South Africa's Sex Offender Registry: a Legislative, Public Policy and Constitutional Overview

• Publication year: 2011

Gonzaga Journal of International Law Volume 14 - Issue 2 (2010 - 2011)

South Africa's Sex Offender Registry: A Legislative, Public Policy and Constitutional Overview

By Shelby A. Boxenbaum(fn*)

Introduction

In 1994 the first democratically elected South African legislature faced the task of repealing the outdated legislation of the Apartheid era and replacing it with laws based on contemporary notions of fairness and equality. One of the outdated pieces of legislation was South Africa's Sexual Offenses Act of 1957, which the Criminal Law (Sexual Offenses and Related Matters) Amendment Act 32 of 2007 ("Sexual Offenses Act") replaced. The Sexual Offenses Act provides for the establishment of a national sex offender registry; currently, there are sex offender registries in place in six other countries around the world.(fn1) Critics of the creation of a South African registry caution that it may do more harm than good. They point to foreign jurisdictions, specifically the United States and Canada, as examples of sex offender registries gone awry.(fn2) The American and Canadian experiences provide insight into the challenges South Africa will likely face when implementing its own registry.

In this paper, it is argued that South Africa's sex offender registration scheme is not only ill-advised as a matter of public policy, but also subject to serious administrative challenges. In addition, the article will explore the possibility that the registry violates sections 9, 10, 12 and 14 of the South African Constitution. Part I of this paper provides a legislative overview of the South African sex offender registration scheme by comparing its relevant parts to schemes in the United States and Canada. Part I will also present the legislative history behind South Africa's national registry. Many of the same factors leading to the creation of sex offender registries in the United States and Canada motivated the enactment of South Africa's registry. Part II highlights the administrative and implementation issues plaguing the American and Canadian registries. Given South Africa's shortage of resources, both monetary and managerial, it is predicted that South Africa will face similar issues in the administration and implementation of its registry. Part III examines the public policy arguments against the enactment of a registry. These arguments, based on empirical data and studies conducted in the United States, show that South Africa should not create a registry. In addition, South Africa has the opportunity to pioneer new methods for dealing with sex offenders, rather than copying the ineffective registry systems of foreign jurisdictions. Part IV explores possible legal challenges which could be brought before South Africa's Constitutional Court. A legal challenge to the current registry will fail. If, however, the registry were to become publicly accessible, the case for a constitutional violation becomes much stronger. Finally, Part V suggests a basic strategy to improve and remedy the current system. Part I

A. Legislative Overview

While parts of the South African registry resemble systems in place in the United States and Canada, South Africa's registry contains several important differences. First, the purpose of each registration system varies; South Africa and Canada use their registries for narrowly defined purposes, while the United States enacted its registration scheme for more broad and undefined reasons. The Sexual Offenses Act states that the purpose of the South African registry is two-fold. First, the registry seeks to "protect" children and mentally disabled persons by "maintaining a record" of convicted offenders.(fn3) Second and more specifically, the registry will allow employers,(fn4) licensing authorities,(fn5) and authorities dealing with fostering, kinship care-giving, temporary safe care-giving, adoption and curatorship the ability to apply for a prescribed certificate stating whether or not the particulars of a potential employee or applicant are contained in the registry.(fn6) In Canada, the sex offender registry is to be used as a tool for law enforcement when "investigat[ing] crimes of a sexual nature."(fn7) The United States maintains its registry "[i]n order to protect the public from sex offenders and offenders against children, and in response to the vicious attacks by violent predators."(fn8)

The second major difference among the three registries is the class of offenders covered by the registration requirements. The South African registry's scope is the narrowest. The Sexual Offenses Act requires the registration of any person convicted of a sexual offense against a child or a mentally disabled person.(fn9) Whereas, sex offender registration laws in the United States require the registration of any individual who commits a sexual offense, regardless of whether it was committed against a child or an adult.(fn10) Like the United States, Canada's national registry includes those who commit sexual crimes against adults and minors, but registration is not always mandatory.(fn11) A prosecutor must apply for an order from the court in order to require an individual convicted of a sex crime to register.(fn12) But the court can refuse to grant the order "if it is satisfied that the [offender] has established that, if the order were made, the impact on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society."(fn13)

The third difference among the three schemes is the breadth of information which must be recorded. The South African registry requires the least amount of information concerning each offender. South Africa's registry must contain the name, address, identity number, passport number, and driver's license number of the offender.(fn14) The registry will outline the nature of the crime including the date of the offense, place of conviction, the case number and the court in which the trial took place.(fn15) The United States goes further in its requirements. The United States registry contains the same information as the South African registry as well as the address of any location where the offender is a registered student, a physical description of the offender, the criminal history of the offender, a current photograph, a set of finger and palm prints, and a DNA sample.(fn16) Canada's registry falls somewhere in the middle by requiring a sex offender's name, date of birth, gender, residential and employer addresses, the address of any educational institutions they attend, telephone number (including mobile), height, weight, and a description of any physically distinguishing marks.(fn17)

The fourth distinction concerns the length of the registration period. In both South Africa and Canada the duration of the registration period is linked to the length (or potential length) of the offender's sentence, although South Africa's provisions are more lenient. The Sexual Offenses Act states that persons sentenced to imprisonment or correctional supervision for between six to eighteen months are to be removed from the registry after a period of ten years.(fn18) Persons with sentences of six months or less may be removed after seven years.(fn19) Persons with sentences of a lesser punishment are eligible for removal after five years.(fn20) Any person sentenced for a period of more than eighteen months or a person with two or more convictions is not eligible for removal.(fn21) In Canada, the amount of time sex offenders are required to register is based on the maximum penalty for the offense for which they were convicted.(fn22) Offenses carrying a penalty of two to five year maximums are required to register for a period of ten years.(fn23) Offenses carrying a ten to fourteen-year maximum penalty require the offender to register for twenty years.(fn24) Persons required to register for life include offenses with a maximum lifetime sentence or when there is a prior conviction for a sex offense.(fn25) Contrast this with the United States, where offenders are classified by tiers, which in turn are based on specific crimes committed.(fn26) The registration period is fifteen years for a tier I offender, twenty-five years for a tier II offender, and life for a tier III offender.(fn27)

The last and most visible difference is in the level of confidentially each of the three registries allows. The contents of the South African registry will not be available to the public-only those entitled to apply for a certificate will have access to the information contained in the registry.(fn28) The Sexual Offenses Act makes it a criminal offense for anyone to willfully disclose or publish information contained in the registry, except as when necessary to give effect to the provisions of the Act or when ordered to do so by a court.(fn29) The information contained in the Canadian registry is likewise unavailable to the public, although some exceptions exist.(fn30) Canada's Sex Offender Information Registration Act makes it an offense to disclose or misuse any of the data collected in the registry.(fn31) However, the United Statesrequires each state to maintain a website where the public can access most of the information contained in the registry concerning each sex offender.(fn32) The website for the United States Federal Bureau of Investigation ("FBI") provides access to each...