Times Of Swaziland: ‘INCEST CLAUSE COULD BE SUBJECT TO ABUSE’

‘INCEST CLAUSE COULD BE SUBJECT TO ABUSE’
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BY SIBONGILE SUKATI on 04/10/2017 09:35:00


MBABANE – THE CLAUSE RELATING TO INCEST IN THE SEXUAL OFFENCES AND DOMESTIC
VIOLENCE (SODV) BILL OF 2015 IS TOO WIDE AND SUBJECT TO ABUSE.
THIS WAS ONE OF THE FINDINGS MADE BY THE DEPUTY PRIME MINISTER’S OFFICE
PORTFOLIO COMMITTEE IN ITS REPORT, WHICH WAS TABLED BY ITS CHAIRPERSON SANDLENI
MP JAMES SIMELANE.
AS A RESULT, THE COMMITTEE HAS RECOMMENDED THAT CLAUSE 4 BE DELETED IN ITS
ENTIRETY AS THERE WAS SUFFICIENT LEGAL FRAMEWORK TO DEAL WITH OFFENDERS.
ACCORDING TO THE PROPOSED BILL, INCEST IS DESCRIBED AS A PERSON WHO ENGAGES IN
AN ACT OF SEXUAL PENETRATION OR ATTEMPTS SUCH WITH THAT PERSON’S OFFSPRING OR
SIBLING, PARENT, GRANDPARENT, UNCLE, AUNT, NEPHEW OR NIECE.
CLAUSE 4 (1B) ALSO STATES THAT ANOTHER PERSON WHOM IT WAS REASONABLE FOR THEM TO
KNOW THAT THE OTHER PERSON BORE THAT RELATIONSHIP TO HIM OR HER WOULD BE IN
CONTRAVENTION OF THE SUBSECTION AND ON CONVICTION LIABLE TO IMPRISONMENT WITHOUT
AN OPTION OF A FINE FOR A TERM NOT EXCEEDING 25 YEARS IF THE VICTIM WAS LESS
THAN THE AGE OF 14 YEARS.
IT CALLS FOR THE IMPRISONMENT, WITHOUT AN OPTION OF A FINE FOR A TERM NOT MORE
THAN 20 YEARS, IF THE VICTIM WAS ABOVE 14, BUT BELOW 18 YEARS.
“WHERE BOTH THE VICTIM AND OFFENDER ARE OF THE AGE OF 18 YEARS OR BELOW, THE
COURT MAY USE ITS DISCRETION IN SENTENCING THE OFFENDER,” READS SUBSECTION 3,
WHILE THE BILL HAD ALSO PROPOSED THAT IT WOULD BE IMMATERIAL THAT THE ACT OR
attempted act of sexual penetration happened with the consent of either person.
“A reference to an offspring or other lineal descendant includes a
relationship of the type that was a half, adoptive or step,” reads the
proposed Bill. Similarly, on the issue of abduction, the committee felt that
Clause 42 on abduction was subject to abuse and without it, the current
legislations available would continue to adequately protect against the abuse of
women and children.
They said offenders could still be prosecuted under Common Law and Section 75 of
the Children’s Protection and Welfare Act, 2012.
“The committee therefore recommends that Clause 42 be deleted altogether,”
reads the report.
The Bill had stated that for the purposes of Section 42, abduction meant
unlawfully taking a child out of the control of the custodian of that child or a
person in charge of that child with the intention of marrying or enabling
someone else to