INTERNATIONAL AND NATIONAL LAW ON VIOLENCE AGAINST WOMEN

International Law

International law requires states to show due diligence in preventing and responding to human rights violations. With respect to violations of bodily integrity in particular, governments have a duty to prevent, investigate, and prosecute such abuse, including cases in which the perpetrator is a private citizen. Where states do not prohibit such abuse or routinely fail to respond to evidence of rape or assault of women, they send the message that such attacks can be committed with impunity. In doing so, states fail take the minimum steps necessary to protect women's rights to physical integrity or even life. To the extent that this failure reflects discrimination on the basis of gender and/or race, it also constitutes a violation of the state's international obligation to guarantee equal protection of the law.30

South Africa has ratified the U.N. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).31 Under CEDAW, the government is committed to a wide range of measures to end formal inequality between women and men and to take "all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men."32 In 1992, the Committee on the Elimination of Discrimination Against Women, established under CEDAW, adopted a general recommendation and comments on violence against women and states' obligations under the convention. The committee noted that states are obliged under CEDAW to take steps to provide:

(a) Effective legal measures, including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence, including inter alia violence and abuse in the family, sexual assault and sexual harassment in the workplace;

(b) Preventive measures, including public information and education programmes to change attitudes concerning the roles and status of men and women;

(c) Protective measures, including refuges, counseling, rehabilitation and support services for women who are the victims of violence or who are at risk of violence.33

These recommendations are based on the international law obligation of states to ensure that those whose rights are violated shall have an "effective remedy."34 Without a remedy in case of violation, paper guarantees of rights are meaningless. In the case of violence against women, as for any other assault, one of the primary elements of an effective remedy is prosecution of the perpetrator in the criminal courts. In this report, because of its significance to the state response to violence against women, Human Rights Watch focuses on one particular and often neglected aspect of the criminal justice system, the collection of medical evidence and the ability of the police, prosecutor and judge to use and evaluate that evidence. An effective investigation is central to the successful implementation of penal sanctions against those who violate women's human rights.

The obligations enumerated by the CEDAW Committee extend beyond the criminal justice system; they include preventive and protective measures, including "rehabilitation and support services." The U.N. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power35 also state that: "Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community-based and indigenous means."36 Human Rights Watch believes that the protective measures provided by the state must at minimum, in the case of the medico-legal system, include the effective collection of medical evidence for use in the court system. The state should also ensure that women who require a medico-legal examination for court purposes are not prejudiced as regards treatment for their injuries by the fact they have been examined by a state doctor specializing in such examinations and not in general practice. The state should take steps to promote women's access to health care services, whether state-provided or otherwise.

South African Law

In South Africa, rape is defined as intentional unlawful sexual intercourse with a woman without her consent. The law only applies between men and women and there must be penetration of a vagina by a penis; other assaults of a sexual nature are criminalized under different names, such as indecent assault or sodomy. Women's organizations have criticized this narrow definition of rape for a number of reasons: because other types of sexual assault than penetration by a penis may be as serious if not more serious for the victim; because only a woman or girl may be raped; and because lack of consent, not coercion, is the standard used to criminalize the act committed.37 In proving the offense of rape in court, all the elements of the offense must be shown to exist. According to those working in the South African criminal justice system, consent is the most usual element of the offense in dispute. As in the case of all other criminal offenses, witnesses of fact may be called by the prosecution, such as those who saw what occurred or the first person to whom the victim reported what happened to her.38 In general, the opinionof witnesses that the complainant's allegations are or are not credible is not admissible evidence; however, the court may also call expert witnesses who can give their opinion on the credibility of the allegations. The Criminal Procedure Act (Act 51 of 1977) sets out the different persons who can be "experts;" in the case of medical evidence doctors but not nurses are automatically qualified to give expert evidence.