This month we also celebrate Human Rights Day. Human Rights Day is celebrated annually on 21 March in order to remind South Africans of the great suffering and the loss of life that accompanied the struggle for human rights. It is a day on which we remember those (such as those in Sharpeville and Langa) who suffered in the past through the systematic denial of their most basic human rights.
It is with great joy and pride that the Department of Justice and Constitutional Development join Mosaic today in celebrating 21 years of selfless struggle for the rights and protection of the most vulnerable in our society.
Yet, as we celebrate and elate in the freedom that so many people had struggled for during the years of apartheid, many of our women and children will be oppressed in their own homes. Domestic violence is a serious social problem that must be addressed as a matter of urgency. This form of violence is often exercised behind closed doors and destroys its victims physically and emotionally and is becoming more frequently a lethal problem as highlighted by the increase in reports of family murders and intimate femicide occurring in South Africa, the most internationally recognised criminal matter in this regard being the Oscar Pistorius trial.
It is important that we discuss sexual and gender-based violence in the broader context of unequal power relations. This unequal power relation between men and women in society and at home lie at the heart of this violence. These power relations are the result of social attitudes, certain cultural practices, unequal access to opportunities - like education and employment - and the close relationship between gender oppression and oppression on the basis of class. The role of power relations explains also why children are also frequently victims of sexual and other violence, being relatively powerless and vulnerable.
It is necessary therefore to challenge social attitudes which make the rights and needs of women and children subject to the will of men. The right of women to equality, to freedom and security of person, and to the other freedoms contained in the Bill of Rights, needs to be asserted and defended.
We know that the eradication of sexual and gender-based violence will require fundamental social change and fundamental changes to patriarchal attitudes that characterise our society. Without such fundamental social change the interventions by our criminal justice system will have limited effect...
However, it is essential that we recognise sexual and gender-based violence as crime and, therefore, as part of government's number one priority of fighting crime and the causes of crime.
In keeping with the vision of those who fought against the apartheid government and ensuring equality for all, our Justice, Crime Prevention and Security (JCPS) Cluster has resolved to deal decisively with gender based violence, albeit with limited resources.
In the 20 years of our democracy, several measures were implemented to protect and promote rights of women and children. Progressive legislative frameworks such as the Domestic Violence Act 116 of 1998; the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007; Equality Act are some of the protective layers that have been set up to deal with all forms of abuse, violence and discrimination. Just recently, the President signed into law, the Protection against Harassment Act and the Prevention and Combating of Trafficking in Persons Act, adding yet another milestone in the fight against human rights abuse, which affects mainly the vulnerable of our society.
Domestic violence (the most common of gender-based violence prevalent in our society today) touches the lives of all ages, leaving a devastating impact on women, men, and children of every background and circumstance. A family's home becomes a place of fear, hopelessness, and desperation when a woman is battered by her partner, a child witnesses the abuse of a loved one, or a senior is victimized by family members. Domestic Violence, therefore, does not only affect the quality of life of the family but that of the whole society. Therefore, the appropriate implementation of the Domestic Violence Act to reduce and prevent domestic violence is critical. The Domestic Violence Act was promulgated to empower people, especially our women and children, to exercise their right to a safe environment free of abuse of any nature.
In keeping with this vision the Department of Justice & Constitutional Development concluded a Memorandum of Understanding (MOU) during 2006 with MOSAIC. In terms of this MOU, MOSAIC assists members of the public seeking assistance in obtaining protection orders against domestic violence.
MOSAIC has a strong understanding of and expertise in the field of domestic violence. It is a community based, non-governmental organisation (NGO) with a specific focus on preventing and reducing abuse and domestic violence, particularly for women and youth living in disadvantaged communities. MOSAIC was established in 1993 after extensive research had been done to determine the priority needs of victims of violence. Activities began with the training of “grassroots” women from specifically targeted areas to be community workers and court workers in those same areas.
We salute MOSAIC for delivering a range of social support services and projects to court clients (mainly women and female youth) caught up in gender violence, and in more recent years because of the strong correlation between rape/sexual violence and the chances of becoming HIV positive, to those infected and/or affected by HIV/AIDS.
The services offered by MOSAIC to our court clients include:
- Crisis counseling;
- Education and information on domestic violence and abuse;
- Assistance through court processes and procedures;
- Referrals to other service providers, as needed;
- Information on sexual and reproductive health, HIV, and where to access these services;
- Legal and human rights education;
- Working with offenders; and
- Research on the implementation of the Domestic Violence Act.
Through the MOU, MOSAIC has been granted access to 15 of our courts in the Cape Metro area.
Over and above rendering services at our courts, MOSAIC has also impacted positively on the Department’s strategic objectives by providing and participating in a number of joint stakeholder training sessions held over the years. These regular training sessions have proven necessary in order to ensure that the South African Police Services, National Prosecuting Authority and court staff are sensitised to the plight of the victims of domestic violence and that there is uniformity in implementing the Domestic Violence Act. These training sessions were also utilised in order to all stakeholders to share best practices and learn from each other but we can do more by strengthening and extending our partnership
MOSAIC has also concluded various research programmes into the implementation of the Domestic Violence Act in the justice system. The most recent and prolific research papers were the “Attrition of Domestic Violence in Eight Magisterial Districts”.
ATTRITION RESEARCH: DOMESTIC VIOLENCE MATTERS AT COURTS:
The Domestic Violence Act (DVA) (No 116 of 1998) was promulgated in 1999 with the aim of creating a remedy that is accessible, affordable and ensures that “victims of domestic violence received the maximum protection from domestic abuse that the law could provide”. Under the DVA, victims of domestic violence may apply for a Protection Order (PO), which aims at preventing future acts of violence. It involves a two-step process. The victim of domestic violence applies for an interim protection order (IPO) which is granted if the court is satisfied that there is prima facie evidence that the respondent (the alleged abuser) has committed an act of domestic violence and that the applicant (the victim) would suffer undue hardship if a protection order was not issued immediately. Where urgency can be shown, an IPO is issued. The second part of the process involves finalizing the order. Once the IPO is served on the respondent, the applicant and the respondent are required to return to court on a certain date – referred to as the ‘return date” – for a hearing during which the respondent is afforded the opportunity to present to the court reasons why the protection order should not be finalized. If the court is satisfied, on a balance of probabilities, that the respondent has committed or is committing an act of domestic violence, the protection order can be finalized (or varied in some way). It is in the period between the application for an IPO and the finalization of the protection order that cases fall out of the system.
During the period 2008 to 2009 the department consented to allow MOSAIC and UCT Gender Health & Justice Research Unit to conduct attrition research in respect of domestic violence matters in our courts, which was published and officially launched during 2013.
Attrition research shows us the different points in the criminal justice system where cases fall out, and the reasons for cases failing out. The research indicated the reasons for the decrease in the number of cases from the time they are reported to the police, to when they go to court. We can use attrition research to establish whether the reasons for cases dropping out relate to the complainant (personal reasons) or relate to the performance or decisions of the criminal justice system (systemic reasons).
THE BOOMERANG EFFECT
Sometimes, the very act of seeking a protection order results in a ‘boomerang effect’, whereby seeking help amplified threatening behaviours and escalated violence by the respondent (perpetrator).
Victims of domestic violence often suffer a range of abuses, compounding in severity or frequency over time and as the relationship begins to disintegrate. The research also found that, on average, DVA applicants have known their partners for nine years, experiencing abuse for at least half that time (4.3 years) before approaching the police or courts for assistance. From the intake forms, physical abuse, as opposed to sexual abuse, was cited as the most common form of physical victimisation reported by DVA applicants. Of the female applicants wanting protection from their intimate partners [FIPs], 83% (n = 269) reported being physically abused. In about two-thirds of cases (67%), (n = 321) applicants cited physical abuse among the reasons they sought a protection order.
Of all the applicants (sample of = 503), sexual abuse or rape was reported in 16.5% of cases (n = 83), with all of these cases reported by females applying for POs against an intimate partner. This means that of the female intimate partner applications almost one in five women had experienced sexual abuse or rape by their intimate partner. The findings showed that of those who reported being sexually abused, the majority, 82% (n = 68), reported being forced to have sex or being raped. The majority of these women (90%) had been raped by their current partners, while the remaining 10% has been raped by an ex-partner. In addition to threats of further physical abuse, threats of rape or having the applicant raped were identified by women as reasons why they feared proceeding with the criminal justice process.
Victims of domestic violence are often threatened with death or more violence if they initiate or proceed with criminal justice interventions. The interviews revealed that 44% (n = 222) of all DVA applicants stated that their abusers had threatened to kill them. Threats to kill were present in 46% of cases (n - 152) among women in the intimate partner category. There were also instances when the abuser threatens to send a third party to kill or harm the applicant. The following excerpt provides a glimpse into the contexts in which such threats are made and why returning to continue with the criminal justice process is, in some instances, more dangerous than protective:
…My ex-boyfriend [name] came to my house and demanded that I must go with him. As I refuse to do so he started banging on the door and then proceeded in punching me with his fist. I had to hone my mother to come… as we got near to the police office we notice that [he] was waiting opposite the police office with a sharp stone in his hand – he then walked next us and started swearing at me [and] saying [you are sleeping with the policeman], you are a whore … he then threatened to get somebody to kill me if he don’t get bail and if he gets a bail he will come and kill me himself …
The interviews with DVA applicants revealed that fear of the perpetrator and coercion to withdraw – through explicit or implied threats - were significant factors affecting DVA applicants’ decisions to return to court. When combined with the fact that in 28% (n = 134) of all cases in this study DVA applicants reported that their abuser used a weapon during an incident of abuse, it is clear that there are high risks associated with continuing the process.
The desire to protect and care for children is a formative factor with respect to how women ‘manage’ domestic violence and the decisions they make, particularly whether continuing to finalise a protection order is worth the risk.
A critical finding from the research is that there are a number of systemic reasons why applicants do not finalise their Po’s. The difficulties faced in navigating the application process becomes particularly glaring when considering the cases where applicants returned to court to finalise the orders, but due to a systemic reason were unable to finalise their orders.
In 23% of the cases, the interim protection order was never served. In an additional 13% of cases, the respondent did not sign for the service or fled from the police. Seventeen per cent simply lost confidence in the system. Nine per cent of applicants reported that they had not returned to finalise their orders because the court had not provided them with a copy of the PO. These applicants were therefore unlikely to know their return dates. In eight per cent of cases, DVA applicants explicitly stated that the court had failed to provide them with information about their return dates and in an additional five per cent of cases the applicants were not aware that they had to come back to court to finalise their orders. And yet another group (five per cent) reported that they had returned to court to finalise the order, but upon arrival learned that their cases had been struck from the court roll.
These findings show that many DVA applicants do not return to court as a result of systemic problems, such as courts not issuing protection orders in time or at all – even after multiple attempts by applicants to secure them from the courts – or cases being struck off the roll when applicants are late or at the wrong venue. Understandably, numerous attempts to get a copy of the protection order and continued difficulties with serving protection orders are resulting in attrition of cases from the system.
The findings from this research have, in some instances, mirrored findings revealed in previous studies on domestic violence. Most notably they have highlighted again that victims of domestic violence suffer a wide range of abuses that the intensity and brutality of the abuse is likely to increase over time, and, most importantly, that seeking help can increase risk – whether actual or perceived. In reflecting on the types and severity of abuse suffered by domestic violence victims who apply for POs but who fail to finalize them, it is hard not to question why these victims would remain in their abusive situations, and why, with a legal remedy available to them under the DVA, they would not follow through and finalize the order. This research suggests that fear is a significant and common denominator in many cases of domestic violence. These “fears” range from aggravating already violent situations and fear of reprisal from their abusers, to the fear of navigating what is perceived as a less than reliable criminal justice system.
From the findings presented it is clear that the issue of attrition in domestic violence cases is a complex one, with a number of often interconnected factors impacting on an applicant’s decision-making with regard to finalizing the PO. These factors – both personal and systemic – may work together in a way that makes continuing the process simply difficult but I believe that the clerks of the courts and the police in the Community Service Centres can make a difference.
It was after the release of the Attrition Study that the Department partnered with MOSAIC in holding a joint stakeholder training session to sensitise all front-line officials (including SAPS and court clerks) dealing with domestic violence matters. Government needs partners such as MOSAIC to continuously assist in improving the services being rendered by our officials by providing training on the Domestic Violence Act and sensitisation workshops.
Bearing in mind all the good work done by MOSAIC in our courts thus far and the past achievements, it is apt that MOSAIC, which is an organisation that fights to uphold the constitutional principle that “all are equal before the law and has the right to equal protection and benefit of the law” (section 9 of the Constitution), is celebrating its 21st year since its inception during Human Rights Month.
We look forward to working with MOSAIC for another 21 years and more in ensuring improved services are rendered to victims of gender-based crimes.