FACTSHEET: South Africa’s crime statistics for /18 | Africa Check
The question is whether this discrimination is fair or unfair, and if unfair, whether it is justified. Human dignity plays a major role in determining whether discrimination is unfair or not: discrimination which impairs dignity, or has the potential to do so, will be deemed unfair. Its deterrent value is suspect, and it could drive high-risk predatory sexual offenders further underground. Furthermore, according to section 12 1 of the Constitution, everyone disposes the right of freedom and security of person. No-one may be tortured or treated or punished in a cruel, inhuman or degrading way.
However, many of the goals for registration may come at too great an expense to the implicated individuals. Although the names on the NRSO may not be made public, registrants and their loved ones may live in constant dread of discovery. As perceived in the US, publication modified communities' perceptions about and behaviour towards these offenders, and led to unreasonable fear for their safety amongst citizens residing in an area where a sex offender is registered. The register does include a confidentiality clause which makes provision for the safe-keeping and disposal of records.
Although it is an offence to disclose information listed on the register arbitrarily, previous experience concerning confidentiality issues eg with police dockets has swayed one to become sceptical. Another negative effect of the NSRO on the privacy of the individuals concerned is that it may inadvertently identify the victim in the case of incest.
The right to access to information, as included in section 32 of the Constitution, is also promoted via the NSRO. This section determines that everyone has the right to access to any information held by the state or by any other person, which is reasonably required for the exercise or protection of any rights. This is necessary for the public's protection and the security of person. Conversely, disclosure of the information would be an invasion of the privacy of offenders.
Access to the information on the sex offenders' list may have only limited value in a South-African context. This is because of the widely shared fallacy that children are at grave danger of sexual victimisation by strangers. In SA especially, one's registration as a sex offender can also be surmounted by obtaining false identity documents. Section 22 of the Constitution affirms that every citizen of SA has the right to choose their trade, occupation or profession freely.
On the other hand, section 41 of the Sexual Offences Act 23 of states that persons whose particulars have been included in the NSRO may not work with a child or a mentally disabled person in any circumstance or in any position. This includes any business or trade where children are or may be present. This stipulation places obstacles on possible employment choices and activities to pursue a livelihood anywhere. It is very limiting since one finds oneself in the vicinity of children almost everywhere, not only in schools and day-care centres, but also in hospitals, in shops and at bus stops etc.
Employment opportunities are not only limited in scope, but employers who ascertain that the particulars of an employee have been recorded in the NSRO have to terminate the employment of such an employee with immediate effect. The employee or potential employee also has a duty to inform his current or future employer that he is or was convicted of or is alleged to have committed a sexual offence against a child or mentally disabled person. If he does not conform with this requirement he is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding seven years or to both a fine and such imprisonment.
In order to secure employment, current or potential employees may not inform their employers of any previous convictions or allegations of having committed a sexual offence against a child or a mentally disabled person. All of these rights can be limited in terms of section 36, provided that it is reasonable and justifiable to do so in an open and democratic society based on the values of human dignity, freedom and equality.
As previously stated, the NSRO's purpose is to protect the vulnerable against sexual predators, which protection is more vital than ever in a technologically advanced age. A sex register should also assist police in speeding up investigations, establish further legal grounds for confining registered offenders, and act as a deterrent to existing or potential sex offenders. The US' paedophile register is semi-functional because a dedicated group of social workers, police, probation officers and law professionals are employed to continually monitor the register.
Given the situation in South Africa, the purpose of the list could already have been lost. The CPR records all reported instances and convictions of all sexual offences and violent crimes against children; all attempts to commit violence against a child and possession of child pornography, and also the names of persons deemed to be unsuitable to work with children. The assimilation of these two registers and the alignment of their purposes would provide for a lighter administrative burden as unnecessary and expensive replication would be prevented.
The SA legislation also does not expressly specify who is to be considered as sex offenders. The outcome is that all sexual transgressions, however minor or whether committed by a juvenile or not, were regarded as sexual offences. Juvenile transgressions have since been addressed by the Constitutional Court. The court argued that this provision seriously infringed several rights of children, especially the right that their best interests should always be considered of paramount importance in any matter relating to them.
The Criminal Law Sexual Offences and Related Matters Amendment Act 5 of Sexual Offences Amendment Act now stipulates that the names of these juveniles will appear on the NSRO only after a state prosecutor has applied for such an order, and after careful consideration by the court of the child's probability of committing another sexual offence. The consequence thereof would be that the names of these juvenile offenders would be recorded in the NRSO; and if convicted of two or more such sexual offences, the entry would be permanent.
The Sexual Offences Amendment Act currently provides that consensual sexual acts between teenagers older than 12 but younger than 16 is not criminal. A child between the ages of years may also lawfully have consensual intercourse with a or year-old, as long as the age difference between the two partners is two years or less. It is hoped that with these amendments SA will not find itself in a position like that in the US where in more than , sex offenders were registered, which number included the details of individuals convicted of prostitution and public urination, as well as those who committed their only offences decades ago.
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There certainly are many high-risk sexual perverts that need to be closely and consistently monitored by law enforcement, but there are more effective and less intrusive means to control sex offenders and achieve public safety. In defending the NSRO, advocates assert that people have a right to know so as to be able to protect their children against sexual predators who are unable to reform. The inability to reform some sexual malefactors could be ascribed to the non-existent or poor treatment programmes available in SA. Other alternative methods to achieve the purpose are the establishment of various supervision methods such as electronic and global positioning satellite GPS monitoring, or chemical castration and compulsory DNA- and polygraph-testing.
Repeat high-risk sex offenders could also be committed to mental institutions indefinitely. The SA version does not make provision for these procedures as alternative ways of dealing with sex offenders. SA had the ideal opportunity to carefully consider whether or not to institute a sex offender register as well as the implications of establishing such a register by drawing on the experiences of the US and the UK.
The community notification scheme employed in the US was found to be riddled with problems, and to provide no conclusive data as to the effectiveness of these laws. Despite rational arguments, evidence and recommendations against its conception, the government nevertheless continued with the creation of the register, and chose to replicate the UK model. However, it seems that new sex offender legislation in the UK is moving towards the US' stance of open public access.
Compared to the US' and UK's sexual offender registers, SA's NRSO is less restrictive, but the law, according to many, does not function as intended and is misguided, failing to protect children from sex crimes but making it nearly impossible for former offenders to rebuild their lives. SA is likely to face challenges to those encountered in the US and the UK, of which a lack of experience and resources, both monetary and administrative, are the most salient.
These problems may prevent the achievement of the purpose of the registry.
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Whether or not the sex offender register will be further constitutionally challenged in court will have to be seen. In the US, a shift of the burden of proof onto sex offenders to establish that they were no longer sexually violent predators was declared unconstitutional because it violated procedural due process guarantees under the federal and state constitutions. Critics of the register doom it to be a failure, labelling it "feel-good legislation" and a futile effort to name and shame the offenders. Similar legislation has not brought about a reduction in the level of sexual offences in countries where it is currently in operation.
As established, a sex offender register does not prevent the commission of sexual offences. Sex offender policy issues may be implemented because they are popular, but that does not mean that they are efficient, effective or equitable.
National Register for Sex Offenders (NRSO)
The state would do better to protect the public through legislation based on empirical evidence, while ensuring that citizens' constitutional rights are not infringed. United States of America. Doe v Portz A2d NJ Doe v State P 3d Alaska In re Reed P2d Cal People v Adams NE 2d Reynodds v US US Smith v Doe US 84 S v Bani 36 P3d Haw Children's Act 38 of Children's Amendment Bill B Constitution of the Republic of South Africa, Criminal Procedure Act 51 of Judicial Matters Amendment Act 55 of Learn how and when to remove these template messages.
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Unreliable citations may be challenged or deleted. See also: Virgin cleansing myth. Main article: Corrective rape. Main article: Prison rape. Gov: South Africa". Retrieved 29 February National Sexual Violence Resource Center. Retrieved 18 March South African Police Service.
South African Department of Justice. Africa Check. Retrieved 13 October BBC News. Retrieved 15 May Women's eNews. FM Statistics South Africa. Archived from the original PDF on 15 April Monograph No Archived from the original on 15 March Retrieved 5 November The Guardian. Africa Renewal. Retrieved 11 June Sexuality in Africa 1. Retrieved 17 August Retrieved 28 December Retrieved 3 January Retrieved 4 March Retrieved 31 December Retrieved 25 November Retrieved 12 July Retrieved 15 March The Daily Telegraph.