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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

214 The Wynberg Sexual Offences Court, the first such court in South Africa, was established in 1993, in response to advocacy on the part of women’s organizations to improve the treatment of rape victims in the criminal justice system. The Wynberg Sexual Offences Court is described in the Human Rights Watch report, Violence Against Women in South Africa, pp. 118-121. The Durban Magistrate’s Court established a specialized sexual offences court in 1994. Human Rights Watch interview with Val Melis, Durban, May 16, 2003.

215 The National Prosecuting Authority hoped to have 60 such courts by end-2004. Human Rights Watch interview with Thoko Majokweni, director, Sexual Offences and Community Affairs Unit, New York, October 2, 2003.

216 The Thuthuzela Multi-disciplinary Care Centre at G.F. Jooste Hospital in Cape Town was launched in July 2000. Similar centers have since been opened in Limbode and Mdantsane, Eastern Cape and in Soweto, Gauteng. The National Prosecuting Authority plans to open up ten such centers by the end of 2004. Presentation by Anton du Plessis, head of the Crime and Justice Programme, Institute for Security Studies, Pretoria, South Africa, Second South African Gender Based Violence and Health Conference, Johannesburg, May 7, 2003.

217 There is evidence that such on-site coordination improves rape conviction rates. A prosecutor with the Western Cape Thuthuzela Center reported that between August 2002 and August 2003, he tried eighty-nine rape cases, sixty-five of which resulted in convictions. Human Rights Watch interview with Mark Kenny, prosecutor, Thuthuzela-Cape Town, New York City, October 2, 2003.

218 Domestic Violence Act, Act No. 116 of 1998, Section(1)(viii).

219 Ibid., Section 2; South African Police Service, Domestic Violence National Instruction 7/1999, Sections 7-10.

220 Domestic Violence Act, Sections 18(b)(2, 4); South African Police Service, Domestic Violence National Instruction 7/1999, Section 13.

221 Penny Parenzee, “While Women Wait . . Monitoring the Domestic Violence Act,” Nedbank ISS Crime Index, vol. 5, no. 3, May-June 2001.

222 Criminal Law (Sexual Offences) Amendment Bill, 2003, Sections 2-4, 14, 15, 18, 24.

223 Comments of Advocate Johan de Lange at hearings on Sexual Offences bill before the Joint Monitoring Committee on Improvement of Quality of Life and Status of Women, November 14, 2003.

224 Comments of Advocate Johan de Lange at deliberations on Sexual Offences bill before the Justice and Constitutional Development Portfolio Committee, January 29, 2004. The Department of Health has been charged with drafting this provision. Ibid.

225 See, e.g.,Rape Crisis Cape Town Trust and IDASA, Submission to the Sexual Offences Bill to the Committee on Justice and Constitutional Development, September 2003; Women’s Legal Centre, Submission to the Justice and Constitutional Development Committee in Response to the Criminal Law (Sexual Offences) Amendment Bill Published in Government Gazette No. 25282 Dated 30 July 2003, September 15, 2003.

226 Ibid.

227 See Section VI, above.

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March 2004