The violent and discriminatory targeting of members of the gay community can be said to meet the general ideological basis for what is considered a ‘hate crime’. Yet the South African government has no such legislation in place.
Following the growth of crimes committed against LGBTI (Lesbian, gay, bisexual, transgender and intersex) persons, Triangle Project and Rape Crisis Cape Town Trust formulated a memorandum to highlight the urgent need for such legislature.
The memorandum called on the Department of Justice and Constitutional Development to implement immediate and concrete measures to improve the way in which the criminal justice system handles violent crimes against LGBTI persons.
On 14 March 2011, more than 100 activists from Cape Town also made their way to Parliament in support of the anti corrective rape campaign, and to rally outside ahead of the much anticipated meeting with the Justice Ministry where the memorandum was presented.
“It highlights concerns about unfair discrimination on the basis of gender, gender identity, sexual orientation, and that such unfair discrimination often manifests itself in the form of violent crimes such as assault, rape, related sexual offenses and murder”, said Marlow Valentine, Triangle Project’s Deputy Director.
It also asked for temporary measures to be put in place to protect the rights and interests of LGBTI persons, until the ‘Hate Crimes’ Bill had been promulgated.
The South African Police Force, Department of Justice and Constitutional Development and NPA monitor hate crime cases in the criminal justice system from when the case is reported to the until the sentencing.
This is to ensure inter alia that the criminal justice system:
- Does not re-victimise or re-traumatise the complainant,
- that investigating officers investigate cases properly,
- that prosecutors fulfill their duties and execute their duties with a high level of skill and diligence,
- and that criminal trials are finalised without unreasonable delays.
- Rape cases based on race, gender, sex, sexual orientation and/or sexual identity are heard in the designated sexual offences courts.
-NPA keeps disaggregated statistics of the number of alleged hate crime cases that they decline to prosecute, the number of hate crime cases that are withdrawn by complainants and the number of convictions of perpetrators of hate crime.
-NPA develops a directive for prosecutors to raise hate crime as an aggravating circumstance to oppose bail and as an exacerbating factor for sentencing.
-NPA develops a directive for prosecutors to advise complainants of the right to apply to court to not have the trial conducted in open court in terms of Section 153(1) of the Criminal Procedure Act 51 of 1977.
-That the Minister of Justice and Constitutional Development issue a notice in the Government Gazette in terms of Section 170A(4)(a) of the Criminal Procedure Act 51 of 1977 providing that survivors of hate crimes are competent to be appointed as intermediaries. And once such notice is issued, the NPA develop a directive that prosecutors advise complainants of the right to apply for an intermediary in terms of the Minister’s notice.
-Parole Boards view the commission of a hate crime as an aggravating factor for the consideration of the perpetrators parole application.
The struggle to end hate crime continues
A press release was released today relaying the feedback from the Justice Ministry
- The possibility of setting up a working group or task team
- The terms of reference that would guide such a group
- The need to broaden participation to other stakeholders, both civil society and state (e.g. the SA Police Force was not represented ) and also to ensure that this is a national and not only a Western Cape Initiative
The Ministry, the DOJ & CD and the NPA have committed to careful consideration of the oral and written proposals. A second meeting is scheduled for the month of May 2011. (Zaakirah Rossier, Health24, March 2011)
Follow-up: Task team to tackle gay hate crimes