Questions abound! With newly-amended gender-based violence bills in South Africa, activists ask: will there be a significant decrease in the number of cases, will more victims report their perpetrators, and will reported cases finally be fairly prosecuted?
IN APRIL 2021, 23-YEAR-OLD social media marketer, Aviella Frankel, reconnected with someone she considered a very close friend. She had met him years ago at the local church in her hometown in Cape Town. Because they lived in the same area and she had known him for what seemed like most of her life, she had no problem with his invitation to “come over and watch a movie”.
“It was meant to be just a friendly hangout, we were just going to spend the afternoon together as this person had mentioned he had an off day,” Frankel tells FORBES AFRICA.
On arriving at his house, Frankel recalls his roommates being present, so any inkling about anything untoward happening was the furthest from her mind.
“But when we sat down in his room and started watching this movie and his roommates were upstairs, I don’t know why, but I kind of had a feeling of something seeming a bit off; I couldn’t figure out why something seemed a bit dark…
“He ended up raping me for two hours that afternoon.”
The alleged perpetrator was arrested the following day but only for a week.
The trauma of it all continues to follow Frankel as they live in the same area, and she frequently sees him around the neighborhood.
Although her case is currently being investigated, unfortunately, Frankel is but one statistic in a long register of similar cases of gender-based violence (GBV).
“The activist in me would say ‘send them all to jail, don’t give them bail, just wait
until the case is done’. But the Constitution says you have
to be fair with the Criminal Procedure Act. These practices are in place because things have to be weighed up,” says Melene Rossouw, a South African attorney and human rights activist, to FORBES AFRICA.
However, what is meant to now offer some respite to survivors of GBV are the newly- enacted gender-based violence and femicide (GBVF) acts.
President Cyril Ramaphosa signed the new law into legislation at the end of January. In a statement released by the presidency, the government has said these laws are “aimed at strengthening efforts to end gender-based violence, with a victim-centered focus on combating this dehumanizing pandemic”.
Founder and Director of The Great People Of South Africa, Zintle Khobeni, notes that the word ‘strengthening’ could pose a problem as this could point to the fact that the acts, before the amendment, were too weak, to begin with.
“…because it sort of sounds like we’ve had these laws but there’s been no implementation, which is true, 100% correct,” Khobeni says.
The Great People of South Africa is a women-led non- profit organization that operates as a Paralegal Advice Centre, advocating for gender equality, women’s and girls’ rights, the rights of the LGBTQI+ community, and for people living with disabilities.
“What these laws in fact do is that it strengthens, and I’m going to say this because that is the intention of the legislator,
to strengthen gender-based violence response,” Rossouw adds.
“And to a large extent, it does. But what is very unique for me specifically about these laws, is that it broadens the net of who now can apply, or make cases about gender-based violence; it’s no longer just a particular group of people.”
“The Police Ministry has welcomed the three new pieces of legislation signed in January, aimed at strengthening efforts to end GBV,” the South African Police Services (SAPS) tells FORBES AFRICA.
“The amendment of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, the Criminal and Related Matters Amendment Act, and the Domestic Violence Amendment Act will surely strengthen not only the country, but the SAPS’ responses to GBVF.”
The Criminal Law (Sexual Offences and Related Matters) Amendment Act:
Previously, this act only listed certain criminals who have committed a sexual offence. Now it has been expanded on the scope of the National Register for Sex Offenders (NRSO) which includes the particulars of all sex offenders and not just sex offenders against children and persons who are mentally disabled.
“Before because there has been a less number of crimes reported of sexual violence or gender-based violence, and there’s also been a low conviction rate of sexual violence and in most cases are reported, they don’t go to trial. And those perpetrators’ names don’t get added on to the list,” explains Khobeni, “So basically, what this does is it expands the scope of the National Registry…”
The enacted bills also expand on protecting the vulnerable, namely, young women, persons with physical, mental, or intellectual disabilities, and persons over 60 years of age who, for example, receive community-based care and support services.
This act also increases the periods for which a sex offender’s particulars must remain on the NRSO before they can be removed from the register.
“It sounds great until you go and do research as I did,” says Rossouw. “And I find out that the process of getting information on these people is almost as difficult as climbing Mount Kilimanjaro because not everyone can apply, by the way… These people want to do a background check on you first… Now you tell me, how easy will that be for ordinary people in small communities to go and follow this very stringent processes to get information about who are the sexual predators?”
The Criminal and Related Matters Amendment Bill:
One of the most common complaints from victims and survivors of any GBV crime,
is that the judicial system makes victims feel worse. This then lends itself to victims feeling uncertain about reporting their perpetrators or not wanting to do it at all.
“It was insane because I knew that rape happened. I knew gender-based violence happened, but I never thought that it would happen to me. I thought ‘but I was like safe’,” Frankel says. “Then, the following day, on the 13th of April, I was going back and forth about what I should
do. If I must say something? Must I not say something? But it was eating me alive that I didn’t say anything.”
In February, South Africa’s Police Minister Bheki Cele released crime statistics for the third quarter of 2021: 902 women were murdered and there were 11,315 rapes. Cele added 674 rapes were domestic violence-related, of which 632 of the survivors were female and 42 male.
The figures get worse, as according to Statistics South Africa (StatsSA), the country recorded 34,587 teenagers who gave birth in the 2020/21 financial year.
Khobeni believes that what could have exacerbated GBV as a second pandemic in the last two years especially, is Covid-19.
“Victims were confined in one space with the perpetrators. That’s why we have seen such staggering numbers of teenage pregnancies with young girls. Girls as young as 10 years old are giving birth. I’m talking about this because I have a cousin who is 11 years old, she gave birth last year… She was being sexually violated by the man who lives next door.”
“This lady that I’m helping has now moved out of the family home because the stepfather has raped her since she was the age of eight,” Rossouw says.
“She’s now 27. And she has opened the case. Her mother knew about this for a long time. And the prosecutor now has also made the case against the mother, which I am very happy about.”
According to the state, the Criminal and Related Matters Amendment Bill is aimed to address GBV and offences committed against victims and provides for additional procedures to reduce secondary victimization of the person during judicial proceedings.
The new law expands the circumstances in which a complainant can give evidence through an intermediary and provides for evidence to be given through audio-visual links in proceedings other than criminal proceedings. This legislation also tightens bail and minimum sentencing provisions in the context of GBV.
“Only 5% of sexual violence cases are ever reported,” Khobeni says.
“And when they are reported, there’s only a 3% conviction rate, which is terrible. So out of those five, you’ll find that maybe only two can have the strength to follow through with the cases… And the chances of [the offenders] being properly prosecuted are very, very slim as well.
So that’s very discouraging to survivors of gender-based violence.”
“There are about 84,000 police officers but only 1,150 police stations in southern Africa,” Rossouw adds. “So clearly, already we know for a population of 59 million South Africans, that it’s a human resource issue.”
Furthermore, Rossouw argues that adequate training takes center stage when it comes to the judicial system.
“They don’t have the skills. They don’t know how to deal with gender-based violence cases, there’s absolutely no
sensitivity. And there’s no objectivity in these cases. So besides the one issue, that is another issue that we need to deal with now, because of the pressure that is placed on police officers.”
However, there are now dedicated GBV desks at about 400 police stations across the country. SAPS tells FORBES AFRICA that over 91,000 police officers have been trained in victim empowerment, domestic violence and sexual offence-related programs.
“This will ensure victim-centered service is provided by officers at police stations. These officers will be the first point of call for victims and survivors of GBV crimes and are trained, amongst other things, to be sensitive to the cases they register,” says SAPS.
The Domestic Violence Amendment Bill:
Many activists believe this particular bill to be problematic, mainly due to the ambiguity in its wording.
“The amended legislation includes new definitions, such as ‘controlling behavior’ and ‘coercive behavior’, and it expands on existing definitions, such as ‘domestic violence’, to include spiritual abuse, elder abuse, coercive behavior, controlling behavior, and/or exposing/ subjecting children to certain listed behaviors,” the government said in its statement.
Furthermore, SAPS has added that the Domestic Violence Amendment Act progressively introduces online applications for a protection order against acts of domestic violence.
“We are encouraged that the Acts will ensure a victim- centered focus and make it more difficult for perpetrators to escape justice. These legislations will amongst many interventions, tighten bail and usher in minimum sentencing provisions for GBVF-accused persons.”
“It really expands on the definition of gender-based violence,” Rossouw says.
“I also gave comments to these bills. And spiritual abuse was a big issue and [also] coercive action. And all those things were added as additional forms of gender-based violence.”
The Amendment Bill also aligns the Domestic Violence Act with the provisions of the Protection from Harassment Act 17 of 2011.
“The enactment of legislation that protects victims of abuse and makes it more difficult for perpetrators to escape justice is a major step forward in our efforts against this epidemic and in placing the rights and needs of victims at the center of our interventions,” Ramaphosa said in a statement.
Beyond Legislation
When he started touching me,” says Frankel, “I was like, ‘what are you doing? can’t we just watch the movie?’ I was trying to bring up other suggestions because I was so confused by just the fact that he was touching me. And so then when it got further and further, I was just like, ‘what are you doing? You can’t do this to me, like, please stop, please don’t do this’. I just kept pleading with him.”
Outside of these laws and legislation bills, what needs to happen is a drastic change in societal behavior.
“You can’t deal with gender-based violence without dealing with gender inequality. These are one and the same thing. And that is what makes this thing so complicated. Because there’s not only one solution, or one answer in dealing with it,” says Rossouw.
Small communities need to also be part of that change. A lot of the time when the victim tries to speak out, family members tend to say “you are causing problems for the family”.
“We need to inculcate a new value system within our society, almost the emergence and birth of a new way of living, and respect for the culture of human rights in South Africa. That is what we ultimately need to shift the needle, when it comes to the scourge of gender-based violence,” Rossouw adds.
Indeed.