There is one provision of the Domestic Violence Amendment Act that is problematic. Lindsay Henson explains why.
The Domestic Violence Amendment Bill was recently introduced in Parliament as part of government’s ongoing attempts to combat the extremely high levels of this form of violence in South Africa.
The Bill has several provisions that will ensure greater support to those impacted by domestic violence and better protect victims’ rights. However, there is one provision that is rather problematic – mandatory reporting of domestic violence against adults.
The proposed amendment requires that anyone who knows that an act of domestic violence has been committed must report it to a social worker or police officer, even if the victim is a fully capable adult.
Furthermore, anyone who fails to report such an act of violence would be liable for prosecution and could be fined and/or imprisoned if convicted. This provision imposes a mandatory reporting obligation on every adult, regardless of their profession and/or relationship to the victim, if any.
Some may argue that this provision is an improvement; that it will assist in breaking down the culture of silence that often exists and compel people to actively combat domestic violence in their communities.
However, there is strong evidence that mandatory-reporting laws often have unintended and dangerous consequences for the very victims these laws seek to protect.
The first unintended consequence is that it may cause fewer victims to seek help, leaving them further isolated. Victims likely seek help from professionals on the basis that those services and the information shared remain confidential.
However, as all professionals would now be mandated reporters under the amended Act, victims may not feel able to seek any professional assistance, including essential medical assistance or psychosocial support.
In one US-based study, more than one-third of participants said they did not seek help because they feared that their information would be reported to an official.
Another study found that two in five respondents would have been less likely to seek help from a domestic violence shelter had they known they would be reported. Where victims are willing to seek professional help, they may still withhold relevant information so as not to trigger a report. This negatively impacts the ability of service providers to refer victims for appropriate help.
Lastly, this sweeping obligation has the potential to isolate victims from their informal support networks, such as close friends and family, who can play an important role in ensuring victims have the support they need when they are ready to leave an abusive relationship.
The second unintended consequence may be to exacerbate situations for victims of domestic violence, rather than improve matters.
The amended Act does not give any instructions as to what steps are to be taken by either a social worker or police officer when these reports are made.
As such, there is no guarantee that there will be an effective law enforcement intervention that meets the victim’s safety needs, nor that the abuser will be held accountable. There is a feeling among many victims of domestic violence that the police do not take reports of abuse seriously, even when the report is made by the victims themselves.
When the report is made by a third party without the consent of the victim, it is not hard to imagine that the police will be even less inclined to act.
Rather, there is a very real risk that an abuser will learn about the report and retaliate against the victim either through an escalation in violence or by forcibly ejecting the victim (and their children) from a shared residence. The amended Act does not guarantee the availability of alternative shelter or offer any other financial resources for victims who find themselves homeless as a result of a report that was made without their consent (and possibly also without their knowledge).
The situation would be even worse in cases where the abuser themselves is a police official.
Replicates abusive relationships
Third, mandatory reporting takes away a victim’s ability to act in their own interests or to exercise choice, and therefore replicates two of the key characteristics of abusive relationships. Abusers will often use a wide range of tactics to obtain and exert control over their victims’ lives, including emotional abuse, gaslighting and financial control in their attempts to render their victims powerless.
Mandatory reporting further implies a lack of trust in victims’ capacity to assess and take action to change their own circumstances.
While mandatory reporting obligations may be more justified in situations involving vulnerable people with limited capacity and/or agency, such as children, persons with intellectual disabilities or elderly persons, the same rationale does not apply to adults who are able to make decisions that they believe to be in their best interests, based on their knowledge and experience, or to ask others for assistance if needed. Notably, this is the only crime committed against an adult without an intellectual disability where reporting is mandated by law, regardless of whether the victim’s consent has been obtained.
For example, if an adult tells his/her friend that they were mugged or experienced a burglary, the decision to report is left to the victim, not the friend. Note that the law still allows for someone to apply for a protection order on behalf of a victim of domestic violence with the written consent of the victim, unless the victim is unable to provide such consent.
This is not to say that people should simply turn a blind eye to domestic violence or refuse to get involved when someone needs help.
Rather, there should be a shared commitment to addressing domestic violence by believing victims when they disclose abuse, offering necessary support and not tolerating the perpetration of abuse.
There should be further, complementary commitments to education, awareness and the re-education of offenders.
These steps may assist in eroding the permissive environment that surrounds domestic violence in South Africa. But mandatory reporting laws, however well-intentioned, should not be included in the legal framework addressing domestic violence given their potential to lead to greater harm for victims. The decision on how and when to report, and to whom, must be left to victims.
- Lindsay Henson is the Executive Director of Lawyers against Abuse (LvA), a non-profit organisation that works to strengthen the justice system’s response to gender-based violence by providing legal services and therapy to victims; engaging with state actors; and empowering communities.