Violence against women - Part II: Evaluation and recommendations

Recent months have shown an increase in sexually violent crimes against women. This 2-part brief series considers whether the law and society are working effectually to protect women from violence. Part II focuses on the effectiveness of legal mechanisms and social education initiatives that serve to address and eradicate this systemic form of abuse.

Introduction

South Africa has a high prevalence of violent offences against women[1] and recently there has been a spate of women killed by their partners. Part 1 of this brief considered a number of these reported incidents and evaluate the redress and protection available. Part 2 will provide an evaluation of the legal mechanisms. This assessment reveals the need to focus on gender education and the breaking-down of harmful social norms and stereotypes. It is recommended that a systemic shift in processes and social norms needs to take place in order to protect our women.

Evaluation and recommendations

The following critiques of the status quo aim to bring to light possible areas where improvements by government and civil society can be made. Recommendations postulate that more can be done to assist victims, take action against offenders and promote gender-rights education.

1) Bail too easy and conviction rates too low

The horrific case of NompumeleloMthembu, mentioned earlier, could have been avoided if her offender not been released on bail. This case exemplifies how easy alleged offenders get bail and are released back into society without any redress or intervention. The purpose of bail is not to punish the alleged offender, its purpose is rather to act as a financial guarantee that they will appear before the Court on the day on which their matter is to commence. However, that said, in practice, alleged offenders are released on bail more than once and often, for new commissions of the same or similar crimes for which they were released on bail in the first place. Thus, those against whom the offence was committed are subject to the risk that their attacker may strike again.[2] The law is not taking into account the protection required for these victims. Speaking at a memorial lecture of the late Karabo Mokoena at the Soweto Theatre, Police Minister BhekiCele reiterated the sentiment that perpetrators should not escape the full might of the law and that crimes against women should be a schedule 6 offence,[3] making it harder for perpetrators to succeed in their bail applications.[4]

“About 150 women report being raped to the police in South Africa daily. Fewer than 30 of the cases will be prosecuted, and no more than 10 will result in a conviction. This translates into an overall conviction rate of 4% - 8% of reported cases.” Professor Dee Smyth unpacks these statistics and looks at factors that inform these results. Smyth considers the withdrawal of a complaint, either due to the fact that the victim has reconciled with the perpetrator, because the victim is despondent in assisting the authorities with information that may assist in the official in linking up the facts of the case with legal elements required by the statutory definition of the crime or simply the inadequacies of the SAPS system.

Smyth’s findings reveal that there is no clear reason for the low conviction rate. A combination of the law enforcement officials being unhelpful, unsympathetic, misogynistic, on the one-hand, and the victims being recalcitrant, uncooperative and deceitful on the other, lies at the heart of understanding this complicated situation. Nonetheless, a clear disconnect exists between the attempt of the law to assist victims and prevent against attacks and reality.

2) Collaboration between various institutions

Ensuring that the applicable institutions involved in victim assistance collaborate and communicate effectively is essential in providing meaningful action against perpetrators. The prosecution and conviction of SandileMantsoe has been lauded by the South African Police Service’s national commissioner, General Khehla John Sitole as being an example of the successful close cooperation between the Gauteng FCS unit and the National Prosecuting Authority (NPA). Effective and efficient collaboration and each institution taking a stand against sexual offence crimes would likely assist in ensuring that a guilty perpetrator faces the full might of the law. Creating this united front to protect victims and taking a full-frontal stand against abuse serves as a warning to potential perpetrators that the law and society will not tolerate such violence.

It is hoped that the swift and stern precedent set by Mantsoe’s sentence will serve as a deterrent to potential perpetrators as well as a critical denouncement of gender-based violence in turn resulting in long-term eradication.

3) Male privilege and consent education

Pierre De Vos has recently written about the power problem in which men enjoy unearned privileges because society is structured in ways that privilege men vis-a-vie women.[5] Recently, it has been reported that Danny Jordaan (President of the South African Football Association) falsely smeared the reputation of Jennifer Fergusonafter she accused him of rape[6] and that MduduziManana (ANC Parliamentarian) bribed his domestic worker, Christine Wiro, to withdraw the assault charges laid against him.[7] These men exemplify what Colleen Clemens has characterised as “toxic masculinity”; a narrow and repressive description of manhood, designating manhood as defined by violence, sex, status and aggression. It’s the cultural ideal of manliness, where strength is everything while emotions are a weakness.[8]

In South Africa, men, as a group, enjoy a relative privilege over women, as a group. Due to perceived superior physical strength or entrenched patriarchal social and religious practices, De Vos postulates that certain men will try to assert their desired dominance over those who they dislike or have displeased them in some way. In the cases of Jordaan and Manana, their positions of power (based on social and economic superiority) afford them dominance and entitlement to try and silence their accusers.

This patriarchal preference has been embedded in our law. The “cautionary rule” which treated evidence of a complainant in a sexual assault case with caution was based on the irrational and dangerous assumption that women are likely to falsely accuse men who sexually assault them. While the 1998 case of S v Jackson[9] saw the formal abolition of this rule, it is widely feared that the rule may live on informally, enforced by sexist court officials.[10] Further, section 227 of the CPA formally allowed evidence of sexual history of the complainant to be admitted as evidence, while the sexual history of the accused was never raised. This provision seems to find its history in the 19th Century English courts[11] based on the perception that a decent woman would not engage in sexual activity outside of marriage.[12] The amended provision now only allows such evidence to be led with leave sought and granted by the court.[13] However, despite this revision, the unrestricted nature of the provision could allow for the admission of irrelevant but damaging evidence and consequently prejudice victims. To guard against this, the legislature should have specified that the exception only applied to sexual history adduced by the accused in so far as it was relevant to contradict the evidence introduced by the prosecution.[14] We see therefore that while the above legal protections should be welcomed, the legislation can be limiting if it is not coupled with appropriate social reform and education.

On the point of education, “Consent Classes” for young boys in Nairobi, Kenya has proven to be very successful in reforming entrenched gender stereotypes, misogyny and sexism. These classes teach boys to respect girls and women and undo entrenched social patriarchal privileges. No Means No Worldwide[15] began to run pilot programmes in rural Kenya (in 2009) and Malawi (in 2015) and have reached around 180 000 boys and girls. The classes teach the meaning of consent, self-defence and explores positive masculinity. In Kenya, it is reported that there has been an average of a 51% decrease in incidents of rape[16] and that the percentage of boys who intervened when witnessing an incident of physical or sexual assault is 74%.[17] Further, the decrease in pregnancy related school dropouts among Nairobi adolescents is recorded to be at 46%.[18] This socially educative intervention is providing real, meaningful and tangible redress in raising children who are empowered and have a real understanding of gender equality. It is hoped that these children will grow-up and raise their children with such knowledge and create a self-sustainable stream of sensitivity. An expansion of and support for projects like this is critical in undoing the systemic gender power dynamics in South African society.

Conclusion

Part 1 of this brief series revealed that parliament has undertaken legislative reforms to address the need to make prosecution easier for the State and the laying of charges easier for the victim. The brief highlighted that beyond sensitising law enforcement officials and making sexual violence a policy and legislative priority, deep-rooted perceptions and norms need to be re-taught and re-learnt. Part II highlights that in order to achieve meaningful redress for victims of sexual offences a systemic overhaul of processes and mindsets is required. Education, both institutional and cultural, needs to become a priority in order to combat the scourge of violence and sexual assault against our women.

Jade Tess Weiner
Researcher
jade@hsf.org.za