The Ombudsperson for children, Shirin Aumeeruddy-Cziffra, expresses relief that the government has decided to take some time before going ahead with the Sexual Offences Bill. ?As I said in a column in l?express when the bill was just made available, I welcome such a bill but I think we should not go too fast with it.? One of the aspects that frighten her most is a subsection that comes back in all the important sections of the bill about rape, sexual assault by penetration, sexual assault and causing a person to engage in sexual activity without consent and which reads, ?It shall be a sufficient defence to a prosecution (?) that the accused had reasonable cause to believe that the other person consented to the penetration?.

All lawyers indeed agree that consent is extremely difficult to prove especially in cases of long-term relationships. ?How could a woman prove that, after having had sexual intercourse with her partner for years with her consent, then on this particular day and for particular reasons, she did not want to have a specific type of sex?? the former lawyer wonders. So, chances would be that victims ? men and women ? would never be able to prove beyond doubt that they did not consent unless there is a proof of violence or fear of violence under section 4.

?It appears clearly that, as the bill stands now, presumption is in favour of the accused,? says Shirin Aumeeruddy-Cziffra. ?The presumption should be reverted and become in favour of the victim. It should no longer be a defence that the accused thought that she was consenting,? she adds. Lawyer Lovania Pertab agrees with the fact. ?It is extremely difficult to prove in court that there was no consent on the part of the victim.?

And the problem may actually be even more serious with Section 23 on false declaration of sexual offences of the bill, stating: ?Any person, whether of his own free will or in the course of an interview, who makes a false declaration to any public officer on duty that any person has committed an offence under this Act, shall commit an offence and shall, on conviction, be liable to a term of penal servitude not exceeding 10 years.?

That means that a victim could enter a case in court and lose it for technical reasons. This person could then be sued for false declaration, which would obviously not encourage people to sue the suspect. ?The law already makes provision for false and malicious statements in writing. So, what was the point of including a specific section in that bill?? Shirin Aumeeruddy-Cziffra asks. Lovania Pertab goes even further: ?The victim might well see this as a threat, as she (we should not close our eyes on the fact that victims of sexual offences are mainly women) would be afraid not to be believed in court.?

?It is very rare that, in a case of rape, the autopsy proves beyond reasonable doubt that there has been rape,? comments lawyer Pramila Patten. This is why corroboration is one of the ways of proving that there was no consent but most cases of rapes occur with no witness around. This is why the lawyer does not understand how the bill ?copied Article 23 of the British legislation but did not copy the changes brought to the Criminal Evidence Act where corroboration is no longer necessary to prove rape?.

?Now that the attorney general has agreed to wait for the conclusions of the select committee before re-introducing the bill, we can hope that it will be looked at completely differently and that everyone will be at par,? says Shirin Aumeeruddy-Cziffra. The committee on sexual abuse, chaired by the Ombudsperson for children and consisting of doctors, teachers, psychologists and psychiatrists, etc. is meeting next Friday to discuss the bill. It hopes to be given the chance of submitting its views to the select committee.