12. Policy scan - Policy scan

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12. Policy scan - Policy scan Powered By Docstoc
					Chapter 12

Policy scan



In order to understand the broad implications of the results of the national survey on
violence against women policy, this chapter provides an overview of the key policies,
procedures and pieces of legislation that have been developed by government to
reduce violence against women. Key developments since 1994 are outlined drawing
on available documents from the departments responsible for law enforcement
(police and justice) as well as those responsible for health and welfare. The aim is
not to provide an assessment of what government has achieved but rather to sketch
the context within which women's experience of abuse and service delivery can be
considered. The challenge of dealing with violence against women is to develop
policy and legislation that provides for a range of practitioners to work together to
assist each survivor. The nature of domestic violence and rape impacts on the
psychological health of women. But there are also physical and social aspects that
require intervention from a variety of government departments, service organisations
and individuals.1
    The current trend internationally is towards an approach that ensures a co-
ordinated policy and practise response that allows the vast array of relevant
practitioners to deliver the necessary services. This approach requires not only
sufficient numbers of delivery agencies but also practitioners who can effectively
deliver in respect of their core business.
    In South Africa, this approach has been difficult to implement. There is an
insufficient number of agencies and professionals. Those that do exist are
disproportionately located in the urban centres and many are under-resourced and
under-skilled. Moreover, many government departments-especially those
responsible for tackling violence against women-struggle to deliver their most basic
line function services. This, together with a tradition of working independently of
other departments, poor communication systems within and between departments,
and a shortage of resources, makes inter-departmental cooperation very difficult.
    Nevertheless it is encouraging that government has identified violence against
women as a priority and is determined to adopt the multi-agency approach. The
National Crime Prevention Strategy (NCPS), which provided the broad prevention
policy framework from 1996 to 2000, is the most prominent of government's multi-
agency approaches. Other initiatives include the sexual offences courts and multi-
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disciplinary care centres (recently established by the National Prosecuting Authority
in various parts of the country), the guidelines for all criminal justice and health
system service providers to deal with survivors of sexual offences, the victim
empowerment programme coordinated by the Department of Social Development,
and smaller initiatives such as the medico-legal centres in Gauteng to assist survivors
of rape or abuse. Since few of these initiatives have been evaluated, the only
conclusion that can be drawn at this stage is that they have met with varying levels
of success.2
    The present government's recognition of the problem of violence against women
can be traced to the signing and ratification of several international conventions (see
box below). This was largely the result of pressure from activists in the violence
against women sector and the need for government to align its stance with that of
the international community.
    In South Africa, the Department of Justice appears to be taking the lead in
respect of both these international conventions.

  International conventions dealing with violence against women signed
   by the South African government

  Convention for the Elimination of Discrimination against Women (CEDAW),
  December 1995. CEDAW states that violence against women is an aspect of
  discrimination and that sovereign states need to provide direct support to victims
  of gender-based violence, including shelters, "specially trained health workers,
  rehabilitation and counselling services". Signatories should guarantee the
  protection of women from gender-based violence.

  Beijing Platform of Action, 1995.3 The Beijing conference was the last major
  international conference that dealt with violence against women. The South
  African government committed itself to protect women from violence through:
         Funding programmes and research aimed at eliminating violence against
  women and the dissemination of research results.
         Creating appropriate laws, monitoring them, and punishing offenders.
         Setting up programmes to protect, compensate and heal women survivors
  of violence.
         Training service providers.
         Funding shelters and ensuring they provide holistic care.
         Supporting awareness campaigns and encouraging the media to address
  the issue in a positive and constructive way.
Policy scan                                                                         151


Department of Justice and Constitutional Development

The Gender Policy Statement 1991

This framework is intended to guide all members of the justice system by ensuring
that decision making, policy making and service delivery within the department are
gender sensitive.4 With regard to domestic violence the policy focuses on the
implementation of the Domestic Violence Act. In terms of sexual violence,
specialised sexual offences courts will be set up countrywide and the substantive and
evidential law as well as the legal procedures related to sexual violence will be
reviewed (see below).

National Policy Guidelines for Victims of Sexual Offences 1997

The guidelines aimed to improve survivors' experience in the criminal justice system
by providing detailed protocols for officials in the police, health, welfare, justice and
prisons.

Justice Vision 2000

This is the department's five year national strategy to create a legitimate, effective,
accountable and accessible justice system.5 Indicators of success in areas that relate
specifically to violence against women are to:
    ensure race and gender representation in all structures at all levels within the
    department;
    establish more legal advice offices;
    increase the number of prosecutions and convictions and ensure there are fewer
    delays and lower costs involved in the processing of cases;
    introduce specialised courts for survivors of sexual offences.
   With regard to the last indicator, the National Prosecuting Authority had, by the
end of 2000, established 19 sexual offences courts across the country and trained
375 people including police officers, social workers, prosecutors and even some
magistrates to work in these courts. A further 12 courts will be opened in 2001.
These courts aim to reduce secondary victimisation of victims and witnesses in cases
of violence against women and children, by improving the management of cases
through the courts. They should also allow for more effective prosecutions by
specially training prosecutors.6
   Early observations have however shown that the required standards in the courts
have not always been met and that insufficient space at some courts means that
neither court rooms nor waiting rooms are used specifically for rape matters. There
are also not enough trained intermediaries, prosecutors and magistrates to staff the
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courts. This problem is aggravated by high staff turnover which means that the effects
of training are lost unless courses are repeated regularly.7

Domestic Violence Act 116 of 1998

The Act aims to provide survivors with protection from the perpetrator and to
facilitate their progress through the criminal justice system. It replaces and improves
on the Prevention of Family Violence Act (1993). The Domestic Violence Act
provides a holistic definition of domestic violence and protection to survivors
through the Protection Order. It also mandates police officers to inform survivors of
their rights and provide assistance in terms of referral to a doctor and/or a counsellor
as well as to assist women in the collection of their belongings after reporting the
crime. Relevant departments (Safety and Security, Justice and Constitutional
Development, Social Development and Health) are responsible for developing
specific directives for implementing the provisions which will be attached to the Act.8

Minimum sentencing legislation

Amendments to the Criminal Law Amendment Act 105 of 1997 aim to ensure that
persons committing serious offences such as rape are not released on bail and, if
convicted, receive specified minimum sentences.9 The Act mandates life
imprisonment for persons convicted of rape under the following circumstances:
    if the rape involved "aggravating circumstances" as specified in the Act;
    if the victim is raped more than once, or by more than one person, or by a
    person who has been convicted of two or more offences of rape, or by a person
    who knows that he or she has HIV/AIDS;
    if the victim is a girl under the age of 16 years, or is a physically disabled woman
    and thereby particularly vulnerable, or is a mentally ill woman;
    if the victim is seriously assaulted.
   A person convicted on any other grounds for rape should receive a minimum
sentence of 10 years for a first offence, increasing to 20 years for a third offence.
Judges and magistrates are not however obliged to impose these sentences. A
judicial officer may impose a lesser sentence than the prescribed minimum
sentences provided he or she can find "substantial and compelling circumstances" to
do so.

Sexual Offences Bill (1999)

The South African Law Commission recently released Discussion Paper 85 which
considers the substantive law on sexual offences and a proposed new Sexual
Offences Bill. It proposes replacing the definition of rape and intends to make rape
Policy scan                                                                        153


a gender-neutral offence. It stipulates that no relationship can be used as a defence
against this charge. The Bill recommends that victims no longer need to prove the
absence of consent although the accused can still raise consent to sexual intercourse
as a defence. The final Bill should be released by the Law Commission by the end
of 2001.


Department of Safety and Security

National Crime Prevention Strategy 1996

The NCPS was approved by Cabinet in May 1996. By dealing with crime as a social
rather than a security issue, the NCPS shifted government's approach to safety from
one of crime control to crime prevention. The NCPS called for a victim centred,
restorative justice approach to crime reduction rather than a state centred system.10
    The strategy also aimed to promote safety as a basic need and suggested that
violence against women has a serious impact on democracy, stability and human
rights.
    The problem-solving approach by the NCPS towards crime reduction required
the participation of a range of government departments, including Safety and
Security, Justice and Constitutional Development, Correctional Services, Social
Development, Defence, Intelligence, and Home Affairs. The Departments of Arts,
Culture, Science and Technology, Education, Transport and Health later also became
involved.11 The business sector and non-governmental organisations were also key
NCPS partners.
    Within it's four key focus areas: re-engineering the criminal justice system,
reducing crime through environmental design, community values and education and
trans-national crime, the NCPS prioritized seven crime problems, one of which was
violence against women and children. One of the key projects directly associated
with implementation of the NCPS is the Victim Empowerment Programme, led by
the Department of Social Development (see below).
    It is however important to note that structural changes in the Department of
Safety and Security since the new minister took office in 1999 have resulted in the
NCPS being downgraded from an inter-departmental coordinating body to a small
unit within the crime prevention division of the South African Police Service (SAPS).
Although the SAPS believes that the NCPS remains government's crime prevention
strategy it is unlikely that a small unit with a limited budget within a division of the
SAPS will carry enough clout to drive and coordinate the multi-agency approach
required for reducing violence against women.12
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SAPS Policing Priorities and Objectives for 1999/2000

Each year the SAPS releases a document outlining its priorities and objectives.13
Crimes against women and children are listed as one of the priorities and clear
reference is made to improving service to victims. The objectives in terms of this
priority include:
    Improved multi-disciplinary cooperation. This will be measured in accordance
    with the number of joint initiatives and by monitoring the conviction rates and
    percentage of reported cases for selected crimes that are withdrawn before trial.
    Victim empowerment. This objective will be evaluated by the number of police
    officers trained in victim empowerment and the number of police stations that
    have the facilities to take statements in privacy.
    Enforce the relevant sections of the Domestic Violence Act by issuing national
    instructions, monitoring the number of protection orders applied for and the
    number of arrests made in terms of the Act.


Department of Social Development

Ten priorities

The Department of Social Development has identified ten priority areas for the
department over the next five years.14 One of the priority areas is to respond to the
"brutal effects of all forms of violence against women and children as well as effective
strategies to deal with the perpetrators". The department has established a
directorate that deals with the development and implementation of policy and
programmes for the economic and social development of women.15

Victim Empowerment Programme

The Victim Empowerment Programme (VEP) aims to address the lack of adequate
recognition and services to victims of crime through coordinated activity between
government departments and partnerships with civil society. Key to the programme
is the provision of information on available services, the progress of a criminal
investigation, and other relevant information about procedures and processes.16 The
department's approach to victim empowerment includes supporting and working
with organisations that provide services to women and children.
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Endnotes

1    N Harwin, G Hague, E Malos (eds) The Multi-Agency Approach to Domestic Violence: New
     Opportunities, Old challenges? Whiting & Birch Ltd, London, 1999.
2    For more detail see S Rasool, Sexual offences courts: Do more courts mean better justice?,
     Nedbank ISS Crime Index 2(4), 2000; L Vetten, While women wait…(2) Can specialist
     sexual offences courts and centres reduce secondary victimisation?, Nedbank ISS Crime
     Index 5(3), 2001; P Parenzee, While women wait…(1) Monitoring the Domestic Violence
     Act, Nedbank ISS Crime Index 2(4), 2000.
3    Department of Welfare and Population Development, Beijing Conference on Women: Plan
     of Action for South African Women on the Road to Development, Equality and Peace, CTP
     Book Printers, Cape Town, 1995.
4    Gender Policy Statement: Balancing the Scales of Justice through Gender Equality,
     Department of Justice and Constitutional Development, Pretoria, 1999.
5    Department of Justice and Constitutional Development, Justice Vision 2000,
     <http://www.cmpp.co.za/reports/1996/justice.htm>
6    L Vetten, 2001, op cit; Presentation by T Majokweni, head of the Sexual Offences and
     Community Affairs Unit in the National Prosecution Authority, to the Joint Monitoring
     Committee on the Improvement of the Quality of Life and Status of Women, Violence
     Against Women & Access to Justice Hearings, Parliament, Cape Town, 1999.
7    L Vetten, op cit.
8    For more detail see S Rasool, The new Domestic Violence Act: Responding to survivors'
     needs, Nedbank ISS Crime Index 3(5), 1999. See also South African Police Service,
     Implementing the Domestic Violence Act, 1999 at
     < http://www.saps.co.za/domestic/index.htm>
9    For related insights into minimum sentencing legislation and public attitudes to
     punishment see M Schonteich, Justice versus retribution: Attitudes to punishment in the
     Eastern Cape, ISS Monograph Series No 45, Institute for Security Studies, Pretoria, 2000.
10   S Kotze, Victim Empowerment Programme (VEP), Department of Social Development,
     Pretoria, 1999.
11   B Fanaroff, Putting the National Crime Prevention Strategy (NCPS) in context, in L
     Camerer and S Kotze (eds) Special Report on Victim Empowerment in South Africa,
     Institute for Security Studies and Department of Welfare, Pretoria, 1998.
12   S Pienaar, speech delivered at a seminar on the National Crime Prevention Strategy, ISS,
     Pretoria, 2000.
13   Department of Safety and Security, Safety and Security Policing Priorities and Objectives for
     1999/2000, <http://www.saps.co.za>
14   Z Skweyiya, Mobilising for A Caring Society: People First for Sustainable Development,
     Sunday Times, 2000.
15   Z Skweyiya, The Department of Welfare's Role in the Implementation and Access to
     Justice in Relation to Gendered Violence, presentation to the Joint Monitoring Committee
     on the Improvement of the Quality of Life and Status of Women by the Minister for
     Welfare, Population and Development, Parliament, Cape Town, 1999.
16   L Camerer and S Kotze (eds) Special Report on Victim Empowerment in South Africa,
     Institute for Security Studies and Department of Welfare, Pretoria, 1998.

				
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