THE MEDICO-LEGAL SYSTEM

Medical evidence is central to the successful prosecution of a sexual assault case. Often, the medical evidence will be the only corroboration of the complainant's case, confirming not only the fact that sexual contact or intercourse took place, and with a particular individual, but also that such contact took place without the complainant's consent. Medical evidence cannot prove that there was no consent - states of mind leave no physical record - but it can be strongly suggestive that intercourse was the result of assault and not agreement. Prejudice and lack of expertise among the doctors carrying out medical examinations for legal purposes are just as detrimental to a woman's case as prejudice and lack of expertise among the police or court officials.

A thorough and well-recorded medical examination can provide much circumstantial evidence to support a rape survivor's story, by noting injuries ranging from obvious scratches and tears, to small and easily missed abrasions indicating that sexual intercourse took place without lubrication. If survivors of sexual assault are examined by specially trained doctors, who have experience in the field and are aware of what would assist the judiciary in reaching a decision, the chances of a conviction are substantially improved.39 If, on the other hand, a medical examination is carried out by a doctor who is untrained, inexperienced, or biased against the patient - or if there is no examination at all because there are no medico-legal services accessible to the assault survivor - the consequence may be that the prosecution drops the case or, where the stories of perpetrator and complainant are simply compared in court, that a perpetrator is wrongfully acquitted for lack of corroboration of the victim's story. In either case the cycle of impunity in cases of sexual violence will continue.

Because medico-legal examination is a specialized task and because the whole experience of reporting to the police and being examined by a medico-legal practitioner can be an intimidating experience, it is essential that those who carry out this work have specialized training. In particular, doctors conducting medico-legal examinations need to be fully conversant with the technical aspects of examination of assault victims. Furthermore, because the requirement for "hard evidence" of sexual assault means that women must report promptly to a police station or medico-legal practitioner, at a time when they are most likely to want to avoid any such stressful contact with the authorities, the procedures for reporting and examination must be arranged to encourage women to report and to eliminate the cycle of "secondary victimization" by biased and abusive treatment from police, courts, or doctors. Without both of these elements, perpetrators of sexual assault will continue to enjoy impunity for their actions.

Currently in South Africa, if a woman has been raped, sexually assaulted, or battered and chooses to report that assault at a police station, the police will open a file or "docket" on the case and take a statement from the woman. In cases of rape or sexual assault, yet in only the most severe cases of battery, the woman will then be provided with two forms (the "J88" form and the "308" form), one of a series of "crime kits," and either taken to a state medical practitioner known as a district surgeon or told to get her own doctor to fill out the forms and conduct an examination. (In most cases, however, doctors in private practice do not wish to get involved in medico-legalissues, as discussed below.) The purpose of the 308 form is to establish the complainant's informed consent to disclosure of otherwise confidential medical evidence by the doctor to the police for the purpose of criminal proceedings.40 The J88 form is used by the district surgeon or other doctor to record medical evidence; the crime kits contain test tubes, slides and other equipment for taking such biological samples as may be necessary. A police officer is supposed under internal police departmental standing orders to escort the woman to the district surgeon, wait while she is being examined, and then take her to where she wishes to go.

The crime kit and J88 form are returned to the police station, where the J88 form will be added to the docket, while the crime kit is sent to the Police Forensic Science Laboratory in Pretoria for analysis. The results of the analysis will be returned to the police station and added to the docket. Investigation of the case is in the hands of the Criminal Investigation Division (CID), and in general the uniformed branch of the police will have no further involvement. If the case reaches court, the prosecutor will call the district surgeon (or other doctor) to present the medical evidence and indicate whether it is consistent with the account put forward by the complainant.

The following sections address three issues: first, how this system fits into the South African health care system generally and the provisions for medico-legal practice more particularly; second, the problems that surround the system from the point of view of women who have been sexually assaulted or raped, including the use of medical evidence by the police and courts; and finally, the proposals that have been made for reform by the new government and some of the problems they raise.

The South African Health Care System

Not surprisingly, given the history of apartheid, the provision of health care in South Africa is heavily biased in favor of the white population and in favor of the urban over the rural areas. Two parallel systems exist: a private and a public sector. In 1992/93, expenditure on health care in South Africa was R.30 billion (US$9.825 billion41), or 8.5 percent of GDP: the major sources of this expenditure were private medical insurance, whether or not part of an employment package (40 percent), general tax and local government revenue (38 percent), and cash payments (14 percent). Of the total health care expenditure, 58.2 percent was spent in the private sector, 38.6 percent on public health services, 1.3 percent on public and donor-funded capital projects, and 1.8 percent on research and training. Seventeen percent of the population has private health insurance, and another 4 percent pays cash in order to access private health care services on a regular basis; 79 percent of the population is dependent on state health care services, provided on a low- or no-fee basis.42

Reflecting this distribution of resources between public and private, a majority of all health professionals, apart from nurses, work in the private sector, including 57 percent of doctors. South Africa's overall doctor-to-patient ratio compares favorably with the internationally recommended figures, but the overall ratio disguises sharp disparities between public and private sector, urban and rural areas, and in particular former "white" South Africa and the former homelands.43 Furthermore, within the public sector, resources are disproportionately concentratedin hospitals: in 1992/93, for example, academic and other tertiary hospitals accounted for 44 percent of total public sector expenditure; by contrast, only 11 percent was spent on non-hospital primary health care.44 As a consequence of these disparities, South Africa's health statistics compare poorly with those of countries with a similar per capita income: according to the United Nations Children's Fund (UNICEF), South Africa's infant mortality rate (deaths of children under five years old per 1,000 live births) in 1991 was twice as high as might be predicted from its level of income.45

With the election of the ANC-led government of national unity in 1994, the government initiated a major debate over the future of health services. Although policy discussions are still underway, restructuring of health services is already in full swing; in particular, the reallocation of responsibilities for service delivery to the nine new provinces that have replaced the four provinces of "white" South Africa and ten African "homelands" of the previous dispensation, and in turn the attempt to devolve control over health service provision to the district level.46 The health care budget has also been adjusted to reallocate funds from the historically relatively "overfunded" sectors to the most impoverished, in particular toward primary health care in the rural areas. On May 24, 1994, in one of his first presidential initiatives, President Nelson Mandela announced that starting June 1, all health care for children under the age of six years and for pregnant women would be free.47 The policy resulted in an immediate rise in number of patients attending public health care facilities: although indigent patients were already accessing state health care on a no-fee basis (theoretically means-tested), the announcement gave women the confidence to access health services in much greater numbers than before.48 Nevertheless, there are still many barriers to accessing health care,even of the most basic type and even to those eligible for free services: in many rural parts of South Africa, the costs of travel to a health care facility are likely to be far more than the medical fees.

The Organization of Specialist Medico-Legal Services

Specialist medico-legal services in South Africa are currently organized according to a structure established under the 1977 Health Act (Act No. 63 of 1977), which provided for medico-legal services to be rendered to the public (and the Department of Justice) by the Department of National Health and Population Development (now the Department of Health). Forensic post mortem and laboratory services were designated a national function, organizationally centralized in Pretoria; "clinical" forensic services, relating to the examination of (still living) assault victims, the testing of blood alcohol levels and so forth, were delegated to the four provincial administrations (Transvaal, Natal, Cape, and Orange Free State), which employed full- and part-time "district surgeons" to carry out this work.49 In practice, however, the two aspects of medico-legal work were and are usually carried out by the same people. Only in towns with a university medical school are post mortems carried out by full-time state pathologists (employed by the Department of Health); in smaller towns and rural areas, district surgeons carry out both post mortems and medical examinations of the living for legal purposes. The structure of these services varies significantly among the four old provincial administrations and in particular among the former homelands, both "independent" and "self-governing," where services are particularly poor.

Also involved in the system are the police and court system. The police are usually responsible for referring women for medico-legal examination and for providing transport to the place where they will be examined. The police also control the laboratories where medical samples are analyzed for legal purposes. In the court system, prosecutors play a key role, since their ability to use and evaluate medico-legal evidence may determine not only their decision to take a case to court but also their success in presenting the case to the magistrate or judge. Where prosecution skills are deficient, the magistrate's or judge's knowledge of medical evidence and ability to question an expert medical witness for clarification of the case becomes all the more important.

Medico-legal services are provided free to the public at the point of use. Although they are thus accessible in terms of cost to those who need them, other barriers exist, in particular the distances that many women must travel to reach a district surgeon or other medico-legal facility, the length of time that they may have to wait, and the experience that many have of hostile and unprofessional treatment. Because of the uncoordinated nature of the system, which is split between national and provincial health departments and the police service, it is at present virtually impossible to calculate the cost to the government of providing medico-legal services.

District Surgeons

The heart of the medico-legal system is the national network of district surgeons, who have provided clinical forensic medical services for the state for most of the century. District surgeons have three main areas of responsibility: primary health care functions; medico-legal functions; and ex officio functions, of which the most important is probably prison health care.50 Medico-legal functions form a small part of the practice of districtsurgeons: according to a survey carried out by the directorate of medico-legal services in Gauteng province, clinical medico-legal services accounted for 9 percent of cases seen by district surgeons in the province during 1995.51 Only 2 percent of the medico-legal cases (either clinical or forensic) led to court appearances.

As the practice of district surgeons relates to violence against women, it is largely restricted to cases of rape and sexual assault, including sexual assault of children. District surgeons are rarely involved in cases of domestic violence: since women who have been battered seldom lay charges or, if they do, frequently withdraw them (for reasons examined in the Human Rights Watch report, Violence Against Women), they are not often referred by the police to district surgeons for examination.

Until the Choice on Termination of Pregnancy Act (Act No. 92 of 1996) came into force in February 1997, district surgeons' duties also included the examination of all those applying for legal abortions, under the exemption for rape victims from a general ban on abortions. The new law has removed this obligation in many cases. Overturning the restrictive law on abortion established by the Abortion and Sterilization Act (Act No. 2 of 1975), it provides (in section 2) for abortion on request during the first twelve weeks of pregnancy; for abortion from the thirteenth to twentieth weeks if a medical practitioner, after consultation with the pregnant women, is of the opinion that the continued pregnancy would pose a risk of injury to the woman's physical or mental health, that there exists a substantial risk that the fetus would suffer from a severe physical or mental abnormality, that the pregnancy resulted from rape or incest, or that the continued pregnancy would significantly affect the social or economic circumstances of the woman; and for abortion after the twentieth week if a medical practitioner, after consultation with another medical practitioner or with a registered midwife, is of the opinion that the continued pregnancy would endanger the woman's life, would result in a severe malformation of the fetus, or would pose a risk of injury to the fetus.

Most district surgeons in the rural areas are part-time, combining their official duties with private practice; in some cases, district surgeon work is shared within a joint practice, with partners of the doctor who is officially district surgeon covering for him should he be off duty or away. In urban areas, some district surgeons are full-time, operating from their own practice rooms or from specialist medico-legal clinics (see below).

Obtaining accurate information about the distribution of district surgeon provision country-wide is difficult. The nine different provinces appear to keep statistics relating to their employment of district surgeons on a different basis, making comparisons across provinces difficult. However, the figures obtained by Human Rights Watch from the national Department of Health indicate that there are 165 full-time district surgeons employed across the country: fifty-nine in the Eastern Cape, sixty-four in KwaZulu-Natal, twenty-two in the Northern Province, twelve in the Northern Cape and eight in the Western Cape. The Eastern Cape also employs sixty-three part-time district surgeons, KwaZulu-Natal fifty-two, and the Northern Province sixteen. The Free State, Gauteng, and North West Province calculate their use of district surgeons according to the total number of hours for which they have paid, so that the Free State paid doctors for 585 hours of service as district surgeons during 1996, Gauteng paid for 222 hours, and North West Province for 319 hours. In addition to the full-time district surgeons employed by the Western Cape, 364 hours of service were paid for separately. The statistics for Mpumalanga are included in those for Gauteng.52

Many district surgeons are dedicated and skilled practitioners who have acquired expertise and understanding of violence against women through years of experience of medico-legal work and court appearances. Nevertheless,the reputation of district surgeons among organizations providing services for abused women is, in the words of one counselor, "horrendous."53 Part of the problem is lack of incentive to do a good job: district surgeons are poorly remunerated compared to doctors in private practice; working conditions are likely to be bad, whether the district surgeon is employed in a state hospital, medico-legal clinic or his or her own offices; and medico-legal work is often stressful. As a consequence, especially in the urban areas, many district surgeons are junior doctors or recent immigrants to South Africa who are taking a comparatively low-status position in order to get on the ladder of promotion. The long-established district surgeons in smaller towns are often more elderly white men, using part-time state employment as a useful and undemanding supplement to their private practice. District surgeons receive little in the way of supervision or feedback on the quality of their work from their employers, the provincial departments of health. As a consequence, the quality of service provided varies enormously, and with it the likelihood that women who have been sexually assaulted will receive a thorough medico-legal examination that will assist in the conviction of her assailant.

Medico-Legal Clinics and Hospitals

In several of the major cities in South Africa, specialist medico-legal clinics are affiliated with large government hospitals and employ a number of full-time district surgeons at the same location: at the Hillbrow medico-legal clinic in Johannesburg, for example, there are five full-time district surgeons, three part-time, and five full-time nurses. In Gauteng, similar medico-legal clinics exist in Pretoria and Soweto (at Baragwanath Hospital), although the type of work and the level of staffing vary from case to case. In some other state hospitals, medico-legal services are supposedly integrated into the general work of the institution and carried out by the regular doctors working there, with no provision made to ensure a specialized service. In these cases, access is on the same cost basis as for other patients.

Problems with the Medico-Legal System

The Uniformed Police

The point of entry to the medico-legal system for a woman who has been sexually assaulted is usually the police station where she reports the crime. In most cases, the experience of a woman reporting to a police station remains highly problematic, despite the national and local initiatives to improve this situation. Uninformed and prejudiced officers in the charge offices (the reception area) are the norm. Whatever the instructions coming from police headquarters, and even though some police stations have separate rooms where a woman can be interviewed, many women complaining of rape may have no choice but to give a statement to an untrained and unsympathetic male officer within the hearing of others waiting for attention. Women who have been seriously assaulted, to the extent of needing medical attention, may find their cases dismissed because they do not fit the stereotype of a rape victim, or because their cases are seen as unimportant given the levels of "real" crime needing police attention. Police officers are often unaware of the legal or other services available to women who wish to obtain assistance elsewhere.54

Under departmental standing order, police are supposed to provide transport for women to the district surgeon's office. Failure to do so is a disciplinary offense. Yet a woman may be told she has to find her own way to the district surgeon's office and get home from there. In addition, problems with the availability of police vehicles are notorious. In one case, a fourteen-year-old who had been raped told Human Rights Watch that she was unable to reach the district surgeon for a medical examination. The police did not have any vehicles to transport her, andso she finally went home.55 Human Rights Watch received reports in late November 1996 that in some cases the police continue to place a suspect and complainant in a van together for transportation to the district surgeon's office, without consideration of the psychological or even physical consequences for the woman involved.

The inadequacy of the police response to rape cases is exemplified by the treatment received by Nomboniso Gasa, a member of the Gender Commission, when she reported in January 1997 that she had been raped by a prison officer during a recent visit to the former apartheid prison of Robben Island. Gasa complained of the failure to respond properly to her allegation and of the lack of sensitivity shown by the police appointed to investigate the case. This led Minister for Safety and Security Sydney Mufamadi to refer the case to the newly established Independent Complaints Directorate (ICD), appointed to look into complaints against the police. The ICD published a report of its investigation in April 1997, finding that there was "prima facie evidence" of negligence, improper conduct, dereliction of duty, and insensitivity in the handling of the investigation by the initial investigating team. The ICD recommended that the provincial commissioner of the Western Cape publicly acknowledge the findings of the report and apologize unreservedly to Ms. Gasa, that two police officers be "strongly reprimanded," that the SAPS "should embark on an intensive education and training programme," and that a number of steps should be taken in respect of the handling of rape cases by the police.56 The report was accepted by the provincial commissioner and an "unreserved apology" issued;57 however, the commissioner refused to act on the recommendation to reprimand the two officers and later retracted his unreserved apology, saying that he had "only apologized to Gasa for the perception on her part that insensitivity was displayed to her."58

Inaccessibility: Distance and Time

Every part of the country is allocated to fall within the practice of at least one district surgeon. In urban areas, district surgeons or clinics providing medico-legal services are usually centrally located and thus accessible by public transport. Specialist medico-legal clinics are often open twenty-four hours a day. But in most cases they are still some distance from the townships where most black people live. There are exceptions to this rule: in Gauteng, for example, Baragwanath hospital in Soweto has a medico-legal clinic; the Alexandra Clinic serving the Alexandra township in northern Johannesburg also provides medico-legal services; the townships of Vosloorus, Daveyton, Tembisa, Katlehong and Lenasia near Johannesburg also have district surgeons; and district surgeons have recently begun to practice in Soshanguve and Mamelodi townships outside Pretoria. In Port Elizabeth, the newly established Ncedo Care Centre is located in a hospital close to the African township of KwaZakhele, although it is far from the colored areas. But in the Cape Town metropolitan area, for example, residents of Guguletu, itself closer to the town center than most townships, have to travel to Wynberg or to the Red Cross Children's Hospital in Rondebosch, perhaps twenty kilometers away. Mitchell's Plain, a colored township near Cape Town, had no district surgeon for several months in 1996.

In rural areas, the situation is much more acute. District surgeons, the vast majority of them still white (and male), live in the formerly white areas, which may be several hours travel from parts of the former homelands. In some cases, local facilities are available to remedy this problem: in KaNgwane, for example, a former homeland on the Swaziland and Mozambique borders, the district surgeon is based at Komatipoort, several hours away by shared taxi. Women are therefore usually referred by police and examined by doctors at a local mission hospital. In other cases, no alternatives are available.

In addition, women's NGOs and others continually report that women wait long periods once they have reached the district surgeon's office. At almost every session of the Gauteng gender sensitivity training course described above, the police attending noted that waiting periods to see a district surgeon could be very long, as long as eight hours.59 One women's organization told Human Rights Watch of a case in which a woman who had been gang-raped at around 4:00 or 5:00 p.m. and immediately reported to the police station was told that the district surgeon could only see her the next day. She had to remain in the same clothes without washing until she was seen.60 Police at Boksburg CID complained of the (white) district surgeon responsible for their area, who was consistently difficult to see at any time outside his morning consulting hours. In one rape case, the investigating officer had phoned the district surgeon at about 9:00 p.m. He had stated he was not on call, so the officer contacted the nearest hospital, which did not want to become involved in a medico-legal case. After trying other district surgeons from outside the area, the woman was eventually told to come back at 8:00 a.m., without washing or changing in the meantime, and she was then taken to be examined.61

The implications of these delays are particularly serious in cases of sexual assault and rape. Physical evidence of major injuries will be apparent for some time, and in some cases, such as external bruising, may in fact be more difficult to evaluate immediately after inflicted than several hours later. Similarly, with modern laboratory techniques, traces of semen or other foreign matter in the vagina can be detected and analyzed up to two or three days later. However, in cases in which no physical struggle took place, where the woman is sexually active, and especially if she has had several children, the types of physical injury suffered during rape may be relatively minor and will disappear after several hours. The Pretoria medico-legal clinic stated to Human Rights Watch that a woman who has been raped should be seen within four hours to ensure that minor physical abrasions - which may be crucial to the woman's case that sexual intercourse took place without consent - can be detected.

Racist and Sexist Attitudes among District Surgeons

In March 1996, the South African Medical Journal (SAMJ) published an article by Dr. S.A. Craven, district surgeon in the Western Cape, in which he evaluated the use of medical evidence in the courts and stated, "The impression I gained after 4½ years of performing after-hours rape examinations for the Wynberg and Athlone magisterial districts of South Africa was that few women had any evidence to support their allegation of rape, and that I was unable to help them in the courts." From this assertion, which itself was based on his own conclusion that because he had been able to find no medical evidence, there was no evidence at all, Dr. Craven went on to conclude that the allegations of rape were therefore unfounded: "There is no law against wasting the time of a police officer in South Africa. The passing of such legislation, with a few well-publicized prosecutions, might well reduce the number of unfounded allegations."62

While it is certainly a matter of concern that, according to the article, "only about 10% of women examined have any medical evidence to support their allegation of rape,"63 many other conclusions are possible than that women are fabricating rape stories - including that women are not examined by district surgeons soon enough afterthe rape for medical evidence to be present or, indeed, that the prejudices and lack of specialized training of district surgeons are preventing them from conducting proper examinations to ensure that all relevant medical evidence is noted and properly used to secure a conviction. District surgeons with a particular interest in the field noted to Human Rights Watch that, if a woman is seen soon enough, there is in the majority of cases - even if the woman has had several children - physical evidence suggestive of forced penetration.64 One study found that 37.7 percent of women alleging they had been raped who reported to a medico-legal clinic had evidence of genital injuries, and 37.3 percent had evidence of non-genital injuries.65

Examination for medico-legal purposes is an invasive experience, especially following the trauma of a sexual assault. Doctors need to be aware of the psychological context in which they are working and to take this into account as they conduct the examination, but this is often not the case. Women's NGOs report that district surgeons are often unsympathetic to women who report abuse, particularly in cases where black women are examined by white district surgeons. One woman interviewed by Human Rights Watch complained that she had been made to feel as though she was the guilty party and that she was simply wasting the time of the police and the doctor by asking to be examined.66 Police at Boksburg police station Criminal Investigation Division complained about the attitude of the (white) local district surgeon, who was frequently unavailable to examine rape survivors and, when he did see them, treated both police and complainant "like children." Another (colored) district surgeon in the area, however, treated the women "very nicely."67 Even district surgeons who are critical of the system and sympathetic to women who have been raped may be judgmental in their approach: one district surgeon interviewed by Human Rights Watch alluded to "frustrations" with women who were drunk when they came to be examined or alleged rape "because a guy hasn't paid," saying that "if it's not a `genuine' rape case you feel disturbed that you are being used"; another referred to "two types of victims," those who are "really" victims, and those who "happen to be where they should not be," out late at night drinking at bars.68

In the current context, in which most district surgeons are white and do not speak an African language and an interpreter is often needed to take a medical history, linguistic misunderstandings may explain part of the impression of lack of sympathy and poor treatment. District surgeons based at hospitals or in specialist clinics will usually have African nurses or lay health workers available to interpret for them if necessary; white district surgeons in part-time private practice, however, will usually employ white nurses, meaning that no interpretation may be available. This situation clearly has serious implications both for the details of an examination and for the woman's comfort, especially where technical vocabulary is used.69

Lack of Informed Consent

Linguistic problems also have serious implications with respect to obtaining informed consent for a medico-legal examination. According to medical ethics, a doctor should obtain the informed consent of his or her patient before carrying out any medical procedure. Special rules relate to situations where this is not possible. Yet women's NGOs report that some of their clients have no idea of the purpose of the examination by a district surgeon after they have reported a rape. Women reporting to a police station that they have been raped may find themselves taken to the district surgeon without any explanation as to why this is necessary. In many cases neither the police nor the district surgeon bother to explain why the J88 must be filled in or samples taken; in others, there may have been an explanation of sorts, but language difficulties prevented the woman from understanding the implications.70

Lack of Privacy

During the examination of a rape complainant by the district surgeon, the only people who should be present are medical personnel. Although in most cases district surgeons do ensure that police, for example, are not present, Human Rights Watch also received reports of cases in which policemen have wandered in and out of the room where the woman is being examined, even making comments on what they see.71 Even if the police officer is female, this is not acceptable. Such intrusions into the privacy of the woman being examined create an extremely intimidating and hostile environment for women who have already been traumatized and had their privacy brutally violated.

Incompetent Examination Technique

For medical evidence to be useful, it is important that the initial examination be properly conducted, all specimens for forensic analysis collected, and the findings fully recorded. The examination of a rape survivor for legal purposes is a specialized task, especially if the person is a child.

Doctors need to be aware of the varying signs that may be visible to suggest that forcible sexual intercourse took place: these signs vary not only according to whether a woman has ever had full intercourse, but according to her age, whether she is sexually active, or whether she has had children. There is likely to be some evidence visible to the trained eye in every case if the woman is seen soon enough after the incident took place. Many doctors (including many interviewed by Human Rights Watch) will say, for example, that in the case of a sexually active woman who has given birth to several children, there may be no physical signs of forced sex (absent external bruising or other indications of a struggle). Yet even in that case, an expert doctor who sees the woman soon enough after the incident occurred will know to look for small abrasions indicating the use of physical force in penetration. Since medical evidence may be decisive as corroboration not only of the fact that sexual intercourse took place but also of a woman's allegation that she did not consent, it is therefore crucial that district surgeons are fully trained in the detailed procedures of a full examination.

The consequences of the lack of proper examination or an improper record of that examination can be serious. A prosecutor in the magistrates court (the lowest judicial division of the formal court system) in Johannesburg cited one case in which a woman who had been raped appeared in court eight months after the incident took place, with wounds still visible resulting from the struggle with her attacker. Nothing was noted on the J88 form relating to these scars, and it was only the fortunate presence of another eyewitness that meant that her story could be confirmed.72 Police reported that the district surgeon in Boksburg did not even always ask and fill out all the questions on the form, even questions which could have a crucial bearing on the medical examination, such as thenumber of children to whom a woman had given birth. In one case, he had refused to take hair samples from a man accused of rape because he said it was not necessary.73

The Hillbrow medico-legal clinic in Johannesburg has a detailed set of protocols for doctors working there to follow when they carry out examinations of assault victims generally, and rape victims in particular.74 They were developed by Dr. Lorna Martin, the former senior district surgeon at the clinic, and include procedures for the medical examination and treatment of the complainant (and of the perpetrator) and standard letters for referral to relevant organizations, such as HIV counseling centers and women's NGOs, to request that the patient be given time off work to recover, or to complain to a police station commissioner of a delay in bringing a woman to the clinic for examination. The doctor will also fill out a form indicating brief details of the alleged incident, including the relationship of the perpetrator to the victim, the place of the rape, the level of violence that took place, and the sexual act(s) performed. The purpose of taking a history of the incident is to prompt the doctor to look for evidence that might corroborate each element of the story. The Pretoria medico-legal clinic also has detailed protocols for different types of examination, in addition to a formal training program for new district surgeons operating in the Pretoria area that covers all aspects of medico-legal examination in cases of sexual assault. Other big hospitals with clinics seeing rape victims, such as Groote Schuur hospital in Cape Town or Baragwanath in Soweto, also have protocols for examination of sexual assault victims. Protocols of this type are, however, neither standardized nor available to most district surgeons; nor would most district surgeons have the time, knowledge, or inclination to develop similar standard procedures for themselves.

While in general it is important that a rape survivor be seen by a doctor as soon as possible for examination and collection of medical evidence, some injuries (bruising for example) may only be detected some time later. No standard procedures exist to ensure that, in such cases, women are brought back to the district surgeon for re-examination. While some district surgeons will tell women to come back, this is rare; and it is even rarer for the women actually to report back, given the problems of transportation and the waiting periods that may be expected.

Lack of Training

In order to conduct a proper examination of someone who alleges that she has been raped, detailed and expert training is needed beyond general medical training. Thorough training of medico-legal officers is badly needed. It is entirely possible that a woman who reports to a police station that she has been raped and is taken to a district surgeon for examination will be examined not by an expert but by a doctor who has little idea of the physical signs of coercive sex. If the complainant is a child, it is even more likely that the district surgeon will not have the skills to conduct a full examination. As one doctor involved in discussions for the restructuring of the system commented, "There are good district surgeons, but only by accident - the training is sadly lacking."75

No national requirement exists for the training of district surgeons contracted to do work for the state. The scope of any available training depends on the arrangements of each provincial health department and on the chief district surgeon for a particular area within the province: in some cases, new district surgeons may receive lectures from experienced colleagues before beginning to practice and/or periodic "refresher courses" in aspects of their practice; in others, they are simply told their duties and given no further instruction. District surgeons interviewed by Human Rights Watch indicated that they had learnt what they knew about examination of a rape victim, how to prepare for court, or how to fill out a J88 form "on the job" by trial and error. The government had shown absolutely no interest in their qualifications for the job at the time of appointment, nor was any recognition in financial termsgiven to experience. If they were lucky, they had received ad hoc advice from more senior colleagues on taking up a position. But in some cases, advice from more senior district surgeons may be counter-productive: one district surgeon reported that she had been told by a colleague not to put too much detail on the J88, because it would only "cause trouble," making it more likely that she would have to go to court.76 Compounding this lack of training is the fact that district surgeons are at liberty to subcontract their state work to other doctors, who may have even less expertise and experience and over whom the state has even less control.

While specialized training and qualifications exist for forensic pathologists in South Africa, the state provides no dedicated training for doctors wishing to obtain a specialist qualification in clinical medico-legal practice, relating to the medico-legal examination and assistance of victims of assault or other crimes. Some district surgeons obtain a diploma in forensic medicine, which includes both clinical and forensic pathology elements, but no financial recognition is given to this qualification, and as a consequence there is no incentive to undertake the one year of full-time study to obtain it.77 Most district surgeons therefore rely essentially on the training they received in medical school and whatever other experience they have gained.

During the course of their general training, medical students will usually (although there is no standard curriculum shared among the different universities and teaching hospitals) take a compulsory course in forensic medicine. The University of the Witwatersrand, for example, offers this course for one year during the fourth year of medical studies (before the students have any medical experience); it includes only two lectures on sexual offenses. The University of Cape Town offers a course lasting over two years for third- and fourth-year students; just one lecture covers sexual offenses.78 The course involves attendance at a minimum of two autopsy demonstrations (required by the South African Medical and Dental Council, which approves medical training programs), but no similar attendance at a medico-legal clinic. In any event, in most cases students take the course before they have any clinical experience, and there is a long period within which to forget it before they need to examine a woman who has been raped. One doctor commented that it is possible to leave medical school without, for example, a clear idea of what the normal anatomy of a woman's genitalia should be, making a useful assessment of a rape victim virtually impossible.79

Some government facilities have taken initiatives to improve this situation. The Hillbrow medico-legal clinic in Johannesburg has developed a training system for all new district surgeons, including both those at the clinic and those practicing part-time in outlying areas, including some of the local townships. At the Pretoria medico-legal clinic, a training program exists for newly appointed district surgeons who spend some time each week examining patients under supervision before returning to their practices. The chief district surgeon, Dr. K. Muller, has taken the initiative to obtain a donation from Polaroid South Africa of a special high-resolution camera, which will be used to photograph the injuries sustained by complainants examined at the clinic. The photographs will be used both to add to the information included in the J88 form, providing visual evidence to the court, and in the preparation of acomprehensive training manual for future medico-legal practitioners, who will therefore be able to gain information about injuries sustained in sexual assault without the "secondary victimization" that could occur if a woman who has reported a rape is examined not only by the doctor who will fill in the J88 form, but also by student doctors learning medico-legal skills.80

In addition to the medical skills and knowledge needed to conduct a proper examination in cases of sexual assault, doctors involved in medico-legal functions also need the skills to ensure that they can give useful evidence in court. Yet district surgeons do not receive training in court procedure, the law relating to assault or other relevant crimes, how to prepare to give evidence in court, or other forensic skills. Several district surgeons commented to Human Rights Watch that they had probably given very poor evidence in their first cases, before learning by experience what was needed. One said that in her first couple of court appearances she could not remember the details of the case because she had not taken enough notes on the J88 at the time; as a consequence she had learnt the need to record cases in great detail and to keep copies of all notes taken at the time of the examination.81 Moreover, district surgeons are not officially given information about the referral services or legal remedies available to women, including the Prevention of Family Violence Act (although some may seek out such information independently).

Lack of Treatment

District surgeons are charged only with examining women who have been assaulted or raped and indicating their findings. They are not required to provide any treatment to the women they have examined. In practice, however, the conduct of district surgeons varies, and in some cases treatment will be provided. The specialized medico-legal centers in the major cities will usually provide treatment. At the Hillbrow medico-legal clinic in Johannesburg, for example, women are offered prophylactic treatment with antibiotics against a range of sexually transmitted diseases and a "morning after" pill. At the Alexandra Clinic in Johannesburg, women are treated for STDs, given contraceptive drugs, and also referred for counseling to social workers based at the clinic. In Pretoria, however, women are not offered prophylactic medication against STDs, on the basis that treatment without diagnosis or proper follow up is problematic. However, the practice at the city center medico-legal clinic is to provide women with a gynecological douche, which is effective against some STDs and has the important psychological benefit of allowing the woman to take steps to "clean" herself after a sexual assault. In addition, women are told and given written information about symptoms of STDs and referred to places where they can obtain a full check-up and treatment.

In other cases, district surgeons will refuse to provide treatment even if asked by the woman, although they may refer her to a hospital that will treat her.82 This is usual for part-time district surgeons who receive a fixed budget for their state work and do not wish to take money from that budget for drugs; full-time district surgeons have their drugs supplied by provincial health authorities and so are not financially penalized if they treat women prophylactically. Some district surgeons may even not refer a woman to a hospital or other location where she may obtain treatment, or warn her of symptoms that indicate, for example, infection with a sexually transmitted disease or that are normal after a sexual assault, such as depression or feelings of guilt.

The implications of the lack of treatment by district surgeons of the actual or potential medical consequences of rape and sexual assault may be serious for the women concerned. Those women who know that district surgeonsdo not usually provide treatment may be deterred from visiting a doctor who is qualified to carry out a medico-legal examination because they know that they will also have to wait again for treatment for any medical problems that are a result of being raped or sexually assaulted. As a result, medical evidence of the assault may be lost. Women who are examined by a district surgeon, on the other hand, may believe that having seen a doctor, they need not seek further medical assistance and may be ignorant of the sorts of symptoms that may result from a rape. Although free or low-cost outpatient clinics are fairly widely available, the demands placed on these facilities mean that it can be difficult to access such treatment except in emergency situations. In effect, women who are examined by a district surgeon may therefore be deterred in their effort to seek treatment given the double burden of seeking assistance from both the medico-legal and general health care services.

General Medical Practice and Medico-Legal Services

The great majority of rapes are not reported to the police; in even fewer cases do women report incidents of domestic violence.83 The reasons for the low rate of reporting, set out in the Human Rights Watch report, Violence Against Women in South Africa, relate both to the hostile and unsympathetic treatment women in many cases receive from the criminal justice system and to the low rate of conviction for the cases that are reported.84 Many women choose to use what other avenues of support and justice are available to them rather than risking the trauma of interaction with the police, district surgeons, and courts at a time when they feel most vulnerable. In most cases a woman who is abused or sexually assaulted and seeks medical attention will therefore see a general practitioner in private practice or a doctor in a state hospital rather than a district surgeon.

Although private practitioners are free in law to become involved in medico-legal matters and to appear in court as expert witnesses, they are generally both ignorant of and reluctant to become involved with the criminal justice system. The reasons for this reluctance vary from nervousness about the court process and fear of cross-examination by hostile defense counsel, to the loss of income associated with waiting at court for a case to be heard.85 The effect of this reluctance is to discourage women from taking their cases forward. In one case reported by People Opposing Women Abuse (POWA), an NGO in Johannesburg offering counseling and other assistance to women, for example, a woman who had come to them the week before had gone to her own doctor with injuries inflicted by her partner including an open wound on her head, and said she wanted to lay a charge. Her doctor had treated her, but had referred her to the district surgeon for completion of the J88 form, saying he did not want to be involved in any court proceedings. The woman had then decided that she would not go ahead.86 In Cape Town, even those doctors who have been trained by and are helpful to the local rape crisis center usually refuse to go to court on behalf of the women they have seen, and as a consequence, if a woman wishes to lay a charge, she must be referred for examination at Groote Schuur hospital.87

If alternatively a woman seeks attention from a state hospital, again without going to the police, the hospital is legally obliged to provide medico-legal services, although in practice the standard of service offered is highlyvariable. At the Alexandra Clinic, for example, women who report to the clinic after being raped are seen by doctors who care for the female patients generally. The system is currently arranged under the supervision of an experienced doctor; those under her supervision conduct a medico-legal examination and fill out a J88 form as a matter of course (even if the patient has at that time no intention of laying a charge), in addition to giving the woman medical treatment and referring her to a social worker if necessary. In other cases, doctors may effectively be unable to conduct a medico-legal examination: one district surgeon reported to Human Rights Watch that he had been called to a large state hospital to conduct an examination of a girl who had been raped because the gynecological registrar on duty was unable to do so.88

If women choose to go directly to a hospital for treatment, they may face long waits for attention. As in the case of district surgeons, delays have serious implications for the usefulness of the examination when it is finally carried out, given that some medical evidence may be transient. Delays of several hours before a doctor is available are not uncommon, although at the Alexandra Clinic, for example, an attempt is made to give preferential treatment to women who have been sexually assaulted by allowing them to move to the front of the line.

In a hospital where doctors trained in medico-legal issues are available, women should be referred immediately to the correct part of the hospital for a medico-legal examination to be carried out and for treatment to be given. Yet even at those hospitals with specialized medico-legal clinics, which generally provide some of the best services to women who have been abused, problems of coordination exist. At Baragwanath hospital in Soweto (the largest in the world), where there is a medico-legal clinic, medico-legal services are not available in other parts of the hospital, nor are the services coordinated. Often it depends on the woman to know that she should report to the medico-legal center if she wishes to lay a charge, since the accident and emergency department (for example) does not refer patients to the medico-legal center for information about the legal remedies available and for the correct forms to be completed.89 If a woman returns to the main section of the hospital having later decided to lay a charge, it may be impossible to trace the doctor who treated her, or to find her file, in order to have a J88 form completed retrospectively. Without a J88, the police may refuse to open a docket.90 At the Alexandra Clinic, while services are well-organized during the week and integrated into the general medical work of the clinic, women who report to the accident and emergency department on the weekend will not see one of the trained members on staff or receive a proper examination, no J88 will be completed, and there may simply be a two-line report in the intake records.91

Examination of patients for medico-legal purposes is a specialist task; appearing in court also requires special skills. It is not desirable that doctors without training be generally expected to become involved in medico-legal functions. Yet, even if a woman does not initially intend to lay a charge and sees a general practitioner rather than a district surgeon or other trained person, she may later change her mind, and this avenue should not be closed by the lack of medical evidence to support her case. It is therefore important that general practitioners have some understanding of the issues surrounding violence against women and the possible legal remedies that may exist, even though they neither can nor should attempt to carry out a full medico-legal examination. In particular, where a woman seeks treatment from a general practitioner, her doctor should know enough to explain to her the desirability of examination by a specialist should she wish to lay a charge at some later stage, especially in cases of sexual assault and especially if she reports soon enough after the assault occurred for the medical evidence to be compelling. Doctors should also be able to refer women to both state and nongovernmental support services available to survivorsof violence. At the same time, general practitioners should remain compellable as witnesses if in fact a court case results and no examination was carried out by a specialist.

Private Practitioners and Domestic Violence

Lack of knowledge of the legal system by general practitioners is particularly widespread in cases of domestic violence; the possibility of laying a charge of sexual assault is more likely to be known and suggested in rape cases. Medical students do not generally receive any training in the particular health and other problems faced by women who are abused by their partners nor any information about the legal remedies available; most doctors are probably unaware of the provisions of the Prevention of Family Violence Act.92 If a woman has seen only her own doctor, she may as a consequence never learn of any legal remedies available to her.93 At the FCS unit in Braamfontein, only one or two of over a hundred cases being handled by the officer responsible for domestic violence cases had been referred by doctors.94