THE STATE RESPONSE TO VIOLENCE AGAINST WOMEN

In a 1995 report, Violence Against Women in South Africa: The State Response to Domestic Violence and Rape, Human Rights Watch concluded that - although statistics are suspect and assaults on women are often unrecorded - "South African women, living in one of the most violent countries in the world, are disproportionately likely to be victims of that violence."2 The report looked at the facts of domestic violence and sexual assault of women, considered the legal and economic background to their subordination, and examined the response of the state, in particular the criminal justice system, to the issue of violence against women. Despite the changes brought by the ending of the apartheid era, with the election on the basis of universal suffrage of a government led by the African National Congress (ANC), Human Rights Watch found that the state response to violence against women was inadequate.

In particular, Human Rights Watch found that the police were often hostile or unsympathetic to women who had been battered by their partners or sexually assaulted, that they might be ignorant of the legal remedies open to women, and that incompetence or indifference meant that many perpetrators were not arrested, or that charges laid against them were dropped. Prosecutors were likely to treat cases of violence against women with less seriousness than other assault cases and were poorly trained and paid; judges and magistrates shared the prejudices of police and prosecutors; and the system for the examination by state doctors of women who complained of rape was also problematic. As a consequence of these problems, women who had been assaulted or raped could not hope for much defense from the state, and perpetrators were going unpunished. Moreover, the whole experience of attempting to use the criminal justice system to obtain redress was such an unpleasant ordeal that many if not most women preferred to seek assistance elsewhere, if at all.

Since our report was published at the end of 1995, the government of South Africa has made significant policy statements and taken initiatives to improve the state response to violence against women. Some of these developments, ranging from new laws to new victim support centers are described below.

Recent Developments in Government Policy

On December 15, 1995 South Africa ratified the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),3 thus committing itself to a wide range of obligations under international law. One year later, on December 10, 1996, international human rights day, President Nelson Mandela signed into law a final constitution for South Africa. Like the interim constitution4 that was negotiated before the elections and governed the period until the final constitution came into effect on February 4, 1997, the final constitution prohibits discrimination on a number of grounds, and it has added pregnancy and marital status to a list already including sex, gender, and sexual orientation.5 Meanwhile, the Constitutional Court appointed to adjudicate cases under the constitution (whether interim or final), has decided a handful of cases that touched on the non-discrimination provisions of the interim constitution, including one case in which the court ruled that insurance legislation was unconstitutional for discriminating against married women in certain circumstances.6

During the course of 1996, the South African government also began to establish the elements of a "national machinery for the advancement of women." An Office on the Status of Women was created within the office of the deputy president, Thabo Mbeki, and in November a Commission on Gender Equality was appointed, constitutionally mandated to "promote respect for gender equality and the protection, development and attainment of gender equality,"7 following the adoption of legislation providing a framework for the commission in July.8 Other government departments also adopted machinery to promote gender equality or undertook specific commitments toimplement the Platform of Action adopted at the 1995 U.N. Fourth World Conference on Women held in Beijing, China.9

Following a November 1995 conference in Cape Town, the government entered a nationwide partnership with both the private and public sectors to combat violence against women. The National Network on Violence against Women, set up under this initiative, which has provincial networks affiliated to it in each province, aims to bring together different government departments and the nongovernmental sector. Different provinces have had different experiences of the effectiveness of these networks, with poor attendance or few meetings in some cases. Nonetheless, they have been useful at least at an information-sharing level and are an attempt to address the crippling lack of coordination between service providers. At the same time, there is an ever-increasing number of local initiatives, such as the creation of specialist rape reporting centers, linked to a greater or lesser extent with national initiatives and policy changes.

In April 1996, the South African Law Commission published an "issue paper" in which it raised various questions for debate surrounding the Prevention of Family Violence Act (Act No. 133 of 1993), extensively analyzed in Human Rights Watch's 1995 report, which provides for an expedited and low-cost interdict procedure for women (or men) abused by their partners. Public submissions were invited, and in February 1997 the Law Commission published its final recommendations and a draft bill, which took on board many of the criticisms of the act made by the women's rights movement in South Africa.10 Meanwhile, the application of the Prevention of Family Violence Act (together with other legislation dating to the apartheid era) has finally been extended to all parts of the country, including the former homelands.11

Campaign of the Department of Justice on Preventing Violence Against Women

Among its commitments under the Beijing Platform of Action, the Department of Justice undertook to amend laws that discriminate against women on a gender basis, to improve women's access to justice, and "to take integrated measures to prevent and eliminate violence against women and to facilitate the prosecution of perpetrators of violence."12

In line with these commitments, the national Department of Justice, under the leadership of Deputy Minister of Justice Dr. Manto Tshabalala, ran a campaign on the prevention of violence against women from November 1996 to March 21, 1997. Within the department, the campaign involved a series of workshops with staff employed in the justice system in order to sensitize personnel to the issues and to engage them in seeking solutions. In addition, the department conducted a public education campaign, distributing leaflets and posters on themes related to violence against women.13 As a result of consultations during the campaign, the department recommended in January 1997 that a "high level task team" be formed to develop "standard practical guidelines for use throughout the country byall role-players in the chain of handling sexual violence against women."14 Other recommendations included the establishment of "gender desks" at magistrates courts,15 gender sensitivity training, and the reform of laws relating to sexual offenses.

On June 20, 1997, the Department of Justice released, for public discussion, a draft document on gender policy considerations to give effect to the commitments of the Beijing Platform of Action, including both an internal departmental policy on the promotion of gender equality and an outward looking strategy aimed at improving women's experience of the justice system.16 An interdepartmental task team for the development of guidelines on the handling of sexual offenses has been formed as envisaged in January 1997, involving the departments of justice (including magistrates, prosecutor,s and an appellate court judge), health, welfare, and correctional services, the police, and a representative of nongovernmental organizations (NGOs) from the National Network on Violence Against Women, and it is anticipated that the guidelines will be launched by the minister on August 9, 1997, women's day in South Africa. The guidelines, which include detailed protocols for all departments, will eventually be published as a manual for wide distribution to all role players.17

Police Initiatives

In most cases, a woman's first contact with the criminal justice system in a rape case will be with the police, when she reports that she has been attacked. It is crucial both for the eventual success of her case, and to ensure that women feel comfortable reporting rape in the first place, that the police treat women sympathetically and know the correct procedures for statement-taking and referral. Several initiatives have been introduced over the last year in an attempt to improve the response of the police service in cases of violence against women. Although there have been problems with some of these initiatives, as described below, they all indicate a welcome commitment to improving services for women who have been the object of sexual assault, rape, or battery.

Victim Support Services

In 1996, the Department for Safety and Security published a National Crime Prevention Strategy (NCPS), prepared by an inter-departmental team consisting of representatives of the Departments of Correctional Services, Defense, Intelligence, Justice, Safety and Security, and Welfare. The NCPS recognized "gender violence and crimes against children" as one of the "crime categories of particular concern." Among the national programs proposed by the document was a "Victim Empowerment Programme," consisting of three "key actions": to "extend training to police and justice officials which introduces greater victim sensitivity;" to "implement a victim support programme;" and to "provide basic information to complainants and victims regarding the progress of all cases, as well as key information which enables victims to lay complaints more easily."18 It identifies the Department of Welfare as the lead agency with regard to the program, although the Department for Safety and Security has been tasked with ensuring the overall success of the NCPS. In November 1996 an Interdepartmental Guardian Committee was formed,consisting of representatives of the Departments for Safety and Security, Health, Welfare, Justice, and Correctional Services, as well as NGOs and academics, to oversee the development of a training curriculum for all criminal justice personnel involved in victim support.19

In addition, the South African Police Service (SAPS) has taken steps to develop its own victim support program, with the aim of training police officers to provide support to victims of crime, coordinating support services with other government departments and NGOs, establishing "comfort rooms" at police stations or victim support centers, and setting up a referral system and resource directory. A national "core management team" has been appointed for victim support services throughout the SAPS. In January 1996, the first support center for victims of domestic and sexual violence, the Ncedo Care Centre, was opened close to one of the African townships near Port Elizabeth in the Eastern Cape. The Ncedo Care Centre is a "one stop" center attached to a hospital but run by the police, where medical staff and trained police are available on a twenty-four-hour basis to assist women who have been raped and are brought there after reporting to one of the local police stations. Although the Ncedo Care Centre does not meet the needs of everyone in the area, and lacks support from other government agencies, it has improved service for those who have been referred there. Plans to establish at least one victim support center per province, in under-resourced areas, are being developed.20 In January 1997, a task team was established to develop guidelines for SAPS personnel on the treatment of victims of crime, especially survivors of rape and sexual assault or domestic violence. A pilot training program to sensitize SAPS members to victims' needs began in April 1997, and it is intended to integrate this program into the national training curriculum.21

Nevertheless, it remains the case that in general the "present support services for victims of crime and violence in South Africa are limited, fragmented, uncoordinated, reactive in nature and therefore also ineffective."22 While individuals in the police and in the Department for Safety and Security are clearly committed to the new ideals of policing exemplified by the victim support program, equally clearly it does not enjoy full institutional support. The SAPS victim support program is under-resourced - at the time he was interviewed by Human Rights Watch, the coordinator's own office was in a virtually abandoned building, away from the rest of the police administration, with no telephone and no computer - and poorly linked to other initiatives both within the SAPS and managed by other government departments.23

Gender Sensitivity Training

The Gauteng province Department for Safety and Security initiated a "gender sensitivity training program" during 1996, aimed at informing police officers of the particular factors influencing gender-based crimes such as domestic violence and rape. The program consists of a three-day course, during which police officers are encouraged to confront their own prejudices and to learn from women's rights activists, district surgeons, prosecutors, and other police officers about issues such as the evidence needed to prosecute a sexual offense successfully, the procedures of the Prevention of Family Violence Act, the reasons why a woman who is battered may not persist with a chargeagainst her partner, and other relevant questions. Police officers sent on the course are selected by SAPS "training officers" or station commissioners (formerly known as station commanders, but renamed with the "demilitarization" of SAPS ranks).

While the training initiative is a very welcome attempt to address insensitivity and ignorance among the police about gender-based crimes, it has met with serious problems in practice, mostly related to an apparent lack of enthusiasm for the course from the police middle management. Its impact is clearly limited by the fact that many of those sent on the training course are not volunteers. Some of them appear to have been selected to attend as some form of punishment; others hold positions to which the course is not relevant (including members of the dog unit). Moreover, actual attendance at the course has varied between 60 and 80 percent of those booked to participate, the shortfall being unexplained but possibly due to station commissioners' reluctance to release staff for such "inessential" training.24 Meanwhile, police officers who would have been keen to attend are unaware of the course's existence.25

Specialized "FCS" Units

One of the recent initiatives of the SAPS has been the introduction of specialized units handling crimes related to family violence, child abuse, or sexual assault. The intention is to transform the existing police Child Protection Units (CPUs), themselves an initiative of recent years, into "FCS" units of this type. There were thirty-five CPUs as of May 1997, spread across different regions of the country.26

One of the first FCS units to be established is based in Braamfontein, in Johannesburg, and is responsible for covering crimes of this type committed in the entire Johannesburg metropolitan area. In theory, when a complainant falling into one of these categories reports to a local police station, the Braamfontein FCS unit is contacted, and an officer from the unit is despatched to the police station to handle the case. Alternatively, a complainant can report directly to the Braamfontein offices of the unit.

The Johannesburg city-center Hillbrow medico-legal clinic, a publicly owned facility which handles a large number of rape cases, reports that there has been a great improvement in police relations with the clinic since the special unit was founded. The waiting period before women are taken to the clinic is now shorter, and more cases are reaching court. The FCS unit is substantially more professional than other police units, which, for example, may still on occasion bring the suspect and the complainant in the same car to the clinic for examination, then leave them together without any protection for the complainant.27

Nevertheless, the record of the new unit is not unproblematic. Doctors at the Alexandra Clinic, which provides primary and some secondary health care services to the population of the Alexandra township in the northern suburbs of Johannesburg (population approximately 250,000), complain that it is very difficult to get through to the FCS unit, so that women end up going to Alexandra police station to report a rape or assault in any event; meanwhile the police at the Alexandra police station complain that they are only allowed to refer a case and receive no feedback as to its progress, so that they have nothing to say to community members who ask them for information about a case. Both the clinic and officers at the Alexandra police station report substantial delays in getting a response from the unit even if they are successfully contacted. Community leaders in the township complain that officers from the FCS unit do not know the township and are hampered in their search for suspects bythis lack of local knowledge; they and many others recommend that the unit should be decentralized so that trained officers are accessible to each community. Moreover, in some cases the unit is reportedly biased in its approach. For example, it has been known to refuse to assist in rape cases against prostitutes - an attitude it reportedly shares with most other police units. Also of concern is the fact that most domestic violence cases handled by the unit concern white women. Part of the explanation for this discrepancy may be that local police stations often do not refer domestic violence cases to the FCS unit, apparently seeing such matters as not worth reporting, so that the unit therefore generally assists women who come directly to it. These women may be predominantly white for reasons, for example, of access to transport and information. Nevertheless, the lack of attention given to black women abused by their partners also raises concerns about the effectiveness and attitudes of the unit.

Some other police stations, including Pietermaritzburg in the KwaZulu-Natal midlands, also have specialized rape units (although most have not integrated domestic violence specialists into the same structures), which have improved service in some cases. However, in Pietermaritzburg, for example, if a woman does not go straight to the unit but reports to a police station in a rural area that she has been raped, the effect of having a special unit has been simply that she must tell her story one more time (both to the rural police station and to the rape unit) and that she must travel into Pietermaritzburg, waiting for transport, perhaps for hours, at the local police station.28 Women's rights organizations report that the quality of investigation has not noticeably improved. In other places, Criminal Investigation Divisions may simply have investigators who specialize in rape cases - at Boksburg police station to the east of Johannesburg, for example, this is the case, where three of eighteen detectives are women handling rape cases. But such specialization may not solve all problems: although rape cases at Boksburg are investigated by women police officers, none speaks an African language. African male police officers from the charge office (the first point of access for the public at a police station) are therefore used as interpreters if necessary, undoing the effect of having a female investigator; only one African woman works in the charge office at Boksburg.29

While the advantage of centralized units such as the Braamfontein FCS unit is that generally sympathetic police officers who have volunteered for their positions and been trained in the particular issues surrounding gender violence will handle complainants after the first report of an offense, there are costs attached to such concentration of expertise. A balance needs to be struck so that - even if it is not possible in the short term to ensure that every police station has a specialist investigative unit - the area covered by a specialized team is not so far removed from affected communities that it is perceived to be inaccessible and irrelevant.

The Continuing Failure of the System to Respond to Violence against Women

Despite these initiatives, in most cases the treatment that a woman victim of violence receives from the criminal justice system remains poor. Police are often hostile or unsympathetic to women who report to a police station that they have been assaulted. Once the case is opened, the police may carry out the investigation with a minimum of enthusiasm and allow known perpetrators to walk free. Prosecutors may also refuse to handle domestic violence cases, and in rape cases often subscribe to the usual stereotypes, dropping cases where the woman involved is not a "good" victim. Magistrates and judges often have discriminatory and sexist assumptions about women that can prejudice those cases that do reach court. Poor black women in the rural areas are worst off, with the least access to services, particularly to advice and assistance from nongovernmental organizations specializing in these issues, which may be able not only to provide support services in their own right but also to provoke an effective response from the system.

In particular, Human Rights Watch is concerned about the interface between the police and criminal justice system and the medical profession: the medico-legal system. Often overlooked, the maintenance of an efficient and responsive medico-legal system is a crucial part of the state's responsibility to ensure that survivors of assault have an effective remedy and that perpetrators of crimes are brought to justice. The current procedures for obtaining medical evidence in assault cases, and in particular in cases of sexual assault of women or children, are woefully inadequate, neither ensuring that perpetrators are convicted nor providing women with appropriate treatment. Moreover, while the deficiencies of the current system have been recognized and proposals made for its improvement, the reform proposals themselves are problematic in some respects and do not adequately address the issues surrounding rape and sexual violence.