Trafficking in Sexual Offences Bill SALC BILL No August 2003 BILL NO February 2004 BILL Chapter 5 (24) (1) A person (“A”) who traffics another person (“B”) without the consent of B, is guilty of the offence of trafficking and is liable upon conviction to a fine or imprisonment for a period not exceeding XX years. (2) For the purposes of subsection (1) “consent” means free agreement- (3) Circumstances in which B does not freely agree to being trafficked, as contemplated in subsection (1), include, but are not limited to, the following- (a) where there is a use of force against B or another person (“C”) or against the property of B or C; (b) where there is a threat of harm against B or C or against the property of B or C (“C”); (c) where there is an abuse of power or authority to the extent hat B is inhibited from indicating his or her unwillingness or resistance to being trafficked, or unwillingness to participate in such an act; (d) where B is led to believe that he or she is committing such an act with a particular person who is in fact a different person; (e) where B is led to believe that such an act is something other than that act; or (f) where B is, at the time of the commissions of sch an act- (i) asleep; (ii) unconscious; (iii) in an altered state of consciousness; (iv) under the influence of any medicine, drug, alcohol, or other substance to the extent that the person’s consciousness or judgement is adversely affected; or (v) a mentally disabled person; or (vi) a child. (4) A person who has been trafficked is not criminally liable for any migration-related offence, prostitution or any other criminal offence that was a direct result from being trafficked. (7) (a) A commercial carrier commits an offence if the carrier brings a person into the Republic of South Africa and, upon entry into the Republic, the person does not have the travel documents required for lawful entry into the Republic. (b) A commercial carrier is not guilty of an offence under paragraph (a) if- (i) the carrier had reasonable grounds to believe that the documents that the person has are the travel documents required for lawful entry of that person into the Republic; (ii) the person possessed the travel documents
required for lawful entry into the Republic when that person boarded, or last boarder, the means of transport to travel to the Republic; or (iii) entry into the Republic occurred only because of illness of or injury to a child or adult on board, stress of weather or other circumstances beyond the control of the commercial carrier, (c) A commercial carrier is, in addition to any offence under this section, liable to pay the costs of the trafficked person’s care and safekeeping and return from, the Republic. Definition of Trafficking: The supply, recruitment, procurement, capture, removal, transportation, transfer, harbouring, sale, disposal or receiving of a person, within or across the borders of the Republic of South Africa, for use in sexual acts, including sexual exploitation or pornography. Comments: 1.
Trafficking has been added without going through the public comment and hearing process. 2.
The SALRC has not completed a discussion paper or drafted legislation. The only addresses sexual exploitation but no other types of trafficking. There is no protection for victims in the clause Submissions: 1. There were two oral submissions that suggested adding a clause on trafficking in order to clarify the Child Prostitution Clause 11(1) (d).