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VI. Law and Policy Efforts to Improve Services for Rape Survivors

The South African government has recognized that there are problems with the criminal justice system’s handling of sexual violence cases and has undertaken important efforts to address them. These include initiatives to improve the prosecution of sexual offences cases; establishment of specialized police units; and enactment of legislation to broaden legal protections for sexual violence survivors.

Prosecution of Sexual Offence Cases

The criminal justice system plays a crucial role in the care and support of rape survivors. Police, the first point of contact for many rape survivors, may be their connection to PEP and other rape services. But many rape survivors do not report the assault to the police because they do not believe that doing so will lead to punishment for the perpetrator. Improving prosecution of sexual violence cases may improve access to PEP services, by motivating rape survivors to seek prompt police assistance following rape.

South Africa has established specialized sexual offences courts to improve the prosecution of sexual offences.²¹⁴ These courts aim to reduce the trauma experienced by sexual violence complainants during the investigations and prosecution; to improve coordination among criminal justice agencies; and to increase the reporting, prosecution and conviction rate for sexual offences. To this end, staff training is provided, and courts are equipped with special facilities to minimize contact between survivors and perpetrators (such as closed-circuit television, two-way mirrors and separate waiting and interview rooms). Cases are managed by specially trained prosecutors who handle lighter caseloads to allow them more time for case preparation. To date, the National Prosecuting Authority has established forty-three sexual offences courts while continuing to monitor the courts’ performance and provide staff training.²¹⁵

In 1999, the Sexual Offences and Community Affairs (SOCA) unit was created within the National Prosecuting Authority to improve the handling of sexual offences cases against women and children. The unit’s priorities include the establishment throughout South Africa of sexual offences courts and multidisciplinary care centers for survivors of sexual and domestic violence. SOCA, together with the Department of Health and the South African Police Service, has established several multidisciplinary centers for survivors of sexual offences and domestic violence at hospitals in Eastern Cape, Western Cape and Gauteng.²¹⁶ These centers are staffed by health care professionals, counselors, police and prosecutors who work together as a team, enabling rape survivors to receive medical treatment and counseling and to report an offence to police at one site.²¹⁷ In 2000, the SOCA Unit, together with the Departments of Safety and Security, Social Development, and Health established an Interdepartmental Management Team that, as of this writing, is working to develop a comprehensive anti-rape strategy.

Law Reform

The government of South Africa has enacted pioneering legislation on domestic violence. At the time of this writing, it was also considering legislation on sexual offences and children’s issues that would broaden protections for child sexual violence survivors.

The Domestic Violence Act, enacted in 1998, extends broad protections to child survivors of sexual violence and other forms of abuse. The act covers violence in both marital and nonmarital relationships (including same-sex partnerships), as well as by parents, guardians, family members, and anyone who is co-resident with the survivor.²¹⁸ It imposes duties on the police to provide necessary assistance, including arrangements for suitable shelter and medical treatment, to survivors of domestic violence, as well as information about their rights.²¹⁹ There are sanctions for noncompliance with these duties.²²⁰ A 2001 evaluation found, however, that the failure to allocate sufficient resources to police, courts and other support services undermined the implementation of the act.²²¹

South Africa’s new draft law on sexual offences (the Criminal Procedure (Sexual Offences) Amendment Bill), scheduled to be considered by a parliamentary committee next term, proposes important changes to broaden legal protection of rape survivors and to facilitate prosecution of sexual offences. These include expanding the definition of rape to make it gender-neutral and to include anal as well as vaginal penetration; establishing procedures such as testimony by closed-circuit television for children and other “vulnerable witnesses;” and changing common law rules that allow courts inappropriately to devalue the testimony of child survivors.²²²

The draft of the bill that is under consideration as of this writing fails to include an earlier provision obliging the state to provide medical care and counseling for survivors of sexual violence who have sustained injuries or psychological harm or have been exposed to sexually transmitted infections. The deletion of this provision was apparently due to concerns about cost and system capacity to undertake this service.²²³ In January 2004, the chair of the committee reviewing the bill announced that the bill would include a clause making clear that rape survivors would be entitled to receive PEP services from designated government clinics.²²⁴ This is a welcome development. As advocates for the retention of this provision have noted inscribing obligations to provide PEP and other post-rape services into law is essential to ensure accountability of the government in meeting its commitment to provide PEP and other services to rape survivors.²²⁵ In view of earlier experiences, including with the Domestic Violence Act, they have urged that sufficient resources be allocated to ensure meaningful implementation and enforcement of the new law.²²⁶

As discussed above, the Child Care Act amendments (Children’s Bill) propose changes regarding consent that should facilitate access to treatment for children under fourteen whose parents cannot or will not consent to HIV testing and PEP services on their behalf.²²⁷