Violence Against Women and the Medico-Legal System (1997)
In addition to the general recommendations in its 1995 report, Violence Against Women in South Africa: The State Response to Domestic Violence and Rape, Human Rights Watch makes the following recommendations to the South African government specifically relating to the medico-legal system and its response to violence against women. Some of these recommendations are already being implemented in some provinces, others have received less attention. We believe that all are necessary.
· Women who have been sexually assaulted and report to a police station should be taken by the police to be examined by a specialist medico-legal practitioner as soon as possible, to ensure that forensic evidence is not lost and to allow the complainant to wash herself and change as soon as possible. There is no need for a full statement to be taken by the police at the time of initial reporting.
· Women who have been sexually assaulted and report to a public health facility should wherever possible be examined for medico-legal purposes at that facility, if necessary after calling a specialist from elsewhere to carry out the examination. The woman should be informed of her right to lay a charge and, with her consent, police should be called to the facility for the crime to be reported.
· Following medico-legal examination, government policy should pay greater attention to the need for women to receive appropriate treatment for injuries, infections, or other related trauma. Women should be informed in writing and orally in their own language (if possible), or in a language they understand, about governmental and nongovernmental support services available and referred for counseling. Special care should be taken to ensure that a woman who decides to lay a charge against her assailant and who therefore requires a medico-legal examination (a purely diagnostic procedure) is not effectively deterred or prevented from also obtaining treatment for her injuries.
· Private practitioners who treat women who have been sexually assaulted should have sufficient training and information at their disposal to be able to advise their patients of the desirability of a medico-legal examination by a specialist and refer them to the nearest facility where that is possible.
· Government departments should ensure through training and distribution of information that all those who have contact with victims of sexual assault in an official capacity, whether in the health or criminal justice system, are able to refer them to appropriate governmental and nongovernmental support services and to inform them of their rights.
· Efforts should be made to increase the number of women practicing in the medico-legal field and to ensure that a woman who has been assaulted is examined by other women where possible, or that another woman health worker is present while the examination is conducted.
· In developing policy initiatives, the problems faced by women and children and the solutions suggested should be disaggregated and addressed as separate issues.
District surgeons/medico-legal practitioners:
· In reforming district surgeon services, attention should be paid to the urgent need to ensure adequate expertise in medico-legal matters among those doctors providing medico-legal services. Although the integration of medico-legal services with general primary health care responsibilities would be a welcome step toward making those services more accessible, an examination carried out by an inexperienced and untrained doctor may be useless. As accessibility improves, every effort must be made to ensure that quality is maintained by requiring thorough and appropriate training for all medico-legal practitioners.
· Training programs should be developed for those appointed to carry out medico-legal work, both as a requirement before appointment and as annual in-service training. These programs should include information on the technical aspects of medico-legal practice and education on the psychological impact of sexual assault on the victim.
· Manuals should be developed for newly appointed district surgeons (or district medical officers, as they are now to be known) which outline the relevant laws for their work, review the necessary specialized medical information (for example, ways of determining the time of injury), and provide detailed descriptions of injuries specific to sexual assault in both adult and child victims.
· Standardized protocols for the examination and treatment of survivors of rape and sexual assault and the collection of biological samples should be developed and distributed to all those engaged in medico-legal work.
· Specialized curricula in clinical forensic medicine for medical students should be developed by the universities offering medical training and made compulsory for all medical students, with practical expertise in a medico-legal clinic a requirement of such courses; a qualification in clinical forensic medicine, similar to that for forensic pathologists, should also be developed and made available to those doctors who wish to specialize in this area of work.
· Specialized curricula in clinical forensic medicine for nurses should be developed, and a qualification in clinical forensic practice made available to nurses who wish to specialize in this area. The possibility of specialized nurses carrying out medico-legal examinations should be investigated.
· The Medical Association of South Africa, which publishes a journal of continuing medical education, should arrange for a special edition of this publication dealing with medico-legal aspects of violence against women.
· Police investigating officers handling sexual assault and rape cases should specialize in such investigations and be trained in the issues surrounding gender violence and the use of medical and other forensic evidence.
· Specialized curricula in clinical forensic medicine for law students should be developed and successful completion of such a course made compulsory for lawyers applying to become prosecutors or magistrates.
· Justice College, in Pretoria, where prosecutors and magistrates are trained, should include courses on the use of medical evidence within its syllabi.
· As is already the trend, each regional magistrates court should identify specialized prosecutors to handle cases of sexual abuse and rape, who should receive additional training in the issues surrounding such violence.
· Where appropriate, the use of doctors as lay assessors to sit with magistrates to judge sexual assault cases should be encouraged.
· The Department of Justice should make available specialized training in medico-legal vocabulary to court interpreters.
· Legislation should be introduced to abolish the use of the "cautionary rule" in rape cases, which requires courts to exercise additional care in assessing the credibility of a rape survivor. The cautionary rule in rape cases places a particular premium on corroborative evidence if a woman is to win her case.
The collection and analysis of medico-legal evidence:
· The J88 form, used to record the findings of a medico-legal examination, should be redesigned along the lines set out in the body of this report.
· The Pretoria forensic biology laboratory, and forensic services in general, should be taken out of control of the police and placed under the Department of Health, with an independent status, similar for example to that of the attorneys general.
Collection and dissemination of information on violence against women:
· All health facilities should have information on display and available to be taken away on the medico-legal and other services available to women who have been subjected to sexual assault or domestic violence.
· A national directory of governmental and nongovernmental services available to women should be developed, and information should be distributed to police stations and magistrates courts, as well as to district surgeons, hospitals and other health care facilities about locally available referral services for women who have been assaulted.
· In designing data collection models, the specific issues of violence against women should be addressed (for example, the means of collecting statistics from the health services on both rape and domestic violence, or the possibility of making rape a reportable occurrence as child abuse already is).
Violence Against Women in South Africa (1995)
Recommendations to the Government of South Africa:
· While Human Rights Watch is encouraged by the South African government's efforts to sign Convention on the Elimination of All Forms of Discrimination against Women, it urges the government to formally ratify CEDAW without further delay.
· The 1993 Prevention of Family Violence Act should be expanded (1) to include protection for individuals who are abused by a partner with whom they have never lived and lesbian and gay couples and (2) to extend jurisdiction over abuse cases to ensure that women can be protected wherever they are in South Africa when the abuse occurs.
· Delays in payments to agents_the sheriffs_responsible for delivering court orders prohibiting abuse should never be considered a justification for failing immediately to deliver interdicts that have been issued as emergency remedies to domestic violence.
· Legal provisions must be introduced to protect counseling service workers who advise abused women from violence or threats of violence directed against them by their clients_ abusive partners.
· Without diminishing protection to domestically-abused women, policymakers must address the concern that interdicts granted under the Prevention of Family Violence Act may violate the audi alteram partem rule(which allows both sides to present their cases before courts) because such interdicts are issued without a hearing and are for unspecified durations. One possibility might be to create a temporary interdict order which can be made final after a hearing.
· Guidelines must be adopted by the police and prosecution service on arrest and prosecution policy so that domestic violence cases are accorded the full attention of the criminal justice system. Family violence cases must not be treated as "private problems" and therefore not suitable for intervention by the criminal justice system. Appropriate sentencing policies must be developed, including compulsory attendance at programs designed for abusive partners.
· Prosecutors must be trained to deal with domestic violence cases in accord with clear guidelines. While prosecutional discretion must be safeguarded, prosecutors should be instructed to refrain from dropping cases of domestic abuse and to argue for strict bail conditions to be imposed where there is a history of violent assault.
· It should be recognized in law that this crime can be committed by men or women against men or women. The definition of rape should be broadened to include anal and oral penetration as well as penetration by foreign objects such as sticks, bottles, or knives. The definition should focus on coercion by the perpetrator rather than lack of consent by the victim.
· Legislation should be introduced to abolish the use of the cautionary rule, which permits courts to exercise an excessive level of discretion in deciding whether or not to credit the testimony of women who allege they have been raped, in cases of rape or sexual assault, on the grounds that it discriminates against women on the basis of sex.
· Guidelines on sentencing for rape should be adopted by the Department of Justice and circulated to all judges. At the moment, rape sentences are wide-ranging and appear to be related more to the judge's views on rape than to any consistent application of established standards.
· Judges, magistrates, and prosecutors should receive mandatory training on rape and domestic violence and in the use of medico-legal evidence.
Improved Police Services:
The police appear to be a major impediment to effective action in addressing violence against women.
· A standard course of training on domestic violence, rape, and sexual assault should be completed by new recruits and by serving officers. The government should commission individuals and institutions with expertise in this area to develop such a program and should work together with the relevant government departments to effect its implementation on a national scale. Law enforcement personnel should be trained in procedures and enforcement of the Prevention of Family Violence Act and about the social and psychological context in which domestic violence occurs.
· Police are obligated to ensure protection and equal enforcement of the law in domestic abuse cases. Police must be trained to eliminate gender, class and race bias in their responses to such abuse and to realize that domestic violence is not to be excused, tolerated or condoned. Standardized arrest policies should be considered for domestic violence cases.
· Police who are involved in investigating rape cases should receive proper training in forensic skills and in the importance of medical information.
· Police must provide prompt protection to women by diligently enforcing court orders that prohibit abuse and reduce the abuser's access to the victim. Police stations must make it a priority to respond speedily to a woman's urgent call in cases of domestic violence.
· The government should create an independent mechanism to monitor and oversee police treatment of women victims of violence. This body should be empowered to hear complaints and to take steps to sanction police officers who do not act professionally, including cases in which the abused woman is a partner of a police officer.
The Medico-Legal System:
· Provincial authorities should review government health services directly responsible for the examination and treatment of rape survivors to ensure the most responsive, effective, and accessible delivery of service.
· The Department of Health should establish standardized procedures and services to ensure that all district surgeons are appropriately trained in the treatment of rape and domestic violence survivors. The treatment should be expanded from the collection of medical evidence to the provision of basic medical treatment. This after-care should include, at a minimum, medical treatment, emotional support and referral to the nearest counseling service. District surgeons should be required to provide rape survivors with information about additional existing services in the area.
· More district surgeons should be appointed in the rural areas.
· Rape reporting centers, modeled on the Hillbrow Medico-Legal Clinic, should be established as widely as possible, and in particular in townships. Such facilities must be staffed by trained police and medical personnel to allow victims to report cases of rape or battery, undergo medical examination, and receive appropriate treatment and counseling.
· Abortion laws which protect the right for rape victims to have access to abortion should be upheld without discrimination.
The effectiveness of the law depends on cooperation and coordination among implementing law enforcement, judicial and social service agencies.
· A national multi-disciplinary task-force on violence against women should be created to improve social, medical and legal procedures for women affected by violence. It should include, at a minimum, representatives from the Departments of Justice, Safety and Security, Health and Welfare. Liaison officers in each of the relevant departments at the state and provincial levels should be authorized to communicate and initiate changes within their department in coordination with the other departments and in consultation with nongovernmental organizations. One function would be to expedite the creation of local units, like the Hillbrow Medico-Legal Clinic, to attend to the needs of abused and raped women.
· Regional forums, similar to the Johannesburg rape forum, should be established in each province with government and nongovernmental organizations on it. Government representatives should include district surgeons, police, and the Department of Justice.
· In each province, the government should form a working group in which governmental and nongovernmental organizations meet on a regular basis in order to improve the government's response to and services for domestic violence and rape victims.
· The government should help fund the creation of legal assistance programs, accessible and affordable shelters, as well as counseling services for abused women.
Documentation of Violence against Women:
Efforts to improve the South African government's response to domestic abuse and rape would be greatly enhanced by the availability of reliable national data detailing the nature and degree of the violence. At the moment, police do not distinguish cases of domestic violence from other assaults, while national statistics regarding rape are not comprehensively compiled.
· We urge the South African government to improve the collection of data concerning crimes of violence against women. We recommend that the government first conduct a review of all existing statistical information. Such a review should include, at a minimum, the incidence of such violence, the identity of the parties, rates of prosecution and nature of punishment. The collection and reporting of statistics must also be improved, specifically to distinguish domestic violence cases from other assaults. Sufficient details should be recorded to create profiles of victims and perpetrators, including their racial and class status, so that intervention to stop or remedy abuse can be most effectively crafted. Efforts must be made to survey the extent of unreported violence against women.
· Studies of the nature and extent of violence against women should be carried out or funded by the government in close cooperation with nongovernmental organizations active in this field.
The following testimonials were written in English as class exercises by students from KwaZulu-Natal schools participating in the Crime Reduction in Schools Program. The CRISP Program is described in detail in the report. These and other student essays are on file with CRISP at the University of Natal, Durban. In April 2000, Human Rights Watch visited the schools participating in CRISP. Selected essays and letters are attached.