Opinionista Jameelah Omar 6 September 2019

Violence against women: law is not the solution

The law provides some options for dealing with gender-based violence and can be part of a solution, but it’s not a magic wand.

Last year I visited a police station, accompanying a complainant for support and advice. This had been her second visit to the station. The first time she had been turned away because she was making the complaint three weeks after she had been raped. In the opinion of the officer in charge, that meant that there was “no rush” to take her statement and because they were very busy that day, he told her to come back another time. I have yet to receive a response to my complaint to Independent Police Investigative Directorate (IPID) that I lodged.

This week has brought devastation and despair. Women are in mourning. Old wounds have been re-opened, new wounds have formed. In truth though, this week, while heightened in its disruption, is just another week like every other. Unfortunately, every week, every day, every hour in this country is a travesty of justice. Every woman has stories about harassment and violence. Women and children are hurt routinely. This is not the first time that we have been shocked into protests. Or been too numb to get out of bed. Or too scared to let our children go to school. It has taken all my strength to write about the law today when all I want to write about is fear, anger and pain.

I am a criminal law lawyer and academic, working, among other things, on sexual offence issues and I have never felt so hopeless about my work as I do this week. Lawyers are trained to employ legal measures to fix problems. What new policies can be introduced, new protocols and guidelines, new legislation that can be drafted? Non-lawyers also demand legal remedies – recent calls for the death penalty to be reintroduced or chemical castration for convicted rapists demonstrate this knee-jerk reaction and fall-back to the power of the law. But only approximately between eight and 14 out of 100 cases ever go to court. You may personally believe that criminals should be dealt with more harshly, but minimum sentencing legislation already prescribe lengthy jail terms. And if you think that prison is not a serious punishment, you’ve never seen inside a South African prison. So increased sentencing is not the solution, because lax punishment is not the problem – although parole may be an issue worth re-thinking.

We have good enough laws on sexual offences. Not perfect laws, but good enough, maybe even better than many other countries. For example, every police station is required to have a victim-friendly room that provides a safe waiting area. Another more recent visit to a police station with a complainant revealed that the station, which is in a very privileged part of Cape Town, apparently couldn’t find the keys to their victim-friendly room. We made the initial complaint in the staff locker room where two of the windows were smashed in. (As an aside, I do feel for the officers who work in a place that has smashed windows and is so dreary and under-resourced. This is part of the structural issues that plague our criminal justice system. But that’s not an excuse for a lack of empathy from the police.) The FCS (Family Violence, Child Protection and Sexual Offences) unit never arrived to take the formal statement. Eventually the complainant was asked to go to their offices. This was five hours later.

I know of women who have gone to the police station to report a sexual offence and told that they are at the wrong station and are turned away, despite the National Policy Guidelines for Victims of Sexual Offences reading that:

If a victim presents himself/herself at a police station outside of the jurisdiction of either the victim’s home OR where the alleged rape/sexual offence occurred, the case must be dealt with by the station where the offence is being reported. The station where the offence is reported will open the docket and treat the offence as if it had happened in their area. The docket must then be sent to the victim’s home station once the necessary actions have been taken.”

Women have been sent away from a police station and told to go to the hospital first for a medical examination, only to be told at the hospital that they can’t do an examination without a case number. The complainant may eventually decide not to report at all after being sent back and forth. There are thousands of these kinds of examples.

In 2016 I conducted training for a law firm on sexual harassment and sexual offences. After I had explained definitions and conduct, one of the male attendees asked a question that still rattles me when I think about it: “I understand that compelled rape is when someone is raped without their consent, so what is rape? And where does sex that was just unwanted fit?” This was from a lawyer?! Compelled rape is actually where a person forces another person to rape a third person (section 4 Sexual Offences Act). Rape (section 3 Sexual Offences Act) is when there was no consent. It’s as simple as that. If even lawyers think that sex can be unwanted but somehow falls short of rape, then we have a long job ahead still in educating people.

I know I’m not the only criminal law/procedure lecturer in the country to have looked at the curriculum for sexual offences and made serious changes to how and what is taught. Yet, every brutal rape case that goes to court has a defence lawyer who will use aggressive tactics to cross-examine the complainant. When I teach, I always include a sub-section on cross-examination in sexual offence matters and the importance of doing so sensitively and ethically, acknowledging the deep patriarchal origins of our law and procedure. This year I received a complaint that my emphasis on sexual offences and the problems with how it is policed, prosecuted and defended alienated male members of the class. We’re not winning in the lecture theatre either. There is obviously still a problem with legal training. Or perhaps, the problem is a more general and pervasive one of attitudes and rape myths that invade the system despite the law that tries to prevent it.

South African law defines rape in the broadest terms (section 3 Sexual Offences Act). It asks police officers and prosecutors to work with complainants respectfully. It goes some way to protecting a complainant during the trial, allowing testimony to be given in another room through CCTV equipment (section 158 Criminal Procedure Act), and it prohibits (or it should) the inclusion of the complainant’s sexual history evidence (section 227 Criminal Procedure Act). It requires persons to report suspicions of sexual abuse of minors. The law is not the problem. Not really. We have the architecture, we lack the contracting capacity to pull it all together and implement it.

The law provides some options and can be part of a solution, but it’s not a magic wand. Revealing alleged perpetrators’ names publicly is not a solution. The law requires confidentiality until the accused has pleaded and perhaps needs to be re-evaluated. But this is not the nub of the issue. Would it be different if we knew the names of alleged perpetrators? With the rates of re-offending (currently estimated at about 30%), I don’t think that will make a difference. The problem is not that women don’t know who the individual perpetrators are, the problem is that the threat is so widespread and endemic to everyday life.

The criminal justice system at its most basic level – the reporting stage – doesn’t work. The examples above show this. Neither the court system nor sentencing of those convicted can work if women don’t report or their investigations are poorly handled. Thus, bringing back the death penalty, full life sentences for those convicted of sexual offences or using chemical castration on rapists are not solutions. Our criminal justice system is flawed, in some ways fatally defective, and needs to be overhauled.

The question then is who will do the overhauling? And who will staff this overhauled system even if we were to achieve it? Our policies and laws are only as good as the people implementing them. If the problem was just one of training, we could re-train all our police officers, investigators, prosecutors and defence attorneys (etc). But it’s clear that our problems go much deeper than that. Rape myths, lack of understanding of power, denial of patriarchal attitudes and the ways in which this affects women’s ability to live their lives without fear, will stand in the way of legal and policy success.

We can refine legal processes further, think of a different structure for the courtroom, new modules for training those on the front lines, like police. We can re-imagine a criminal law syllabus that only teaches ethical ways of cross-examining complainants. We can talk frameworks, and guidelines, and training manuals. All of this is already being done. We could try to do it better, more consistently, more broadly. But it won’t work, because law alone is not the solution. Law can only go so far in changing mindsets and beliefs. We all need to take it from here in dismantling patriarchal power relations – through campaigns, and education from a young age, and training for service providers and psycho-social support, and political will (and many other interventions). Most importantly, men need to address their own beliefs and behaviour and hold other men to account. These things are much harder to do than changing a few laws. DM

Jameelah Omar is a senior lecturer, Public Law, UCT

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