Portfolio Committee on Justice
and Constitutional Development
RAPE CRISIS CAPE TOWN TRUST
June
2006
Thank you for giving us
the opportunity to make a written submission on the Sexual Offences Bill (B0306-2006).
Rape
Crisis Cape Town Trust is a non-governmental organisation, established in 1976,
that strives to free our society from rape and all forms of oppression. We do
this by challenging power imbalances in society on which sexual violence is based.
We seek to confront and prevent sexual violence and empower survivors through
working with individuals, communities and other social structures in order to
provide accessible services. Our approach is integrated, holistic, feminist,
developmental and empowering. We operate in the Western Cape, with offices in
Khayelitsha, Manenberg and Observatory.
Our aims are to integrate through our programmes and
projects, the diverse needs of communities with which we work, to challenge
women’s oppression with a focus on rape and to change attitudes, to influence
policy and legislation within our area of work, to work in networks and
partnerships, and to empower women and men through our services, volunteer
system and employment practices.
In order to achieve these aims we provide counselling
services, implement training and development programmes and lobby and advocate
for the rights of rape survivors and women. Most of our services are offered by
specially trained voluntary lay counsellors, facilitators and activists. The services of the organization are reliant
on donor funding from international and national funding organizations.
Rape
Crisis Cape Town Trust commends the changes to the existing legislation on sexual
offences as a measure to provide more complainants of sexual offences with
access to justice and as a means to protect more South Africans from sexual
violence in the long term. The latest draft of the Sexual Offences Bill (‘the
Bill’) moves closer to reforming existing sexual offences legislation. It
begins to provide a legal framework within which sexual offences can be
adequately prosecuted and dealt with. We would like to commend the efforts to
broaden the definitions of what constitutes a sexual offence with the expanded
definitions of rape and sexual assault. A
further positive development in the Bill relates to policy directives and
instructions. The Bill says that the SAPS, Health and National
Prosecuting Authority must develop policy directives for the management of
sexual offences. It says that these
must include training on the policy directives, training on social context of
sexual offences and uniform procedures.
If these policy directives are implemented correctly, are made binding
and enforceable and accountability for non-compliance is entrenched in the new
legislation this may assist in improving survivors’ interaction with the
various role-players in the criminal justice system.
The Bill has made some significant
improvements to the law on rape and sexual violence. We however submit that it
remains lacking in a number of areas and Rape Crisis would support further
discussion and consultation with the Portfolio Committee in this regard. The
time has long since passed for the Bill to become enacted legislation. Far too
many survivors have suffered and have had their constitutionally guaranteed
rights restricted as a result of inadequate legislation. Such violations and
suffering are preventable and the enactment of new legislation is a priority
which can no longer be ignored. Well formulated and applicable legislation is a
necessity if we are to ensure that all South Africans have the right to claim,
access and enjoy their constitutionally guaranteed rights equally.
The
Bill notes that the “South African common law and statutory law do not deal
adequately, effectively and in a non-discriminatory manner with many aspects
relating to… sexual offences.” The Bill needs to not only change the types of
crimes that are called sexual offences, but it is also important that it improves
upon the procedures that are followed when sexual offences are reported, the
rules and procedures followed by the courts, the manner in which different
departments work with each other and with civil society in relation to sexual
offences, the manner in which officials and departments are held accountable
and the management of offenders.
Some of the stated objectives of the Bill are summarised as follows:
-
To provide complainants with the maximum
and least traumatising protection that the law can provide.
-
To introduce measures to assist the relevant organs of state to combat
the high incidence of rape.
-
To create new offences where necessary.
-
To protect complainants from
secondary traumatisation.
-
Ensuring a coordinated response from government departments.
-
Recognising the needs of victims through timeous, effective and
non-discriminatory investigation and prosecution.
-
Entrenching accountability of government officials.
-
Minimizing disparities in the provision of services to victims.
-
Establishing a National Sex Offender Register.
In order to ensure that the Bill
provides the maximum and least
traumatising protection and that it protects
complainants from secondary traumatisation, Rape Crisis Cape Town submits
that there are a number of areas of concern regarding the latest draft of the
Bill and its ability to achieve its stated objectives. It is our belief that the Bill in its present form does not meet
the objectives in their entirety. While we wish to engage the Committee on
further discussions in this regard we will limit this submission to a
discussion on safeguarding survivor’s rights, the rules of evidence and
procedure and psycho-social treatment.
2. Safeguarding Survivors Rights
As acknowledged in the preamble to the Bill our
constitution affords all citizens the right to equality, privacy, dignity, the
right to freedom and the right to be free from all forms of violence from
either the public or private sources. We believe that this acknowledgement
begins to inculcate a culture of understanding that survivor’s rights are as
important as those of the offender and highlight the fact that all rights are
equal as enshrined in our constitution.
Despite the fact that members of the criminal justice system are
familiar with the provisions of the Bill of Rights, it is common practice that
the constitutional rights of accused are prioritised over those of the survivor
in sexual offence cases. We believe
that it is important that the human rights of accused persons are protected by
the constitution to ensure a fair trial process however it is, in many cases,
at the expense of the survivor’s constitutional rights. Survivors are routinely subjected to further
unnecessary and unjustifiable humiliation, aggression and emotional attack by
the criminal justice processes all in the name of the rights of accused
persons.
We believe that provisions relating to the
limitation of rights as set out in section 36 of the Bill of Rights are seldom
taken into account during the process of administering justice in sexual
offence matters. The inclusion of the
guiding principles in the 2003 draft of the Bill would have assisted in the
enhancement and awareness of the necessity to consider the constitutional
rights of the survivor in all decisions relating to the processes of the trial.
The preamble and objects of latest version of the Bill are an attempt to
provide recognition to the constitutionally guaranteed rights of survivors
however Rape Crisis recommends that these rights be more strongly emphasized in
the Bill as the lack of acknowledgement of survivor’s rights plays a large role
in the secondary traumatisation experienced by many survivors.
Many of the negative experiences related by
survivors to Rape Crisis are linked to the survivor’s participation in the
criminal justice process and the many delays s/he encounters during this
process.
Participation of the Survivor in the Process
The trial is extremely important to the survivor on
a personal level and on an objective level, the processes of the criminal
justice system do not reflect this. Due
to the fact that the State takes responsibility for prosecuting the offender
and the survivor is merely seen as the chief witness in the case, the
information that is available to the survivor regarding her case and her
ability to control decisions that are made is limited. The lack of control over the trial and pre
trial process reflects the lack of control that was experienced during the
sexual offence and is a great source of unnecessary distress to the survivor.
This lack of effective inclusion of the survivor
into the trial and pre trial processes undermines the process of seeking
justice in sexual offence cases in a number of different ways:
·
When the survivor is not given a copy of her
own statement, not informed of the case number and not given the details of the
investigating officer for the case she has no control over the important
processes of the case. This can result
in a sense of being unsupported by the system.
·
When not included in and informed of the
processes and outcomes of the bail hearing critical evidence is often omitted
from that hearing and this sometimes results in the accused being granted bail
when in fact they should not be.
Intimidation of the survivor by the accused is often unreported because survivors
have insufficient information on how to respond or the response of
investigating officers is inadequate.[1] Intimidation by the accused in these cases
is successful in undermining the survivor’s ability to testify effectively at
the trial or in causing her to request that the case be withdrawn.
·
Inadequate notification of the trial date
results in survivors not being able to prepare for the psychological impact of
the process and this too results in incomplete evidence being placed before the
Court by the survivor.
·
When the survivor is excluded from the
decision to prosecute a case or not and where the reasons for that decision are
poorly communicated to the survivor it results in the perception that her
experience was insignificant or unimportant.
By including the survivor in the decision the State can ensure that all
of the facts and available evidence in the case are brought to the attention of
the prosecution before the decision is made and this will prevent the lengthy
delays of reinstating cases were an incorrect decision is made not to
prosecute. Furthermore consultation at
this stage will ensure that the survivor understands the constraints on the
legal processes and that a decision not to prosecute is not misunderstood by
the complainant as a Statement that the accused is innocent. The decision not to prosecute a case often
creates this same impression in the community, which creates a false sense of
security regarding the threat that that perpetrator poses to that community and
also results in further victimisation of the survivor, through accusations that
she is lying about the incident.
·
In the majority of cases the prosecution fails
to consult with the survivor prior to the trial. The problems relating to this are numerous and include that the
prosecution is inadequately prepared for the case and pertinent details of the
offence may be omitted from the survivor’s testimony. This increases the high likelihood of a miscarriage of justice in
the matter.
Timeframes
Generally, cases within our criminal justice system
take a long time to go to trial. The
extensive number of cases awaiting trial in the system and postponement of
cases are commonly understood as core reasons for this situation. The Department of Justice’s initiatives to
increase court hours have steadily improved the situation. We are pleased to report that initiatives at
certain Sexual Offence Courts within the Western Cape have impacted positively
on the length of time taken for sexual offence cases to go to trial and to be
finalised. Unfortunately this must be
qualified by stating that this improvement is not yet visible across the board
and the improved timeframes are not ideal.
Besides the long wait for the first trial date, it
is extremely common for these matters to be postponed on a number of
occasions. The constitutional right of
the accused to legal representation is one of the primary reasons given in
order to postpone the trial; other reasons given by the defence include illness
and injury (to the accused or the defence attorney). Of course cases are also postponed for reasons relating to other
court personnel or the survivor. The effect of the postponements on the survivor
is that each time that the survivor is expected to appear in court the memories
and feelings of fear, helplessness and loss related to the sexual violation
return; this impacts negatively on her ability to cope with her life generally
in the time surrounding this appearance.
Where this occurs repeatedly, the survivor may feel defeated and further
traumatised by the criminal justice process before the trial commences as a
result may request that the case be withdrawn, because it is impairing her day
to day functioning.
The effect of the long periods of time that pass
before the survivor testifies is that the passage of time and the psychological
process of coping with the experience naturally compromise the survivor’s
memory of the event. This weakens her
evidence at trial.
For these reasons postponements are is often used as
a tactic by the defence to secure an acquittal, quoting their right to legal
representation and other rights related to a fair trial process. Conversely the failure of a survivor to
appear on a single date often results in the case being struck off the role
(without any consultation), irrespective of the reasons for this failure to
appear which most commonly includes not being notified of the date by the
investigating officer. This results in
further delays in getting the case reinstated, if the survivor is aware that
she can make a request to have the case reinstated.
Recommendation
Rape Crisis recommends that the constitutionally
guaranteed rights of the survivor are clearly recognised and strongly
emphasized in the Bill. This should be done by reinstating the guiding
principles that were in the previous version of the Bill or by providing a
clear statement in the Bill that survivors/victims rights will be granted the
same consideration as those of the accused.
3. Rules of Evidence and Procedure
The Bill is conservative in improving the rules of
evidence and procedure in sexual offences cases. These rules are often the
reason that cases end in an acquittal and they also contribute to the secondary
victimisation of complainants. The rules are based on gender stereotypes, such
as the notion that women lie about sexual offences, and a lack of understanding
of the impact of rape on a survivor.
A positive development in this version of the Bill
is that if a
person does not immediately tell someone else that they have been raped it
cannot be used against them, which has not been the case in the past and
represents a change to the ‘hue and cry’ rule of evidence.
Currently, provisions to
protect survivors from being questioned about their previous sexual history in
Section 227 of the CPA are inadequate. Courts often don’t understand that
previous sexual behaviour has nothing to do with rape and use previous sexual
history against complainants. Although questioning about previous sexual history is
limited further in the Bill and we commend this limitation, Rape Crisis feels
that previous sexual history should be excluded altogether as it is not
relevant. It is argued that the possibility of the survivor’s prior sexual
history being admissible as evidence suggests that in certain circumstances, due
to the sexual history of the survivor, the incident of rape would be less of a
serious crime. This implication is
unacceptable and suggests that the right to be free from all forms of violence
(Constitution, Section 12) might be limitable for the survivor of such violence
in light of her or his previous sexual behaviour
The experience of going to
court and testifying in a sexual offence case is often profoundly distressing
for survivors. The trial is often emotionally unsafe for the survivor because
of the psychological impact of the rape, the obligation to recount the events
of the attack in detail, the frightening presence of the accused and the fact
that the adversarial legal system means that the survivor has to undergo
traumatic cross examination by the defence.
The above factors mean that,
in many cases, the full details of the incident are not brought to the court’s
attention. This can result in a miscarriage of justice because the court cannot
base its decision on all the relevant facts. Many survivors report a deep sense
of betrayal due to the fact that the courts added to the trauma of the rape,
that they are not safe during and after the trial, and that they had to defend
themselves in order to be believed by the court.
Currently, the Criminal
Procedure Act 51 of 1977 (CPA) provides certain measures to mitigate the
unsuitability of the court environment for sexual offence survivors. These
include the following:
·
Section 153(3A) says
that the public can be ordered to leave the courtroom while the survivor is
testifying. The survivor will still need to speak in front of the accused and
the other court role-players.
·
Section 154 prevents
the media from publishing any details that would identify the survivor.
·
Section 158 says that a
Closed Circuit Television (CCTV) system can be set up for a survivor,
regardless of age, where s/he can give evidence in a separate room linked to
the court via the CCTV system.
·
Section 170(A) says
that for survivors under the age of 18, an “intermediary system” can be used
whereby the child is in a separate room with a court intermediary and they are
linked to the court via the CCTV system. The child is questioned by the
intermediary and does not hear the court proceedings directly.
However, for the latter two
measures to be used the court has to decide that the survivor will suffer undue
trauma if s/he testifies in open court. This requirement often leads to a
“trial within a trial”.
It is argued that these
provisions undermine the accused’s Constitutional right to a fair trial. This
is not the case as the accused is still able to see; question and cross examine
his accuser when using these measures. The constitutional rights of survivors
to dignity, privacy, not to be treated in a cruel, inhuman or degrading way and
to psychological integrity are not sufficiently weighed by courts in deciding
on utilising these measures. So while members of the judiciary routinely claim
that no harm is done to the survivor through testifying in court, survivors,
counsellors and psychologists continue to report that not only causes harm but
also undermines the quality of evidence that is rendered to the court by the survivor.
These protective measures
make a significant difference in the levels of trauma experienced by survivors
while testifying and in the quality of evidence placed before the court by
children and traumatised witnesses. However there are problems with the
implementation of all these provisions. As some of them are utilised routinely
by certain courts but not by others and many survivors have no access to these
measures at all.
The South African Law Reform
Commission (SALRC) attempted to address the many aspects of court procedure
that have a negative impact on the evidence of sexual offence complainants in
court. Some of these have been retained in this version of the Bill and others
have been changed or removed.
Recommendations
·
Survivors in sexual
offence matters were to be declared vulnerable witnesses to improve access to
protective measures. The prosecutor would have a duty to inform the witness of
the protective measure available and the court was required to use at least one
of four protective measures. Despite
strong support for this provision, it has been removed from the latest version
of the Bill. This provision must be reinstated with amendments to ensure that
witnesses have access to at least two of the four protective measures listed.
·
Many adult survivors
find the experience of facing the accused and testifying about their experience
in court extremely traumatic, which results in a poor standard of evidence
being placed before the court. Most courts fail to appreciate this impact
on adult survivors. The SALRC recommended that the CCTV system (Section 158 of
the CPA), which is currently underutilised, be made more accessible to those
adult survivors whose testimony would benefit from the use of this protective
measure. This provision has been
removed from the latest draft version of the Bill and must be reinstated so
that adult survivors may access this protection.
· At present, if the accused does not have defence
council he may cross examine the survivor directly in court. This undermines
the dignity and psychological safety of the survivor and has a negative
influence on her/his testimony. This form of intimidation of the survivor by
the accused is silencing of the survivor and denies the court the benefit of
the whole truth. It was proposed that section 166 of the CPA, which deals with
cross examination, be amended so that an accused cannot cross examine the survivor
directly but instead would need to pose his questions through the court. This has been removed from the latest draft
of the Bill and must be reinstated.
· Provision was made for witnesses to have support
persons in court with them: a survivor could be seated next to a trusted person
while s/he testified. The intention was to lessen the emotional trauma to the
witness of testifying in court (for example, a young child could be seated on
her/his mother’s lap or a counsellor could be seated next to the survivor),
research indicates that this has a significant impact on the ability of child
witnesses to recount the details of their experience. This clause was removed because it was believed that it would result in
an increase in costs in terms of paying witness fees to support persons.
However, these fees are already paid to parents and caretakers who bring their
children to court to testify. Support persons are already attending court with
adult survivors and providing some support, regardless of whether they are paid
or not, hence this provision must be reconsidered and reinstated to reduce the
negative impact of the court procedure on the evidence of the survivor.
·
A provision was
recommended in which all child witnesses would automatically qualify for the
intermediary system. This has been
removed from the Bill and must be reinstated. However, an amendment to
section 170 of the CPA has been made that gives witnesses over the age of 18
but who have a mental and/or emotional age of under 18, access to this system. Rape
Crisis supports this provision.
· Rules of evidence require that caution be applied to
the testimony of certain witnesses because they are considered to be unreliable
(i.e. single witnesses, children and sexual offence complainants). It is acknowledged
that this discriminates against sexual offence complainants and its use in rape
cases has been limited by the Appeals Court. However, this cautionary rule may
still be used. The SALRC recommended that the application of all cautionary
rules, with the exception of the rule relating to single witnesses, be
discontinued. They maintained that the normal process of the court establishing
the truthfulness of any witness is sufficient. This amendment was removed in
the latest Bill. This amendment
must be reinstated.
4. Psycho-Social Treatment
The latest version of the Bill does not include any
provisions relating to psychological support for survivors of sexual offences. Sexual
violence causes both physical and psychological trauma. While the physical trauma
is dealt with to a certain degree by medical interventions after the incident
of rape, the psychological trauma, the trauma that is not always initially
visible often remains forgotten and untreated.
Removing the clause that provided for psycho-social
support is dismissive of the severe psychological trauma suffered by a survivor
as a result of sexual violence. Our
society constantly minimises the effects of sexual violation on the survivor
and many survivors live for years with the after-effects of such an experience
and although they are able to cope, their functioning can be severely impaired
by the experience. Survivors commonly
experience a range of distressing symptoms (see Annexure B for more detail on
Rape Trauma Syndrome). Suffice to say
the effects of a sexual assault can be so pervasive that they permeate
everything: the survivor’s sense of
self, intimate relationships, sexuality, parenting, working life and even his
or her sanity. It certainly affects the
survivor’s ability to deal with the criminal justice system and take up her
legal rights and responsibilities.
Counselling benefits survivors in a number of ways:
·
It enables survivors to speak about something unspeakable and to find
words to describe what happened to them
·
It gives them reassurance that one day they can heal from the experience
·
It enables the survivor to deal with feelings that if not dealt with
might negatively affect his or her daily functioning and effectiveness and
relationships
·
It empowers survivors to take action towards bringing the perpetrator to
justice
·
It informs survivors of their rights and legal responsibilities
·
It informs them of the impact of the rape on their health and enables
them to get the appropriate care thus preventing potential pregnancy and
disease and their consequences
·
It gives them access to other vital services they may need
·
It prevents further harm, particularly to the survivor’s mental health
·
It gives survivors a sense that they are not alone
·
It can prevent suicide, drug abuse and other serious mental illnesses
from developing and bringing further harm to the survivor
·
It can help family members and other people close to the survivor who
are affected by what happened
·
It can support the survivor through further traumatic events such as
reporting to the police and going to trial
There are not enough organisations providing
affordable and accessible counselling services to survivors of sexual violence
in South Africa at this time, high levels of unemployment, low wages and poor
socio-economic conditions mean that few survivors are able to afford those
services. Services tend to be weighted
in favour of urban areas exacerbating the dire situation for survivors of
sexual violence in rural areas. The
majority of survivors in South Africa are left without the option of
counselling. Hence they are forced to deal with the incident of rape or sexual
violence alone or with limited family support as the criminal justice system is
in no position at this time to offer justice or healing to the majority of survivors
of these crimes. The sense of
hopelessness that many experience in the face of the perpetrator and the often
overwhelmingly negative response of the State and other sectors of society can
be addressed to some extent through counselling processes.
Counselling, by offering advice, support and
information, endeavours to assist survivors towards regaining some sense of
control over their lives after a profoundly damaging experience and to assist
survivors in coping with and adapting to a fundamentally life changing
experience.
Recommendations:
·
Provision must be made in the Bill for survivors
of sexual offences to have access to State funded counselling and psychological
care in order to address the effects of the sexual violence on that individual.
·
The State should bear the cost of such support
to ensure that the availability of services does not discrimination against the
poor.
·
Policies must allow for the provision of such
services regardless of whether a report is made.
·
The Department of Social Development should actively support
community-led crisis support programmes at police stations and hospitals by
providing project management, supervision and a stipend for volunteers.
·
State partnerships with
NGOs who provide short- and medium-term counselling to victims/survivors must
be established and enhanced, with the State making financial contributions to
ensure services can be extended.
·
Through the Departments
of Health and Social Development, the State must provide for the long-term
psychological counselling of those victims/survivors who would benefit from
this.
·
Consideration should be
given to providing additional funding for victim counselling through the
levying of fines on perpetrators of sexual offences in addition to sentencing.
5. Conclusion
We
welcome the release of the 2006 draft of the Sexual Offences Bill and commend
the proposed amendments to current sexual offences legislation in an attempt to
provide a comprehensive legal framework pertaining to sexual offences.
However
while the call for the enactment of new sexual offences legislation remains an
urgent one, there is still a lot of work to be done to ensure that the new
legislation is the best that it can possibly be. We need to ensure that
survivors of rape and sexual violence no longer endure the discriminatory
treatment that they have endured through the act of rape itself, the manner in
which existing legislation has categorised and treated them and the way in
which the criminal justice system and society blames, isolates, humiliates and
ignores them.
It is our sincere hope that the recommendations made
will prove useful and that they be carried forward and given due consideration
in order to ensure ‘the maximum and least
traumatising protection’ for survivors and their protection ‘from secondary traumatisation.’
for survivors
Meaka
Biggs
Advocacy
Co-ordinator
Rape
Crisis Cape Town Trust
Cape
Town
20
June 2006
083
383 0206
ANNEXURE A
Contextualising Rape in South Africa – Rape Crisis
Cape Town Trust
Rape is a crime of violence that is committed through
a sexual act. It is an expression of dominance and control by one person over
another, which is humiliating, invasive and dehumanising. It is a crime that is not comparable to any
other violent crime, as it violates not only physical safety, but psychological
and sexual integrity. Rape is any act of a sexual nature which has been forced
onto another person and where sexual behaviour is used as a weapon of
domination. It is a violent, traumatic and life changing experience that can
happen to anyone, where threats and manipulation are often the method used to
secure submission instead of physical violence alone. The more we work with
survivors the more we realise that rape happens almost anywhere, with anyone at
anytime. We tend to think that it only happens to a certain type of person, but
the reality of the situation is that it is happening in our families, in our
homes, in our neighbourhoods and communities, in our places of worship,
education and recreation. And it is happening to our mothers, sisters, wives,
daughters, girlfriends, colleagues, friends and sons.
Rape often relies on an existing relationship to
ensure silence and takes many different forms from date, acquaintance and
marital rape to child sexual abuse, sexual exploitation and gang rape. Stranger
rape is what many people still consider to be ‘real rape’ and the type of rape
that society seems to offer the most support to survivors for and the most
prevention messages about. What is meant by this is that the idea of a woman
walking in a parking lot and being attacked by a stranger who grabs her and
violently rapes her, leaving physical injuries and scars will receive our
sympathy and support. It is from this situation that we try and guard our loved
ones telling them not to walk alone at night, not to accept lifts from
strangers and not to open the door unless they know who is on the other side.
The problem with this is that most rape and sexual violence does not happen in
this manner and the threat is more likely to be from within the home or from
someone that we are already acquainted with than someone unknown. Our
experience shows us that society is more likely to believe and support the
‘real rape’ scenario just discussed rather than the instance where a woman is
raped after going on a date with a man, having a glass of wine with him and
then inviting him in for coffee. In this instance we question, blame and say
that she brought it on herself and are not as quick to support her, yet the
psychological, emotional and physical impact on the survivor in both instances
is immense. The reaction of those who are meant to support her, families,
communities and society play a major role in the healing process.
Statistics released by the South African Police Service
on rape for the period 2004/2005 were 55 114 reported cases of rape, which is
approximately a 4% increase on the 2003/2004 statistics. Due to the narrow
definition of rape in our law one needs to include the cases of indecent
assault reported over the same period, being 10 123 to get a clearer
picture of what the reported rape
statistics are in South Africa. Research estimates that anywhere between 1 in 5
and 1 in 20 rapes go unreported, which is an indication that the number of
survivors of rape and sexual violence are far larger than the reported figures.
Research also indicates that the majority of survivors of rape and sexual
violence are women and children. While men are not as vulnerable to rape as
women, rape and sexual violence against men is on the increase, however the
vulnerability of women and children presently outweighs that of men.
There are a number of factors which influence the
reporting of rape and sexual violence cases. They include:
•
The nature of the incident, violent sexual assault, gang rape and sexual
assault perpetrated by strangers are more likely to be reported if they occur,
than child sexual abuse, rape within the family, marital or acquaintance rape.
•
Many rapes are not reported to the police or in surveys as a result of shame,
humiliation and self blame by the survivor.
•
Unwanted sex submitted to as a result of threats and various forms of
emotional manipulation are poorly reported.
•
Family and/or community members may pressurise the survivor to maintain
silence.
•
The belief of some survivors that the criminal justice system will not
be able to assist them.
•
Poor responses by some members of the criminal justice system to sexual
offences. This relates to the treatment survivors receive from the officials
working within the system itself and the services that are rendered. Often due
to the nature of such interactions survivors are further traumatised (a concept
known as secondary victimisation).
•
Weak implementation of policies and procedures of the criminal justice
system.
•
Intimidation or ongoing control of the victim by the perpetrator.
•
The social or community status of the perpetrator in relation to the
social status of the victim.
The
perpetrators of rape are mainly the ‘normal’ men whom we interact with in our
daily lives. Women perpetrators are in the extreme minority, as are mentally
ill perpetrators. Juvenile perpetrators are on the increase (up to 20% of boys
under 18 surveyed by CIET Africa in 2002 had perpetrated coercive sex with
other children) and a small number of very young children (under 10 years old)
have been perpetrators of rape. They are often victims as well as perpetrators,
due to their own experiences of abuse or confusion around sexual development.
Rape
seldom happens for sexual pleasure alone, there are a number of answers to the
question; “Why rape?” and much debate regarding a single conclusive answer.
Some of the answers that we take cognisance of at Rape Crisis are that rape is
a form of exerting control, power and ownership over a person. It can be done
to punish, to be cruel or to gain social status and power. Some perpetrators
are seeking emotional intimacy or companionship, while other perpetrators rape
because certain forms of rape are seen as socially acceptable (marital rape).
Social and gender norms and constructions providing men with a sense of
entitlement to women’s bodies are another influencing factor when looking for
reasons why rape happens.
The
factors that cause and enable rape and sexual violence are generally poorly
understood in our society, the impact of this is that many existing strategies
address peripheral issues or focus only on isolated aspects of the problem,
these strategies then have limited impact on the perpetration of sexual
offences. Some of the factors increasing the risk of being a perpetrator are:
•
Societal norms supportive of male superiority and sexual entitlement.
•
Social tolerance of certain forms of sexual assault.
•
High levels of violence in society, and/or repeated exposure to violence
results in the perception that violence is ‘normal’.
•
Social belief that women are responsible for controlling their sexuality
and behaving modestly.
•
Poor or no sanctions against sexual abusers.
•
Poverty and unemployment resulting in a crisis of the male identity.
•
Use of alcohol and drugs.
•
Antisocial and hostile behaviour towards women.
•
Association with sexually aggressive peers and peer pressure.
•
Coming from a family context where there was physical abuse and violence
including sexual abuse. Hence the perpetrator may have a history of emotional
abuse and neglect in childhood.
•
Lack of supportive adult relationships.
• Low self esteem and/or a lack of empathy for others.
•
High population density and crowded living conditions increase
environmental stressors and triggers.
•
Perpetrators in positions of authority over potential victims.
•
Environmental opportunity and access to potential victims. For example
the home, shebeens and bars, school, religious institutions, sports facilities
to name a few.
•
Being young.
•
Previously unexamined experiences of child sexual abuse or rape.
•
History of emotional abuse and neglect.
•
Low self esteem.
•
Poor family support systems increasing isolation and vulnerability.
•
Children who are left unsupervised.
•
Using alcohol and drugs.
•
Mental health problems or having a disability (mental or physical).
•
Poverty as it increases vulnerability through exposure to potential
perpetrators and provides opportunity to perpetrators (public transport as opposed
to own transport, walking long distances in areas of low population density,
access to home security systems etc.)
•
Poverty as it influences access to assistance and services.
ANNEXURE B
RAPE TRAUMA SYNDROME
Rape
Trauma Syndrome may refer to reactions which result from sexual behaviour which
falls outside of the legal definition of rape.
Rape
is the most fundamental violation that anyone can experience and the trauma
that results is seldom properly acknowledged.
Sexual assault is primarily an act of domination and taking control of
the victim, by using sexual activity the rapist achieves the most profound
violation possible, it is as much a destruction of “self” as it is an act of
physical invasion.
Very
often after a rape has happened, people will say things such as “it’s over now,
you must get on with the rest of your life”, or they will not understand why
six months after the rape the survivor is still suffering from the effects of
the rape. This is because rape only
begins with the incident. During this
time every part of the victim is concentrated on surviving. After the assault, the struggle to
comprehend what has happened begins. Its meaning overwhelms the survivor and
s/he has got to find the way to return to her life, her body and her self. The
battle of understanding this severe emotional trauma and the survivor’s will to
find her/his sense of self, self control and safety results in various
immediate and long term effects.
Rape
Trauma Syndrome[2] (RTS) is the
medical term given to the response that victims have to rape, it is a specific
type of Post Traumatic Stress Response.
It is important to know that RTS is a normal, healthy and predictable
response to a rape of a psychologically healthy person.
It
has been observed that almost all rape victims suffer severe and long lasting
emotional trauma. The most significant
factors that cause this appear to be a combination of the following features of
the assault experience.
a)
It is sudden
b)
It is perceived as life threatening
c)
Its apparent purpose is to violate the victim’s physical integrity
and/or render her helpless.
d)
The victim is forced to participate in the crime.
e)
The victim cannot prevent the assault or control the assailant, her
normal coping strategies have failed.
Thus she becomes a victim of someone else’s rage and aggression.
The
trauma is usually compounded by the myths, prejudice and stigma associated with
rape and sexual offences. Victims who
have internalised these myths have to fight feelings of guilt and shame. The burden can be overwhelming especially if
the people they come into contact with reinforce those myths and prejudices.
PHYSICAL SYMPTOMS OF RAPE
TRAUMA SYNDROME
·
Immediately after a rape, victims often experience shock. They are likely to feel cold, faint, become
mentally confused (disorientated), tremble, feel nauseous and sometimes vomit.
·
Pregnancy.
·
Gynaecological problems.
Irregular, heavier and/or painful periods. Vaginal discharges, bladder
infections. Sexually transmitted
diseases.
·
Bleeding and/or infections from tears or cuts in the vagina or rectum.
·
A soreness of the body. There
may also be bruising, grazes, cuts etc.
·
Nausea and/or vomiting.
·
Throat irritations and/or soreness due to forced oral sex.
·
Tension headaches.
·
Pain in the lower back and/or in the stomach.
·
Sleep disturbances. This may be
difficulty in sleeping or feeling exhausted and needing to sleep more than
usual.
·
Eating disturbances. This may be
not eating or eating less or needing to eat more than usual.
BEHAVIOURAL SYMPTOMS OF
RAPE TRAUMA SYNDROME
·
Crying more than usual.
·
Difficulty concentrating.
·
Being restless, agitated and unable to relax or feeling listless and
unmotivated.
·
Not wanting to socialise or see anybody or socialising more than usual,
so as to fill up every minute of the day.
·
Not wanting to be alone.
·
Stuttering or stammering more than usual.
·
Avoiding anything that reminds the survivor of the rape.
·
Being more easily frightened or startled than usual.
·
Being very alert and watchful.
·
Becoming easily upset by small things.
·
Relationship problems, with family, friends, lovers and spouses.
Irritability, withdrawal and dependence are factors which effect this.
·
Fear of sex, loss of interest in sex or loss of sexual pleasure.
·
Changes in lifestyle.
·
Increased substance abuse.
·
Increased washing or bathing.
·
Behaving as if the rape didn’t occur, trying to live life as it was
before the rape, this is called denial.
PSYCHOLOGICAL SYMPTOMS OF
RAPE TRAUMA SYNDROME
·
Increased fear and anxiety.
·
Self-blame and guilt.
·
Helplessness, no longer feeling in control of her life.
·
Humiliation and shame.
·
Lowering of her self esteem, feeling dirty.
·
Anger
·
Feeling alone and that no one understands.
·
Losing hope in the future.
·
Emotional numbness.
·
Confusion
·
Loss of memory.
·
Constantly thinking about the rape.
·
Having flashbacks to the rape, feeling like it is happening again.
·
Nightmares
·
Depression.
·
Becoming suicidal.
INFLUENCING FACTORS TO THE EXTENT OF RTS EXPERIENCED.
There
are many influences on the manner in which each individual survivor of sexual
violence copes and on the length of time the symptoms may be present. These factors include:
·
The strength of the support systems of the survivor. The relationship
with family members or friends or access to counselling or professional support
decreases the burden on the survivor and the sense of isolation.
·
The existing relationship with the offender. Where the offender was previously known, liked and/or trusted
healing is more complicated. The
survivor may be torn by a sense of loyalty to family members, common friends
and sometimes even the perpetrator.
S/he may perceive that her/his own inability to assess the potential
danger of the perpetrator as a betrayal of her/himself and may struggle to
accept her/his judgement of the people around her.
·
The degree of the violence used in the attack. Violence is traumatic in and of itself, when sexual violence is
accompanied by violence it increases the trauma experienced, mortal fear is
heightened.
·
Social and cultural influences.
Where family, community or culture strongly condemns gender and sexual
violence, healing is assisted.
·
Previous experience of stress and trauma and the ability to cope with
stress. Coping skills are learned from
a young age and having already learnt vital coping skills at the time of a
trauma means that these coping mechanisms do not first have to be
developed. Having experienced stress
and trauma and successfully overcome it results in knowledge of personal strength
and ability to overcome trauma. Alternatively, unresolved experiences prior to the attack may lead
to a sense of being overwhelmed and make recovery more difficult.
·
Attitude of those contacted immediately after the assault. Immediately after an experience of sexual
violence, which is defined as a life changing event, the survivor is extremely
sensitive to the attitudes of those with whom she has contact. Misguided blaming or questioning of the
survivor for or about the attack can result in her internalising this, leading
to further self blame and prolonged trauma.
Because
the effect of rape is subjective, it is important that we recognise that all
survivors will not necessarily respond in the same way. While most survivors will experience some of
these symptoms, some may only experience a few. Symptoms may not always be visible, we must, therefore be
cautious not to judge whether someone has been sexually violated by the number
of symptoms that they display.
No
matter what the survivor’s response pattern is, if a survivor is to heal
her/himself of the pain and the trauma of a sexual violation s/he needs to
allow her/himself to express the associated feelings and this can only happen
in an atmosphere of support rather than blame. The symptoms of RTS may impact
directly on a sexual offence case in a number of ways. ‘irrational’ behaviour
by the complainant may be explained by understanding the symptoms of Rape
Trauma Syndrome and its effects.
Ø
Shock: When reporting the incident
to the police the survivor may often be in a state of shock. Being disorientated at this time could lead
to incorrect details being taken down in the statement. At a later stage this may be used against
the survivor in court. It is therefore
advisable that the full statement not be taken in the hours immediately after
the event, but rather after s/he has had an opportunity to rest. It is still important to take the full
statement within 24 to 36 hours afterwards.
Ø
Fear of the perpetrator: During the act of sexual violence, the perpetrator is
in a position of complete control over the victim. The fact that he succeeded
in violating her means that when faced with him once again in the future, the
sense of powerlessness in the face of the perpetrator often returns. S/he has no guarantee that s/he will be able
to avoid a similar incident should he make any such attempt. It is thus easy for the perpetrator to
intimidate the victim. He may do this
directly, by making a threat, or indirectly by following her, staring
malevolently at her or sending friends or family members to make the threat on
his behalf. The survival instincts of
the victim may well cause her to refuse to co-operate further in the legal
processes as a result of these threats or intimidation. Bear in mind that this fear is not
irrational. It is based on an all too
real experience of the victim. It is
important to consider these aspects during the bail hearing.
When
the case goes to trial it may be the first time that the victim is forced to be
in close proximity to the accused. She
may experience an extremely strong fear reaction to this. We may see this as being irrational, as one
would assume the court environment to be a safe one. Unfortunately this is not true from the perspective of the
victim. Where this reaction happens,
the victim may experience extreme difficulty in presenting herself to the court
in a composed and coherent manner. For
this reason it is suggested that the court consider the use of closed circuit
television when the complainant is to give her evidence to the court. Where this is not possible application
should be made for her to give her testimony In Camera, to limit the number of
accused’s supporters in court. Consider
other methods of minimising the impact of facing the accused again on the
evidence of the complainant.
It
is also important for the prosecutor or the investigating officer to ensure
that the complainant has as little contact with the accused as possible outside
the court room while waiting for the trial to start. A separate waiting area should be used, if this is not available,
the prosecutor’s office is an option.
Contact or even seeing the accused at this time is a profoundly
disturbing experience for the survivor, creative solutions to this should be
sought to avoid this at all costs.
Ø
Memory loss: One way of coping with
trauma is to subconsciously block out the entire memory or certain details of
the event. This could mean that when
the complainant is in court s/he may have difficulty in describing the more painful
details of the experience. This poor
recollection may be construed as proof that s/he has fabricated the experience
but this is not necessarily the case.
This can also be one of the causes for discrepancies between the
statement made by the complainant immediately after the event and her testimony
in court at a later stage. In such a
situation, pre trial counselling may be required for the complainant.
Ø
Shame: At the police station the
complainant must recount the humiliating details of what occurred in the
presence of strangers, including the charge office personnel, the investigating
officer and anyone else who happens to be around at the time. In court the s/he must recount the
humiliating details of what occurred in the presence, not only of the court
officials, defence attorney and presiding officer, but also the
perpetrator.
The
embarrassment and shame s/he may feel regarding the attack may cause her/him to
be reluctant to expose certain details (e.g. forced oral or anal
penetration). Vital evidence may then
be left out of the statement with the result that medical practitioner does not
collect all of the appropriate evidence and the information is not recorded in
the J88. This would clearly have
negative impact on the testimony of the complainant in court. This can be dealt with by specifically
asking if any other sexual acts were performed. This must be done in a sensitive manner and it must be explained
why the question is being asked.
Many
survivors describe the experience of giving evidence in court and cross-examination
as being exceptionally disturbing and painful.
It is, therefore, crucial that the survivor be treated gently and with
respect while or testifying.
Ø
Denial: In an effort to cope with
the enormous impact that sexual violence might have on her/his life, the
survivor may need to distance her/him self from the depth of feeling associated
with the incident this can result in a seemingly ‘dry’ recounting of the
events. This should not necessarily by
interpreted to mean that the incident did not have severe impact on the life of
the survivor, questions regarding the impact of the incident may assist the
court to assess this.
[1] Combrinck, H and
Skepu, Z (2003) Bail in Sexual Assault Cases: Victims’ Experiences. Gender
Project Community Law Centre, University of the Western Cape
[2] Wolbert Burgess, Ann and Lytle Holmstrom, Lynda “RAPE TRAUMA
SYNDROME” Chapter 15 “FORCIBLE RAPE: The Crime, The Victim, and the
offender” Duncan Chappel, Robley Geis, and Gilber Geis, Editors. Columbia University Press, New York 1977.