‘INCEST CLAUSE COULD BE SUBJECT TO ABUSE’

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

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