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International approaches to rape$

Nicole Westmarland and Geetanjali Gangoli

Print publication date: 2011

Print ISBN-13: 9781847426208

Published to Policy Press Scholarship Online: March 2012

DOI: 10.1332/policypress/9781847426208.001.0001

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Paradox and policy: addressing rape in post-apartheid South Africa

Paradox and policy: addressing rape in post-apartheid South Africa

Chapter:
(p.169) Nine Paradox and policy: addressing rape in post-apartheid South Africa
Source:
International approaches to rape
Author(s):

Lisa Vetten

Publisher:
Policy Press
DOI:10.1332/policypress/9781847426208.003.0009

Abstract and Keywords

This chapter discusses the rate of reported rape cases in South Africa, which is considered to be among the highest in the world. As a consequence, the country is better known for its alarming statistics and more sensational manifestations of sexual violence than its policy interventions. These challenges are further heightened by South Africa's high level of crime. South Africa's high crime rate affects the availability of criminal justice personnel.

Keywords:   South Africa, sexual violence, policy interventions, criminal justice personnel

Introduction

The rate of reported rape in South Africa is considered to be among the highest in the world. As a consequence, the country is better known for its alarming statistics and more sensational manifestations of sexual violence (such as ‘baby rape’ and the ‘corrective rape’ of lesbians) than its policy interventions. Yet precisely because of the extent of the problem, a range of measures intended both to combat the incidence of rape, as well as improve the treatment of rape survivors, has been rapidly introduced over the years, making South Africa something of a policy laboratory in this area.

Many of these innovations were made possible by the unprecedented opportunities offered by South Africa's transition to democracy and the space it opened for engagement with the state around the problem of sexual violence. However, this political responsiveness must be set within the broader context of present-day South Africa and the imperative to address its highly unequal nature, often via dysfunctional state structures that are also understaffed and underskilled. In addition, the high rate of crime generally has placed severe pressure on criminal justice system structures and further exacerbated the strain on the state. The result is a situation where, more often than not, policy intent is only rarely realised in the implementation.

The national context in relation to rape

In 1994, following 46 years of apartheid rule, the African National Congress (ANC) became South Africa's first democratically elected government. No small set of challenges had been bequeathed to them by the previous National Party government. In terms of policing, for (p.170) instance, the new government was required to transform a militarised force dedicated to the violent imposition of racist policies into a service that could be trusted by the very same black1 communities it had previously brutalised. Further, it was required to integrate 11 separate police forces into one police service, and finally, ensure the equitable redistribution of policing resources. In 1994, 74% of South Africa's police stations were located in areas formerly reserved for ‘whites’ (Department of Safety and Security, 1998).

These challenges were further heightened by South Africa's high levels of crime. In 2004, spending on the criminal justice system consumed 3.1% of South Africa's gross domestic product (GDP), in contrast to the 1% spent by many other countries around the world (Altbeker, 2005). But while South Africa may spend more on its criminal justice system, it does not necessarily have more human resources at its disposal. According to Altbeker (2005), the South African Police Service (SAPS) employs 234 police officers per 100,000 citizens, compared with the 380 employed in countries for which data is available, while the justice department employs six prosecutors compared with the seven employed elsewhere in the world. This inefficient translation of expenditure into person power, he argues, is a consequence of the government paying criminal justice personnel more than their equivalents in other countries, relative to GDP per capita2.

South Africa's high crime rate also affects the availability of criminal justice personnel. With seven police officers per murder versus 158, and 0.14 prosecutors per murder versus 2.6 in comparator countries around the world, South African criminal justice officials have higher workloads than those in most other countries for which data are available (Altbeker, 2005).

The extent of reported rape in South Africa

Information on the extent of reported rape pre-1994 is incomplete due to the fact that figures for the ‘independent’ homelands were not included within South Africa's national rape statistics. Nonetheless, available information points to the fact that South Africa's rape statistics have been rising since at least 1955, increasing by 132% between 1955 and 1990 (Glanz, 1993). The upward trajectory in the rate of reported rape post-1994 therefore continues this historical trend.

Between April 1994 and March 1995, 44,751 rapes were reported to the police. By 2006/07, this number had risen to 52,617 during the same 12-month period (SAPS, 2007) – a prevalence rate of 222 per 100,000 of the female population, which is almost three times the (p.171) rate for the United States (US Department of Justice, 2007). An even more disturbing picture emerges from a two-province, communitybased survey of adult men where 27.6% of those interviewed admitted to having raped at least once in the course of their lifetimes (Jewkes et al, 2009).

The politics of rape statistics

Over the years, the public alarm generated by these astonishing figures has resulted in both defensiveness and the politicisation of the crime statistics. These debates were complicated by the fact that until 2002 no reliable research data were available on the extent of the underreporting of rape. Up until this time, albeit there was no basis for these figures (let alone a source), estimates on the frequency of rape in South Africa varied from one every 26 seconds to one every 83 seconds. Still other estimates suggested that only one woman in 20 – or else one in 36 – reported being raped to the police. But while effective in drawing attention to the extent of the problem, the unsubstantiated nature of these numbers proved to be their downfall and laid the ground for disputes that continue to this day.

In 1999, the then president Thabo Mbeki challenged the claim that only one in 36 rapes was reported, saying these figures could not be substantiated ‘in any way’ (Cape Argus, 2000). In the same year, South African-born actress Charlize Theron made an advertisement on behalf of Rape Crisis Cape Town Trust (RCCTT). Looking directly at the camera (and viewer), she said: “Many people ask me what South African men are like” and followed this with a recital of South Africa's estimated rape statistics. The Advertising Standards Authority withdrew the advertisement in October 1999 following a complaint by 28 men and one woman that it discriminated against men. Following an appeal against the ban by RCCTT (joined by the Commission for Gender Equality), the advertisement was reinstated (Vetten, 2000, p 111).

The following year, the then ministers of the Department of Justice and Constitutional Development (DJCD) and the Department of Safety and Security told reporters from the US CBS television news programme 60 Minutes that: “We've been standing here for 26 seconds and nobody has been raped” (Cape Argus, 2000). The debate turned both vitriolic and personal in 2004 when President Mbeki launched a public attack on journalist and rape survivor3 Charlene Smith. This was triggered by a newspaper article in which she highlighted the substandard treatment of rape survivors by the healthcare system (among others) and argued that this neglect was driving HIV infection among (p.172) women and children (Smith, 2004). Her article also cited a number of statistics that, among other things, included the claim that South Africa has the highest rate of rape in the world. In a scathing response, President Mbeki wrote that many South Africans appeared incapable of acknowledging the police's success in combating crime, and that their willingness to turn good news into bad was a symptom of racism (ANC Today, 2004a, 2004b).

Nonetheless, public concern was such that in 2004 the government's Justice, Crime Prevention and Security (JCPS) cluster set the SAPS the goal of reducing serious and violent crimes like rape by 7–10 % annually. This policy decision not only introduced a perverse incentive into the system, but also fundamentally misunderstood a key policy challenge: the low rate of reported rape.

Like elsewhere in the world, rape is extensively under-reported in South Africa. Drawing on data collected for the 1997 national South African Demographic and Health Survey, researchers calculated that only one in nine women who had been raped and had also had physical force used against them had subsequently reported the attack to the police (Jewkes and Abrahams, 2002). Unfortunately, police practice further contributes to under-reporting, it having been observed that the nature of the relationship between the victim and the accused plays a role in police officers' willingness both to accept and investigate rapes reported by women against their former boyfriends (Francis, 2000).

Newspaper reports suggest other, performance-related reasons for the police dissuading women from laying charges (The Star, 2006, 2007). These include the victim's inability to recognise or identify the suspect(s) (thus reducing the arrest rate), the perception that the victim's case is weak and pressure to decrease rape statistics ahead of the 2010 football World Cup (The Star, 2006). Indeed, in 2009, evidence emerged that police stations in three provinces were failing to register rape cases on their Crime Administration System, as well as dumping or destroying police dockets in an effort to reduce the number of rapes (among other crimes) reported to their stations (Sunday Times, 2009).

Legal framework

The role of gender inequality and discrimination in perpetuating sexual violence is recognised at a variety of levels. Policy such as the 1996 National Crime Prevention Strategy and South Africa's National Policy Framework for Women's Empowerment and Gender Equality (Office on the Status of Women, 2000) both link all forms of violence against women with gender inequality. The 2000 Promotion of Equality and (p.173) Prevention of Unfair Discrimination Act contains a prohibition against unfair discrimination by the state or any person and lists gender-based violence as an instance of such unfair gender-based discrimination. In addition to other measures, the Act requires the state to promote and achieve equality. But the most important recognition of rape as a form of gender inequality resides in the Constitution and key legal decisions derived therefrom.

Bill of Rights

All South African law must conform to the Bill of Rights contained in the Constitution. Sections relevant to rape include s 12(1)(c), which states that every person has the right to be free from all forms of violence from either public or private sources; s 9, the equality clause; s 12, which recognises that everyone possesses an inherent dignity that must be respected and protected; and s 14, the right to privacy.

Section 7(2) obliges the state to ‘respect, protect, promote and fulfil’ the rights in the Bill of Rights. In key decisions such as S v Baloyi (2000 (1) BCLR 86 (CC)) and Omar v Government of South Africa (2006 (2) SA 289 (CC)), the Constitutional Court has held that one of the ways in which the South African government should protect women's right to freedom from violence is to put appropriate legislation in place to address gender-based violence. The nature of state obligations was developed further in Carmichele v Minister of Safety and Security (2001 (4) SA 938 (CC)). The court held that the constitutional guarantee of the rights to life, dignity and freedom and security of the person imposes a duty on the state (and all its organs) to refrain from infringing on these rights. In certain circumstances, this guarantee also involves a positive duty to provide appropriate protection to everyone through the laws and structures designed to afford such protection. The court remarked that in addressing the constitutional obligations resting on the state, ‘few things can be more important to women than freedom from the threat of sexual violence’.

The approach taken in the Carmichele matter was confirmed by the Supreme Court of Appeal in Van Eeden v Minister of Safety and Security (2002 (4) AllSA 346 (SCA)). The court also confirmed the role of the Constitution as an overarching normative value system in determining the duties of the police to protect the applicant from potential violence. In K v Minister of Safety and Security (2005 (9) BCLR 835 (CC)), the Constitutional Court similarly applied this normative constitutional framework in evaluating the common law principles of vicarious liability.

(p.174) 2007 Sexual Offences Act

Little legislative attention was paid to rape pre-1994. In late 1993, this neglect began to be addressed with the enactment of the Prevention of Family Violence Act, which allowed for husbands to be charged and convicted for the rape of their wives. In 1997, a project committee was appointed by the South African Law Commission (SALC) to investigate sexual offences against children and its remit was later extended to include adults. The Criminal Law (Sexual Offences and Related Matters) Amendment Act (the 2007 Sexual Offences Act) was finally enacted in 2007 and is now the main body of legislation dealing with sexual violence against both adults and children.

According to the new Act, ‘Any person (A) who unlawfully and intentionally commits an act of sexual penetration with a complainant (B) without B's consent is guilty of the crime of rape’. ‘Sexual penetration’ is widely defined to include penetration of the genital organs and/or anus by another person's genital organs or any other body part or object. Penetration with an animal's genital organs also constitutes rape, as does penetration of the mouth with another person's genital organs.

The Act also codifies other existing common law and statutory offences and enacts a number of new offences (such as compelled rape4). Two chapters deal with sexual offences against children and persons with mental disabilities respectively. Rape survivors are now entitled, by law, to post-exposure prophylaxis (PEP) to prevent HIV infection and also permitted to apply for court orders instructing the alleged rapist to undergo testing to determine his HIV status. The Act also includes interim provisions on trafficking in persons for sexual purposes.

The Act repeals or amends certain rules of evidence pertaining to sexual offences, including that no negative inference may be drawn from there being a delay between the commission of a sexual offence and its reporting. The Act also allows for defences to certain charges and institutes a national register for offenders aimed at ensuring that persons who have been convicted of sexual offences against children or persons with mental disabilities are prohibited from certain types of employment. Further, any person knowing of a sexual offence committed against a child must report such knowledge to a police official. Their failure to do so constitutes an offence that can result in up to five years' imprisonment. Likewise, knowledge, or a reasonable belief, or suspicion, that a sexual offence has been committed against a person with a mental disability must also be reported. The same sanctions apply as in failing to report a sexual offence against a child. (p.175) (A separate law, the 2006 Older Persons Act, makes it obligatory to report sexual abuse perpetrated against older persons.)

Importantly, the Act introduces a supportive structure aimed at ensuring effective implementation: the Inter-Sectoral Committee for the Management of Sexual Offences. The committee is to consist of the most senior officials in the DJCD, the SAPS, the Department of Correctional Services (DCS), the Department of Social Development, and the Department of Health (DH) and the National Director of Public Prosecutions. The committee has the initial responsibility of developing a National Policy Framework (NPF), while each department represented on the committee is required to submit a report to parliament annually detailing its efforts to implement the Act. Finally, national instructions, directives and training courses dealing with sexual offences must be developed for police officials, prosecutors and medical practitioners.

The 2007 Sexual Offences Act is also supported by other legislation. The 1977 Criminal Procedure Act contains rules dealing with (among others) trials in camera, young witnesses giving evidence through an intermediary, the admissibility of evidence relating to a complainant's previous sexual history, the competence and compellability of witnesses and the determination of bail. The latter was subsequently amended to the effect that in some circumstances, the accused must first prove that ‘exceptional circumstances’ exist in the interests of justice that warrant his release on bail5.

Partly in response to increases in particular crimes and as a crime control measure, minimum sentences for rape, murder and robbery were introduced through the 1997 Criminal Law Amendment Act (made permanent in December 2007 via the Criminal Law (Sentencing) Amendment Act). Minimum sentences for rape have been set at 10 years, 15 years, 20 years and life and are determined with reference to an accused's previous convictions and/or selected characteristics of the particular rape6.

Finally, in terms of the 1977 Criminal Procedure Act, read with the 1998 Correctional Services Act, courts must inform rape survivors that they have a right (subject to directives issued by the Commissioner of Correctional Services) to make representations when the prisoner's placement on parole, day parole or correctional supervision is considered.

(p.176) Policy interventions

Policy responses to sexual offences are found both in documents with general applicability and those specific to sexual offences. However, the development of these responses across departments has been uneven and fragmented. In addition, the urgent need to respond to the problem has resulted in particular interventions being introduced that were not explicit policy but have become, by virtue of their establishment, de facto policy. Policy addressing rape has also been developed by departments outside of the criminal justice system, such as the Department of Provincial and Local Government. This complex state of affairs is recognised in the preamble to the 2007 Sexual Offences Act, which notes that a uniform and consistent approach to implementing laws and providing services in relation to sexual offences is not evident across government departments.

Policy applicable to crime victims in general

The 2004 Service Charter for Victims of Crime (‘the Victim's Charter’) addresses itself to victims generally and aims to eliminate secondary victimisation by the criminal justice process and ensure that victims remain central to this process. A number of other documents have been issued in support of the Victim's Charter, including one on minimum standards of services for victims of crime. However, the standards proposed are better described as conditional expectations – what victims may expect from the system, circumstances permitting. There is no undertaking on the part of the state to expand existing services.

Rape and other forms of sexual violence are also singled out for particular attention in the Victim Empowerment Programme Policy Guidelines (Department of Social Development, 1998) and the Strategic Plan for the SA Police Service 2005–2010 (SAPS, 2005), although neither document provides much guidance around what such prioritisation means in practical terms.

Policy specific to rape

In 1998, the DJCD released a set of uniform national guidelines for all role players handling rape and other sexual offence cases. These National Policy Guidelines for Victims of Sexual Offences (DJCD, 1998) represented government's first attempt at developing policy specific to sexual offences and were applicable to the DJCD, the DH, the SAPS, the Department of Welfare (as it was then called), the DCS and appropriate non-governmental organisations (NGOs). Those applicable to the (p.177) police have been subsequently superseded by National Instructions and those for the DH by the National Sexual Assault Policy. Directives issued by the National Prosecuting Authority (NPA) have also largely replaced those applicable to the DJCD. It is only those applicable to the Department of Welfare and DCS that do not appear to have been updated. Further, the relationship between the DCS guidelines and the legislation dealing with the release of prisoners is unclear7.

Psycho-social services for rape survivors

The 1998 guidelines for welfare largely confine themselves to describing how to support or accompany a victim through the reporting procedure. There is no reference to principles guiding the provision of services. The policy guidelines do make some attempt to identify the training and competencies required of social workers attending to sexual offences: it is ‘desirable’ for social workers to have had some training around trauma counselling that provides them with medicolegal knowledge, and to have the confidence to testify in court and the knowledge and skills to work with survivors of sexual abuse. While the guidelines acknowledge the need to develop separate guidelines for those victims whose experience of sexual assault is historical rather than recent, such guidelines have never been forthcoming.

To a limited extent, these guidelines were added to in 2005 when the Sexual Offences and Community Affairs (SOCA) unit of the NPA issued the Uniform Protocol for the Management of Victims, Survivors and Witnesses of Domestic Violence and Sexual Offences. The protocol is intended to regulate the services provided by civil society organisations, traditional leaders, private individuals and volunteers to victims of sexual offences, as well as those who witness these crimes. The protocol is justified on three grounds. First, it is said to provide a regulatory framework that is absent from the Victim's Charter. Second, it is intended to prevent service providers' interventions from having a negative effect on the preservation of evidence and the integrity of witnesses and survivors. Finally, the Protocol notes a lack of uniformity and consistency in the provision of services (although it does not propose a comprehensive approach to dealing with this problem).

Specialist facilities

In 1992, outrage over the handling of two rape cases in the Western Cape province led the then Acting Attorney-General Frank Kahn to establish a Task Group on Rape consisting of both government and (p.178) NGO representatives. A pilot specialist sexual offences court staffed by two trained regional court prosecutors was then established in Wynberg to meet the following three broad objectives:

  • the reduction or elimination of inappropriate and insensitive treatment (or secondary victimisation) of sexual offence complainants;

  • the development of a coordinated and integrated approach to the processing and management of sexual offence cases by criminal justice agencies; and

  • the improvement of the reporting, prosecution and conviction rate for sexual offences.

Seven years later, in its 1999 Gender Policy Statement, the DJCD committed itself to establishing further specialist sexual offences courts modelled on the Wynberg example. In terms of the blueprint subsequently developed to guide the functioning of these courts, each court required two dedicated sexual offences prosecutors, a dedicated magistrate, closed circuit television and victim assistance services among other things.

In 2003, the NPA and the DJCD agreed on a national strategy to roll out specialised sexual offences courts dealing with both adult and child victims. However, in 2005, the Minister of Justice and Constitutional Development called for a moratorium on the establishment of all dedicated courts (including sexual offences courts) on the basis that dedicated courts placed too great a demand on resources and forced magistrates to specialise. A National Project Oversight Committee was established to decide on the establishment of future dedicated courts and a set of criteria to guide the setting-up of further courts. Not unsurprisingly, the number of specialist courts has been dwindling ever since.

The SAPS also established what it describes as ‘victim-friendly’ facilities that promote the right to privacy, particularly for victims of sexual offences. Only Gauteng Province would appear to have issued guidelines and standards on the establishment of victim empowerment services in police stations. These guidelines have not been formally adopted. Such generic victim empowerment services must also be distinguished from the specialist one-stop centres established by the Department of Safety and Security and the Thuthuzela Care Centres (TCC) established by the NPA. The TCCs are described as ‘victim-centred’ in that they locate health, policing and counselling services within a victim-friendly centre based at a hospital. Intended to provide comprehensive rape care management, they give follow-up medical (p.179) treatment, counselling and information to the victim regarding the progress of the case. Ten TCCs currently exist nationally, with plans afoot to establish more through donor funding.

Specialised services and personnel

SAPS policy in relation to sexual offences is dealt with through its National Instructions and Standing Orders. National Instruction 3/2008 Sexual Offences consists in 23 sections that address the testing of suspects for HIV; various aspects of the investigation and gathering of evidence; the roles and responsibilities of investigating officers and station commissioners; discontinuing investigations; and support and assistance to victims of sexual offences at all stages of the criminal justice process. Up until 2006, when the SAPS announced that it would devolve specialist detective units, these instructions would have chiefly applied to the Family Violence, Child Protection and Sexual Offence (FCS) units.

The origins of the FCS units lie in the Child Protection Units established in 1986. In 1995, the investigative mandate of these units was broadened and they became FCS units. These units were often located in separate victim-friendly offices that served police stations within a particular area. Where the distance between police stations was great, FCS detectives were based at local police stations instead. However, many areas had no access to FCS detectives, with the result that rape cases were investigated by general detectives. This unevenness of access to FCS services was one of the reasons given for the units' restructuring in 2006, which was intended to relocate resources and expertise from area level to station level and so improve service provision. The consequences of this decision are discussed later in the chapter.

Responsibility for the prosecution of sexual offences lies with two units in the NPA: the National Prosecutions Service (NPS) and the SOCA unit. The former is responsible for the actual prosecution of cases, while the latter is more concerned with determining and implementing policy.

National policy directives issued in 1999 to all prosecutors prescribed that all matters of rape, indecent assault (where the victim is under the age of 16) and statutory rape where the victim is under the age of 16, as well as all matters involving child abuse in contravention of s 50 of the 1983 Child Care Act, were to be prosecuted in the regional courts. This was to ensure that more experienced prosecutors would handle such matters. The directives called for a victim-centred approach that (p.180) took into account the physical, emotional and psychological well-being of the victim. The directives also advised that:

  • a single specialist prosecutor deal with the matter from beginning to end;

  • privacy and confidentiality be protected and delays in proceedings be avoided;

  • separate waiting areas be made available;

  • special measures to protect survivors during trial processes be requested and expert evidence introduced where appropriate; and

  • special vigilance be required to protect victims from intrusive crossexamination.

Finally, all matters involving child victims 12 years and younger were to receive absolute prioritisation on the court roll.

Court preparation services were introduced by the NPA at a number of courts. Described as the process of familiarising witnesses with trial procedures, they are intended to allay victims' fears and concerns about testifying in court, reduce secondary victimisation and improve victims' ability and willingness to remember and relate their experiences in court. (Previously these services had been provided by NGOs.)

The DH issued the National Sexual Assault Policy (‘the policy’) and National Management Guidelines for Sexual Assault Care in 2005. The policy sets as its goal the improvement of healthcare after sexual assault for women, children and men in South Africa. Importantly, the policy states that services for sexual assault patients should be seen as specialist services and that they should also be provided by specialists – both doctors and nurses who have completed the required training.

These documents were supplemented in 2008 with directives mandated by the 2007 Sexual Offences Act. The directives address the testing of rape accused for HIV; the reporting of sexual offences at health facilities; and how health workers are to assist with the investigation and prosecution of sexual offences. Significantly, the directives recognise that the full range of health services must also be offered to all those who do not wish to report the incident to the police, including the medico-legal examination (in the event that some victims decide later to lay a charge with the police).

Key issues faced

The challenges of policing and prosecuting rape may be grouped broadly under three, inter-linked headings: the attrition of cases through (p.181) the criminal justice system; the administration of the criminal justice system (referring to its resourcing and management); and the prejudiced, discriminatory treatment meted out to victims of sexual crimes.

Attrition of rape cases in South Africa's criminal justice system

The conviction rate for rape in South Africa is low, with many cases filtered out of the criminal justice system long before the trial stage is reached. In one study8, 68% of rape cases involving adult victims and 58% of those involving children did not progress beyond the police investigation (SALC, 2000). Another, covering the province of Gauteng, found that 45% of rape cases failed to proceed beyond being reported to the police (Vetten et al, 2008). In both studies, failure to identify a suspect was the most common reason why cases did not proceed to court. In Gauteng, a sizeable proportion of victims (37%) also opted out of criminal justice system processes, with 14% of victims withdrawing their cases for various reasons and some one in five victims (22.9%) becoming untraceable (Vetten et al, 2008). Overall, the latter study, which tracked a random, representative sample of 2 068 reported rape cases, found 50.5% of reported rapes to have resulted in arrests, 17.3% to have resulted in a trial and a scant 4.1% to have led to a conviction for rape. Adult women fared worst at the hands of the criminal justice system relative to girls and teenagers. Those who raped young girls were twice as likely to be convicted of any crime (10.1%) as those who perpetrated their crimes against adults (4.7%) (Vetten et al, 2008).

Differential case outcomes on the basis of age have been found elsewhere. In one study, 9.1% of children's cases resulted in convictions, as opposed to 5.0% of adults' cases, (SALC, 2000), while data for the year 2000 identified 8.9% of children's cases and 6.8% of adults' cases to have led to convictions. This rate varied across provinces (Interdepartmental Management Team, 2002)9.

Weaknesses in the collection and handling of forensic evidence also reduce the likelihood of a conviction in some instances. In Gauteng, a sexual assault evidence collection kit was completed in 67% of cases but only 51% of kits sent to the police forensic science laboratory. Because the suspect's blood was taken in only 16.4% of cases, DNA evidence was rendered largely irrelevant to almost all victims' cases (Vetten et al, 2008).

(p.182) Administering and managing criminal justice system procedures

Poor police record keeping and statement taking contribute to the loss of evidence and witnesses. Victims' residential and work addresses, as well as the address of the crime scene, may not be captured, nor statements from other witnesses taken. Because arrests are not always promptly effected as instructed by commanding officers, suspects are given time to disappear.

The victim's statement is central to the investigation and prosecution of her matter. According to SAPS National Instructions, the ‘victim's statement must be comprehensive. (Rather write too much, than too little)’. To underline this point, the instructions provide a checklist of 77 details that should be included in the victim's statement10. But as a number of studies report, even this level of prescriptiveness does not ensure the quality of the statements (Stanton et al, 1997; SALC, 2002; Artz et al, 2004; Vetten et al, 2008). Lack of proficiency in particular languages has also been noted as contributing to the indifferent quality of statements.

Difficulties in locating victims and other witnesses are exacerbated by the lack of telephones or work contact details for victims and witnesses; difficulties in locating temporary addresses; a shortage of working vehicles; and difficulties in accessing areas without streets or lighting, particularly after dark. This is particularly true of survivors who live in informal settlements with no street names and numbers and where the layout constantly changes as people pick up and move their shacks (Artz et al, 2004). Corruption also contributes to the loss of cases, with 37% of police officers interviewed for one study claiming that one or more of their rape cases had been mishandled due to corruption (Andersson et al, 1998).

Ideally, 20 is the maximum number of dockets any detective should be investigating at any one time, according to a 1996 SAPS evaluation (Stanton et al, 1997). In 2004, research conducted at three police stations found detectives carrying anything between 27 and 300 dockets for all types of crimes, with anything between 1% and 100% of these dockets being rape investigations (one detective was responsible for 178 rape investigations alone) (Artz et al, 2004). This state of affairs led one researcher to observe that detectives appeared to be caught up in ‘perpetual crisis management, responding to whoever yells the loudest…. The women who get their cases attended to are the ones who show up at the station and demand it’ (Artz et al, 2004, p 72).

Police capacity to respond to rape was further decimated by the decision to restructure the specialist FCS units in 2006. While in some (p.183) areas that had previously had no access to FCS detectives were now benefiting from their skills, this was at the expense of other areas that had lost such services and in the context of a decline in the quality of services. The restructuring of FCS units resulted in new, inexperienced personnel being brought in to undertake investigations for which they had not been adequately trained. Such personnel had not been screened beforehand to assess their suitability to FCS work and nor had they necessarily chosen to provide FCS services. In some instances, they did not have the necessary basic requirements to undertake this work (such as a driving licence).

Many FCS personnel now fell under station managers generally, who had limited, if any, understanding of the intricacies of rape investigations and the management and care of rape victims. They could thus only offer limited guidance to new, inexperienced FCS detectives. FCS staff could not focus on their mandates but were obliged to take up other investigations too, thus limiting their ability to focus on rape investigations. FCS units no longer had their own identifiable budgets and it was unclear how resources to enable their investigations were to be funded at station level. In some instances, FCS officers no longer had access to private, victim-friendly facilities (Frank et al, 2008).

Coordination between investigating officers and prosecutors has also been noted as lacking, with the question of who should guide the investigation sometimes becoming a further source of tension leading to a less than harmonious relationship between prosecutors and detectives (Artz et al, 2004).

As with the police, a high caseload limits the amount of time available to prosecutors to consult with witnesses and prepare for trial – in its 2006/07 annual report, for example, the NPA reported a 24% vacancy rate. The high caseload, combined with a court backlog and pressure to secure conviction, can unfortunately create a perverse incentive to withdraw all but the strongest cases.

Cases are also withdrawn due to a high number of postponements, either because there is a need for further investigation; the docket has been lost or not brought to court; the accused needs to obtain legal representation; witnesses fail to appear at court; the SAP 69 form (which details previous convictions) is not available on time; the accused's attorney fails to appear or requests further time to prepare for trial; or because there is a need to obtain expert evidence (van Vuuren and van Rooyen, 1994; Vetten and Motelow, 2004). Multiple postponements may also ultimately lead to witnesses not coming to court or becoming untraceable (Vetten and Motelow, 2004).

(p.184) Instances have also been recorded of both magistrates and prosecutors failing to adhere to the rules of evidence and procedure applicable to rape during the course of a trial (Bronstein, 1994; Vetten and Motelow, 2004). Whether these are isolated lapses or illustrations of a more widespread systemic failure by the courts has yet to be determined.

Secondary victimisation of rape survivors

The preamble to the 2007 Sexual Offences Act acknowledges that government, in too many instances, has ‘fail[ed] to provide adequate and effective protection to the victims of sexual offences’ and thus worsened their situation through secondary victimisation. Steyn and Steyn's (2008) interviews with rape survivors found that a number of victims considered the police to have been unsympathetic towards them and stated that they would not seek assistance from the SAPS in future.

Healthcare workers are not free of discriminatory attitudes either. A survey carried out at 31 health facilities around the country that treat rape survivors recorded one in three (32.6%) health practitioners as saying they did not consider rape to be a serious medical condition (Christofides et al, 2005). Two different studies of medico-legal services in Gauteng also found health workers to demonstrate unsympathetic, judgemental and impatient attitudes towards rape survivors (Suffla et al, 2001; Vetten and Haffejee, 2005).

The law too has been complicit in the discriminatory treatment of rape survivors. Common law, for example, elevated many stereotypes to the status of legal fact through the application of the cautionary rule to the testimony of sexual offences victims. This rule obliged judicial officers to treat rape complainants' evidence with caution and invited them to speculate about possible reasons for the falsity of rape allegations11, thus ensuring that survivors of rape were the only crime victims to have been treated as inherently deceitful. The last remnants of this particular cautionary rule were abolished by the 2007 Sexual Offences Act.

Health sector response to rape

In 2002, the government took the decision to make anti-retroviral drugs, or PEP, available to rape survivors to prevent transmission of HIV. Later, via the 2007 Sexual Offences Act, this policy decision was elevated to the status of law, illustrating the extent to which HIV has come to overshadow all other health consequences of rape. Indeed, an earlier effort to legislate, at state expense, for the provision of medical (p.185) care, treatment and counselling for all survivors who sustained physical, psychological or other injuries as a result of the rape was dismissed by legislators on the basis of being too costly (Vetten and Watson, 2009). Health services have thus inadvertently become PEP services. At the same time, the failure to embed PEP within comprehensive counselling and support services contributes to the low completion rate of PEP (Vetten and Haffejee, 2005).

Other aspects of inadequate healthcare services include:

  • lengthy waits for medico-legal examinations (Human Rights Watch, 1997; Christofides et al, 2003; Vetten and Haffejee, 2005);

  • delays in the provision of PEP (Schleifer, 2004; Vetten and Haffejee, 2005);

  • lack of privacy and confidentiality during the medico-legal examination (Christofides et al, 2003; Vetten and Haffejee, 2005);

  • the absence of referral systems, as well as counselling services (Suffla et al, 2001); and o inadequate record keeping and documentation (Smythe et al, 2008; Vetten et al, 2008).

Analysis of policies and interventions

Two distinctions may be drawn between the various policies outlined in this chapter: that between formal and informal policy, and that between a policy decision and a policy. Formal policy refers to that which is written down, available in the public domain and formally recognised or authorised. Informal policy, by contrast, must typically be inferred from practice because there is generally no documentation defining and setting out the parameters of the particular practice. In addition, it has not been formally authorised or officially adopted. A policy decision is essentially a specific choice among alternatives and not to be conflated with policy, which generally unfolds over time to flesh out and substantiate the particular choice.

The specialist sexual offences courts offer a clear example of these distinctions. When the first such court was piloted in 1993, there was no national, official policy in support of such measures. Sexual offences courts were therefore an example of local-level, informal policy. But with the release of the DJCD's Gender Policy Statement and its stated commitment to establishing such courts nationally, it is clear that a decision was taken to create sexual offences courts as a matter of national policy. The policy itself, however, has not materialised and so the thinking around these courts remains confined to documents (p.186) whose status is uncertain, such as the blueprint document for sexual offences courts. These documents are not necessarily binding and may not even enjoy much official recognition. As a consequence, the acceptance and implementation of such measures is likely to be weak for a number of reasons. First, many of these responses are ad hoc, rather than the consequence of thought-out strategy. Accordingly, their implementation is inconsistent and open to multiple interpretations. Because they are not planned, they are inadequately resourced and highly vulnerable to the personal preferences and whims of decision makers. This is particularly true of NPA interventions. While it is to their credit that they have introduced so many measures intended to improve the treatment of rape victims, none of these responses is firmly anchored within a comprehensive, overarching policy framework (which also reflects the failure of the DJCD, at the time of writing, to comply with its statutory obligation to develop the NPF).

The NPA's prominent role has also ensured that responses to rape are often driven by the interests and concerns of the prosecution services. The Uniform Protocol, for example, sees the NPA attempting to determine therapeutic services on the grounds that such services should not be allowed to interfere with the preservation of evidence. This highlights how the interests of the criminal justice system may take precedence over individual survivors' interests. By contrast, the DH policy notes that the healthcare needs of the patient take precedence over criminal justice system demands and challenges sexual assault care providers to think beyond the medico-legal evidentiary needs of the criminal justice system alone. These two approaches illustrate a paradoxical understanding of what qualifies as ‘victim-centred’ policy.

There is also no consistent understanding of, or support for, specialised responses to rape across departments. Indeed, only the DH's policy provides some concrete detail around the meaning of specialist services in practical terms. This ambivalence finds further expression in the near silence, in policy terms, on specialised psycho-social services to rape survivors.

Conclusion

South Africa's policy response to rape derives from two different sources: its commitment to gender equality and the pressure to be seen to be curbing crime. The latter has seen a drive to reduce the number of reported rapes, as well as the introduction of a harsh system of minimum sentencing. While there are many dimensions to the problem of rape (including its prevention), responses thus far have chiefly been (p.187) confined to the criminal justice system, due in no small way to the rapid introduction of a variety of prosecutor-led responses to rape. However, the effects of many of these interventions have been lessened due to the fact that they are not located within a comprehensive and formalised policy framework, but fragmented across a range of documents of uncertain status. The approach of the NPA has therefore inadvertently reinforced the underdeveloped, under-resourced and barely enforceable nature of measures to support victims of sexual offences. Finally, policy is largely silent on how to respond to the majority of rape survivors – those who do not report the violation done to them. Indeed, current official approaches to reducing sexual violence in South Africa can only continue to silence rape survivors and thus undermine more positive policy responses.

Further reading

Bibliography references:

Artz, L. and Smythe, D. (2008) Should we consent? Rape Law Reform in South Africa, Cape Town: Juta and Co Ltd.

Vetten, L., Jewkes R., Fuller R., Christofides N., Loots, L. and Dunseith, O. (2008) Tracking Justice: The Attrition of Rape Cases through the Criminal Justice System in Gauteng, Johannesburg: Tshwaranang Legal Advocacy Centre, South African Medical Research Council and the Centre for the Study of Violence and Reconciliation.

References

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Andersson, N., Mhatre, S., Mqotsi, N. and Penderis, M. (1998) Prevention of Sexual Violence: A Social Audit of the Role of the Police in the Jurisdiction of Johannesburg's Southern Metropolitan Local Council, Johannesburg: CIETafrica in collaboration with the Southern Metropolitan Local Council.

Artz, L., Smythe, D. and Leggett, T. (2004) Reflections on Integrated Rape Case Management, Cape Town: University of Cape Town.

Bronstein, V. (1994) ‘The rape complainant in court: an analysis of legal discourse’, in C. Murray (ed) Gender and the New South African Legal Order, Kenwyn: Juta and Co Ltd.

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Notes:

(1) Apartheid categorised people into four different racial groups: white, coloured, Indian and African. In this chapter, the term black refers to all those disenfranchised on the basis of their skin colour, that is, those classified as coloured, Indian or African.

(2) Altbeker (2005 p 19) suggests that this is largely a function of South Africa's high rates of unemployment, which drag down the country's GDP per capita and so raise the ratio of average salaries to that figure.

(3) The terms ‘victim’ and ‘survivor’ are used interchangeably in this chapter. Some writers prefer to refer to those who have been raped as ‘survivors’ rather than ‘victims’ to emphasise the inherent strength needed to recover from rape. Others recommend using both terms but in a manner that differentiates between the stages of recovery from rape, with ‘victim’ more applicable to someone recently assaulted and ‘survivor’ more appropriate to someone increasingly able to cope with the effects of rape. Both terms are used to recognise that a violent crime has been inflicted on someone and to acknowledge the long-term work required to cope with rape (Campbell, 2001, p 2).

(4) This allows for the prosecution of third parties who force two unwilling parties into having sex.

(5) This is in terms of the 1997 Criminal Procedure Second Amendment Act.

(6) Life imprisonment is mandatory for those convicted of two or more offences of rape, but who have not yet been sentenced in respect of such convictions. (p.188) It should also be applied when the victim is younger than 16, or is physically disabled and rendered particularly vulnerable to victimisation due to her disability or is mentally ill. In circumstances where the rape is accompanied by the infliction of grievous bodily harm to the victim, where the victim was raped more than once, whether by the accused or by any co-perpetrator or accomplice, or where the victim was raped by more than one person, where such person acted in the execution or furtherance of a common purpose or conspiracy, life imprisonment should again result. Finally, if the accused knew that he had HIV/AIDS at the time of the rape, life imprisonment should also be imposed as the mandatory sentence. Deviation from any of these minima is only permissible when ‘substantial and compelling circumstances’ are found to exist.

(7) The guidelines for the Department of Correctional Services are addressed to institution committees and parole boards, as well as the heads of prisons and community corrections. They focus on the conditional and unconditional release of sex offenders, as well as the factors parole boards should take into account when considering the possible release of a sex offender. Procedures guiding institution committees' selection of programmes and interventions for sex offenders are also set out.

(8) This was conducted in the eight police areas of Western Metropole and Boland in the Western Cape; Port Elizabeth and Cradock in the Eastern Cape; Durban and Midlands in KwaZulu-Natal; and Johannesburg and East Rand in Gauteng.

(9) Mpumalanga, the worst-performing province, recorded a 3.1% conviction rate for cases involving children and a 4.1% rate for cases involving adults. Gauteng was the third worst-performing province, recording a 7% conviction rate for cases of child rape and 4.9% for adult rape. The best-performing province was the Northern Cape, which recorded a 16.8% conviction rate overall.

(10) Apart from the obvious details of the crime, the checklist also includes how the suspect approached and maintained control of the victim; the exact words spoken; a description of anything touched by the perpetrator; a continual description of the victim's state of mind during the whole incident; whether the suspect was circumcised or not; whether the suspect took steps to avoid leaving fingerprints; a full description of the suspect from head to toe; and the inclusion of the fact that the victim did not give consent, even if this is obvious.

(p.189) (11) See for example S v Balhuber 1987 (1) PH H22 (A); R v Rautenbach 1949 (1) SA 135 (A); R v M 1947 (4) SA 489 (N); and Hoffman and Zeffert, 1998, pp 579–80.