Sexual violence against women and children

Cas Salojee (Chairperson: Portfolio Committee on Social Development), Bronwyn Pithey (State Advocate Sexual Offences and Community Affairs, National Directorate of Public Prosecutions), Nikki Schaay (School of Public Health, University of the Western Cape) and Adv Patekile Holomisa (Chairperson: Portfolio Committee on Land and Agriculture)

Harold Wolpe Memorial Trust forum meeting

Cape Town, 28 May 2002

 

SUMMARY NOTES

 

 

ANNMARIE WOLPE

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:

       The substantive arena of law.

       The process and procedure 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:

       20% of young women surveyed reported a history of sexual abuse by the age of 18 years

       1 in every 3 school girls had experienced sexual harassment at school

In addition, the survey noted some alarming opinions:

       32% of respondents thought that forcing sex with someone you know is never sexual violence

       10% thought that gang rape or ‘jack-rolling’ is cool.

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:

       sexual abuse and harassment of girls by both teachers and other students is widespread

       girls were raped in school toilets, in empty classrooms and hallways, and in hostels and dormitories

       girls were fondled, subjected to aggressive sexual advances, and verbally degraded at school

       school officials often concealed sexual violence and delayed disciplinary action against the perpetrator

       there is significant confusion over responsibility for resolving problems and considerable breaks in communication between public officials.

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:

       Prior to the training, only 30% of teachers felt that, compared to parents or the broader community, schools could play a meaningful role in addressing gender-based violence.

       85% of the teachers felt that gender-based violence was a significant problem in their schools.

       95% of the teachers felt that Grade 5 was an appropriate age in which to begin addressing the issue of gender-based violence.

       The percentage of teachers who felt confident to address incidents of gender-based violence in their school increased from 26% to 74% following the training intervention.

       In relation to their own experiences of gender-base violence, 47% of the female teachers reported experiencing physical abuse at the hands of an intimate partner, 31% sexual abuse, and 69% psychological abuse.

       None of the teachers who committed to training their colleagues – or sharing the outline of their programme in a staff meeting – were able to do so.

       Only 6 out of the 35 teachers trained were able to apply what they had learnt in the training programme to the classroom.

       Trying to find a ‘champion’ for this project within the Department of Education is a bit like trying to find a needle in a haystack

I will end with a quote from Kader Asmal, Minister of Education:

“There must be an end to the practice of male teachers demanding sex with schoolgirls or female teachers. It shows a selfish disrespect for the rights and dignity of women and young girls. Having sex with learners betrays the trust of the community. It is also against the law. It is a disciplinary offence. Tragically, nowadays, it is spreading HIV/AIDS and bringing misery and grief to these precious young people and their families.”

 

DISCUSSION

Gender-based violence

       Violence against women and some men has been going on a long time, but why has it only become an issue now? Years ago Trevor Huddlestone said a headmaster had been murdered for trying to stop two boys committing a rape, but it did not register with me of violence of a particular type.

       Because there has been a lot of publicity in recent years, we make assumptions about how this kind of violence has changed or grown and why it is happening. Girls between 15 and 19 are the most vulnerable to rape, they are very prone to HIV transmission, and the chances that they will be murdered after being raped is very high. The context comes in part from our history – the dehumanisation that went with apartheid and colonialism. Cultural and traditional values have a bedrock in patriarchy; these prescribe ‘fit and proper roles’ for women and children. Child abuse and the rape of adults are the logical conclusion of the way we raise our children, what society thinks, and what we do every day. It is about gender stereotyping.

       I did research on child prostitution in the Western Cape. These children were drunk, drugged and beaten. Prostitution is not seen as violence against women. As researchers we were responsible for reporting this, but there was nobody to take it to.

Government’s obligations

       The UN Charter which has been ratified by the government says specifically governments must address violence against children. Pressure by civil society is what has caused the revision of the existing legislation.

       Our organisation has worked with teachers this year, it is hard to find a champion in the Department of Education, but once you have one, you can get a long way. We are providing lesson plans for teachers, and training people.

       Nothing will change unless the Department of Education formally embraces the idea. Parliament should put pressure on each provincial education department to have a gender desk and put formal programmes in schools.

       Every line department in every national and provincial department has a gender focal person, but those people do not have a job description and a specific role, and none of them have specific training. As an adviser on gender to the Department of Education, I have produced a book to go to 60 000 teachers, but the situation of gender-based violence will not change until women’s position has changed. This needs a change in mindset, but more, it needs a place of priority in the education system.

       Our monitoring in the Commission on Gender Equality (CGE) has shown that government ‘gender focal point’ personnel are not employed at a gender focal point. The gender portfolio is an extra thing, it is done out of love and commitment, it is not a job. Unless there are sufficient resources, we will have progressive laws that are not implemented, like the CGE which has a gender portfolio but does not have the resources to do the job. We have drafted life skills training for children, we should be lobbying to make this part of the curriculum. At no stage did the teachers’ union ever take up this issue; it did not take up corporal punishment either. We should ask [Member of the provincial executive council responsible for education] Andre Gaum to be a champion in this province as well as [Minister of Education] Kader Asmal.

       You can draw parallels about how HIV/AIDS has been incorporated in the curriculum, this took ten years. It will take another ten years for gender-based violence to get into the teaching and learning curriculum.

       We acknowledge the fact that legislation cannot address gender-based violence, the lack of legislation is not inherently responsible for gender violence. We have not looked at the role of private capital. Gender-based violence and gender oppression is one of the manifestations of capitalism. We must argue for a different social system, an alternative path of development to deal with poverty. The issue of poverty is largely at the centre of gender oppression and gender-based violence.

       There is a lack of focus on offenders, many in prison are repeat offenders. We need to look at programmes of looking at offenders in order to change their attitudes.

Resourcing the implementation of legislation

       What is necessary to make the Domestic Violence Act have an impact?

       It comes down to lack of resources. The Act has all the right elements, for example, placing positive duties on communities.

       You have a process and procedures and positive duties, but if a police station cannot respond to a call, the legislation lies on the desk. The commitment is there from the roleplayers, but they don’t have the means to do it.

       Take into account the socio-economic budget. Over 90% of the total budget goes into social security, and only 5% goes into what can be called developmental work. South Africa is a developing country, we have social expenditure of R20 billion a year. This is a significant amount. The state cannot provide adequate amounts to deal with all the social development problems. The National Lottery raises money, but those who take decisions about how it is spent have different priorities.

       CSOs got less than sporting organisations from the first Lotto allocations. We should not say legislative transformation should not take place for lack of resources. Government is not all wrong. Many parliamentary committees must look at real problems, we can’t say ‘forget government because it won’t deliver’. Parliamentary committees are interacting with CSOs, and we have sensitised government in many areas. Criticising government is a destructive approach. I accept that there are weaknesses and changes have to be made, but CSOs must not just criticise.

       Part of the reason we need such a huge social welfare budget is because we have to deal with the result of violence against women and the environment they are living in.

       Where do government priorities lie, where are our resources going? We are no longer talking about poverty elimination, but now we talk about poverty alleviation.

       Why are we spending money on defence instead of dealing with poverty and HIV/AIDS, and implementing good laws. It makes no sense that I am not told we don’t have the resources, we do, we are not a poor country. The gap between the haves and have nots is growing. Money is not being invested in preventing violence against children. Capitalism is not responsible, can’t remove one thing and make everything else go right. Violence against women and children happens everywhere. We are a patriarchal, religious and deeply traditional society. This is what needs to be addressed to take on violence against women and children.

Changing societal attitudes

       Who is raping women? It is not government, or Parliament, it could be partly due to patriarchal society, but it also has to do with immorality. We cannot address this by making laws and putting in resources. It comes down to the lack of morality. Freedom is not the licence to do as we please. We might want to look at the Constitution to see whether it does not unconsciously contribute to the kind of behaviour that we see. Legal representation is guaranteed now; people used to fear what the society would do. Apartheid was the biggest crime, it was defeated by society, not government or resources. It was defeated by people mobilising themselves. We are forgetting the perpetrators and the role society has to play. If people are allowed to sleep in the streets, where are their relatives? These problems have more to do with the society expecting that someone else must step in. Government cannot police society, it cannot force society to do what it wants, criminals are our relatives. In addition to calling on government for legislation and resources, we need to mobilise people.

       Government should provide more resources, but all of us have a role to play. We have rights, but we also have responsibilities. The challenges are not just for government. The government held a Moral Regeneration Conference. It does have a responsibility to put resources into what it considers to be its priorities. Religious institutes and others can help to revive ubuntu.

       We could not have a partnership with the apartheid government. You can’t say that civil society has all the answers but not the resources.

       We need to mobilise all the resources that we have, those in the government, and those among us in society who produce these animals.

       We all hold this responsibility – we are the same people who hold those values.