August 1997 Vol. 9, No. 4 (A)

SOUTH AFRICA

VIOLENCE AGAINST WOMEN AND

THE MEDICO-LEGAL SYSTEM

INTRODUCTION 3

RECOMMENDATIONS 4

BACKGROUND: THE STATE RESPONSE TO VIOLENCE AGAINST WOMEN 7

Recent Developments in Government Policy 8

Campaign of the Department of Justice on Preventing Violence Against Women 9

Police Initiatives 10

Victim Support Services 10

Gender Sensitivity Training 11

Specialized "FCS" Units 12

The Continuing Failure of the System to Respond to Violence against Women 13

INTERNATIONAL AND NATIONAL LAW ON VIOLENCE AGAINST WOMEN 14

International Law 14

South African Law 15

THE MEDICO-LEGAL SYSTEM 16

The South African Health Care System 17

The Organization of Specialist Medico-Legal Services 19

District Surgeons 19

Medico-Legal Clinics and Hospitals 21

Problems with the Medico-Legal System 21

The Uniformed Police 21

Inaccessibility: Distance and Time 22

Racist and Sexist Attitudes among District Surgeons 23

Lack of Informed Consent 25

Lack of Privacy 25

Incompetent Examination Technique 25

Lack of Training 26

Lack of Treatment 28

General Medical Practice and Medico-Legal Services 29

Private Practitioners and Domestic Violence 31

THE USE OF MEDICAL EVIDENCE BY THE CRIMINAL JUSTICE SYSTEM 31

The Collection, Recording and Handling of Medical Evidence 31

The J88 Form 31

Crime Kits and the Collection of Biological Samples 33

Police Control of Laboratory Services 34

The Police Use of Medical Evidence 35

The Courts and Medical Evidence 36

Prosecutors 36

Magistrates and Judges 37

Interpreters 38

GOVERNMENT PROPOSALS FOR REFORM 39

National Level 39

Provincial Level 41

LACK OF ATTENTION TO OLDER CHILDREN AND ADULT WOMEN 42

CONCLUSION 43

ACKNOWLEDGMENTS 45

APPENDIX I 47

APPENDIX II 49

APPENDIX III 53

INTRODUCTION

The Special Rapporteur is absolutely convinced that without a complete overhauling of the criminal justice apparatus, the retraining of its members and the creation of a more representative service, violence in general, and violence against women in particular, will never be contained.1

South Africa's criminal justice system is, as recently noted by the United Nations Special Rapporteur on violence against women, a product of the system of racial and political oppression operated by the previous government. It is also a reflection of a sexist society which has historically disregarded or placed a low priority on the need to address discrimination and violence against women. While the government elected in 1994 has taken significant steps to improve the response of the state to violence against women, women in South Africa who have been the targets of rape or sexual or other assault continue to face a system that is often hostile to their efforts to seek redress.

The police, usually the first point of contact with the criminal justice system for a woman who has been assaulted, are often uninformed and unsympathetic. Despite recent efforts to improve the system, a woman 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. Once the case is opened, the police may carry out the investigation with a minimum of enthusiasm and allow known perpetrators to walk free. Women who have been seriously assaulted, to the extent of needing medical attention, may find their cases dismissed as unimportant given the levels of "real" crime needing police attention. Police officers are often unaware of the legal or other remedies available to women.

The court system is little better. 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. A high percentage of rape and sexual assault cases are dropped before they reach trial or result in acquittals. For a woman seeking to obtain redress, the experience of attempting to use the criminal justice system is often more likely to compound the trauma of the original assault than to provide the satisfaction of seeing a perpetrator punished.

This report focuses mainly on one aspect of the criminal justice system and its handling of violence against women: the performance of those involved in the provision of medical expertise to the courts when it is alleged that women have been abused. Medical evidence is often a crucial element in the investigation and prosecution of a case of rape or sexual assault. Many rape cases result in acquittals simply because, if the only evidence before the court consists of the differing accounts given by the woman and man, the man will be given the benefit of the doubt; medical evidence, where it is available, may provide the only corroboration of the woman's allegations. While the absence of medical evidence does not indicate that no assault occurred, it is essential that medico-legal examinations be carried out promptly, expertly and objectively, to ensure that crucial evidence to support the case is not passed over. Police and court officials must be equipped to evaluate that evidence and to ensure that it is properly used.

The report concludes that the medico-legal system in South Africa is deeply flawed, with problems of inaccessibility, prejudice and lack of training at all levels. Some of the doctors employed by the state to carry out medico-legal work are dedicated and expert practitioners, providing an excellent service to women and others who need them. But this expertise and dedication is acquired through their own efforts: it is possible for a student tograduate from medical school without a clear idea of the normal anatomy of a woman's genitalia, still less of the complex physical and psychological consequences that may result from sexual assault, and no further training is absolutely required before a doctor can begin to practice as a district surgeon. Meanwhile, district surgeons, historically largely male and white, often reflect the prejudices and preconceptions of the wider South African society.

The police who are responsible for investigating offenses of violence against women are for the most part ignorant of the interpretation of medico-legal evidence and as a consequence may not pursue good cases where the only other evidence is the account of the woman herself. In other cases, lack of transport or differing police priorities may mean that women have to make their own way to the district surgeon; or even that the complainant and the suspect are placed together in a police van for transportation to the doctor for examination and the collection of biological samples. In addition, courts are ill-equipped to evaluate medical evidence, and prosecutors, interpreters and magistrates need training in the technical medical detail of rape and sexual assault as well as sensitization to the wider issues.

The report briefly examines recent policy initiatives and the proposals for reform that have been made by the new government in its review of health services. The reform proposals aim to rectify some of the most glaring problems with the current medico-legal system, including problems of access, but they also risk placing too heavy an emphasis on accessibility at the expense of providing a high-quality service in this very technical area. Within the constraints placed by the many demands on the government's budget for reconstruction and development, the aim must be to raise the standards of the services currently offered, as well as to extend that service to all parts of the population.

South Africa is obliged under international law to ensure that women are guaranteed respect for their human rights and fundamental freedoms on the same basis as men. This obligation extends to the provision of an effective remedy if those rights are violated. In many cases, the state does not provide an effective remedy to South African women who are subjected to violence. The current condition of medico-legal services is one part of this failure. However, the improvement of the response of South Africa's medico-legal services in cases of violence against women cannot focus only on district surgeons or their replacements. Proposals for reform must take into account the experiences of the women themselves from the time they first report an assault through the time they appear in court.