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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Awareness, responsibility and blame

By Jen Thorpe

Safety is a difficult thing to contemplate in a country where nowhere is really ‘safe’.  It is hard to pretend that we don’t know.  We can’t ignore the high crime statistics, and police commissioner requirements of stomach in chest out.  It’s almost impossible to meet anyone who doesn’t know anyone who has been victim of crime, or hasn’t been one themselves.  We don’t live in a safe place.  We should all be aware of danger.

I think perhaps this assumption that we should be aware of danger, or the belief that we all know that we live in a context of risk, comes with a strange social requirement that we must manage that risk.  Our walls are high, marked by an acoustic array of electric fencing, sirens and lasers.  We put alarms and bars across the windows, we lock our doors, and we have household-safes and money under our mattresses. We are afraid of strangers.  We take out insurance and the insurers bank on the fear economy that we live in.  We take on the responsibility for our protection.

For many the first question you are asked when you are a victim of a mugging was ‘Where were you walking? Was it at night? Were you alone?’ For a victim of a high-jacking we ask ‘Where were you driving? Were your doors locked?’ For rape survivors we ask ‘What were you wearing? Did you fight them off?’ What we’re really asking is ‘How are you to blame? Why didn’t you try harder to protect yourself?  It’s a complex blame game.

We can acknowledge that we live in a world of violence, that some areas and contexts are fraught with danger. But we must surely also be able to acknowledge that everyone has the right to be free from violence, and that blaming victims for crimes means that we don’t blame perpetrators.  We must acknowledge that entering into a dangerous situation doesn’t mean that you are the cause of that danger.

Sexual violence is fraught with stigma, shame, and social myths about women’s sexuality and women’s rights.  In sexual offences cases victim blaming is particularly prevalent because we see that there is complexity in all sexual situations, and that consensual sex is rarely as simple as saying yes.  South African norms of sexuality complicate our awareness of the crime because say that women say ‘no’ when they really mean ‘yes’, and that women who dress, live or fuck in a particular way deserve what they get.

Society expects women to take the same risk management strategies with their bodies as we take with our homes.  So when we hear about women being raped, society tells us the question we should ask them is why they didn’t try harder to protect themselves and prevent their own rape.  Our logic is so fixed by fear, that we can only blame the victim and be proud of ourselves for keeping safe.

This logic also convinces us that only some men rape.  That we can anticipate who those men are, and that we should therefore work harder to avoid them.  But in SA, statistics show that the men that women should be trying to protect themselves from, are the meant they know.  Worse, they are most likely their family members, fathers, uncles and brothers.  These are South Africa’s rapists.

It is possible to be aware that SA is dangerous, but I think the jump from awareness to responsibility and blame is a bigger one than we have acknowledged it to be.