Sexual offences in South Africa

Introduction

The recent set of particularly violent sexual crimes in South Africa, extensively covered by the media [1], has caused outrage and has provoked much soul searching. It has sparked various campaigns and protests aiming to raise awareness, and to bring the debate into main-stream public discourse.

The incidence and prevalence of rape and sexual offences is a real problem in South Africa. The number of reported cases, in the last decade, have been above 60 000 per annum – an average rate of 137 recorded cases per 100 000 of the population. In the last five years the number of reported cases has been slightly higher, given a much broader definition of ‘sexual offences’ (discussed later in this brief), and the rate of recorded cases has been falling slightly (the rate in 2011/2012 is 0.03% lower than in 2007/2008). [2]

Cross-nationally, given our population size [3], the total number of reported cases per annum is very high- assuming that the number of reported cases across nations is roughly commensurable, and that ‘reported cases’ is a reliable way to identify a ‘problem’.

Sexual offences

Sexual offences, like rape, are often complicated crimes that, most frequently, involve perpetrators known to the victim: A family member, a friend, a current or previous partner, a spouse, or an acquaintance. [4] Societal attitudes and perceptions about these offences are often not on the victim’s side. Ambiguous notions of consent often place the blame on the victim, or obviate a perpetrator altogether. Victims often feel ashamed. There are many factors that discourage reporting these crimes. These include fears about perceptions and blame, negative associations, and the intimidating process of making an official report. Police efficiency and ability to deal with these cases effectively may also be called into question. It is not unjustified: In dealing with reported cases, it is uncontroversial that attrition rates are high, conviction rates are low, and case turn-over is unacceptably sluggish.[5] Despite these factors, and the fact that incidences are undoubtedly underreported, reported incidents are extremely high.

The majority of victims of sexual offences are women. Before the new Sexual Offences Act of 2007 [6], when the Criminal Law Act of 1997 [7] was still in operation, ‘sexual offences’ narrowly referred to forced vaginal penetration. All other offences were classified under categories like ‘indecent assault’. Sexual offences, like rape, were thus restricted to women.

Before the introduction of the new sexual offences act, numbers were steadily climbing between 50 and 70 thousand reported cases.[8] The Sexual Offences Act includes a much broader definition of what constitutes a ‘sexual offence’, consequently cases spiked in 2009, but still remain above 60 000 [9]. Comparing the SAPS stats across these time periods is not entirely reliable, given a standard lead time of 2 years, and given the much broader definition of ‘sexual offences’ adopted in 2007.

Offences discussed in the Act are rape, sexual assault, sexual exploitation, sexual harassment, child pornography, incest, bestiality, and necrophilia – these include instances of compelled sexual acts, where either a third person is coerced to perform a sexual act, or an individual is coerced to perform a sexual act on themselves. ‘Sexual acts’ includes penetrative and non-penetrative sexual contact. This means any form of penetration of a person’s body by another person, object, or animal; or any physical contact or directed sexual behaviour towards an individual, by another person or persons: verbally, physically, or by means of an intermediary, or any other means. While the more sophisticated approach to sexual offences is commendable, there is the real risk of obscuring what some have called South Africa’s “pandemic of sexual violence” [10] – a pandemic suffered overwhelmingly by women, and committed by men.

Consent

A central element to the various sexual offences in the Act is consent. Any sexual act without consent (or that is unlawful) is an offense. Consent is defined as “voluntary or uncoerced agreement” [11]. Consent, broadly understood, must be the rational, informed, and uncoerced willingness of an individual to participate in sexual behaviour of some sort. An individual is rational in the sense of being of sound mind, mature age, and fully conscious; informed in the sense of understanding the implications, consequences, and intentions of engaging in the sexual act; uncoerced by physical force, deceit, prior-agreement, or any other manipulations; and willing, given the previous conditions, to engage in sexual behaviour. Consent may be withdrawn at any point, and is not a once-off agreement or commitment an individual can be held to.

Crime in South Africa

According to the South African Institute of Race Relations 2010/2011 South Africa Survey, some 44 murders, 181 sexual offences, 278 aggravated robberies, 678 and burglaries were reported each day in South Africa.[12] According to the Stats SA Victims of Crime Survey, 2012 [13] (a countrywide household-based survey), citizens do not feel safe walking alone in their area when it is dark; and 62% of respondents felt that crime has escalated (33%) or not changed (29%) in the last 3 years. Women, especially, do not feel safe. According to the SAPS statistics, the rate of contact crime [14], as a cluster, per 100 000 of the population, is approximately 24% lower in 2011/2012 than it was in 1994/95.[15] This national average ignores any geographic and demographic variation in crime rates. Contact crimes are not evenly distributed across the population- some areas have a much higher concentration of crime than others.[16]

What is government doing?

The term ‘anti-rape strategy’, it seems, was first mentioned in 2005 and unveiled at the Provincial Anti-Rape Summit [17] in the Western Cape (23-24 June 2005). The broad aim of the summit was to develop the necessary mechanisms to help victims of rape access justice, and appropriate care, in the Western Cape. The Western Cape faces some of the worst incidences of violent crimes in the country.[18]

The National Prosecuting Authority (NPA) [19] established a Sexual Offences and Community Affairs (SOCA) Unit in October 1999. [20] SOCA’s broad objective is to eliminate “all forms of gender-based violence against women and children”. SOCA has four sub-units or ‘sections’. ‘Sexual offences’ is one such section, focusing efforts to increase conviction rates, prosecution efficiency, and to reduce post-event trauma and victimization through initiatives like Thuthuzela Care Centres (TCCs), and (ideally), in conjunction with special Sexual Offences Courts (SOCs). This is, in essence, South Africa’s anti-rape strategy.

TCCs are comprehensive post-rape treatment facilities, geared towards fast-tracking the conviction and prosecution process. At these centres victims of rape receive medical attention and care, counselling, legal advice, the opportunity to submit a police report, and other services aimed at reducing trauma and secondary victimization. There are 45 centres in South Africa; this number includes 11 that are not fully operational, and 7 that are still being established.[21] These centres are located in hospitals close to high-risk areas. Ideally they would work in conjunction with sexual offences courts, which would be located in close proximity.

Sexual offences courts deal specifically with sexual offences (i.e. they have a dedicated roll) and consist of specialized prosecutors, social workers, investigating officers, magistrates and health professionals. These courts are effective. [22]

Unfortunately in 2005, the then Minister of Justice and Constitutional Development, imposed a moratorium on further roll-out of these courts [23]. This is, in part, a consequence of Judges raising concerns over ‘forced specialization’, and infringement of judicial independence to preside over all matters. [24] Courts with a dedicated sexual offences roll have thus been abolished. But there is clearly a pressing problem here, given the dehumanising nature of sexual offences like rape, and the prevalence of these crimes. Public outrage has fuelled efforts to re-establish these courts, for the same reason they were instituted in the first place: unacceptably high attrition rates, and low conviction rates [25]. It has been reported that Justice Minister Jeff Radebe has stated that these courts would be re-established soon.[26]

Government is clearly aware of the problem. The SAPS’s Family Violence, Child Protection, And Sexual Offences Unit (FCS) was reinstated in 2010. An Inter-Ministerial Committee on Violence Against Women And Children was established May 2012. In February 2013 President Jacob Zuma, in partnership with LEAD SA, launched an ‘anti-rape campaign’ aimed at educating South Africa's schoolchildren. [27]

Conclusion

Although reported sexual offences have been steadily, but very slowly, dropping (along with the crime rate, in general) according to the SAPS statistics, it is obvious that more needs to be done. Conviction rates need to be improved, prosecution needs to be stream-lined, and sentencing should be dispensed appropriately. The anti-rape strategy needs to be implemented. This much is known. Of course, the entire responsibility does not rest on the shoulders of government, the police, and the courts. Societal attitudes and widespread perceptions about sexual offences, especially rape, need to be confronted. Such a process of critical introspection forms an essential part of getting to grips with this unacceptable scourge.

NOTES

[1] “Thandiswa Qubuda – another dead brick in the wall of rape imprisoning South Africa”, Daily Maverick, http://www.dailymaverick.co.za/article/2013-03-04-thandiswa-qubuda-another-dead-brick-in-the-wall-of-rape-imprisoning-south-africa/#.UXYuBrWj1Og ; “Tears, anger as South African town mourns teen rape victim”, Reuters http://www.reuters.com/article/2013/02/08/us-safrica-rape-idUSBRE9170MV20130208
[2] SAPS stats, available at www.saps.gov.za
[3] Roughly 50 million, using the information available in the South African Institute of Race Relation’s 2012 South Africa Survey, p. 1.
[4] Victims of crime survey, 2011: pg. 4: http://www.statssa.gov.za/publications/P0341/P03412011.pdf
[5] Crime information analysis centre (CIAC), ‘Rape & attempted rape statistics 2001’, Monitor analysis; SAPS stats, available at www.saps.gov.za & The Presidency, Development Indicators 2010, 2010, p67
[6] The Criminal Law (Sexual offences and related Matters) Amendment Act 32of 2007
[7] The Criminal Law Amendment Act 105 of 1997
[8] SAPS stats, available at www.saps.gov.za
[9] The SAPS 2010-2014 Strategic Plan acknowledges a spike in sexual offences due to a more comprehensive take on what constitutes rape and sexual offences http://www.info.gov.za/view/DownloadFileAction?id=127117
[10] Phrase attributed to UN Human Rights Chief Navi Pillay
[11] Chapter 1 section 2.
[12] Kerwin Lebone, ‘Crime and Security’, South African Institute of Race Relations, 2010/2011 South Africa Survey, pp. 707-708.
[13] Victims of crime survey 2012 http://www.statssa.gov.za/publications/P0341/P03412012.pdf pg 13
[14] The contact crime cluster includes: murder, attempted murder, aggravated robbery, sexual offences, assault, common assault, and common robbery.
[15] SAPS stats, available at www.saps.gov.za
[16] “Worst ten precincts: largest number of reported crimes”, Crime Stats SA http://www.crimestatssa.com/topten.php (these numbers do not include the rate of crime, only total number of reported cases)
[17] Western Cape Provincial Anti-Rape Summit http://www.westerncape.gov.za/text/2005/7/anti_rape_summit_final_report2.pdf
[18] Crimestatssa.com: http://www.crimestatssa.com/topten.php
[19] The National Prosecuting Authority Act, 1998 (Act No. 32 of 1998) http://www.saflii.org/za/legis/num_act/npaa1998363.pdf
[20] The National Prosecuting Authority  http://www.npa.gov.za/ReadContent412.aspx
[21] According to shukumisa.org.za http://www.shukumisa.org.za/index.php/thuthuzela-care-centres-list/
[22] Pilot Assessment: The Sexual Offences Court in Wynberg & Cape Town and related services: http://www.endvawnow.org/uploads/browser/files/assessment_sexual_offences_courts_sa.pdf  & NPA Annual Report 2002/2003
[23] “Specialized courts: The equality court, the labour court, the land claims court and the sexual offences court”, Access to Justice Conference, 8-10 July 2011, Towards delivering accessible quality justice for all. Compiled by Judge President Bam, 2011: http://www.justice.gov.za/access-to-justice-conference-2011/20110709_ajc_bam-speech.pdf
[24] Ibid.
[25] 2011 Access to Justice Conference, pg. 14-15
[26]  “Dedicated sexual offences court coming: Radebe”, Times Live http://www.timeslive.co.za/politics/2013/02/15/dedicated-sexual-offences-court-coming-radebe
[27] The “Stop Rape in Schools Campaign”, http://www.info.gov.za/speech/DynamicAction?pageid=461&sid=34510&tid=99692

Wim Louw - wim@hsf.org.za
Intern
Helen Suzman Foundation