PRESS RELEASE: SONA 2019

Presidential Commitment to support for Rape Survivors: A Victory

During the State of the Nation Address, delivered on 7 February 2019, President Cyril Ramaphosa more than once mentioned the issue of gender based violence. He confirmed that more funds will be dedicated to places of support, such as Thuthuzela Care Centres, and that government is working to ensure the better functioning of Sexual Offences courts. Funds must be made available to civil society organisations who already provide specialist support services to survivors to continue to deliver and expand these services. This will mean that more rape survivors can access justice and support services.

We are pleased that the President committed to work with partners in civil society to implement the decisions of the National Summit on Gender-Based Violence and Femicide which took place last year.

We believe that all survivors of sexual offences should have access to a specialised court. Rape Crisis Director Kathleen Dey says, “We believe that the culture of impunity for perpetrators of rape will be addressed by a stronger criminal justice system with support services, sexual offences courts and more prosecutions”.

The Rape Survivors Justice Campaign RSJC calls on the South African Government to put the necessary legislation and regulations into effect so that sexual offences courts can be established across the country. We are also calling on the President to honour his public commitment to ensure that survivors of rape receive specialist services. We will monitor the upcoming Budget Speech to see if the necessary funds are made available.

Contact: 021 447 1467
Email: Jeanne Bodenstein at jeanne@rapecrisis.org.za

#SONA #SONA2019 #Ramaphosa

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

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Ramaphosa’s SONA and the issue of gender-based violence

Cyril Ramaphosa will have to explain on Thursday how the state will give effect to majority party January 8 statement commitments in the light of a shrinking fiscus.

Gender-based violence made it into the January 8 statement of the majority party. And not just a mention – a relatively thorough and honest assessment of the state of women and girl children in South Africa, and in particular the unprecedented levels of abuse, violence and murder suffered by them. The president said “we must hang our heads in shame” at the state of gender-based violence and the patriarchal practices that give rise to it in the country.

Indeed. He also asked the men in the stadium to stand and make a commitment to end gender-based violence. Contrast this with no mention of gender-based violence at all in last year’s January 8 statement.

The harrowing stories told by survivors at the recent Summit on Gender-Based Violence seem to have persuaded the party to highlight the issue as a national crisis. The women who took to the streets for #totalshutdown can legitimately claim the summit as a success, and it is very pleasing to see a rhetorical commitment to ending the scourge.

But when the president promised that “the ANC government will continue to scale up the network of Thuthuzela Care Centres and other victim empowerment initiatives” I really started paying attention.

Thuthuzela Care Centres are one-stop facilities, aimed at preventing secondary victimisation of rape and abuse victims, improving conviction rates, and reducing the time taken to finalise cases. There are 55 Thuthuzela Care Centres across the country.

The care centres are proving an antidote to the general level of non-reporting of sexual offences. Rape Crisis Cape Town Trust compared the patterns of reporting at three local Thuthuzela Care Centres that it recorded in Cape Town.

  • In 2014 there were 2,628 cases.
  • In 2015 there were 3,153 cases.
  • In 2016 there were 3,210 cases.
  • In 2017 there were 3,425 cases.

These increases match a decrease in reporting to local police stations. It makes sense – at most care centres counsellors inform the survivor about the complex processes involved in reporting rape: a nurse will counsel the survivor about potential health risks, including potential HIV infection, and prepare them for the forensic examination, which is conducted by a doctor specially trained to collect forensic evidence for the crimes of rape and sexual assault. After this examination, the first responder gives the survivor a care pack containing toiletries so that she can shower, change into clean underwear and brush her teeth.

A police detective takes a statement immediately or escorts the survivor to their home and makes an arrangement to take the statement the next day.

In some care centres, they work with or near a sexual offences court, which provides specialist infrastructure, personnel and services to survivors.

Donors have funded the care centres for some time. This funding will end on the 31st March 2019.

In recent research produced for the AIDS Foundation of South Africa and the Networking HIV & AIDS Community of Southern Africa, they highlight the ending of the Global Fund grant funding for the care centres. “The extensive funding provided the Global Fund to almost all care centres across the country raises concern around the care centres ability to effectively implement the provision of psychosocial services without support from other donors.”

All Thuthuzela Care Centre stakeholders interviewed thought that the ending of this tranche Global Fund grant funding on 31 March 2019 would have dire consequences for the services currently being offered. The withdrawal of Global Fund grant funding at the care centres may result in the loss of a number of NGO services.

So where will the funds come from to sustain the care centres? The president will have to explain how the state will give effect to majority party commitments, in the light of a shrinking fiscus.

Alison Tilley is the head of advocacy and special projects at the Open Democracy Advice Centre.

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.

 

Does Rape Matter?

If the words of magistrates and judges are anything to go by, we would be able to grade rape crimes into categories- from not so bad to worst.

As if the act of rape itself was not traumatic enough, survivors still have to listen to remarks made during trial, that is, if their case makes it to court.

But who monitors what judges and magistrates say in their courtrooms? No one, really.

While it isn’t possible to monitor every single rape judgment handed down (and I wish I personally could), we can, instead, choose the people who are appointed to the bench, very carefully.

Next month, the Judicial Service Commission will conduct interviews on potential candidates, who may be deemed as fit for the bench.

Candidates are often asked about their experience, past judgments, how long they served as an acting judge for, and what their experience is with civil cases.

Based on previous JSC sittings, rape judgments delivered by these candidates often slip through the cracks.

This year, the case study for “what not to do when presiding over a rape case” is acting Judge Meerchand Maharaj.

Maharaj started off as a prosecutor and then moved up the ranks to become a magistrate. In his impressive CV, he lists being trained in sexual offences.

In his own words, in a rape appeal matter, the acting judge writes: “Rape is undeniably a despicable crime. It is humiliating and degrading and constitutes a brutal invasion of the privacy and dignity of the person…”

But when dealing with an appeal against sentence in a case where a nine-year-old child was raped, Maharaj decides that this is not the most serious rape he has presided over.

He writes, “the learned magistrate overemphasised the seriousness of the crime…”

In considering the substantial and compelling circumstances, he notes, “There is no evidence of serious injury to the complainant or her emotional state.”

Maharaj’s remarks are echoed in many other judgments.

During the 2015 JSC interviews, another shortlisted candidate, Judge Francis Legodi, made similar remarks in a judgment.

In a case where a ten-year-old was raped, Judge Legodi said that compared to other victims, the child was “less affected and traumatised” and that her performance at school was “not seriously affected”. The man’s sentence was changed from life imprisonment to ten years each for two rapes.

Legodi in another rape judgment said: “In coming to the sentence I don’t think this rape was one of the worst. Minimum force was used, ten years imprisonment in my view is a bit severe.”

In 2016, shortlisted candidate Judge Christiaan van der Merwe also expressed similar sentiments of lack of injury in his judgment. “There was no serious or lasting mental injury to the complainant,” he wrote. He concluded that life imprisonment was “disproportionate and unjust” for the rapist due to these circumstances.

These are just a few examples of remarks made by judges about the nature of the rape, “not being the worst”, nor the injuries “too severe”. This may be a result of presiding officers who have become desensitised to the issue of rape because they often preside over many of these cases.

But that’s no excuse. Judges owe it to the survivors and to the justice system to ensure that they are sensitive and strive for impartiality.

The courts are said to be a microcosm of society. Is this really what we think of rape crimes? That some are more serious than others? The act of rape is horrific enough. Full stop. No further explanation is needed.

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The Justice Lady is a writer who wants to give a voice to the voiceless. She is an advocate for the rights of rape survivors. She keeps a close eye on the courts, the media and the role they play in shaping the manner in which society sees rape.