Abstract
Violence against women (VAW) in South Africa remains rampant, irrespective of human rights– focused laws passed by the government. This article reflects on the position of two acts: the Domestic Violence Act No 116 of 1998 and Criminal Law (Sexual Offense and Related Matters) Act No 32 of 2007. Both are framed to protect women against all forms of violence. The article discusses the prisms of the two laws, an account of the position taken or interpreted by the reviewed literature regarding the acts, and the findings and recommendations regarding the infrastructure and supports needed to appropriately implement the two acts.
Introduction
In 2005 Buyisiwe was allegedly gang raped by eight men, first in and around her friend’s house and then at a second location near some shacks and a railway station. After reporting the crime to the police the first six of the eight suspects were arrested and seventh was arrested later. Buyisiwe’s cross-examination in court was described as atrocious. The court environment was hostile to her, in fact there was no regard for what she went through, the gang rape . . . having to re-tell her story again and again. She also had to re-live the experience by remembering who of the eight raped her first and who came second, third, fourth, fifth, sixth, seventh and the last times. These are the details required by the court to prove that she was in fact raped. (Mvimbi, 2007, p. 5)
This experience is one of thousands of cases illustrating violence against women in South Africa, with court outcomes that insult or ridicule the existing laws in place, rather than respect and abide by them. The issue in needs of analysis is why violence against women (VAW) remains rampant in South Africa, regardless of the efforts of the government enacting laws focused on human rights and domestic violence. The inability to thwart VAW even with laws in place has been confirmed by two separate reports, the Human Rights Watch (1997) report and the South African Police (2008) report. The Human Rights Watch report indicated that a total of 50,481 cases of sexual violence were reported in 1996. Of these, 21,863 cases were prosecuted, but only 4,100 led to conviction. More recently, the South African Police Services informed Parliament that between July 2006 and June 2007, a total of 88,784 incidents of “domestic violence,” as defined by the 1998 Domestic Violence Act No 116, were reported. Between April 2006 and March 2007, a total of 52,617 cases of rape were reported, of which 7% were successfully prosecuted (Amnesty International, 2008). These reported figures set a precedent for arguing that the human rights–focused legislation enacted by the state has continuously failed in protecting women from domestic violence and abuse. In fact, based on these reports, it is evident that the laws in place have not been effective as threats or punishment to prevent or reduce rape and other violent acts against women. The statistics indicate higher incidence and prevalence of cases.
The intent of this article is to reflect on the position of two specific acts: the Domestic Violence Act No 116 of 1998 and Criminal Law (Sexual Offense and Related Matters) Act No 32 of 2007. Both are framed to protect women against any form of violence in South Africa. The article will give an account of the position taken or interpreted within the literature regarding the two acts. A literature review was conducted and analyzed in order to map out what is currently understood or known about the two acts and their impacts on women as well as the outcomes related to curbing and preventing violence. From this analysis, recommendations are made regarding the acts and their implementation.
The “Prism” of the Two Laws
The main act that directly addresses VAW in South Africa is the Domestic Violence Act No 116 of 1998, implemented under the administration of the Department of Social Development. The act was initially welcomed with applause by women’s movement groups and women activists as its aim was to protect and combat violence against women, and women saw this as their means to have violence against them combated and even prevented. According to Smythe (2009), the act is considered to be one of the most inclusive and progressive pieces of legislation as it (a) recognizes a wide range of VAW, (b) acknowledges that VAW can occur in a variety of familial and domestic relationships, (c) gives magistrates power to serve abusers with court orders and extend this to even the workplace of the victims, (d) compels the perpetrator to maintain the victim’s finances while not staying in the same house or accommodation, (e) disarms the respondent who is the perpetrator and offers police protection to the victim, (f) outlines the obligatory duties of the police, and (g) lays down penalties for failure to execute such duties.
The second act that addresses elimination of VAW in South Africa is the Criminal Law (Sexual Offenses and Related Matters) Act No 32 of 2007, which is administered under the Justice and Constitutional Development department. The aim of this act is to handle all legal aspects of or related sexual offenses and crimes under one statute. The act (a) regulates all procedures, defenses, and evidentiary rules in prosecution and adjudication of all sexual offenses; (b) criminalizes any form of sexual penetration, sexual violation without consent, irrespective of the gender of the victim; (c) criminalizes exposure or display of child pornography as well as situations in which an individual is forced or compelled to watch or witness certain sexual conduct; (d) criminalizes sexual exploitation of children and mentally disabled persons; (e) provides a demarcation between the age of consent for consensual sexual acts between children aged 12 to 16 years; (f) provides special provisions in relation to the prosecution and adjudication of consensual sexual acts involving children up to 16 years of age; (g) criminalizes any attempt, conspiracy, or incitement to commit a sexual offense; (h) provides the court with extra-territorial jurisdictions when hearing matters related to sexual offenses; (i) abolishes secondary traumatization of victims; (j) compels the perpetrator to be tested for HIV/AIDS status; (k) gives the victim the right to receive Postexposure Prophylaxis (PEP) treatment for HIV/AIDS; and (l) urges the establishment of one national register for sex offenders.
Accordingly, the two acts exhaustively and comprehensively expound on what VAW is. They further give detailed strategies on how state departments should address VAW. However, the acts do not provide strategies that take into consideration or counter cultural, social, and economic factors as the forces within which VAW is embedded.
The legacy of colonization and apartheid has offered South African men high status (Jewkes, Penn-Kekana, & Rose-Junius, 2005). This has generated the “lingering assumption” that VAW is a cultural practice (Wallström, 2010) that entitles men to control and own women (Jewkes, Penn-Kekana, Levine, Ratsaka, & Schrieber, 1999). The “power or authority” alluded to social status is determined by position and income. Most South African women are unemployed and/or earn lower salaries than men. These two factors, along with the traditional/cultural practices of men’s rights over women’s rights, have negated the social status of women in South Africa. As a result, they lack social and economic freedom and authority, which also puts them at risk of experiencing VAW in its various forms. When women try to exercise their rights and freedoms socially and economically, they are also at risk of being violated, since it is culturally unacceptable for women to be in superior positions or have higher social status than men.
Literature Search Strategy
The purpose of the literature review was to map out all available information about the Domestic Violence Act No 116 of 1998 and Criminal Law (Sexual Offense and Related Matters) Act No 32 of 2007 of South Africa. Both peer-reviewed published and grey literature were searched. The databases used to conduct this review included: Academic Search Complete, CINAHL PLUS, Gender Studies, Humanities International Complete, International Political Science, Sociological Collection, and Violence and Abuse Abstracts. These databases were tactically selected to identify the legislation related to the protection of women or, more specifically, protection from VAW, as this can be identified with health, societal and cultural, familial, psychological, and gender problems. The search terms used for the literature review included: legislation and policy*, violence, and women and Africa*. A total of 110 titles and abstracts were reviewed against specific inclusion criteria, such as discussion of the two acts specifically as pertaining to women, scholarly peer-reviewed articles or grey literature (technical, legal, or other reports; presented or written papers), written in English, from 1990-2010. The exclusion criteria included literature from other Sub-Saharan African countries, child or elder abuse, and media reports. Based on the application of these criteria, 50 abstracts were selected for review that dealt specifically with legislation and policies related to VAW within the Sub-Saharan African context. On further analysis, 18 complete articles, reports, and papers written between 1990 and 2006 were selected for this study, since they directly related to the two acts and matched all selection criteria. These 18 are summarized in Table 1.
Summary of the Reviewed Articles
Key Findings From the Literature
Evidence from the literature on the two main acts may be categorized in terms of (a) women’s activism, particularly lobbying for promulgation of the two acts, (b) characterization of the two acts in defining violence against women, and (c) gaps within and across the two acts.
Women’s Activism
Both international and local agencies came together in the mid-1990s to lobby for promulgation of the two main acts aimed at combating violence against women. This alliance developed immediately after the first democratic elections, when the South African government ratified the United Nations Convention on the Elimination of All Forms of Violence Against Women. With ratification, South Africa became one of 160 countries that made a commitment and obligation to end violence against women. This commitment is reflected in the Constitution of the Republic of South Africa No. 108 of 1996 (Crowe, 1997) and other acts. In 1998, the Domestic Violence Act No. 116 was enacted, followed a decade later by the Criminal Law (Sexual Offense and Related Matters) Act No. 32 of 2007.
The struggle for the promulgation of these two acts brought South African women together irrespective of their race, class, and politics. These collective actions occurred through women’s activism that specifically targeted reforms within the South African legal system (Hunter, 2006). The legal activism urged a women-friendly legal system. Women’s political activism sought representation by women in parliament, and in both private and government departments, in order to facilitate advancement of equality in South Africa (Goetz, 1998; Hassim, 1999; Narismulu, 2003). Gender activism (Orner, 2000) sought to transform gender relationships in South Africa (Rosenthal, 2001). Gender equity did not occur automatically, although it was adopted into the policy process (Orner, 2000).
A key activist event was the advocacy campaign that was conducted by Soul City Institute for Health and Development Communication in partnership with the National Network on Violence against Women (Maker, Malepe, Christofides, & Usdin, 2000; Usdin, Scheepers, Goldstein, & Japhet, 2005), a national network of various South African women’s movements and activists (Slater, 2000).
Characterization of the Two Acts in Defining Violence Against Women
The two acts acknowledge violence against women as a pervasive form of human rights abuse, which is an obstacle to development. The object of the two acts is to offer women maximum protection against various forms of violence, as their promulgation is based on Chapter 2 of the Constitution of the Republic of South Africa (Crowe, 1997; Mandela,1990).
The Domestic Violence Act is globally considered to be the most comprehensive and progressive piece of legislation (Cooper et al., 2004; Crowe, 1997), largely because of the comprehensive definition it gives to VAW. According to the act, VAW encompasses: physical abuse; sexual abuse; emotional, verbal, and psychological abuse; economic abuse; intimidation; harassment; stalking; damage to property; forceful entry into the complainant’s residence without consent; and any other controlling behavior toward the complainant (DVA No 116 of 1998; Jewkes, Levine, & Penn-Kekana, 2003; Moore, 2005; Swart, Gilchrist, Butchart, Seedat, & Martin, 2000; Wood, Lambert, & Jewkes, 2008).
The Criminal Law (Sexual Offenses and Related Matters) Act is considered crucial to changing South African sexual laws (Moore, 2005). The act expands the definition of rape as well as the available defenses that are usually made during the prosecution of rape cases. Furthermore, the act constructs certain evidentiary rules as valid evidence for the prosecution of sexual assault cases. The act also provides for Postexposure Prophylaxis treatment with antiretroviral drugs for sexual assault victims (Moore, 2005; South Africa Department of Health [DOH], 1995; Swart et al., 2000) and compulsory HIV/AIDS testing for perpetrators of sexual offenses.
Gaps Within and Across the Two Acts
The literature reiterates the progressiveness of the two acts, since they were legislated (Cooper et al., 2004; Goetz, 1998; Maker et al., 2000; Swart et al., 2000), particularly when compared with what existed previously (Mandela, 1990), as well as the need to protect women of color from abuse as domestic workers in White South African households (Motsei, 1990) and from violations of their right to make their own reproductive decisions (Crowe, 1997). The positive aspects of the laws identified include: the increase in number of women in government and politics, especially those with interest in the problem of VAW (Goetz,1998); the establishment of rape surveillance to help support prevention strategies (Swart et al., 2000); and NGO campaigns for social change and effective implementation of the Domestic Violence Act (Maker et al., 2000). Nevertheless, the literature identified limitations or gaps within the acts and with their implementation of them (see Table 1).
The identified limitations and gaps may be clustered into four primary themes: (1) governance and legal responsibilities, (2) public agenda and considerations, (3) prevailing culture and attitudes, and (4) ethical issues concerning impact or effectiveness evaluations or research. The limitations and gaps identified under “governance and legal responsibilities” include inadequate guarantees of the government institutions’ accountability in implementing these acts due to the rigid norms, prejudicial practices, and precedent cases that prevail within the criminal justice system (Matthews et al., 2004; Smythe, 2004); weaknesses in management of the legislation by the departments responsible for it (Moore, 2005); lack of appropriate transformation in reproductive health policy and service delivery, resulting in denial and ongoing transgressions against women’s reproductive rights (Cooper et al., 2004); and lack of an adequate budget and other resources to appropriately implement and monitor the two acts (Smythe, 2004; Vetten, 2005).
Under “public agenda and considerations,” the gaps identified include the need for more public education in the areas of sex education and preventive practices, gender inequalities, physical violence, and mental abuse (Jewkes et al., 2003), as well as the impact of gender violence on the health sector and other areas of society (Jewkes, 2001). This includes the need for the public to understand the prevalence and increased risk for HIV and other problems associated with transactional sex (Dunkle et al., 2004), as well as the need to disclose sexual assaults and the related risks for HIV (Haddad, 2006).
The limitations or gaps identified related to “culture and attitudes” include unfair biases and prejudices in convicting and sentencing cases of violence against women (Mathews et al., 2004) and the norms within the criminal justice system that have their roots in culture and tradition (Smythe, 2004). Essentially, the acts, as formal mechanisms of control, are competing with cultural beliefs and other social norms that are not supportive of appropriate and legal actions to deal with violence against women (Hunter, 2006). This links with the last theme of “ethical issues concerning impact or effectiveness evaluation and research” of the acts. Concern is expressed for the safety of both the research participants and researchers involved in sensitive studies that could identify controversial issues (Jewkes et al., 2000). This is a challenge for research studies, particularly since cultural and attitudinal factors among the public, government, and legal system must be respected. In the one evaluation conducted by Usdin et al. (2005), there were indications that reduction of actual levels of domestic violence may not be possible for a number of reasons. This conclusion not only suggests the need for further evaluation and research but also points to the challenges that evaluators and researchers must confront.
Conclusions and Recommendations
The literature indicates that the South African government showed commitment in addressing VAW in its various forms by passing two acts. This commitment was further attested to in 2009 with the establishment of the new Ministry for Women, Children and Persons with Disability. The objective of this ministry is to advance policy focusing on issues of women, children, and persons with disabilities. In fact, the government showed courage in enacting and attempting to implement the two acts, which countered the traditions and cultural acceptance of violence against women, particularly within domestic situations, where proof of offenses and criminal acts could be difficult to sustain unless battery was observable and diagnosable. Despite the government’s attempts to address VAW through passage of the two acts, VAW is still rampant. The case of Buyisiwe presented at the outset of this article shatters all trust that the law or these specific acts protect women and that prosecution of VAW has significantly improved. Furthermore, the one study that evaluated these laws (Usdin et al., 2005) indicates that there are numerous factors involved in domestic violence cases that make it difficult to develop and implement effective interventions or to even consider reducing in violence against women in South Africa.
Although challenging, research and evaluation of the acts is critical to determining the courses of action or intervention that may be most appropriate to close the gaps and overcome the limitations identified in the literature. A first step might be for the government and, more specifically, the Ministry for Women, Children and Persons with Disability, to coordinate a major stakeholders’ forum to explore in more detail the relationships among the identified barriers to effective implementation of the acts and determine possible options to address them with some priority recommendations or actions. Stakeholders should include members of the public, various government departments (that focus on justice, health, social support, education, and community development), police and the legal system, and appropriate community health and social service providers. Engagement of various targeted stakeholders in a discussion about the real issues and factors needing to be addressed and the plan for taking action is needed if changes either to the acts or their implementation are going to be instituted in an effective and timely way. The stakeholders need to clearly understand the problems with the current situation regarding the acts and the outcomes to date, including the identified problems, gaps and limitations in implementation of the two acts, and what needs to be done to address them. No one group can do this work alone and in isolation; the government, legal system, police, the general public in South African, and various service providers need to collaborate in designing a plan of action and assisting with its implementation. They need to own the acts and be responsible and accountable for their implementation and outcomes. The acts should belong to the people and be accepted by the people, which currently is not the case. The intent should be to regard VAW as a social evil and a crime against humanity (Domestic Violence Act of 1998). It is not surprising that one of the consequences of being unable to enforce the VAW acts to protect women is retaliation by women against rapists or perpetrators under “self-defense” or other such claims. This is a direct result of not implementing the two acts as intended.
In specifically addressing the governance gaps, one option that could be presented to the stakeholder forum might be to determine the best way to manage each clause within both acts. Is forced action needed so that the act is administered in a humane way for women or in a punitive way for the perpetrator? As part of the clauses within the acts, a suggestion is for the state departments to consider a strategy to monitor police and enforce the establishment of effective measures to advance the impact of the Domestic Violence Act as a method of eliminating VAW. The significant departments should institute mandatory regulations on administrative processes and procedures for identifying, handling, reporting, prosecuting, and sentencing VAW in South Africa. The use of evidence gathered including women’s testimonies must be respected and supported in trials. The introduction of a “no-drop charges” regulation with the aim of sanctioning the perpetrators will also advance the impact of the Domestic Violence Act. All of the these suggestions for governance actions include the discussion of the allocation of additional resources to the effort, or at least the redirection of resources toward governance and administrative implementation and monitoring of the acts.
Suggestions for addressing the “public agenda and considerations” gaps and limitations include having the stakeholder forum strategize about public education on violence against women and the two acts, the rights of individuals guaranteed by law, and risks associated with sexual assault and violence. Educational efforts should be directed to all levels of the community (e.g., schools, churches or religious organizations, workplaces, counseling sessions, and health clinics) and across government departments, courts (i.e., lawyers, judges), and police forces. A needs assessment and exploration of education approaches and opportunities would be necessary for effective education involving the whole community. This should be a community effort and responsibility.
With respect to cultural and traditional values and attitudes, discussions need to clearly distinguish between appropriate customs supporting women versus those identified as unacceptable and in violation of the rights, dignity, and life of women, which they should not have to endure under any circumstance. The challenge might be that the laws or two acts currently in place are seen as tools of the government and not necessarily those of the people. The acts may need to be developed, implemented, and enforced by the people so that VAW is seen as an offense or criminal act, and enforcement cannot be undermined by appeals to tradition or culture. Children need to be educated about the appropriate treatment and respect for the rights of everyone, including women, and that violence is unacceptable and punishable by law or under the acts in place. If the people set the punishment, would there be fewer incidents of VAW?
The suggested forum of stakeholders can undertake an examination of the acts as they are currently operating, actual cases of violence as well as statistics on violent incidents, and the gaps and limitations of the laws with the goal of improving family and community by reducing violence against women. It is difficult to assert specific suggestions for changes to the exiting acts or to existing rules and procedures without the stakeholders coming together to discuss the problems and options for their solution. The solutions need to be South African.
Finally, the suggested regulations need to be continuously monitored by politicians as the ones who are making the policies; the citizens, particularly women, as the policies are established to protect them and address their problems; the police, who have the responsibility to control or manage crime and violence within the community; service providers in the community, who provide support to women and families when violence occurs; educators of children in schools and even lawyers in universities, who can impart awareness and knowledge about the acts, VAW, and prevention; and academics, who can conduct community-based policy impact and evaluation research and transfer or apply findings as strategies to inform and reform legislation and regulations to be more effective in protecting women against violence.
Footnotes
Declaration of Conflicting Interests
The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The authors received no financial support for the research, authorship, and/or publication of this article.
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