Bid to get priest’s sex charges dropped

Loophole in the law could mean that sexual offenders walk free, writes Juggie Naran

ADURBAN lawyer will apply to court to have sexrelated charges against Indian priest Adhyatma Adhyatma, 52, quashed because of a loophole in the Sexual Offences Act.

Rajesh Sunker wants the charges against his client – grooming, sexual intercourse with a minor and the publication and possession of child pornography – dropped.

The complainant is a 12-year-old Tongaat girl.

Adhyatma, who was in court this week, is alleged to have committed the crimes while living with the girl’s family at their home.

Sunker will make the application next month when the matter returns to court, basing his argument on a recent Western Cape High Court ruling that 29 of the sexual offences in the act have no penalties attached.

According to the ruling, perpetrators arrested for certain offences in the act cannot be formally charged because legislators omitted to prescribe sentences for the crimes. This also means that offenders already convicted can apply to have their convictions set aside.

NGOS are outraged at the state’s incompetence in dealing with the 2007 act, which will mostly affect children and people with intellectual disabilities.

Linda Naidoo, the director of Childline KZN, said she was “aghast” at the shortcoming, describing it as criminal.

“Again the country lacks the ability to protect our women and children. We have one of the highest rates of abuse and exploitation in the world and we have failed when we have legislation that is not adequate to protect our most vulnerable citizens, our children.”

Naidoo said it was ironic that this comes on the eve of Child Protection Week, which is intended to boost public awareness of abuse.

“It takes courage for a child to report sexual exploitation.”

Many cases go under-reported, she said, and if the shortcomings in the legislation are not rectified, many offenders will appeal on technicalities and will be able to have further access to children.

“Victims will not understand the loopholes in the act. It does not make sense to people. To them, a crime has been committed and the criminal should be punished,” said Naidoo.

Lubna Nadvi, of the Advice Desk for the Abused, said that while the legal fraternity was debating whether it was necessary to prescribe penalties within the text of the legislation, it was important to deal with any further loopholes that might lead to the release of criminals tried under the act.

“Judges should be able to prescribe harsh sentences where necessary, in cases of extreme violence, and these could be either stipulated or left up to a judge to administer within certain guidelines.

“It is critical that the authors of the legislation and other stakeholders create a legally water-tight situation with no room for arguing that a person convicted of a sexual offences act can be released because of loopholes in the legislation passed five years ago.

Implications

“The gender and human rights activist community has worked far too hard for years to bring into force legislation such as the Sexual Offences Amendment Act, to have their efforts go down the drain.

“Neither the legal fraternity nor the activists should allow such a situation to emerge. This law is important for women from all sectors of the country, given that gender-based violence here is, sadly, one of the worst criminal plagues that we face,” said Nadvi.

The acting national executive director of Child Welfare SA, Trix Marais, said the organisation supported the appeal for urgent amendments.

“This has serious implications for the safety and protection of children.

“The Children’s Act is clear on serving the best interests of children and this ruling does not work in the best interests of children.

“It is a violation when offenders are not held accountable for wilful acts of hurting or harming others, including children, sexually,” said Marais.

She said addressing the gap should take priority on the agenda of all parties – clarity on sentencing in the act was essential.

Justice and Constitutional Development Minister Jeff Radebe told Parliament that the government would appeal against the court ruling.