VIII. THE CRIMINAL JUSTICE SYSTEM
In two prior reports, Human Rights Watch addressed the role of the South African criminal justice system in responding to the problem of violence against women and girls.256 We found that South African women victims of violence who seek protection and assistance from the state often encountered unsympathetic or hostile treatment at the hands of police, court clerks, and prosecutors. Frequently, police did not understand the magnitude of the harm of gender violence and the complexity of domestic abuse. Conciliatory approaches were preferred over intervention in even egregious cases of abuse where the perpetrator continued to pose a clear danger to a woman. Often such approaches remove all incentive for women to report violence, as the authorities will take no serious action. Government justice officials' ignorance of the laws designed to protect women's rights also proved problematic. Frequently police corruption and litigation delays and "missing dockets" held up prosecutions of perpetrators.
The government has recognized many of these problems and has given a high priority to improving the criminal justice system's response to violence against women and children. Although a detailed review of these reforms is beyond the scope of this report, some noteworthy efforts to improve the response to violence against women and children merit mention. Among the initiatives undertaken have been the creation of specialized "domestic violence, child abuse, and sexual assault" (DCS) units in the police (formerly the Child Protection Units (CPUs)) and specialized family courts that handle many issues surrounding violence in the home.
Law reform is also in process. The South African Law Commission257 is currently considering revisions to the rape laws to forbid sexual conduct between students and teachers.258 The commission has published a discussion paper containing proposed changes to South Africa's substantive law of sexual offenses.259 The Domestic Violence Act of 1998 overcomes some of the limitations of the prior Prevention of Family Violence Act, by among other things, recognizing marital rape and that abuse can occur in many types of domestic relationships.
In 1995, the same year it ratified CEDAW, South Africa ratified the Convention on the Rights of the Child (CRC) and committed to a range of obligations aimed at establishing and protecting the rights of children, as it had for women. Both the laws and institutions affecting children are in a process of transition.260 South Africa's National Plan of Action, prepared pursuant to its obligations under CRC, identified the need for the development of a comprehensive juvenile justice system. It is now accepted that children should, as far as possible, not be imprisoned. Under the National Crime Prevention Strategy, one program provides for "secure care" of children accused of committing serious and violent offenses.261 In practice, however, many hundreds of children are still held in prison due to lack of alternative secure accommodation for those accused or convicted of such offenses.
Courts are working to become "child friendly." Courts now allow "intermediaries" in cases that involve child victims. These volunteers, often attorneys, assist the child in understanding the trial process. Children are permitted to give testimony before the court outside the presence of their alleged abuser.262
Innovations in management of juvenile offenders are occurring as well. Prosecutors are increasingly using "diversion" with young offenders, that is diverting them from incarceration.263 Prosecuting authorities identify cases for diversion based on factors such as the age of the perpetrator, whether the perpetrator has a fixed residence, whether supervisory authority can be exercised over him, and the severity of the crime committed.264 Where appropriate, the prosecutor's office will enter into a contract with the perpetrators and their guardians, requiring the perpetrator to receive counseling for three years. A perpetrator who fails to comply risks prosecution, but otherwise if the perpetrator complies there is no criminal record.265
Human Rights Watch believes criminalization should not be the sole response to the phenomenon of school violence; in particular, where the perpetrator is a child the education and justice systems should devise responses aimed at preventing future abusive behavior and assisting the victims. In a criminal justice system where convictions for rape and sexual abuse are low, we are in accord with South African children's rights advocates in supporting diversion as a means to monitor, supervise, and rehabilitate juvenile offenders.
Response of the Criminal Justice System to Gender Violence in Schools
Coordination between the education and justice systems on investigating cases of sexual violence to ensure punishment of perpetrators is often ineffective, ill-conceived, or nonexistent. Despite legal obligations to bring sexual abuse to the attention of police, schools frequently fail to do so. Police officials confirmed that in most instances the child and family report sexual abuse that occurs at school; rarely do schools report the crime. Prosecutors express concern that schools are not fully cooperative with investigations of sexual abuse. One Pretoria area prosecutor told Human Rights Watch that, in her experience, "the department of education doesn't interact at all, and we need to establish that link."266
In addition, the two systems are sometimes confused about their roles. Young perpetrators provide a real conundrum for the education and justice systems. Schools refuse to address accusations of rape through the school disciplinary process on the ground that it is a police matter. If the accused is young, police do not seek criminal penalties. Often, the young accused and the victim will continue to attend the same school:
I had a case of a girl attending a township school; she was nine when she was raped in the school toilets by a ten-year-old perpetrator. He is still at school. Childline has been trying to work with both children. The School has not suspended the child, on the ground that the matter has been turned over to police, but the police aren't pursing the case because the perpetrator is too young. Both children are still at the same school. Childline is actually counseling the girl on how to cope with running into him at school. The mother of the girl is very upset, but her parents don't have money to send her to another school.267
Many instances of sexual violence and rape occurring in schools never reach the criminal justice system. Police and prosecutors maintain that the justice system does not see many school violence cases because often the cases do not get to that point.
Informal dispute settlements and "seduction damage" payments are used to resolve some rape cases outside the criminal justice system. Parents opt to settle the matter out of court, particularly where a child is responsible for an act of sexual violence. Frequently, however, informal settlements do not deter future abuse or provide the victim needed assistance.
As with cases involving adult women, there is often a disturbing willingness on the part of police to dismiss sexual abuse if a girl has an ongoing relationship, of whatever kind, with the accused. For example, in one case, criminal charges were dropped against a teacher from the West Rand after the sixteen-year-old he was accused of raping said she consented to a relationship with him.268
256 Human Rights Watch, Violence Against Women in South Africa: State Response to Domestic Violence and Rape (New York: Human Rights Watch, 1995); Human Rights Watch, South Africa: Violence Against Women and Medico-Legal System (New York: Human Rights Watch, 1997).
257 The South African Law Commission was established by the South African Law Commission Act, No. 19 of 1973. The commission is an advisory body whose aim is the renewal and improvement of the law of South Africa on a continuous basis. The commission conducts research on the laws of the country and makes recommendations for the development, improvement, modernization, and reform of the law.
258 Human Rights Watch interview with Joan van Niekerk, director of Childline, Durban, April 8, 2000.
259 South African Law Commission, "Sexual Offences: The Substantive Law," Discussion Paper 85, Project 107 (1999).
260 According to the South African Law Commission there are several reasons for the present state of flux including: the new emphasis on children's rights that flow from the Convention on the Rights of the Child; the human rights provisions (including special children's rights enshrined in the constitution); the move away from "Western" legal notions, a result of the recognition of different cultural and religious interests in South African society; and increasing political awareness of the needs of children in especially difficult circumstances. The present South African position on legal rules affecting children involves a blend of Roman-Dutch principles, comprising the case law body of rules generally known as the law of parent and child, together with numerous statutory provisions-chief among them the Child Care Act. For discussions of the status of children under South African law, see, generally, J.C. Becker, The Law of Children and Young Persons in South Africa (1997); Raylene Keightley (ed.), Children's Rights (Kenwyn: Juta and Co., Ltd, 1996); Philip Alston, Stephen Parker, and John Seymour (eds.), Children, Rights, and the Law (1992).
261 South African Law Commission, "Review of the Child Care Act," Issue Paper 13, Project 110 (1998).
262 A child's ability to testify in court is not linked to a specific age limit, and depends on the child's maturity and understanding of what it means to tell the truth. However, the "cautionary rule" of evidence applies to children's testimony, which requires additional corroboration. Some South African child abuse experts have argued this rule has an unjustified discriminatory effect against children. See P.J. Schwikkard, "The Abused Child: A Few Rules of Evidence Considered," in Raylene Keightley (ed.), Children's Rights (Kenwyn: Juta and Co., Ltd, 1996), p. 154.
263 Human Rights Watch interview with Thoko Majokweni, Special Director, Sexual Offence and Community Affairs Unit, National Prosecuting Authority of South Africa, Pretoria, March 22, 2000.
265 Human Rights Watch interview with Val Melis, Senior Public Prosecutor, Durban, April 3, 2000.
266 Human Rights Watch interview with Thoko Majokweni, Prosecutor, Pretoria, March 22, 2000.
267 Human Rights Watch interview with Hlengiwe Magwaza, Childline, Durban, March 28, 2000.
268 "Teacher Quits in Disgrace," Sowetan, March 16, 2000.