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New laws could prove to be a win for women’s rights activists

COMMENT

Gender-based violence (GBV) is rife in South Africa and yet, the attitude persists that violence between intimate partners or spouses is ‘a private matter that should be handled within the family sphere’. This perception can be linked to the dismissiveness with which the general public and law enforcement agencies treat incidents of GBV. Police officers are often reluctant to intervene in these “family matters”, and the judiciary is riddled with stereotypes and biases regarding victims of GBV, thereby exposing them to re-traumatisation.

In most cases, victims either decide against reporting the crimes altogether or decline to press charges owing to pressure from family members and the low probability that perpetrators will be convicted for the crimes. As a result, survivors of GBV often have to jump over several hurdles in their pursuit for justice, whilst perpetrators of GBV walk away scot-free or with a ‘slap on the wrist’.

Since the outbreak of the Covid-19 pandemic, incidents of GBV have increased dramatically, in South Africa as well as globally. During the first week of lockdown alone, the South African Police Services received 2 300 calls pertaining to GBV. Although an upsurge in domestic violence cases was predictable, as victims would be confined with their abusers, no significant measures were taken by the state to protect women during pandemic. In fact, it has taken the government almost a year to review legislation designed to combat GBV as promised in its response to nationwide protests against femicide in 2019.

National register for sex offenders

During the 2019 protests against GBV, one of the key demands made by women’s organisations was that the national register for sex offenders should be made public. This call seemingly did not fall on deaf ears, as three amendment Bills were recently submitted to Parliament for consideration.

The Criminal and Related Matters Amendment Bill makes provision for the names of persons on the national register for sex offenders to be made publicly available. Whilst the inclusion of the names of all those convicted of sexual offences to the register is a progressive development, the consequences may not entirely be positive. 

The public will likely gain a false sense of security as statistically, only a small portion of sex offenders are likely to be convicted and added to the register. Secondly, the register lists the offender’s personal details such as names, home address and the type of sexual offence for which the offender was convicted. The public disclosure of this information raises legitimate privacy and safety concerns in that citizens may opt to take the law into their own hands even after justice has run its course.

Ultimately, the objective of the proposed amendment Bills is not only to protect women but to serve as a deterrent to would be perpetrators and to prevent recurrences of GBV. Many incidents of violence against women are perpetrated by repeat offenders, or accused persons awaiting trial and out on bail. Furthermore, the Bill aims to tighten, among others, granting bail to perpetrators of GBV and expands the range of offences for which minimum sentences are applicable. 

At this stage it is unclear whether imposing longer sentences will deter the commission of GBV, however, this development will definitely restore the public’s confidence in the justice system, particularly where victims have been left disgruntled by the inconsistencies between the severity of offence and the sentences imposed. The implementation of stricter laws pertaining to bail applications is likely to prevent perpetrators of GBV from exploiting legal loopholes to avoid imprisonment and will enforce new obligations on the police, prosecutors and the judiciary in their consideration of bail applications. For instance, the proposed amendments require prosecutors to place their reasons for not opposing bail on record in cases of GBV. Additionally, courts are placed under the obligation to order that an accused person be detained until criminal proceedings are concluded, in the absence of exceptional circumstances on why the accused should be afforded bail.

Apart from the procedural amendments proposed in the Criminal and Related Matters Amendment Bill, some provisions of the Domestic Violence Act are also being tightened. For instance, the Domestic Violence Amendment Bill extends the definition of domestic violence to include those in engagements, customary relationships and romantic, intimate or sexual relationships regardless of their duration. The extension of this definition is significant because it makes a substantive difference in the lives of those who experience the worst effects of domestic violence, such as women from rural areas, who are often in customary relationships. These women were previously excluded under the Act, and therefore found it difficult to obtain remedies such as protection orders.

Extending citizens’ duty towards protected groups

Perhaps the most positive amendment to the Act is the provision that someone can be fined and even imprisoned if he or she has knowledge, reasonable belief, or suspicion that an act of domestic violence has been committed against a child, a person with a disability or an older person; and fails to report it to a social worker or police officer. Whilst this provision will assist in the implementation of the Act, particularly in cases where the victims may not be able to seek assistance, it is lamentable that women aren’t included in the three protected groups (children, disabled persons, and the elderly). Given the measure of the GBV scourge in the country and the statistical evidence pointing towards increased domestic violence against women, social intervention is a necessary tool for combatting violence in the home. Extending the duty of citizens to report domestic violence perpetrated against women will ensure that the experiences of women are placed in the public domain, thereby breaking the stereotypes that perpetuate their silencing.

One of the reasons why most human rights activists argue so forcefully in favour of the conception of GBV as a public matter is because victims who seek assistance from the police are often ignored or blamed for their suffering. In some ways, the Bill aims to rectify this as it provides that failure by a member of the SAPS to comply with their obligations under the Act will be regarded as misconduct and must be reported to the civilian secretariat for police service

Evidently, the amendment Bills have incorporated some of the suggestions made by activists and civil society. The Bills have been introduced into Parliament and the legislative process has only just begun. Should the Bills receive the Parliament’s approval and the assent of the President, they will be passed into law. Until then, the effectiveness of these provisions remains to be seen. One can be sure that without the necessary implementation, South Africa will continue to see an upsurge in cases of GBV.

The views expressed are those of the author and do not reflect the official policy or position of the Mail & Guardian.

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Ropafadzo Maphosa
Ropafadzo Maphosa is a PhD candidate in international law at the University of Johannesburg and a researcher for the South African Institute for Advanced Constitutional, Public, Human Rights and International Law at the university

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