Section 55 What??

By Kathleen Dey

I am having such a bad attack of FOMO right now. Today a National Forum on the Implementation of the Sexual Offences Act concludes its deliberations in Johannesburg and while activists from all over the sector are there I am not. And they are all being very quiet about the content of their discussions, out of respect for our colleagues in government and the spirit of the dialogue.

This National Forum is convened by the Department of Justice with the backing of the Deputy Minister John Jeffery and organised by a steering committee that included members of the Shukumisa Coalition representing civil society. What makes this gathering unique is that the 250 delegates include not only members of civil society organisations, government departments and state services providers such as the South African Police Service (SAPS) and the National Prosecuting Authority (NPA) but also members of the judiciary. Since magistrates play a critical role in the adjudication of sexual offences cases and are often not represented in these kinds of discussion this is a huge bonus. My Fear of Missing Out grows as I write.

Yesterday’s programme included the presentation of critical research by research institutes such as the South African Medical Research Council’s recently released report entitled Rape Justice in South Africa. The combined presentations pointed to current problem areas within the areas of reporting, investigation, medicolegal services, support to survivors, prosecution and adjudication of sexual offences cases. There was, unusually, no question time or commentary in this plenary. This was followed by breakaway sessions where government officials and state service providers were given opportunities to provide further information on these problem areas in a more in depth fashion. The overall approach of the ensuing discussion was designed to be solution focused, with civil society organisation offering constructive criticism and recommending solutions designed to benefit all stakeholders.

The current political and economic situation in South Africa is so severe that we believe that we are unlikely to see the kind of resource mobilisation we would like to see in support of improved implementation of the Sexual Offences Act. In fact over the past decade we have seen a significant reversal in the gains that were made prior to that in putting infrastructure, personnel, training and services in place. There has been a marked decline rather than the consistent improvement reported by government. Sexism, racism and attitudes that lead to secondary victimisation of complainants continues to be a problem.

Statistics and reporting are unclear and inconsistent, which makes it very difficult to monitor progress towards set goals. In fact our current crime statistics give a false impression of excellence, showing a decrease in incidents when this is not the case. Strategies based on these misleading findings are in danger of failing as they are not based on an accurate analysis of the situation.

Performance indicators for officials within the criminal justice system are not successfully promoting good performance neither are they entirely useful as mechanisms for holding individuals or departments accountable. Some provide a perverse incentive in that they encourage poor performance when for example members of the SAPS are measured by the decrease in reported rape statistics when in fact they should be encouraging reporting. Management structures are weak and leadership is lacking. These factors combine to make oversight very difficult.

These flaws can be seen in the roll out of the promised sexual offences courts, an issue right at the top of the agenda of the Rape Survivors’ Justice Campaign. There are sexual offences courts where there is specialised infrastructure in place but not enough skilled and experienced personnel and no services, sometimes meaning that there is a lack of psychosocial care for survivors. Section 55A of the Judicial Matters Amendment Bill, which would allow for the Minister of Justice to establish these courts and set certain criteria for these courts has not yet been operationalised even though the president has signed this new law. There are no minimum standards for sexual offences courts and no sexual offences court regulations in place as yet.

A focus on the sexual offences court roll out may help government to tackle problems with courts as well as police and forensic investigations since the idea that specialist personnel would work together could best be promoted with these courts as “centres of excellence” linked to surrounding Thuthuzela Care Centres, forensic units and Family violence, Child abuse and Sexual offences (FCS) Units. We should therefore focus on the following suggestions for government role players at the upcoming national forum:

1. Section 55A of the Judicial Matters Amendment Bill must be operationalised as soon as possible.

2. Civil society organisations need to be given a chance to give input into the minimum standards on sexual offences courts as well as the regulations.

In addition to this we need to recommend that:

1. The functioning of the relevant departments and service providers within the criminal justice system be evaluated by the Department of Planning, Monitoring and Evaluation (DPME) in order to develop an improvement plan that will give rise to revised performance indicators.

2. Clear, consistent, disaggregated, integrated statistics are collected, collated and shared.

In the meantime, in the absence of improved performance indicators, we need to see competent officials concentrated within centres of excellence so that infrastructure, personnel and services can come together as they should. Let us hope that this incredible National Forum meeting will deliver at least some hope that these suggestions will be taken up and driven forward with the commitment they deserve.

 

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Kathleen Dey is director of the Rape Crisis Cape Town Trust. 

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Stop the Bus! – Day 6 (Trip 2) – Time to say goodbye

Stanford - the final day of the workshop

Stanford - the last day of the workshop

This morning we headed to Stanford where we continued with the workshop. The topic today was care for the caregiver.  We also had a networking meeting in Hermanus where the needs, problems and resources within the Hermanus, Gansbaai, Pearly Beach and Stanford communities were identified and to build better capacity and finding ways of broadening the network of support for rape survivors. Moreover, we visited the hospital, the police station and the Regional Court in Hermanus in connection with the Shukumisa campaign to see whether the rape survivors’ rights and services within the system are followed.

The team has found this journey very rewarding and interesting and we all agreed that the needs for the support of rape survivors in the area visited were vast. We will close this enlightening journey with a quote from Soren Kierkegaard: “To dare is to lose one’s footing momentarily. Not to dare is to lose oneself”.

From the networking meeting in Hermanus

Some of the participants from the networking meeting in Hermanus together with Eleanor

Goodbye and thank you!

Goodbye and thank you!

Stop the Bus! – Day 5 (Trip 2) – Understanding rape

Catherine having a talk about myths and stereotypes regarding rape

Catherine having a talk about myths and stereotypes regarding rape

Today we continued with the capacity building workshop from day 2. The main topic for discussion was understanding rape. Also the pathway through the Criminal Justice System, the legal definition of rape, the new law on Sexual Offences which was implemented in 2007 as well as myths and stereotypes regarding rape such as “all rapists are mentally ill” were addressed.

At around 14 am. some of the team members went to the Community Health Centre in Stanford where we met the operational manager. She informed us that the services for rape victims were poor in this area and the survivors were sent to the hospital in Hermanus. Moreover, this Centre does not do the forensic examination, but it is done by the police station. The only services they render to the victims are that they give them PEP (Post-Exposure Prophylaxis) which is an anti-HIV medical treatment, and this has to be taken within 72 hours after the rape in order to have its effect. Also they get offered medication for the side-effects of PEP at the Clinic.

After this very challenging and rewarding day the team closed the evening with having our debriefing and planning for the grand finale tomorrow.

Jemima giving an excellent presentation of victimization

Jemima giving an excellent presentation of victimization

Peliswa and Eleanor together with employees at the Stanford Clinic

Peliswa and Eleanor together with employees at the Stanford Clinic

Sexuality amongst minors, how young is too young?

Sexuality amongst minors, how young is too young?

By Jen Thorpe

I went to a thrilling dialogue at the Commission for Gender Equality last week. The topic was the ages of consent for sex, in terms of our legislation, and the complications that the current legislation has.

At the moment the law (the Sexual Offences Act) says that if you are sixteen years and older you can consent to sex.  This means that if you are sixteen and older, and having sex with someone 16 years and older, and the sex is consensual, then in terms of our law all is fine and well. It also means that from 16 years and older, if someone has sex with you (including oral sex) without your consent, and you report it they will be charged with rape.

If you are younger than 12 years old (i.e. up to 11 years 11 months and 31 days old) in terms of the law, you are too young to consent to sex, and any person that forces you to have sex with them or to engage in sexual acts is committing rape or sexual assault. This applies even if you have told them that you would like to do this, or agreed to perform the sexual act.  Despite your agreement or willing participation, the law says that you are too young to agree, and so what they are doing is rape. What this also means is that two children who are younger than twelve who have sex with one another are technically breaking the law. However, the Child Justice Act deems these two below the age of criminal capacity, and so alternative justice processes such as diversion programmes must be pursued.

Therefore according to the law, if you’re younger than 12 you can’t say yes, and if you’re 16 and older you can. What about if you’re between 12 and 15 years, 11 months and 31 days? What does the law say about this age group? Well, it’s quite complicated.

If you are between 12 and 15yrs, 11 months and 31 days you are still legally too young to consent to sex, and yet according to research done on children, sexuality is part of normal childhood growth. Indeed most South Africans have their first sexual experience in adolescence. What our law says is that anyone older who has consensual sex, or commits sexual acts, with someone between 12 and 15yrs, 11 months and 31 days is committing statutory rape or statutory sexual assault.  The complexity arises if the two people having sex fall within this age bracket.  Technically they can both be charged with statutory rape or assault, even if they have both consented to sex or the sexual acts (including kissing as defined under our law).  If they are convicted of this crime, then they will never ever be able to work in a position that allows them contact with children.

The legislation as it stands was formulated with the intention of protecting children from sexual predators, however the unintended consequence of this legislation is that it criminalises consensual sexual activity between adolescents. Even more problematic are further clauses in legislation that aim to increase the reporting of the abuse of children.

The Sexual Offences Act says that any person must report knowledge of a sexual offences to the SAPS. The Children’s Act says that certain professionals (specified in the law, social and health care workers for example) must report a reasonable belief to a choice of org from a range of people (DSD, SAPS, Child services). In addition, The Constitution says that all measures in response to child abuse must be performed with the best interest of the child in mind. At the same time we have other legislation that entitles adolescents to termination of pregnancy and condom access, without the health care workers being legally required to tell those seeking access’ parents. It is all a bit murky when it comes to this age group.

It was for this reason that the CGE held the dialogue in the first place. At present the Teddy Bear Clinic and RAPCAN are working with the Centre for Child Law are working on a test case that will attempt to illustrate the legal difficulty with this section of the law. Keep your eyes out in the media for more on this case.