For many women in our country, Women’s Month brings little celebration. It brings with it no respite from violence, trauma and untold suffering, often at the hands of those closest to them.
In September last year, President Cyril Ramaphosa expressed the country’s commitment to addressing the scourge of gender-based violence and femicide.
He announced a five-point emergency plan to tackle gender-based violence, and one of the key elements was enhancing the legal framework to strengthen the response to the scourge.
The law can never, on its own, completely prevent or eradicate gender-based violence, but it can create an enabling legal framework to bring perpetrators to book and to ensure justice for victims.
With this in mind, Cabinet recently approved three bills to be introduced into Parliament to help in the fight.
When the Domestic Violence Act was passed in 1999, it was lauded as a progressive tool in the armoury against the abuse of women, often perpetrated in the confines of their own homes. However, 20 years later, experience has taught us that many improvements can be made to the act.
The Domestic Violence Amendment Bill, therefore, proposes several changes. It widens the definition of domestic abuse to include, among other definitions, elder abuse. It sets out the services which victims of domestic violence can expect to receive from government. It makes it a criminal offence for a third party to not report domestic violence to a social worker or police official.
It also allows applications for protection orders to be submitted online.
Alcohol abuse fuels domestic violence. The amendment bill obliges a court to order the seizure of any weapon, recognises the role that alcohol plays in violence, and enables the court to hold an enquiry so that a perpetrator can be referred for treatment.
The Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill proposes improvements to the Sexual Offences Act.
It introduces, among other offences, a new offence of sexual intimidation.
Currently, the law provides that there is an obligation to report a sexual offence against a child or a mentally disabled person.
A person who has “knowledge” that a sexual offence was committed against a child is obligated to immediately report such knowledge.
On the other hand, a person who has “knowledge, reasonable belief or suspicion” that a sexual offence was committed against a person who is mentally disabled must immediately report it to the police.
The bill aims to ensure that the reporting duty is the same in respect of both groups.
With regards to the National Register for Sex Offenders (NRSO), the law currently provides that the particulars of persons who have been convicted of sexual offences against children and persons who are mentally disabled,are to be registered on the NRSO. It prohibits persons whose particulars are on the NRSO from working with or having access to children or persons who are mentally disabled.
The bill expands the scope of the NRSO to include the particulars of all sex offenders, in other words, anyone who is found guilty of a sexual offence – not only those sex offenders who commit crimes against children and persons who are mentally disabled.
It expands the ambit of employers who must check the register to include those working with women between the ages of 18 and 25, persons with disabilities and persons who are 60 years of age or older, and persons who receive community-based care and support services.
It also makes provision for certain particulars of persons who have been convicted of sexual offences to be made publicly available and increases the periods for which sex offenders’ particulars must remain on the NRSO before they can be removed.
Finally, the bill seeks to tighten existing laws on bail and sentencing and aims to reduce secondary victimisation of vulnerable persons in court proceedings.
Evidence through intermediaries is widely recognised as an effective procedure in criminal proceedings to protect a child witness or complainant. Currently, the intermediary service is only available to a child witness or complainant in criminal proceedings, but not available to any other witness or complainant who may be exposed to similar undue mental stress, trauma or suffering. The service is currently also not available in respect of any proceedings, other than criminal proceedings.
The proposed new amendments aim to extend the intermediary service and provide that a presiding judicial officer may appoint an intermediary to enable a witness under the biological or mental age of 18; a witness who suffers from a physical, psychological, mental or emotional condition; or a witness who is an older person to give their evidence through that intermediary if it appears to the court that the proceedings would expose the witness to undue stress, trauma or suffering if he or she testifies.
The bill further provides that in respect of an offence against a person in a domestic relationship, an accused may not be released on bail before his or her first appearance in a lower court.
This is because alleged perpetrators were sometimes released on police bail or prosecutorial bail when the authorities were not aware that there was already a protection order against the person.
In bail proceedings, the accused is compelled to tell the court if they have a protection order against them and may forfeit bail if they are later found to not have done so. Minimum sentences are also extended to include certain gender-based violence cases.
These are but some of the main interventions that will ensure that the law provides adequate protection to the survivors of gender-based violence.
Legislation, on its own, is not enough. We need to do more to change societal attitudes, patriarchy and toxic masculinity. Violence against women affects us all, but together we hold the key to unlock the chains which hold so many women captive.
Jeffrey is Deputy Minister of Justice