses and Domestic Violence Bill, 2009
Currently, COMMON LAW covers the following offences:
• Indecent assault
• Public Indecency
Legal proceedings (Statutory Offences) are dictated by outdated Acts:
1. Crimes Act of 1889
2. The Girls and Women’s Protection Act of 1920
Gaps in the Existing Law vs. Provisions of the Sexual Offences and Domestic Violence Bill:
Some Gaps in the existing Legislation:
The following are currently not offences in Swaziland:
• Rape of a male/boy child
The existing definition of rape only relates to men raping women. Similarly the Girl’s and Women’s Protection Act of 1920 only relates to women and girls and does not cover male children. Sexual penetration of a male is considered an indecent assault which is a lesser charge.
• However the Sexual Offences Bill Broadens the Definition of Rape to cover “ the insertion even in the slightest degree, of the genital organs of a person into the genital organs, anus or other orifice of another person”.
At common law rape is not possible within marriage, as women are considered to have consented to sexual intercourse by entering into the marriage contract. If a woman does not consent to sexual intercourse it is rape and should be treated as such, whether she is married or not.
• The Sexual Offences does not address the issue of Marital Rape, it does not criminalize it.
Indecent Treatment of Children
(Sexual behaviour that does not include penetration)
• The Sexual Offences Bill deals in details with this under S36. this has been a gap in the existing legislation. Indecent treatment of children in the Sexual Offences Bill includes unlawfully and indecently dealing with children, unlawfully procuring a child to commit a sexual violation, unlawfully permits himself to be unlawfully dealt with by a child, wilfully and unlawfully exposes a child to a sexual violation by him or another person.
Maintaining a Sexual Relationship With a Child
Having an offence such as this means that you do not need to prove every event of sexual intercourse.
• This is covered in the Sexual Offences Bill and it is not a requirement that one must have had sexual Relationship with that child for conviction.
Compelled Sexual Assault or Self Assault
• S 7 and 8 of the Bill deals with this two issues. It provides that forcing one to commit a sexual violation with another commits an offence. It further provides that any persons who compels another without his or her consent to do certain acts like masturbation or sexually suggestive or lewd acts commits an offence.
• Sexual Harassment is now covered in the bill. It includes
• Subjecting a person to a unsolicited intimacy with including but not limited to physical contact such as patting, pinching or touching in a way that gives you sexual pleasure.
• Making an unsolicited demand or request for sexual favours.
• Making a remark with sexual connotation.
• Penalties/Sentences for Offences
Penalties for sexual offences have not been updated for sometime. As a result penalties for sexual offences often do not reflect the serious nature of these crimes.
• The Sexual offences Bill comes with high sentences, making provisions for 50 thousand fine for some of the offences.
Failings that need to be Addressed
• Delay in reporting
At present any delay in reporting a sexual offence can be held against a victim. This is unfair and does not take account of the trauma which victims suffer and the different ways victims deal with sexual abuse.
• The sexual offences Bill takes into account that a victim may due to certain hindrances not be able to report in time.
• Lack of Children’s Courts
Children’s cases are generally tried in mainstream courts where they are administered by personnel without specialised training. Whilst a Children’s Court has recently been established in the High Court, numerous cases involving children are still tried in the Magistrates Courts which have no special facilities for children.
Obligation to Report
Whilst in other crimes the law makes it mandatory to report, the same does not apply for sexual offences.
• The Bill makes it an offence if a person fails to report abuse.
Domestic Violence – Restoring Peace
The court procedure for applying for an interdict or a peace binding order is cumbersome and difficult to understand. People are often told they need a lawyer to get protection from the Court. A simple process for applying for protection from the Court needs to be developed so that protection is available to all.
• The Domestic Violence part of the Bill is not punitive, it seeks to restore peace in different family setting taking into account cohabiting spouses. It makes the courts more accessible for victims of domestic violence.