Three things we need now to improve the implementation of the Sexual Offences Act

By Jen Thorpe

This year marks ten years since the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (The Sexual Offences Act) was passed. This legislation came about as a result of significant work from the Department of Justice and critical inputs from civil society. This partnership helped to shape the Act into something that was responsive to the needs of survivors, and had the potential to assist government in holding the perpetrators of sexual offences accountable. The Act requires that the police, the prosecutors and courts, and the health department work together to achieve this.

This is not a time for pats on the back

The most recent crime statistics would have us believe that certain sexual offences are decreasing, and that the conviction rate for sexual offences is high.

However, the reality is that many survivors of sexual offences never report to the police, and that the number of sexual offences cases that are prosecuted each year is decreasing. The current performance indicators for police on ‘decreasing the number of sexual offences’ create a perverse incentive for police to turn away sexual offences complainants when they report at a police station.

In addition, the specialised police units such as the Family Violence, Child Protection, and Sexual Offences Units, are not always provided with the financial or human resources they need to do their jobs well. The result is that there is a high attrition rate for cases at the investigation stage, and where cases are not investigated by specialist detectives the quality of investigation remains poor, preventing prosecutors from having much to work with if/ when the case reaches court.

Essentially, what the state’s figures tell us is that fewer survivors of sexual offences have faith in the police, and that fewer cases are investigated to a good enough quality that prosecutors are able to take them up and win a conviction.

This is not a time for pats on the back. This is a matter of serious concern, and misleading statistics that suggest that sexual offences in South Africa are being ‘dealt with’ or addressed in some way by the state are not helpful. In fact, the statistics that are reported change from one year to the next, making tracking the extent of the problems with the criminal justice system difficult to do.

Specialist interventions have been introduced

However, it is not as though no state action has taken place. The Thuthuzela Care Centres  (TCCs) (a one stop model including the police, health, and national prosecuting authority) and the Sexual Offences Courts (courts dedicated to hearing sexual offences cases, with specialist infrastructure, and specialist staff) are two important efforts that have been made by the state to address the problem of sexual offences. These are important interventions, because they increase the likelihood that survivors will get access to the support they need to help them stay in the criminal justice system until a prosecution occurs.

Yet, few of the TCCs or Sexual Offences Courts are operating at the minimum standards set by the state themselves. Section 55A of the Judicial Matters Amendment Bill has not been implemented.

Although the NPA and the DOJ provide glowing reports to Parliament, reports from civil society suggest that many of these facilities are operating at a skeleton stage, without meeting the requirements of specialist police, specialist prosecutors, forensic doctors, or the required infrastructure.

International funds run dry

The TCCS themselves are only partially funded by the state. At the moment they also receive international donor funding. At the same time, the NGO sector which provides critical psychosocial services to many survivors is facing dire funding cuts. International donors are shifting their focus to other matters, with the effect that NGOs are striving to assist survivors on a limited budget, with limited staff capacity. It is urgent that the state functions better for the survivors of sexual offences.

Renewed state action

We are facing a sexual offences crisis that is currently not being addressed effectively by the legislation we have available. Positively it seems, this has not been ignored by the Department of Justice, and steps are in place to address this.

Today and tomorrow, the Department of Justice  is hosting a National Forum on the Implementation of the Sexual Offences Actin partnership with civil society. The forum will focus on three areas:

  • Reporting / investigation,
  • Medico-legal / services to the victim, and
  • Court processes / prosecution and the adjudication of sexual offences.

I am part of the Shukumisa Coalition, a coalition of organisations and individuals that hopes to see particular challenges addressed through resolutions at the Forum today and tomorrow. We hope to see:

  1. A resolution on the operationalisation of Section 55A of the Judicial Matters Amendment Act (around designating sexual offences courts) and the involvement of civil society in drafting the minimum standards and regulations around these courts.
  2. A resolution on the need for the public sharing of clear, consistent, and disaggregated statistics on sexual offences is essential.
  3. A resolution on revising perverse performance standards that reduce the likelihood that sexual offences are reported.

At the moment this forum seems like a positive opportunity for honest reflection. Hopefully it also delivers results.

 

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