|
The Sexual Offences Bill – Survivors still waiting for justice!
by Meaka BiggsFollowing a two year delay and substantial changes to the draft legislation, we welcome the release in May 2006 of the draft Sexual Offences Bill. This Bill is a crucial piece of legislation and it is essential that it be properly deliberated to ensure that the best possible piece of legislation is ultimately enacted.' (National Working Group on the Sexual Offences Bill, Press Release, 19 May 2006)
An important measure of the level of development and commitment to democratic principles of any society lies in its comprehensive recognition of, defence and promotion of human rights. The Constitution of South Africa, which is one of the most progressive constitutions in the world, is based on the fundamental principles of human dignity, the achievement of equality and the advancement of human rights and freedoms. It is indisputable that remarkable progress has been made since 1994 in providing a constitutional and legal framework which recognises and promotes human rights being equally achieved and realised. However, the reality for many South Africans is not a reflection of the constitutionally guaranteed rights enshrined in our Constitution, nor does it meet this test.
While we have made some important strides to set the scene for rights to be realised, we are a long way off from truly ensuring that we are all able to enjoy the fruits of democracy and can claim our constitutionally guaranteed rights. For as long as rape and sexual violence permeate the very fabric of society real development and true freedom for all human beings will not be realised. Rape and sexual violence are in and of themselves an infringement and violation of constitutionally guaranteed rights. Being confronted by a blaming society, a criminal justice system that is in the least indifferent to suffering, but often further traumatising and having access to limited support services that are able to assist with the healing process means for many survivors of rape and sexual violence, the right to equality, freedom and security of the person, human dignity and respect are rights that may exist on paper but have very little impact on their daily lived realities.
Rape is a crime of violence that is committed through a sexual act. It is an expression of dominance and control by one person over another, which is humiliating, invasive and dehumanising. It is a crime that is not comparable to any other violent crime, as it violates not only physical safety, but psychological and sexual integrity. Rape is any act of a sexual nature which has been forced onto another person where sexual behaviour is used as a weapon of domination. It is a violent, traumatic and life changing experience that can happen to anyone, where threats and manipulation are often the method used to secure submission instead of physical violence alone. Rape happens almost anywhere, with anyone at anytime. We tend to think that it only happens under certain circumstances, but the reality of the situation is that it is happening in our families, in our homes, in our neighbourhoods and communities, in our places of worship, education and recreation. And it is happening to our mothers, sisters, wives, daughters, girlfriends, colleagues, friends, brothers and sons.
Statistics released by the South African Police Service on rape for the period 2004/2005 were 55 114 reported cases of rape, which is approximately a 4% increase on the 2003/2004 statistics. Due to the narrow definition of rape in our law one needs to include the cases of indecent assault reported over the same period, being 10 123 to get a clearer picture of what the reported rape statistics are in South Africa. Research estimates that approximately 1 in 9 rapes go unreported, which is an indication that the number of survivors of rape and sexual violence are far larger than the reported figures. Research also indicates that the majority of survivors of rape and sexual violence are women and children. While men are not as vulnerable to rape as women, rape and sexual violence against men is on the increase, however the vulnerability of women and children presently outweighs that of men.
The current law governing sexual offences in South Africa is outdated and does not take account of the realities experienced by survivors of rape in South Africa. The process of amending the Sexual Offences legislation began in January 1998 when the South African Law Reform Commission (SALRC) was requested to investigate sexual offences by and against children and make recommendations to the Minister of Justice and Constitutional Development. This brief was extended in 1999 to include sexual offences committed against adults, prostitution and the development of policy directives for the management of sexual offences. Research was conducted and the final report was drafted by the SALRC and handed over to the Minister of Justice and Constitutional Development in January 2003.
The report was then considered by the Minister and Cabinet and a draft Sexual Offences Bill ('the Bill') was introduced into Parliament in July 2003. The Portfolio Committee for Justice and Constitutional Development debated the Bill, and written and oral submissions were made by the public. In early May 2006 the Bill once again appeared before Cabinet and was then sent back to the Portfolio Committee for debate and consultation. In June 2006 the Portfolio Committee requested further written submissions to enhance their discussions on the Bill.
There seems to be a move towards the finalisation of the Bill before the end of 2006. We hope that this objective is realised for the time has long since passed for the Bill to become enacted legislation. Far too many survivors have suffered and have had their constitutionally guaranteed rights restricted as a result of inadequate legislation. Such violations and suffering are preventable and the enactment of new legislation is a priority which can no longer be ignored. Well formulated and applicable legislation is a necessity if we are to ensure that all South Africans have the right to claim, access and enjoy their constitutionally guaranteed rights equally.
The current version of the Bill notes that the "South African common law and statutory law do not deal adequately, effectively and in a non-discriminatory manner with many aspects relating to… sexual offences." A few of the stated objectives of the Bill are:
- To provide complainants with the maximum and least traumatising protection that the law can provide.
- To create new offences where necessary
- To protect complainants from secondary traumatisation.
- Ensuring a coordinated response from government departments.
- Recognising the needs of victims through timeous, effective and non-discriminatory investigation and prosecution.
The latest version of the Bill widens the definition of rape to recognize both men and boys as victims of rape. It also recognizes that sexual penetration with sticks and other objects constitute rape. In terms of the Bill these acts will now also be deserving of the minimum sentences for rape. The Bill also states that no negative inference can be drawn from a complainant's delay in reporting the incident of rape. This is currently used to discredit rape survivors during the court process.
We are encouraged by the above mentioned changes in the Bill, however in order to ensure that the Bill provides the maximum and least traumatising protection and that it protects complainants from secondary traumatisation thereby fulfilling its stated objectives there are a number of areas of concern regarding the latest draft of the Bill. Unfortunately these areas of concern seem to outweigh the positive areas of change in number and impact. The Bill needs to not only change the definitions of various types of sexual offences, but it is also important that it improves upon the procedures that are followed when sexual offences are reported, the rules and procedures followed by the courts, the manner in which different departments work with each other and with civil society in relation to sexual offences, the manner in which officials and departments are held accountable and the management of offenders.
Two concerns relating to the current version of the Bill are:
1. Most of the measures proposed by the SALRC report that were intended to support and protect survivors in court have been removed. It is therefore highly unlikely that the trauma experienced by complainants in court will be significantly impacted upon by the Bill.
The experience of going to court and testifying in a sexual offence case is often profoundly distressing for survivors. The trial is often emotionally unsafe because of the psychological impact of the rape, the obligation to recount the events of the attack in detail, the frightening presence of the accused and the fact that the adversarial legal system means that the survivor has to undergo traumatic cross examination by the defence.
The above factors mean that, in many cases, the full details of the incident are not brought to the court's attention. This can result in a miscarriage of justice because the court cannot base its decision on all the relevant facts. Many survivors report a deep sense of betrayal due to the fact that the courts added to the trauma of the rape, that they are not safe during and after the trial, and that they had to defend themselves in order to be believed by the court.
Currently, the Criminal Procedure Act 51 of 1977 (CPA) provides certain measures to mitigate the unsuitability of the court environment for sexual offence survivors. These protective measures make a significant difference in the levels of trauma experienced by survivors while testifying and in the quality of evidence placed before the court by children and traumatised witnesses. However there are problems with the implementation of all these provisions. As some of them are utilised routinely by certain courts but not by others and many survivors have no access to these measures at all. Very few of the measures from the previous draft of the Bill that attempted to address the many aspects of court procedure that have a negative impact on the survivor and the evidence of sexual offence complainants in court remain in this draft, hence it is unlikely that this Bill will be able to provide maximum and least traumatising protection.
2. The most recent version of the Bill has done away with the measures proposed by the SALRC to provide for the comprehensive management, care and treatment of rape survivors. Many of these provisions were wholeheartedly supported and endorsed in the written and oral submissions made to the Portfolio Committee during 2003. The Bill does not recognize the need for counseling, as well as treatment to prevent pregnancy and sexually transmitted infections. The only service to survivors proposed by the Bill is post-exposure prophylaxis (PEP) to prevent HIV-infection.
Sexual violence causes both physical and psychological trauma. While the physical trauma is dealt with to a certain degree by medical interventions after the incident of rape, the psychological trauma, the trauma that is not always initially visible often remains forgotten and untreated.
Removing the clause that provided for psycho-social support is dismissive of the severe psychological trauma suffered by a survivor as a result of sexual violence. Our society constantly minimises the effects of sexual violation on the survivor and many survivors live for years with the after-effects of such an experience and although they are able to cope, their functioning can be severely impaired by the experience. Survivors commonly experience a range of distressing symptoms and the effects of a sexual assault can be so pervasive that they permeate everything.
Counselling benefits survivors in a number of ways and there are not enough organisations providing affordable and accessible counselling services to survivors of sexual violence in South Africa at this time. High levels of unemployment, low wages and poor socio-economic conditions mean that few survivors are able to afford such services. Services tend to be weighted in favour of urban areas exacerbating the dire situation for survivors of sexual violence in rural areas. The majority of survivors in South Africa are left without the option of counselling. Hence they are forced to deal with the incident of rape or sexual violence alone or with limited family support.
Counselling, by offering advice, support and information, endeavours to assist survivors towards regaining some sense of control over their lives after a profoundly damaging experience and to assist survivors in coping with and adapting to a fundamentally life changing experience. The omission of measures providing for the comprehensive management, care and treatment of rape survivors is therefore dismissive of the survivors needs. The lack of legislative recognition for support and treatment in the Bill means that the secondary traumatisation that survivors currently experience when accessing the criminal justice system will continue and that the enactment of new legislation in this format will have little impact on the lived realities of rape survivors in South Africa.
The above two concerns are critical to the success of legislation on sexual offences based on the experiences we have had at Rape Crisis Cape Town. We however acknowledge that there are a number of other areas in the Bill which are also problematic and in need of further debate.
The call for the enactment of new sexual offences legislation remains urgent, yet there is still work to be done to ensure that the new legislation is the best that it can possibly be. We need to ensure that survivors of rape and sexual violence no longer endure the discriminatory treatment that they have endured through the act of rape itself, the manner in which existing legislation has categorised and treated them and the way in which the criminal justice system and society blames, isolates, humiliates and ignores them. In an attempt to provide a comprehensive legal framework pertaining to sexual offences we hope that the legislature will be able to truly provide 'the maximum and least traumatising protection' for survivors and prevent 'secondary traumatisation' so that the survivors reality becomes a reflection of the constitutionally guaranteed rights all South Africans are entitled to.
by Meaka Biggs
Advocacy Coordinator
Rape Crisis Cape Town
www.rapecrisis.org.za
31 July 2006
|
>>> CLICK HERE to submit editorial for possible publishing on Net-workingWomen!
Net-WorkingWomen reserves the right to reject any material submitted, which is deemed to be unsuitable.
|
|
|
Editorial
Select From The List Below