Women victims of rape or assault in South Africa face a criminal justice system that is too often unable or unwilling to assist them in their efforts to seek redress.
In Violence against Women and the Medico-Legal System in South Africa, released to coincide with South African women's day, Human Rights Watch calls on the South African government to intensify its efforts to protect women from violence and to improve the state's response to such abuses, with particular attention to the medico-legal system. "Despite recent efforts at reform, South Africa continues to fail its women," charges Dorothy Q. Thomas, Director of the Human Rights Watch Women's Rights Project. "Too often, the treatment they receive when they try to report rape or other abuse simply traumatizes them further, without offering them any hope of punishing their attackers."
Of the 27,056 rapes reported in 1993, only 8,998 were prosecuted; of the cases brought to court, 4,753 resulted in convictions, just 17.5 percent of the total. Since 1993, the number of rapes reported has nearly doubled, to 50,481 in 1996; of these 21,863 were prosecuted, yet only 4,100 led to a conviction or 8.1 percent of the cases reported. While the percentage of cases prosecuted has increased, the rate of conviction has fallen. These worsening figures demand urgent attention.
Women who wish to pursue a charge against their assailant are usually examined by a doctor, in most cases a state-employed district surgeon, and obtain a report of their injuries. Although no claim of rape is invalid for lack of such medical evidence, it often offers the only non-testimonial support of a woman's case and as such, can be crucial to its prosecution. Currently, in South Africa a handful of specialized medico-legal clinics offer a dedicated and technically excellent service. However, in most cases, the doctors who carry out the medical examination of a woman (or child) who has been raped have received no training in this part of their practice. Additional problems include the following:
- District surgeons often do not properly document medical evidence for use in court, and incomplete medical records for rape cases are commonplace.
- Medical legal services are often inaccessible, particularly to the black townships and in the rural areas. Given the time-sensitive nature of much medical evidence of sexual assault, and the trauma that accompanies such abuse, such delays can be devastating.
- District surgeons are frequently unsympathetic or even biased in their treatment of women who report abuse.
- District surgeons are poorly remunerated compared to doctors in private practice and working conditions are likely to be poor.
Compounding these problems, police who are charged with referring and transporting women to district surgeons often fail to do so. This not only adds to already crippling potential delays, but given the inaccessibility of many medico-legal clinics and the costs of transportation to them, may effectively deny poor women in particular access to such services. Moreover,if a rape case actually reaches court, police and prosecutors are usually unable to evaluate or present medical evidence effectively to a court, and neither magistrates nor judges are likely to be able to make up for these deficiencies with their own training.
For the women involved, therefore, the price of reporting a sexual assault may be hours of travel and waiting for attention, unsympathetic treatment from police and medical personnel, and a negligible chance of seeing a known perpetrator convicted. Moreover, having finally been examined for such abuse,women must still go elsewhere for its treatment, as medical legal work usually does not include any treatment for the physical or psychological consequences of sexual assault.
The South African government has taken a number of steps to improve the response of the criminal justice system to violence against women. On August 9, the Department of Justice, which ran a campaign on violence against women between November 1996 and March 21, 1997, is scheduled to publish a major new set of guidelines for handling sexual assault cases, addressed to all professionals in the criminal justice system, including district surgeons. Health care is also undergoing radical reform, while the role of the health professionals, district surgeons in particular, in the human rights violations of the past has come under scrutiny from the Truth and Reconciliation Commission.
Human Rights Watch welcomes these developments and commends the government of South Africa for these and other key steps it is taking to improve the state response to violence against women. However, if the history of impunity for such abuse is to be more effectively curtailed, greater attention must be given to current flaws in the medico-legal system. We offer the following series of detailed recommendations for further improvement of the criminal justice system in this crucial area:
- 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.
- 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.
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. 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.
- 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.
- 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.
- Police investigating officers handling sexual assault and rape cases should specialize in such investigations and be trained in the issues surrounding violence against women and the use of medical and other forensic evidence.
- 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 gender violence.
- 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 mium on corroborative evidence if a woman is to win her case.
The collection and analysis of medico-legal evidence:
- The form used by medico-legal doctors to document the medico-legal examination should be redesigned along the lines set out in the body of the report.
- The toria 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.