The "Domestic Violence Discussion Paper 70 of The South African Law Commission" (SALC) and the Domestic Violence Bill
Presented by: Viviene Taylor
Drafted by: Nomboniso Gasa and Viviene Taylor, GENDER COMMISSIONERS
VIOLENCE AGAINST WOMEN IN DOMESIC RELATIONSHIPS
The Commission for Gender Equality welcomes this opportunity to be part of the hearings on Violence in Domestic Relationships. The Commission for Gender Equality has prioritized the issue of violence against women and children as a key aspect within the fundamental rights of people to safety, security and protection of all in South Africa.
Recent and ongoing research undertaken by organizations such as NICRO, Rape Crisis (Cape Town) and the Women and Human Rights Project of CLC and CALS, indicate disturbing trends of the nature, extent and context of domestic violence in South Africa. It is an understanding of this context and the inequalities inherent in the structures of society that is critical to understanding the pervasive nature of violence and its impact on the poorest, especially women in South African Society. While the Commission recognises the detailed recommendations made by the SALC, and its intention to promote a balanced position there are some concerns that bear "flagging" at this initial stage of the process. These and other issues will be the subject of more detailed analysis within the CGE, particularly by the Legal Committee and we will submit our proposals on the Domestic Violence Paper and Bill. In relation to the discussion document, and the Bill the Commission wishes to highlight the following issues for further analysis at a later date.
The Commission's approach to the recommendations is that Protection against violence is a right. This implies that violence against people, and all the evidence suggests that domestic violence is generally perpetrated against women, is a human rights and development problem. As such it entails a government obligation to recognise this and to guarantee protection against violence. The basic principle underlying this is that government should ensure adequate remedies should the right to protection and safety, particularly of women and children be violated.
THE DEFINITION OF DOMESTIC VIOLENCE
Domestic violence is usually excused, justified and even legitimized in our communities because of the way it is defined and dealt with. The definition of domestic violence should therefore be carefully considered and include psychological, emotional, verbal and economic abuse.
The definition of domestic violence is important because it could imply a notional concern for those who experience it or result in a qualitative and substantive difference in their lives. In reviewing the SALC recommendations and the Bill the Commission has been guided by the central question of, what if any difference will be made to the lives of those who suffer the worst effects of domestic violence, particularly the poorest women in townships, informal, pen-urban and rural areas? It is because of their continuous struggle to survive in a culture of fear that produces a unique structure of experience, for fear becomes embedded in a person's or family's way of life. Indeed this, it is argued (World Mental Health, Straker 1995:12) leads to continuous traumatic stress syndrome (Straker) that creates a negative environment for everyone. Therefore the way in which domestic violence is defined can help to deal with the root causes and symptoms of violence.
A definition that challenges a persistent and wide spread tolerance of violence was developed, by an Inter-American Convention on Women and Violence (1991)
This definition is put forward to promote informed discussion because it is broad enough to ensure the protection of person's in domestic relationships against a wide range of violations.
"Violence against women includes any act, omission or conduct by means of which physical, sexual or mental suffering is inflicted, directly or indirectly, through deceit, seduction, threat, harassment, coercion, or any other means, on any woman with the purpose or effect of intimidating, punishing or humiliating her or of maintaining her in sex-stereotyped roles, or of denying her human dignity, sexual self-determination, physical, mental and moral integrity or of undermining the security of her person, her self-respect or her personality, or of diminishing her physical or mental capacities"
· SILENCE ENABLES THE CONTINUATION OF VIOLENCE OR VIOLATIONS
Given the scale and nature of the problem we are trying to address, we believe that the process is as important as the outcome. We believe that in the process we have to create an environment which enables women and others to break the silence about their abuse, and that the process should be one which empowers. In so doing we will be ensuring that experiences of women will be part of the public domain and therefore breaking the public/private divide which perpetuates the silencing of women. The discussion paper and Bill do not explicitly deal with this concern.
THE NEED FOR GENDER SPECIFICITY IN THE BILL
While we agree that domestic violence can be experienced by people in same sex relationships and that men do suffer abuse, statistics and daily experience point to the fact that it is women who suffer most.
Abuse is part of a continuum of oppression of women and therefore it is important that we do not obscure the fact that women are the most affected because societal systems and their position disempowers them. The masculinity of the system, the administration of justice and other informal regulatory methods reinforces the subordinate position of women and therefore the assumption that a gender neutral Bill will cater for those who have unequal access to power and resources is flawed.
THE INTERDICT SYSTEM
No Effective Enforcement Mechanisms
Even after an interim interdict has been served on the respondent there are no mechanisms to ensure that there is an effective enforcement of the order and it is precisely because of the inability of the court to enforce the order that women and children become particularly vulnerable.
Further even when the applicant/complainant (generally a woman) manages to obtain an interim interdict, often through an alienating process, from officials authorised to grant such interdicts, case studies obtained from legal aid clinics1 show that this is the beginning of more aggressive and destructive behaviour on the part of the respondent.
We therefore recommend that all parties to domestic violence have a right to secure an interdict. We suggest that the proposals put forward by Rape Crisis, Community Law Centre and ANC Women's Caucus (Submission to the SALC) that the Bill contain provisions to the following effect be considered and that we will at a later stage make a more detailed submission on these.
a) prohibit the respondent from
1) physically abusing or threatening to physically abuse the applicant or a child in the care of the applicant;
2) sexually abusing or threatening to sexually abuse the applicant or a child in the care of the applicant in one or more of the ways referred to in section (1)(v)(b)(bb);
3) emotionally, verbally and or psychologically abusing the applicant or a child in the care of the applicant in one or more of the ways referred to in section (1)(v)(b)(bb);
4) subjecting applicant or a child in the care of the applicant to economic abuse in one or both ways referred to in section (1)(v)(b)(bb);
5) intimidating the applicant or a child in the care of the applicant;
6) harassing or stalking the applicant or a child in the care of the applicant;
7) intimidating, harassing or stalking any person known to the applicant that has the effect of intimidating or harassing the applicant;
8) damaging or threatening to damage the applicant's property or any property used by the applicant or in which the applicant has an interest;
9) entering the applicant's residence, where the respondent do not occupy the same residence;
10) preventing the applicant or a child in the care of the applicant from entering or remaining in the shared residence or a specified part of the shared residence;
11) enlisting the help of another person to commit any act contemplated in this section; and
12) committing any other act specified in the interdict that involves controlling or abusive behaviour that would threaten the health, safety or well-being of the applicant or child in the care of the applicant.
· THE ROLE OF THE SOUTH AFRICAN POLICE SERVICE (SAPS)
The SALC calls for comments on the role envisaged for the SAPS. We are of the view that presently members of the SAPS are involved in the process in that they carry out the (suspended) warrant of arrest in case the respondent breaches the interdict. We note with concern the lack of capacity within the SAPS. However, we believe that the SAPS have an important role to play. If they deliver the interdicts, they would have the knowledge of the interdicts at the exact moment they become enforceable and therefore address the problem of the police not knowing about the interdicts that are issued.
To this effect we recommend relevant provisions be incorporated in the legislation to give effect to this recommendation. We strongly recommend that legislation should make provision for mandatory training of police and other officers on how to handle domestic violence cases, its causes and effects.
· THE CROSS SECTORAL IMPLICATIONS OF THE IMPLEMENTATION OF THE BILL
We believe that this Bill on its own will not accomplish its aims. We strongly recommend that in this process of public hearings the issue of multi sectoral cooperation be addressed. The Departments that will be directly affected and which we strongly recommend be part of the process are Safety and Security, Welfare, Correctional Services, Education, Health and Finance. It is the experience of people that the approach of government tends to compartmentalised. An integrated approach will ensure that all role players are on board and therefore offer what could be best professional and humane services to the public.
TRAINING FOR SERVICE PROVIDERS
We strongly recommend that legislation should incorporate mandatory training for all court personnel and judicial officers on how to deal with domestic violence cases. These training programmes should also incorporate training on gender sensitivity to ensure equity in treatment of all parties concerned.
PUBLIC EDUCATION FOR WOMEN, MEN AND CHILDREN
A major part of the success of this Bill is going to depend on the extent to which the broader South African society knows of its existence and how to access the law should they need to. There is a need to seriously address this and come up with effective public education programmes that will reach all those concerned in South Africa.
This should include information on how to access legal protection, where to go and where to complain if people are dissatisfied with service. In addition to this there is a need for a public education and communication strategy to be developed to specifically target men.
LIMITATIONS OF THE BILL
The parameters of the Bill are limited and do not take into account the context within which violence is perpetrated, the inadequacy of extended functionaries especially the SAPs to assist in the prevention of abuse and the enforcement of measures that are provided by Bills, such as the Domestic Violence Bill
· NO RELATIONSHIP BETWEEN THE NATURE AND SEVERITY OF THE VIOLENCE AND THE SENTENCE
The Act does not make clear how the court would distinguish between the nature of the violence against women/ applicant, the severity of the violence and the appropriateness of the sentence to prevent a continued abuse. There are no guidelines to determine how the abuser would be punished in relation to the severity of the offence.
While Section 14 of the Bill stipulates that a penalty could range from a fine to a term of imprisonment for up to twelve months this could result in the discretionary powers of a subjective and unsympathetic presiding officer being brought to bear against the interests of the abused person. In order to ensure equity in the treatment of the abused the Bill should regulate the penalty in relation to the severity and nature of the offence within specific guidelines.
For instance, as the Bill stands, a husband who rapes or batters his wife to the extent that she is hospitalised can be let off by either a warning or a fine if the case is brought to a presiding officer who is not sympathetic to the position of women.
· COMPENSATION OR RESTITUTION
Nowhere in the Act or the SALC recommendations is the issue of compensation for medical expenses, loss of clothing, damage to property or any other loss suffered by the applicant or those who assist the applicant is addressed.
In addition the issue of the State's responsibility with regard to the protection and well-being of the abused should go beyond that of compensation for losses incurred during the period of conflict to ensure that in the event the partner whose income is critical to the well being of the family is imprisoned the State is able to ensure that adequate alternative provision is made for the family.
· THE ADEQUACY OF THE FAMILY ADVOCATE SYSTEM
The rights of children in a household in which violence prevails cannot be dealt with only within the existing arrangements that obtain in respect of the family advocate's system. The issues and experience of the children themselves go beyond that of custody, maintenance and access to the very core of dealing with destructive patterns of behaviour that can be replicated by children and that may be seen as normal. The Family Advocate System should therefore be reviewed to incorporate a wider range of functions and there should be supportive processes offered from within the system to promote gender justice.
· INTERNATIONAL CONVENTIONS AND DOMESTIC VIOLENCE
The Convention on the Elimination of all forms of Discrimination against Women has provided a sound basis to deal with violence in the human rights context. Importantly, implications of CEDAW include that the general prohibition of gender discrimination includes gender based violence - that is violence which is directed against a woman because she is a woman or which affects woman disproportionately. Such violence includes acts which inflict physical, mental or sexual harm or suffering, threats of such acts, coercion or other deprivations of liberty.
CEDAW also affirmed that violence which requires government action. Because the convention requires states to eliminate gender discrimination by any person, organisation or enterprise, "states may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights, or to investigate and punish acts of violence and to provide compensation". (Women & Human Rights, Tomasevski, 1993: 91).
Therefore South Africa should review the South African Law Commissions recommendations and the Bill to ensure that they provide;
1) effective legal measures and mechanisms,
2) preventive measures including public information and education programmes to change attitudes and practices concerning the roles and status of men and women and
3) protective measures which include counselling, rehabilitation and support services for those who are victims of violence or who are at risk of violence.
The CGE sees this hearing as the beginning of an on going process that will ensure the eradication of all forms of domestic violence particularly against women and children. However, we would like to see that Time Frames are set and procedures determined, and Financial allocations are made available so that the required legislation will be developed in a democratic, gender sensitive and constructive manner.
The Gender Commission believes that this process has to ensure space for the participation of women and appropriate visibility on the impact of such violence. This can occur by ensuring testimonies will not only bring forward the experiences of women but will help break the private/public divide which is an important part of the continued suffering of women and children in the private sphere. We believe that the voices of women and their testimonies are an important part of this process. We strongly believe that we need to look at women 5 experiences beyond numbers We would suggest that hearings on this Bill be held at Provincial and other levels to promote the participation of women and people who remain outside of the system of justice. We reiterate, in conclusion, that we have merely highlighted some of the issues and concerns and after further research and analysis the CGE will be able to make more informed proposals on the Bill and SALC discussion paper.