An examination of child sex offenders and their constitutional rights with regard to the National Register for Sex Offenders in South Africa.

Abstract

There are provisions in Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 5 of 2015 that are unconstitutional with regards to the registration of child sex offenders in the National Register for Sex Offenders because they infringe on many of child offender’s rights such as right to dignity, right to privacy and right to fair trial. The Criminal Law (Sexual Offences and Related Matters) Amendment Act 5 of 2015 repealed the automatic entry of child offenders on the National Register for Sex Offenders, but it did not draw a clear line between child and adult offenders. The repeal of automatic admission is not enough to make it a viable tool for separating child offenders from adult offenders. This is because it just addresses inclusion and ignores the procedures for removal and the repercussions of being on the list. Rights such as the right to privacy, the right to a fair trial and the right to dignity remain at risk, which is against international law, the Constitution of the Republic of South Africa, 1996, the Child Justice Act 75 of 2008, the Children’s Act 38 of 2005, and the Criminal Procedure Act 51 of 1977. These sources illustrate different ways in which to handle a child caught in contravention of the law in the criminal justice system, but the National Register for Sex Offenders contradicts all the above statutes. In matters involving children, the best interests of the child take precedence, as emphasised by the Constitution of the Republic of South Africa, 1996 and other international instruments. The presence of a child's name on the register has psychological and social consequences for the child, which may lead to recidivism. Long-term registration may result in stigmatisation that affects peers and society as a whole, potentially endangering the child. This violates constitutional principles such as Ubuntu and restorative justice. According to the United Nations Convention on the Rights of the Child (1989), any procedure of punishment for children should be as lenient as possible compared to that for adults. South Africa is a signatory to many of these international conventions, and the National Register for Sex Offenders should reflect these standards. Since children are among the most vulnerable group in any human community, the State has a duty to protect their constitutional rights regardless of age and status. The register currently specifies that the confidential details of child offenders who are listed in the register must be recorded. The consequential disclosure of the child sex offender’s name, location and age jeopardises the child’s wellbeing in society and employment opportunities will be limited. This has been seen in registers in the United Kingdom and the United States of America, where registered child sex offenders have been stigimatised and bullied, and some have gone to the extent of committing suicide because the public has had access to their particulars. Even though Kenyan and South African law grants access authority only to specific institutions and individuals, the disclosure of such particulars is an area that can be further debated to allow for public access. In the United Kingdom and the United States of America, the information is public knowledge; however, South Africa has tried changing how the register works so that the offender’s privacy is protected. The National Register for Sex Offenders interferes with not only the right to privacy but also the right to a fair trial and the right to dignity. Therefore, legislation relating to the registration of minor sex offenders should be amended. The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (SORMA) should be amended because the National Register for Sex Offenders is against the best interests of the child and does little to reduce sexual crimes against children.