This is the continuation of the Explanatory Memo-randum in The Sexual Offences Bill in 2009. The first part was carried in Consumer Concerns last week.
“Other measures in clauses 58, 59 and 60 include allowing children to give evidence by video- link through an intermediary, use of anatomically correct dolls, allow written evidence where the child is prevented from testifying, and allow hearsay evidence to build up a circumstantial case where the child cannot testify.
“Clause 61 allows the victim to make a ‘victim impact statement’ at the hearing of a bail application as well as after conviction but before sentence and the court shall take the victim’s view into consideration when making a decision in those circumstances.
“Recognising the trauma caused to victims who are forced to face the questions from the person those victims claim have caused them pain and injury, clauses 62 to 65 disallow the accused from cross-examining in person the victim of an offence charged under this Act, as well as the witnesses who were at the time of the commission of the offence charged under this Act, as well as the witnesses who were at the time of the commission of the offence children.
If the accused does not have a lawyer, the Court if it is in the interest of justice shall appoint an attorney-at-law for the purpose of cross-examining the victim or complainant in a trial of any offence under this Act as is provided in clause 64.
The Judge shall be required to warn the jury that no adverse meaning shall be inferred from the fact that the accused is not being allowed to cross-examine the victim as is provided for in clause 65.
“The Bill includes a simplified and modernized anonymity provision to ensure that all forms of communication to the public are covered, including the internet. There will be no exceptions to the rule that the anonymity of the victim must be preserved, and breach of the rules will remain a criminal offence. Clauses 66 and 67 make these provisions possible.
“Part V in clauses 68 to 71 introduces a simplified definition of competence to ensure that as many child witnesses and witnesses with mental disabilities as possible that are capable of giving evidence are allowed to do so. “Clause 73 also abolishes the corroboration rule for the sworn and unsworn evidence of children. Again the judge will be free to direct the jury if there are particular reasons to doubt the credibility or reliability of the evidence and the jurors are free to judge the credibility of each witness themselves.
“Clause 74 provides that a spouse is now a compellable witness for either the prosecution or the defence.
“As regards previous consistent statements, clause 75 places an obligation on the court to warn the jury that there can be good reasons why a victim makes no complaint or why there is a long delay in making a complaint. Clauses 76 and 77 make clear that recent complaint evidence can be evidence of the incident complained of, not just evidence to support the credibility of the witness.
“Part VI in clauses 85 to 88 includes rules of bail in sexual offences.
“The general rule is that where bail is applied for there are certain factors the court must consider in the exercise of its discretion.
“However, where the charge is a child sex offence or where the accused had a previous conviction of any sexual offence the onus shall be reversed and it shall be the accused who has to satisfy the court that it is in the interest of justice for him to be granted bail.
“Clause 88 provides that the police notify the victim if and when the accused is released on bail and provides the means by which this is to be done.
“As regards sentencing, Part Vll in clause 89 provides for the various types of orders that can be made upon the conviction of an accused person. In addition to the prescribed penalties under specific offences, courts can now make other orders including orders for drug testing, HIV/AIDS testing, monetary compensation, protection and occupation orders, orders for counselling, etc.
“Part VIII in section 90 makes it mandatory that a health worker shall report to the police a case where a child has been sexually abused and keep a record of having done so.
“Part IX in clauses 91 to 96 sets out the framework for a national strategy to eradicate sexual violence.
In considering prevention it is important to bear in mind that most sexual violence is committed by a person known to the victim, that the violence often takes place at the home of the victim or the accused, that most victims are female, and that children – boys and girls, young women and women in poor or rural areas are particularly vulnerable. These clauses require the establishment of a National Task Force for Prevention of Sexual Violence with named members and the establishment of a sexual violence unit.
“Part X deals with miscellaneous matters. Clause 97 empowers the making of Rules of Court and also empowers the Minster to make regulations. Clause 98 deals with the laws to be applied in relations to this Act. Clause 99 specifies how laws inconsistent with this Act shall be treated. Clause 100 deals with repeals and savings.
“The First Schedule deals with paper committals, the Second Schedule provides the procedure to determine evidence of sexual activity where the complainant is over or under sixteen years of age and the Third Schedule mentions the laws that are repealed.”
