Making strides in fighting for sexual offences courts

The Rape Survivors’ Justice Campaign was conceived and established in 2016. We have one aim: the planned and funded rollout of sexual offences courts as promised by the government.

This is a big ask and we envision that this long-term advocacy campaign will probably take at least ten years. Since our launch on Women’s Day in 2016 we have made great strides and progress and we will continue to build on this in the future.

Our campaign advocates for the national rollout of sexual offences courts to such an extent that all rape survivors will eventually have access to a specialised court. We believe that these courts should first be established in areas with high rates of reported sexual offences, which is one of the issues that we advocate for in the regulations and our engagement with the Department of Justice.

Locally, we have also chosen to specifically lobby for a sexual offences court to be established in Khayelitsha. Rape Crisis has an office in Khayelitsha and the police stations in the area consistently have some of the highest rates of reported sexual offences in the country without a specialist court to serve the community.

Here are some highlights of our achievements from the past two years:

August 2016: Launch of the Rape Survivors’ Justice Campaign. We made submissions to the High Level Panel on Key Legislation about the importance of having a legislative framework for sexual offences courts in South Africa.

November 2016: We gathered in front of the Khayelitsha Regional Court to demand that it be upgraded to a sexual offences court.

December 2016: We made oral submissions to the High Level Panel on Key Legislation about the importance of a legislative framework for sexual offences courts.

March 2017: We made written submissions to the Parliamentary Portfolio Committee on Justice and Correctional Services on the legislation for courts that deal exclusively with sexual offences.

May 2017: We made additional oral submissions to the Portfolio Committee regarding the exclusivity of sexual offences courts. We also engaged with Regional Court Presidents and the Deputy Minister of Justice to assist with the drafting of the sections of the Judicial Matters Amendment Bill 2016, that gives the Minister the power to establish these courts, including a definition of the courts.

September 2017: We Lobbied the Department of Justice to release the Regulations for sexual offences courts for public comment.

October 2017: We attended the National Forum on the Implementation of the Sexual Offences Act to lobby for the draft regulations to be released and to lobby the Deputy Minister of Justice for the establishment of a sexual offences court in Khayelitsha.

November 2017: Community activists gathered in front of the Khayelitsha Court and handed over a memorandum to the Deputy Minister of Justice to demand the upgrade to the Khayelitsha Court.

December 2017 to January 2018: The draft regulations were released for public comment. We made submissions on the regulations, specifically lobbying for a meeting with the relevant departments.

February 2018: We met with the Deputy Minister at the Khayelitsha Court to discuss proposed changes and upgrades.

March 2018: A meeting with the Departments of Justice, Police, Social Development, NPA and fellow Shukumisa Coalition members to lobby for the regulations to reflect attainable minimum standards as well as lobbying for specialist court support.

April 2018: We directly lobbied the Deputy Minister of Justice for the regulations to be finalised. We engaged with the drafters of the regulations regarding next steps and hosted a research panel discussion to highlight the successes and challenges of how courts deal with sexual offences.

May 2018: We submitted a report to the Deputy Minister setting out recommendations for the upgrades at the Khayelitsha Court.

July 2018: A meeting with the relevant Departments again to workshop the regulations. The main wins from this have been; the inclusion of court support in the regulations, the regulations will be a set of “minimum requirements” for sexual offences courts and the Department is tasked to come up with a list of minimum criteria for how to decide where to establish sexual offences courts.

September 2018: Consult with Rape Crisis’s court support team and coalition partners to on how the role of court support should be described in the regulations.

October 2018: Submit input to Department of Justice setting out the regulations relating to court support in sexual offences courts.

Initially the Rape Survivors’ Justice Campaign demanded that government rollout sexual offences courts in accordance with their own Blue Print set out in the MATTSO report[1]. However, through engagement with government decision makers in different departments as well as research done by academic institutions, we discovered that there was real concern that the model might very well be unattainable in the country’s current financial position. While the specialised personnel and services are key in reducing secondary trauma and ensuring that complainants continue to testify in a sexual

[1] Ministerial Advisory Task Team on the Adjudication of Sexual Offence Matters. The Report on the Re-Establishment of Sexual Offences Courts. 2013 offences case, the Blue Print also contains extensive and very costly infrastructural requirements. At most Regional Courts in the Country, these are simply not implementable.

We used the opportunity to lobby for the release of the Draft Regulations for Sexual Offences Courts, which will give detailed instructions on achievable requirements. While the regulations are still in draft form, we are pushing for them to contain minimum requirements for services, personnel and infrastructure at sexual offences courts with one goal: to reduce secondary trauma suffered by survivors. This way the objectives of sexual offences courts can be achieved within resource constraints.

The Departments of Justice and Constitutional Development as well as the National Prosecuting Authority includes the rollout of sexual offences courts in their Departments’ Annual Performance Plans (APP) and also report on the achievements of these targets at the end of their financial year. The rollout of sexual offences courts includes a staffing component as well as an infrastructure component and therefore the APPs will speak to these issues.

Hopefully by the end of the year, the regulations will be finalised and then Section 55A of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007 can come into operation.

 

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Why people make a difference to the experience of survivors

Previously we wrote about the space created for discussion as we partnered with the University of Cape Town’s Centre for Law and Society to host a panel discussion on developing court models in South Africa. However, it was not only the space that we were grateful for, but also the content of the discussion.

As the three researchers, Lisa Vetten, Dr Aisling Heath, and Karen Hollely, shared some key findings from their work and presented their opinions to the people that attended, there was a very clear golden thread tying together their findings: people. When victims of sexual offences were interviewed during research conducted by the Child Witness Institute, it was clear that people’s experience of the criminal justice system and sexual offences court depends on the people that work in the court and how supportive they are. This was the same for when magistrates and prosecutors were interviewed about working in sexual offences courts – justice is dispensed by people and who those people are, matter greatly.

As survivors experience the criminal justice system, they experience people. The prosecutor who interviews them and who leads their testimony. The interpreter translating their testimony. The magistrate acting as the presiding officer. And the court supporter, holding the survivor through the process. Clearly the criminal justice system is not some far away “system” devoid of human interaction.
Clearly the criminal justice system IS people.

The question then is how do we make sure that we have the right people who will not only limit secondary trauma suffered by the survivor, but will also ensure that justice is served and that perpetrators are convicted? Fortunately, research (like what was presented at this panel discussion) can provide enormous help in this regard and the Rape Survivors’ Justice Campaign uses this information when lobbying government for the rollout of sexual offences courts.

We are currently lobbying the Department of Justice and Constitutional Development to finalise the Regulations for Sexual Offences Courts. The regulations provide the minimum requirements for a sexual offences court to exist, including the people that should work at such a court. One of the issues that we lobbied for, is the inclusion of court supporters in the requirements for sexual offences court. We hear what researchers say about the importance of the right people providing support to survivors in the criminal justice system and we could use this information to lobby for specialised court supporters provided by Non-Profit Organisations and funded by the Department of Social Development. Although the regulations have not been finalised, we are very positive that specialised court supporters will be included.

The powerful thing about research then, is when words come to life. When research is used to make real-life changes in legislation and people’s experience of courts, that is when we know positive change is happening.

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Jeanne Bodenstein is the coordinator of the Rape Survivors’ Justice Campaign for the Rape Crisis Cape Town Trust.

Comparing numbers on sexual offences statistics

Sean Abrahams. He’s still there. And he says he is doing a great job. He’s the head of the National Prosecuting Authority, and mostly famous for not prosecuting Jacob Zuma.

Many people think it doesn’t matter to them, and that the National Prosecuting Authority is a matter for politicians and journalists. Well, let’s take a look at gender-based violence; more specifically sexual offences. That’s an issue that you will know about, and in fact determines some of what you do. Those streets you don’t walk at night, those lectures you give your kids about people spiking their drinks? It’s because you don’t feel safe. One reason you may not feel safe is because rapists are not convicted in significant enough numbers. But how bad are those numbers really?

 Sean will tell you all is well. His NPA has a conviction rate of 72,8% on sexual offences. Sounds good, right? You can sleep better at night, knowing that?

Not so much. The number of convictions on Sean’s own version is 5 001.  The sexual offences crime category contains the crimes detailed in the Criminal Law (Sexual Offences and Related Matters) Act. Crimes that fall under this broad category include rape, compelled rape, sexual assault, incest, bestiality, statutory rape and sexual grooming of children – among others.

In 2016/17, the police recorded a total of 49 660 sexual offences, down from 51 895 in 2015/16. The vast majority of the sexual offences recorded were rapes, followed by sexual assaults.

If 49 660 cases were reported why are there only 5 001 convictions? Even if Sean’s maths is as bad as mine, that’s not 72,8% percent.  So, what’s going on?

Well, at the essence of it is the number of cases that make it to prosecution. At a Rape Crisis event in Cape Town showcasing research on sexual offences courts in May, Lisa Vetten reported on recent research on statistics around convictions. According to her findings an arrest is made in only 57% of cases and only 65% of those were referred for prosecution. Prosecutors accepted 34,4% and these were enrolled for trial. Trials started in 18,5% cases and 8,6% cases were finalised, with a verdict of guilty of a sexual offence.  

With these new statistics in mind it makes us wonder what Sean is talking about? In the 2017/2018 reporting period only an estimated 6 868 sexual offences cases were prosecuted and of these 5 001 resulted in convictions. This is where the National Prosecuting Authority gets their 72,8% success rate statistic.  Sean is therefore only referring to the handful of cases that his staff have cherry picked for prosecution, which have really good prospects of success. What is a ‘good’ rape case? This is usually seen as a respectable, presentable victim, who is sober, badly injured, and has only enough of a relationship with the perpetrator to identify him. What’s a bad case? On the whole this is seen as anyone who is too young, too old, had a few beers, was in the wrong place, or the investigating officer didn’t investigate properly.

 Case investigations are led by constables, in half of the cases. In half the cases the perpetrator was fully named and in 70% of these cases his or her contact details were also supplied. There are nevertheless many cases where the police investigation and documentation of this is deficient. In the dockets the address of the complainant is not always recorded (2,1% of cases), the complainant statement was not signed (13,4% of cases) and the complainant or guardian’s telephone number was missing (21,5% of cases). In only 7% of cases was it noted that the Investigating Officer’s name and contact number had been given to the complainant.

So that’s part of why prosecutors declined to prosecute in 47,7 % of cases referred by police for prosecution. It also explains how the NPA can claim a 72,8% success rate on convictions. As we can see, the actual stats show a very different story when it comes to sexual offences and violence against women.

Sean Abrahams. He’s still there. And he says he is doing a great job. 

 Find out more about what makes a strong rape case from the courts perspective here: https://rapecrisisblog.wordpress.com/2018/05/29/evidence-rape-court-case/

Download the full report: Rape Justice In South Africa: A Retrospective Study Of The Investigation, Prosecution And Adjudication Of Reported Rape Cases From 2012: http://www.mrc.ac.za/reports/rape-justice-south-africa-retrospective-study-investigation-prosecution-and-adjudication

 

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Alison Tilley is an attorney, and the head of advocacy at the Open Democracy Advice Centre, which is a law centre based in South Africa, specialising in access to information and whistleblowing law. The Centre works on these transparency issues across Africa.www.opendemocracy.org.za

Sharing insight to develop better court models

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Spaces where researchers, activists and students can gather to share thoughts, ideas and dreams, are few and far between. That is why we were so grateful and excited when the University of Cape Town’s Centre for Law and Society offered to partner with us to host a panel discussion on developing court models in South Africa.

This discussion was designed to follow on from the National Forum on the Implementation of the Sexual Offences Act that was presented by the Department of Justice at the end of 2017 and where some of the research concerning sexual offences courts was first presented to the public. However, only a handful of representatives from the NGO sector could attend the DOJ’s forum and we were interested to hear the views of others in the field of sexual violence, colleagues who work in courts and fellow activists.

Our panel discussion on developing court models in South Africa took place on 26 April 2018 in Cape Town and we were joined by three panellists; Lisa Vetten, from the Wits City Institute, Dr Aisling Heath from the Gender, Health and Justice Research Unit at UCT, and Karen Hollely from the Child Witness Institute. Together they shared some of the key findings of their three separate research undertakings in the area of sexual offences in the court system. Their separate research studies looked at the experiences of victims of sexual violence in courts, the observation of court proceedings and the reviewing of court files. They not only shared their very interesting findings, but also their personal opinions of how this issue should be taken forward.

What made this event special is that it brought together groups from two worlds; those at the coal face working in courts, and those in front of the data and research analysing findings. In our experience it is felt that these two worlds don’t connect often enough and so the opportunities to bring these perspectives together to share insights and knowledge are always meaningful. Through the Court Support Project, Rape Crisis provides support services to survivors at five courts. This is an extremely an extremely important component of sexual offences courts. We believe that the very real experiences of our court supporters has the potential to add a depth and richness to the research done by these panellists. By the same stretch, their research helps to shed light on the systemic issues at play that influence the work that happens in courts.

The Rape Survivors’ Justice Campaign (RSJC) believes that specialised sexual offences courts are the key to restoring faith in the criminal justice system by decreasing the secondary victimisation of rape survivors, and in so doing increasing conviction rates for rape. Learning from the findings of skilled researchers in combination with our own experiences is immensely valuable. It influences our RSJC strategy and helps us work towards answering the question that is central to our campaign; what do sexual offences courts need in order to be successful in South Africa?

 

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Jeanne Bodenstein is the coordinator of the Rape Survivors’ Justice Campaign for the Rape Crisis Cape Town Trust.