The certainty of arrest and prosecution, not long sentences, is what deters crime, writes Edwin Cameron.
Monday marks the day in 1956 when some 20,000 bold women marched to the Union Buildings to protest against making women carry the hated apartheid "dompas".
They courageously stood against racism, oppression and subordination. Commemorating this day befits our democracy’s founding values of equality, non-sexism and dignity for all.
But as with so many other values our Bill of Rights guarantees, these aspirations remain unfulfilled.
A grim reality plagues our homes and communities: violence against women – physical, psychological and emotional. We can best honour Women’s Day by considering practically what we can do, each of us, to counter a plague that corrodes the dignity, wellbeing and lives of women in South Africa.
Let’s first pause at the numbers. They are disheartening. Femicide – killing women because they are women – is much higher in South African than the world average. Here, it is estimated that every eight hours – three times a day – a woman, somewhere, is killed by her intimate partner.
Sexual offences far exceed those that are reported. Why? Stigma and shame unwarrantedly linger around survivors of gender-based violence. And the perpetrator is very often close to the survivor – or the survivor may depend on him for financial support.
Starkly, President Ramaphosa described South Africa as "one of the most unsafe places in the world to be a woman".
The Covid-19 pandemic and lockdowns have exacerbated the anguish. They confined many women to home, with their abusers – or left them unemployed. Ramaphosa rightly labelled this South Africa’s "second pandemic", in which "violence is being unleashed on women and children with a brutality that defies comprehension."
This is "carceral feminism": the idea that prisons and harsh sentences provide an answer, that the heavy fist of law and order can help solve the problem.
Intuitively, this seems appealing. A ghastly problem needs a ghastly response.
But, sadly, very sadly, harsh prison terms are no solution – worse, too often they serve as a political stunt that distracts from the hard work we all have to do to start fixing the problem.
First, mandatory minimum sentences and long prison terms don’t help in stopping crime. This is a dispiriting truth. What inhibits crime is certainty: certainty of follow up, certainty of detection, certainty of arrest, arraignment, prosecution – and certainty of punishment. In all this, how long the sentence is plays very little role.
Put bluntly, whether a transgressor faces 15, 20, 25 years or life matters less than the certainty of the response by the police, the community and the criminal justice system.
This truth is not controversial. The Constitutional Court recently told it:
Yet for nearly a quarter of a century we have misplaced our faith in carceral solutions to violent crime. They have not done enough, not nearly enough, to make women safer. They have only salved the consciences of the political elite (politicians, lawmakers, academics, commentators, lawyers and judges like me). Worse: they have distracted us from the hard work of starting to ensure certainty-of-response from our organs of criminal justice.
Second, before we trust our rickety criminal justice system to help, we have to start to fix it. Too often the police don’t protect survivors of gender-based violence. Instead, too many abuse their positions – and, when they themselves perpetrate gender-based violence, a recent exposé showed that too often they stay on the job.
Plus, conviction rates for sexual offences are dismal. The forensic data system is in shambles; and the courts are grinding slowly with severe backlogs. So we should not express surprise when many opt to take the law into their own hands – in the first three months of this year, nearly 300 “mob justice” murders were recorded.
Third, the way our prisons work does not promise effective rehabilitation or reform. On the contrary: prison culture and prison gangs replicate and reinforce outside sexual violence, toxic gender stereotypes and masculine power dynamics.
This has real consequences. For how do you guide a rapist to do better if rape is part of prison culture?
Impact of minimum sentencing
Worse, those imprisoned for drug-dealing and possession, or other petty offences, are exposed to sexual violence. What do they take back to their communities? A terrifying thought.
In addition, minimum sentencing has placed massive strain on scarce prison resources. We had 400 prisoners serving life sentences in 1995. We now have over 17,000. I have yet to meet a prison staffer who expresses support for mandatory minimum sentences.
Overcrowding and unsanitary conditions have squeezed out rehabilitation and education programs. And in-prison psychologists and social workers are in short supply.
And South Africa’s high rates of recidivism (re-offending) show that, generally, our prisons do little to reform.
Given all this, our prisons may well be helping to perpetuate gender-based violence.
None of this is a plea for no prisons. Violent men who abuse, assault and rape women must face harsh consequences. Some of them must be removed from society for very long periods. But indiscriminate recourse to mandatory sentencing has failed us bitterly.
The point is that every man – every single man – who perpetrates gender crimes must be caught, arraigned, tried and sentenced. Smart, effective police work must support the many community structures and organisations seeking to protect women.
This is part of the tough task that confronts us all after last month’s violent insurrection, looting and deaths: the painstaking work of building a police force and a justice system that really serve.
We can do it, but both we and our leaders will have to set our minds to the task. And if our prisons were not crammed to overflowing with prisoners serving mandatory minimum sentences, if, instead, they provided proper rehabilitation and education programs, and more survivor-offender dialogues, we could start the painstaking process of effective crime prevention and containment.
This vision is not strange or new – it is what our Constitution told us to build, and what the Correctional Services Act expressly demands.
Instead of taking comfort in war talk about "locking them up and throwing away the key", we have to make work with preventive programs that tackle root-causes.
It starts at home
And each of us – me, you – must challenge men and boys about gender-stereotypes, norms and values. We each need to set an example showing how women deserve reverence and respect.
It starts with each of us, at home. Our responses must be practically survivor-directed, vindicating their dignity and safety.
And, desperately, we must start the task of rebuilding our institutions, to be effective, accountable and trustworthy.
I don’t know all the answers. There are smart and experienced people in government, civil society, academia and women’s organisations who work tirelessly. They deserve redoubled commitment and support. And a new dialogue about misplaced trust in carcerality: the politically expedient yet ineffective route of advancing the carceral state. It provides only false answers to our country’s crisis of gender-based violence.
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