Women Imprisoned for Domestic Violence: briefing by National Prosecuting Authority

Meeting report

CORRECTIONAL SERVICES PORTFOLIO COMMITTEE
20 August 2004
WOMEN IMPRISONED FOR DOMESTIC VIOLENCE: BRIEFING BY NATIONAL PROSECUTING AUTHORITY
 

Chairperson: Mr D Bloem (ANC)

Documents handed out

Parliamentary Discussion: Women Imprisoned For Domestic Violence
Powerpoint presentation

Relevant document:
Article on the Anita Ferreira case (see Appendix)

SUMMARY
The National Prosecuting Authority spoke of the importance of the 'Ferriera Judgement' for women imprisoned for killing their abusive intimate partners. This area of the law relating to matters of gender violence was evolving and there was a need for prosecutors and courts to adopt an appropriate and different response on these matters that demonstrated the new understanding.

The examination of the various cases indicated that there cannot be a single bullet approach, and each case had to be examined on its own merits and demerits. This new knowledge had to permeate to all levels of ``decision-making within the Criminal Justice System starting from whether or not to arrest, prosecute, convict or acquit, and up to whether to imprison or not. This meant that the Commissioner of Correctional Services had to intensify the utilisation of Section 276 A to ensure the exposure of deserving imprisoned women to behavioural correctional supervision outside prison, particularly if the guilty abused woman had children.

The discussion that followed raised many points, amongst them, were:
- Reasons for the underreporting of domestic violence were denial, embarrassment, self-blame and fear.
- Once children of the imprisoned mother reach the age of five, they had to enter into the foster care system.
- Correctional Services should be called before the Committee to explain their criteria for parole, especially with regard to the early release of Ms Charmaine Phillips.

MINUTES
National Prosecuting Authority briefing
Advocate Thoko Majokweni, Special Director: Sexual Offences and Community Affairs (SOCA) Unit in NPA, briefed the Committee on the issue of women imprisoned for killing their abusive intimate partners and said that the courts had to adopt a new approach in dealing with women who kill their abusive intimate partners. The Ferreira judgement was an important precedent. There were a 164 women serving time for killing their partners. Many with children who could only remain with the mother until the age of five. There needed to be a multi-pronged approach to dealing with domestic violence (see briefing documents).

Discussion
Mr Morkel (DA) said that the critical issue with regards to early release would be the historical background of the relationship. To find out how many reports of this alleged violence had been recorded by the police was important. There may be some cases where a person makes a claim that they were a victim of domestic violence but it was difficult to prove. He asked how this challenge would be addressed. He was concerned that a review of all these types of cases would clog up the system. Out of these cases, what sort of sub-categories could be used to distinguish between them?

Mr Mahote (ANC) asked what were the possible reasons for underreporting and what can be done to assist. If that continues then most of the perpetrators were left unpunished. Who gets the training, to whom is the manual available?

Mr Tolo (ANC) asked his question in Afrikaans and the Chair translated it. He said that when he grew up his father was very strict. Many men beat up the women in their homes. It is clear that some men are also killing their wives. He spoke of incidents where a woman was seeing another man and then killed her husband to get out of the relationship - for which she was imprisoned. What was the NPA approach to such cases?

Adv Majokweni replied that there were a 164 applicable cases were women had killed husbands. These 164 cases are unlikely to be a major burden if they were reviewed. There was sometimes a lack of information about the historical background as police were often reluctant to record incidents of domestic violence. There was a need to look at alternative methods, perhaps to get affidavits from local people who knew domestic violence was occurring. The absence of evidence of a pattern of violence was also because such material was previously not seen as relevant. It was unclear what the criteria was that Correctional Services used for deciding which cases should be converted into correctional supervision.

Advocate T Kambula (Head of Domestic Violence Section: SOCA Unit) said there were several possible reasons for the underreporting of cases of domestic violence. This was not a solely South African problem but was an international one. No country had managed to increase reporting to 100%. There was a need to find ways to ensure that every person reported domestic violence. Literature reviews had shown that victims did not report violence because of the cycle of violence that they found themselves in. It was difficult to step out of this cycle. There was an issue of denial - 'the attitude that violence was not something that would happen to me'. There was the issue of embarrassment, persons were scared of the shame reporting would bring on themselves and others around them. There was the issue of self-blame, the husband was loving at the start, so the victims thought it must be their own fault. Finally the fear of the unknown, the victims were unsure of what to expect when they testified. They did not know the NPA's procedure and level of support.

On the issue of training, she said they had started working on a domestic violence training manual in 2000. All the role-players were involved in the writing of this manual. The people who were going to be trained were all the role-players. The police were an intricate part of the process. Prosecutors would be trained. The court clerks would be trained so that they could help complainants in getting protection orders. Social workers would be trained. Health care workers would be trained in the correct procedures for obtaining medical evidence of abuse.

The NPA was unable to deal with Mr Tolo's question at this time, so all parties agreed that the NPA would submit a written response.

The Chairperson said that the Correctional Services should be called upon to explain their criteria for parole. Correctional Services should be asked to explain the process of the release of Ms Charmaine Phillips. Ms Phillips was sentenced to four life terms in 1984 for her part in the death of four young men. She was twenty years into her sentence when she was released on the 20 August 2004. The Committee needed to know what had prompted their decision.

Mr J Selfe (DA) said that the NPA's duty should be with the deceased and not the victim of domestic abuse. The domestic abuse may have been a mitigating factor but it was not the main issue. He thought the NPA was taking a contradictory role. He also wanted to know to what degree alcohol was involved in instances of domestic abuse.

Ms S Chikunga commented that she was proud to have two black women advocates present. There were many people suffering from domestic violence and it certainly was a reality. The 164 women in jail stemming from this was a reflection of the underreporting of violence. She asked how ready were they to reach ordinary communities and how did they reach them. How were rural communities reached? She wanted to know whether there was an office that dealt with the abuse of men. In cases where a man was killed, the only person that remained to relate what the circumstances were, was the woman. This was open to abuse with regards to fabricating a story of abuse to give the woman mitigating circumstances. She wanted to know how this could be controlled.

Mr Nkosi (ANC) said families in rural communities seldom had such problems addressed. He had never heard of social workers intervening in small towns. Once the child had to leave the imprisoned mother, she wanted to know how the state looked after the child.

Mr Morkel asked what the NPA's criteria were. He raised concern that the multi-agency approach may be contradictory. There was a need for the forging of common criteria.

Adv Majokweni agreed that it was contradictory for them to represent women imprisoned. However they needed to respond to movement in law. If it became unconstitutional then the sentence needed to be revisited. The death penalty was unconstitutional so persons sentenced to death had their sentences changed to keep within the Constitution. Justice needed to prevail. A study in Northern Cape looked at the causes of domestic violence. This report states that there was a clear connection between alcohol abuse and domestic violence. There needed to be monitoring of this situation. The NPA did not have any specific criteria but they did have several factors that were looked at.

Adv Majokweni said that there was a speak-out programme for actual victims of domestic violence. Domestic violence also affected children. When a parent was abused then the child was a secondary victim. The Act gave women the right to give protection orders for the child. Domestic violence was a reality, society could not succeed through working in silence. Methods must be used that are sensitive and accessible. With regards to an integrated programme, a comprehensive manual had been developed. The manual was launched in March. They were now finalising the implementation process. The programme would run for twelve months. Training would start in October. They planned to reach all the provinces within one year. Through this programme they planned to create trainers. The Domestic Violence Act also accommodated men. There currently were not enough resources to implement this Act effectively. However they were working on a multi-sector approach to combine resources so the Act would get effectively implementation. It was acknowledged that some men were also victims of abuse. The NPA had started partnerships with several groups. One such partner was Women for Change, this organisation helped in the development of the manual. The NPA's mandate was limited to women and children. She agreed they needed to empower abused men.

Ms Mojekweni said that when there was abuse suffered over a protracted period then there would be people in their community who knew about this abuse. There could be affidavits taken from these persons. While the issue of bogus reports was well reported, it was not a major problem. Of 52 000 sexual abuse cases reported, only 1 000 were fraudulent. Of these bogus reports there were many instances of a girl forced by her parents to make a fraudulent report because they considered their daughter too young to have a boyfriend. With regards to culture, she said that women were often expected to hold a family together. Their supposed resilience meant that they were supposed to take the abuse quietly. The mothers of victims wanted to hold their heads high, they spoke of their pride that all their daughters were married. They did not care about how unhappy the marriage was. South Africa's cultural leaders needed to be empowered.

Adv Majokweni said that the capacity needed to be built up to deal with the cases. After five years, the Department of Correctional Services released the child into the foster care programme.

Mr M Moatshe (ANC) said that some women do kill their husbands because of profitable life insurance. He wanted to know what happened to this money. The Committee seemed to be saying that domestic violence was only about women/men and did not include children. Last week a TV celebrity murdered her own child, was this not domestic violence.

Mr Burges said that the Committee seemed to be concentrating on only the serious part of domestic violence. The definition was in fact very wide. There was verbal, economic and emotional abuse. The NPA had only been speaking about physical abuse. When cases were brought there seemed to be a narrow line between fabrication and charges being brought. A swear word could be considered verbal abuse. There was a danger that women after a small fallout with their partners, would accuse him of abuse. Surrounding these issues was the danger of clogging up the courts system.

Mr Tolo said that there was a problem of bringing reports of abuse to conviction. Often women would report abuse and then withdraw the charge. Sometimes it would go all the way to the court case when the woman would refuse to testify so the court case would collapse. Sometimes only one side was being looked at, there was a need to create a full picture.

Mr Morkel said that violence often led to economic crime. The husband denied the wife an income. The woman was not able to earn a living and therefore she resorted to economic crime.

Adv Majokweni said that the reason they were only focussing on violent domestic abuse was because that was the brief of this Committee. They were not underplaying other forms of domestic violence.

The Chairperson concurred that the NPA was dealing only with the issue of women murdering their husbands. It was unfair to expect them to answer on topics for which they had not prepared.

Adv Majokweni agreed that income-related abuse was a form of abuse that amounted to domestic violence.

Mr Morkel agreed that the Chairperson was correct in his ruling that non-physical forms of domestic violence should be looked at another time.

Adv Majokweni said that they would welcome the request to come back at a later date to deal with this issue.

The Chairperson said that there was no more time for the remaining questions. They awaited the written response to Mr Tolo's question. He noted their concern with the problem of overcrowding in jails. He repeated that Charmaine Phillips who had been convicted of murder had been released that day, while there were women sitting in jail for economic reasons. This situation had to stop.

The meeting was adjourned.http://www.legalbrief.co.za

 

In a landmark judgment handed down earlier today, the Supreme Court of Appeal (SCA) has held that in murder cases, a long history of abuse constitutes 'substantial and compelling circumstances' which would allow a court to impose a lesser sentence than the life imprisonment prescribed by law.

The SCA upheld the appeal in Ferreira and Others v the State, overturning Anita Ferreira's sentence of life imprisonment in favour of imposing a term of imprisonment of 6 years.

This was suspended insofar as it exceeds the period that she has already spent in prison for three years, on condition that she is not convicted of any offence involving the infliction of serious bodily harm.

Ferreira, the first appellant, appealed against her sentence of life imprisonment for the murder of her common law husband, Cyril Parkman, at whose hands she suffered nearly 10 years of severe physical, economic, emotional and sexual abuse.

After pleading guilty, the trial court sentenced Ferreira and her two co-accused to life imprisonment on 27 November 2000 in terms of section 51(1)(a) of the Criminal Law Amendment Act 105 of 1997, which Act prescribes the mandatory minimum sentence to be imposed in such cases. The court found that the prolonged abuse did not constitute 'substantial and compelling circumstances' so as to justify a departure from the mandatory minimum sentence, as is required by S51(3)(a) in order for a lesser sentence to be imposed.

Attorney, Hayley Galgut of The Women's Legal Centre, attorneys for Ferreira, says the judgment is important not only for Anita but also for abused women generally.

Judge Howie, writing for the majority of the Supreme Court of Appeal, accepted argument by the Women's Legal Centre, that, in cases such as these, the long history of abuse constitutes 'substantial and compelling circumstances' which would allow a court to impose a lesser sentence than the life imprisonment prescribed by law.

The majority judgment, also recognised that the Constitutional rights to dignity, equality, freedom and security of the person, security in and control over one's body, privacy and life are relevant in such cases and that there is a duty on the State to respect, protect, promote and fulfill these rights.

The judgment said her decision to kill and to hire others for that purpose was explained by the expert witnesses as fully in keeping with what experience and research has shown that abused women do. 'It is something which has to be judicially evaluated not from a male perspective or an objective perspective but by the court's placing itself as far as it can in the position of the woman concerned.'

Lisa Vetten and Kailash Bhana, from The Centre for the Study of Violence and Reconciliation, who gave expert evidence on Anita's behalf say that 'abused women who kill their abusive partners do so believing that there is no other way out, that the decision to kill represents a desperate act of self-preservation aimed at preserving what little physical and psychological integrity they feel they still possess and that separation by death is the only hope they feel they have of ever escaping the abuser and being free from the abuse'.

In accepting the expert evidence, the majority stated further that 'this is not a case where the first appellant's motive was anything other than to end the relationship so as to preserve her bodily integrity.'

When deciding for purposes of sentence whether moral blameworthiness has been reduced, the majority accepted that the sole consideration is what the abused woman subjectively believed and intended.

The court also accepted that while imposing a life sentence on an abused woman who pleads guilty to murdering her abusive partner is formally equal to imposing a life sentence on another offender found guilty of murder, substantive equality requires an acute awareness of the lived reality of people's lives and an understanding of how that reality reinforces vulnerability, disadvantage and harm.

Galgut says, 'in the case of abused women this means weighing up the severity of the crime, the circumstances of abused women, the broader context of domestic violence and its effects on the substantive equality of women and the interests of the society'.

'Of significance is the Supreme Court's recognition that Anita never constituted a danger to society and that a non-custodial sentence would have been appropriate in the circumstances of her case. We hope that in cases such as Ms Ferreira's, our courts will now adopt a contextual approach which takes cognizance of the socio-economic reality and constraints faced by abused women, when imposing sentence on abused women who kill their abusive partners. While it may not excuse in law the conduct of abused women who feel forced to kill in circumstances where they reasonably believe their own lives to be at stake, it significantly affects the moral culpability of their conduct and consequently the appropriate sentence in such cases'.

 

Appendix 1:
Supreme Court decision a breakthrough for abused women -

article on Legalbrief website at

This article is attributed to The Women's Legal Centre.
Date: 2004-04-02