Sexual offences: pornography and children

C Background and scope

1.15 This investigation on pornography and children resulted from an extension of the investigation originally called “Sexual Offences By and Against Children”. At the request of the (then) Deputy Minister of Justice and the (then) Justice Parliamentary Portfolio Committee to also consider the position of adults who are affected by sexual violence, the Commission decided to expand the scope of the investigation to include all sexual crimes by and against adults. The investigation was renamed “Sexual Offences”. Owing to the vast nature of this investigation, the Commission decided to publish four separate sexual offence papers, with draft legislation where necessary. These dealt with the following areas: i) substantive law; ii) the procedural law pertaining to statutory and common law sexual offences, excluding both adult prostitution and pornography in respect of children; iii) adult prostitution; and iv) children and pornography.

1.16 In brief, the scope of Project 107¹⁹ was reframed to ­

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  codify the substantive law on sexual offences into an easily accessible and workable Act;
  
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  develop efficient and effective legal provisions for the reporting, management, investigation and prosecution of sexual offences, this would protect the rights of victims while ensuring the fair management and trial of persons who are suspected, accused and convicted of committing a sexual offence;
  
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  provide workable legal solutions for the problems surrounding adult prostitution; and
  
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  improve the regulation of pornography, including on the Internet.
  

1.17 The first discussion paper was published in September 1999. It addressed the substantive law relating to sexual offences, and contained a draft Sexual Offences Bill.²⁰ It had both a child and adult focus, but excluded adult prostitution and pornography. The second discussion paper was published in December 2001. It dealt with matters concerning process and procedure and it too focused on both adults and children, excluding adult prostitution and pornography.²¹ The content and recommendations of these discussion papers were drawn together to form the Report on Sexual Offences, which was published in December 2002, together with a consolidated draft Sexual Offences Bill. The Sexual Offences Act is the outcome of Parliamentary deliberations on the draft Bill. With regard to the third leg of this investigation, an issue paper on adult prostitution was published in July 2002 and a discussion paper was published in May 2009. The Report on Sexual Offences: Adult Prostitution was approved for submission to the Minister of Justice and Constitutional Development for his consideration on 16 August 2014.

1.18 This issue paper constitutes the fourth leg of the investigation. It deals with pornography its impact and effect on children. Following the promulgation of an amendment to the Films and Publications Act 65 of 1996 (the “FPA”) in 2007, the Commission decided to remove this leg of the investigation from Project 107, as all concerns that had been raised during advisory committee meetings had been addressed. However, this leg of the investigation is receiving renewed attention following a pre-investigation into pornography and the mass media.

1.19 In September 2009, the (then) Deputy Minister of Home Affairs, Honourable Malusi Gigaba, sent a letter to the Chairperson of the Commission asking the Commission to give advice on the possibility of placing an absolute ban on the dissemination and circulation of pornography through electronic and printed media, and mobile technology. Deputy Minister Gigaba wrote that the Deputy Ministers of Home Affairs, Justice and Constitutional Development, Social Development and Basic Education had met on 1 September 2009, and that the Deputy Ministers had been briefed by the FPB on the pervasiveness of pornography in the mass media as well as society in general, and the negative impact this has on children. At the meeting the FPB had stated that “paedophiles use pornography to groom children for sexual exploitation for child pornography purposes, and thus there is a linkage between the rise in pornography, sexual abuse, exploitation and child pornography”. Deputy Minister Gigaba explained that what was envisaged is not a total ban, as adult shops would still be available for adults who wish to view pornographic films and publications. The proposed prohibition was directed at the mass media and service providers that disseminate pornographic material. The Deputy Minister submitted that the extraordinary ease of access and the counter-weighing of risk to children caused by such exposure were, in his view, a reasonable and justifiable limitation of Section 33 of the Constitution. The aim of the proposed ban was to protect children from viewing harmful and unsuitable content in both the electronic and print media.

1.20 The Commission considered this request at its meeting held on 13 March 2010. The Commission decided to conduct a pre-investigation into the matter to determine if the topic should be included on the Commission’s programme. At a meeting held on 17 November 2010 the Commission determined that the existing legislative framework to protect children from exposure to pornography is inadequate, and that ways of regulating and filtering pornography need to be explored in a holistic manner. It was decided that this would be a focused part of the Project 107 investigation into pornography and children, thereby reviving this leg of the project. On 15 November 2011 the (then) Minister of Justice and Constitutional Development approved the appointment of an advisory committee member, Mr Chetty.
1.21 Work on this paper was held in abeyance pending the completion of the Report on Sexual Offences: Adult Prostitution, and the appointment of the new Commission. The Commissioners were appointed in the latter half of 2013. In February 2014 the Commission appointed Madam Justice Maya as the project leader of this investigation. Professor Oguttu took over the role of project leader in February 2015 following her appointment to the Commission. Additional advisory committee members were appointed on 15 September 2014, as follows: Mr Cull, Adv Meintjes (SC), Ms van Niekerk, Colonel Pienaar and Ms Sedumedi. Mr Risiba, CEO of the FPB, replaced Ms Sedumedi on 6 March following her resignation. Ms Linders of the Department of Telecommunications and Postal Services was nominated to assist the committee on 31 March 2015.