From Law to Practice Part I: The Sexual Offences Act 2012
Several milestones were achieved in 2012. Chief among these were multi-tiered elections judged by many as being largely free and fair. On the legislative front, the country notched up several ground-breaking laws. The Legal Aid Act has been recognised as one of the most progressive in Africa- it establishes a national mechanism for the provision of affordable criminal and civil legal aid to indigent persons. The Public Elections Act, meanwhile, overhauls and consolidates the country’s electoral laws and the Anti-Money Laundering and Combating of Financing of Terrorism Act establishes structures to combat money laundering and financing of terrorism. (Photo: Sonkita Conteh, Director, Namati, Sierra Leone)
This article is part of a series about new laws and will discuss key provisions of the Sexual Offences Act.
What the new law promises
Following persistent civil society advocacy the Sexual Offences Act was passed with the simple purpose of “consolidating with amendments the law relating to sexual offences”. The law makes several key improvements on the existing regime and contains far-reaching provisions which hold significant promise in the fight against sexual violence.
Redefining the offence of rape
First, the act alters the common law approach to rape which by definition could only be perpetrated against women. An intentional act of sexual penetration of a person without consent now constitutes rape. Sexual penetration means penile or insertion of an object by a person to any extent of the private parts or the mouth of another. There is now a mandatory five year minimum and fifteen year maximum sentence for rape.
Obliterating the marriage defence
Significantly, and unlike under the common law, marriage is no longer a defence to a charge of rape or indecent assault. This provision which plugs what many rights activists long regarded as a loophole under the common law is viewed as a major victory for women in the country. It reportedly generated significant debate during the bill’s passage in parliament with some male members of parliament favouring retention of the common law position. The fact that the provision was retained is testament to the strength of civil society advocacy on the issue and is a significant loss of legal protection for one of the ‘last bastions of male dominance’ within the domestic sphere. In contrast, the attempt six years ago to criminalise marital rape fell short of the mark with the Domestic Violence Act 2007 settling for a compromise offence of ‘sexual abuse’ punishable by imprisonment not exceeding two years or a fine of Le 5,000,000 (US $ 1160) or both. Under the new law, marriage however remains a defence to a charge of engaging in sexual activity with a mentally disabled person.
Deterring child sexual exploitation
The act contains strong punishment (5-15 years imprisonment) for those sexually abusing or exploiting children or persons with mental disability, particularly those in positions of trust. Other punishable offences include causing a child to watch sexual activity in real life or in image form, producing, distributing or possessing child pornography, meeting a child for sexual purposes and obtaining the services of child prostitutes. They all carry a maximum sentence of 10 years imprisonment. Parents who facilitate child prostitution can be imprisoned for up to 15 years.
Notably, the act introduces sentencing guidelines in the prosecution of sexual offences. It identifies ‘aggravating factors’ which can permit the imposition of the maximum punishment for any offence. These include use or threatened use of a weapon and causing bodily harm to the victim while committing the offence. It is also an aggravating factor if the victim is a child or suffers from physical or mental disability or the perpetrator is related to the victim. During the process of sentencing, a victim is allowed to issue a statement describing the impact of the crime on her or his life. The court is bound to consider such statements in determining the length of the punishment.
Compensation for victims of sexual violence
To the applause of many campaigners, the new law provides for the payment of compensation to victims by offenders. This does not require a separate procedure as the same court can order reasonable compensation in addition to whatever punishment it imposes. The compensation will cover cost of medical and psychological treatment, physical and occupational therapy, lost income, legal fees and compensation for emotional distress, pain and suffering among others.
Police assistance to victims
Like in the Domestic Violence Act 2007 the sexual offences act contains a step by step direction to the police on the treatment of victims from the receipt of a complaint until the matter is turned over to the courts. The police are under obligation to record the complaint in detail and where the victim requests, provide an extra copy of the complaint in a language that she or he understands. They should also assist the victim to obtain medical treatment and a medical report when necessary. The act specifies that victims of sexual offences are entitled to free medical treatment and a free medical report. The police should protect the victim and where necessary assist her or him to a place of safety.
Protection of victims and witnesses in judicial proceedings
Similarly, courts are now under obligation to provide adequate protection and support to vulnerable victims and witnesses by adopting special measures to protect their identities and to make the ordeal of testifying more bearable. The act permits the use of screens to protect the identity of victims during testimony, video recording of an interview as evidence-in-chief, exclusion of all or any persons from the proceedings save those with a direct interest and closed pre-trial hearings to obtain witness evidence. It also forbids the publication of identifying information of victims.
How to bring the law to life
The new law clearly brings a lot more fight into efforts to tackle the scourge of sexual violence in the country. It is wide and robust enough to ensure perpetrators do not get off lightly while at the same time respectful of the rights of victims. Its sensitivity to the plight of victims makes it a stand out criminal legislation.
However, there is a real risk of the law flopping if the two key institutions namely the police and judiciary fail to play their respective parts as set out in the law. In the past, both institutions have been accused of insensitivity to victims of gender based violence and lethargy in investigating and adjudicating gender based offences. However, with the adoption of “Saturday Courts” and the training of over 250 police officers on techniques for investigating gender based crimes, the situation seems to be improving. A key challenge still persisting is the practice of requiring victims of gender based violence to pay for medical treatment and medical report, even though the Domestic Violence Act 2007 stipulated otherwise. The sexual offences act contains a similar provision and it remains to be seen if that would be complied with now. A medical report is seen as vital for a successful prosecution and inability to pay for one may adversely affect the outcome of the process. The government needs to back up its commitment to the fight against sexual violence by allocating the necessary funds and setting up mechanisms for the free medical treatment of victims nation-wide.
The Rules of Court Committee which regulates practice and procedure of courts is required by the sexual offences act to make rules to protect and support vulnerable victims. Going by the unhurried pace of the committee and the judiciary, it might be a while yet before such rules come into existence. So far, the Judiciary has not been able to set up family courts under the Child Rights Act 2007 and neither has the committee made rules for the participation of persons with disability in judicial proceedings. Unless the committee bucks the trend, important provisions of the sexual offences act may not be fully operational and beneficial for a while.
The new law is certainly stacked against sexual offenders whether in the private or public sphere and it contains humane provisions which help to mitigate the burden that usually accompanies a victim’s decision to pursue legal remedies. The impressive content of the law would however count for nothing if deliberate steps are not taken to translate them into concrete actions in a timely manner. Police investigators and prosecutors need to be trained and mentored on the many new elements of the law to increase the chances for successful prosecutions. The Rules of Court Committee should act immediately and make rules to give effect to the special measures for victims. Judges and Magistrates need to familiarise themselves with the new procedures for adducing evidence.
Civil society has to work overtime to raise awareness about the new law at grassroots level and ensure that the various stakeholders play their parts. In particular, community based paralegals will be instrumental in getting the message out and assisting victims seek redress. The law is already in existence and any delay in fully implementing it affects the fight against sexual violence materially. The legislature has done its bit by enacting the law. The police, courts and health ministry cannot afford to be lacklustre. Sexual violence is a grave public health and human rights problem with multiple consequences. An excellent opportunity to make a world of difference in the fight against sexual violence has been offered by the new sexual offences act- let’s not squander it.
By Sonkita Conteh, Director, Namati Sierra Leone
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