Sexual violence against women and children Summary notes from the Harold Wolpe Forum debate of 28 May 2002:Sexual violence against women and children Speakers: Introduction The Harold Wolpe Forum was established to promote intellectual debate in the country. Harold was an activist who combined his political struggle with his academic work. In 1974 he wrote a seminal article which attributed the conflict in South Africa to class, not race. This debate is the first time we have dealt with issues around gender. The inequalities between men and women stem from the inability of women to earn the same as their male counterparts. Unequal power relations are the result. If masculinity comes under threat, we find an upsurge of sexual violence. Cas Salojee Sexual abuse of children has been occurring for a long time. This abuse is not confined to any particular community, and the issue has not been discussed in any serious way. No legislative body is specifically tasked to look into sexual abuse of children in the family setting, in schools, or elsewhere. The Portfolio Committee on Social Development is due to table the Comprehensive Child Care Bill shortly, a bill which will help to defend the interests of children. After several horrific and publicised instances of sexual abuse of children late last year, Parliament took a resolution to hold public hearings into this matter. A task team was established with me as chairperson. We identified MPs from various parties in the portfolio committees on social development, health, justice, safety and security and correctional services. We invited organisations to make written and oral submissions, as well as children who have actually experienced sexual abuse. This call attracted some of the most significant organisations in the sector. We received thousands of pages of submissions. Our hearings were completed just two days before the parliamentary recess. We had a debate in the National Assembly, we sifted through the submissions, and we made specific recommendations which cannot yet be made public. Abuse of children is not limited to one socio-economic group. There has been a considerable increase in reporting as a result of the promotion of human rights. Sexual violence is an expression of deprivation; we must address the underlying material deprivation in order to improve the situation. We need to get to a point where every child in a community is seen to be the child of everybody in that community. There are gaps in government provision of service to abused children, and a lack of ability to respond to survivors of sexual abuse. Many places are without any services to deal with complaints. There are not enough staff members to deal with the problem, no coherent policy framework, and civil society organisations (CSOs) face financial constraints. In 1996, the Department of Social Development worked in partnership with CSOs to develop a strategy on child sexual abuse. Nothing further has happened. We on the parliamentary task team will be ready in one week to present our findings, we will send our report to the relevant departments, and Parliament’s committees will have to pressurise government to respond with legislation, policies and programmes. The process of writing up the report is about complete. We are developing a consensus and I expect the report will come out within two weeks. I cannot say what the report says until it is published. Many of the recommendations we are making come from civil society inputs. Bronwyn Pithey I was asked to look at the legal aspects of sexual offences, but it is difficult to decide where to focus it. The long version of this matter is too long for a forum like this, but the short version is too short to do justice to the topic. I am part of a South African Law Commission (SALC) investigation into revamping the legal system regarding sexual offences. It is trite to say the way the law deals with victims is hopeless. There is very little on which to pin anything real for adults or children who have been victims of sexual offences. It is important to recognise that the law is not the answer; it is but one aspect of a multidisciplinary response. ‘Multidisciplinary’ is a lot of jargon, but things must go that way, and they must involve the state as well as civil society. Cas Salojee has looked at violence at children, but there are many adults who are also victims of this type of violence. One of the necessary parts of passing legislation, however good it is, is to ensure the legislation is appropriately resourced. The Domestic Violence Act is good legislation, but its implementation has not been resourced, so no implementation has taken place. A new Child Care Bill is before Parliament, but it won’t make a difference if it is not resourced, the state must intervene on a budgetary level as well as a legislative one. The law is a very conservative mechanism, and the sexual offence law has its origins in conservative ideas. A lot of secondary victimisation takes place because of the discrimination that sexual abuse survivors go through if their cases go through the legal system. The SALC proposals are quite radical, and the response to them has been very mixed. The proposals have not been well-received in many legal circles because of the way many lawyers see the law. The life experiences of people and the legal system do not usually fit together. These proposals try to marry the experience of people and the way the law deals with it. The SALC has looked at two areas of law:
We have looked at definitions of rape. The elements of the crime in the present definition of rape involve unlawful, intentional sexual intercourse, with a woman, without her consent. Only women can be raped by men and only vaginal penetration by a penis counts as rape. To secure a conviction, the state must prove these elements beyond a reasonable doubt. The issue in the present definition is consent. The SALC is proposing to move the definition rape away from consent to one containing the following elements: Any person who intentionally and unlawfully commits and act of sexual penetration with another person, or intentionally and unlawfully compels or induces a person to commit such an act. Sexual penetration is prima facie unlawful if it is committed in circumstances which are coercive, under false pretences, or by fraudulent means, or in respect of a person who is incapable in law to appreciate the nature of an act of sexual penetration. In other words, men as well as women can be raped, and vaginal, oral or anal penetration all count as sexual penetration. The definition is moved away from the issue of consent by including intoxication by means of drugs or alcohol, or mental impairment as possible circumstances in which a person can be raped because they would not be counted as being able to appreciate what was happening to them. This changes the focus away from consent to a focus on the person involved in the coercive circumstance. This does not put the victim on the spot about whether there was consent. This has the effect of making the complainant the centre of the entire process instead of merely being a witness in a criminal trial. In the preamble to the legislation and guiding circumstances, we have consciously chosen to speak of ‘victim’, we have chosen to make it as victim-supportive as possible. A new Act when it is passed will have to be resourced adequately, and for this, CSO pressure will be necessary. The reason the state has moved to a proposal like this is because of outside pressure from civil society. Part of the SALC proposals are protective measures for vulnerable witnesses. We need intermediaries and closed circuit television to protect these witnesses, but all this needs resources. Not all courts are as well-resourced as the Wynberg Sexual Offences Court. The pressure that CSOs have been putting on the state must continue. Adv Patekile Holomisa I am speaking as a traditional leader. I was asked to speak about traditional mechanisms for dealing with domestic violence. I will talk from a paper I delivered to the ‘rural security, shared responsibility’ conference. The elders teach us that, to ensure peace and respect, the child must obey and show respect for the mother. The husband is the traditional leader of the house, and God is the ultimate leader. We must provide security through respect for tradition. Society provides a support system to enforce compliance of norms and standards. Support systems are important for dealing with domestic violence through the fear of punishment and through looking to the ancestors. Children are not to be abused in any way. They may not go hungry, they may not go unclothed, they may not go uneducated. Any child is my child, so any adult is entitled to respect from children, and all adults must protect them. There are various forums for cases of child abuse. Anybody can take a case up with the permission of the family, if this is unsuccessful, then they can take it up with the man’s family, then they can take it up with the traditional authorities. The abusers are often the family, and family members have the right to take up the matter. The court of the traditional leader has jurisdiction over cases of child abuse which are not resolved in other forums. Woman abuse is detested in traditional society; people must protect and ensure the welfare of the wife. A woman who gets married does not only marry a husband, she is married to the family, to the clan and to the tribe. Only conjugal rights are exclusive to husband. Throughout the subsistence of the marriage, the people of the family into which you have married are your blood relatives, and they have a right to intervene. A wife may not be deprived. She may take any matter up with other forums. At marriage, the woman is introduced to the ancestors. The ancestors, traditional leader and family are offended if any abuse takes place. Rape and sexual abuse detested in traditional society. Girls are treasured, and married women are symbols of rectitude. A rapist may be attacked by other women, and they may take one of his cattle and slaughter and eat it on their own. However, there is a tendency among people who live in town to become self-centred and individualistic. In a communal area, it is difficult to be so self-sufficient that you have no need for the support of your neighbours. The principle of equality in traditional society strengthens traditional support systems. The intention of traditional practices could never have been to undermine the worth of women. Traditional norms and practice should be extended to the modern and self-sufficient woman. Nikki Schaay Slide presentation: Gender-based violence – a public health issue The South African Demographic and Health Survey (1998) found that the national prevalence figure for rape is 7%, with a range of 3–12% between provinces; and that 37.7% of rape survivors who specified their relationship to the perpetrator said their school teacher or principal had raped them. Statistics South Africa (2000) found that girls aged 17 years and under constituted approximately 40% of reported rape and attempted rape victims/survivors nationally, in the period 1996–98. Force, coercion and fear is a significant part of many young people’s sexual relationships. A national youth survey conducted by LoveLife (2000) indicated that 39% of ‘sexually experienced girls’ reported that they had been forced to have sex when they did not want to and 33% of these girls reported being afraid to say ‘no’ to sex. CIET Africa (2000) noted that:
In addition, the survey noted some alarming opinions:
A recent report by the South African Human Rights Commission Report (2002) (Does the criminal justice system protect children?) estimated that one third of children were sexually abused before the age of 18 years. Human Rights Watch’s Scared at school (2001) found that:
There are national guidelines or policy on sexual violence and harassment in schools. We evaluated the positive impact of a local training programme on gender-based violence on teachers in five Mitchell’s Plain primary schools. We were interested in a particularly vulnerable group: young girls, adolescents and women. Key findings were that:
I will end with a quote from Kader Asmal, Minister of Education:
Summarised debate points Gender-based violence
Government’s obligations
Resourcing the implementation of legislation
Changing societal attitudes
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