Police crime statistics released in September 2012 state that in 2011/2012 there were a total of 9 193 sexual offences reported to the South African Police Services (SAPS) in the Western Cape. This translates into just under 27 cases per day. In total, 64 514 sexual offences were reported countrywide for that period.
The difficulty with using statistics released by the SAPS is that many incidents of rape go unreported; some studies estimate that if all rapes were reported, the figures could be as high as 84 000 for the province and just over 500 000 for the country.
The reasons that so many incidents of rape go unreported to the police include:
- fear of retaliation or intimidation by the perpetrator
- the fact that many survivors lack access to services
- the personal humiliation of being exposed as a victim of rape in a community
- the extreme suffering that goes hand in hand with rape as a psychological trauma
- reluctance to cause pain to loved ones
- the fact that the offender is often known to the victim and frequently a member of the victim’s family
- the possibility of negative financial consequences, particularly if the victim is a child and her family relies on the perpetrator’s income to survive.
These factors are compounded by the stigma associated with rape, and by the fact that many people in our society subscribe to myths and stereotypes about rape. Most rape myths lay the blame or responsibility at the door of the victim, by suggesting that her behaviour somehow led the rapist to rape her. This can lead to further under-reporting, as rape victims suffer feelings of guilt, or fear of facing the blame of their community or family. In addition, many survivors only report several months, or even years, after the incident. Opening old wounds and reliving the trauma of rape all over again can be daunting.
However, the barrier to reporting that Rape Crisis explores most deeply in our work is the rape victim’s lack of faith in the ability of the South African Criminal Justice System (CJS) to offer her services, to protect her, to treat her with dignity and respect and, above all, to support her claim to justice and to act as a deterrent to rapists.
Causes of rape in South Africa
A culture of violence
South Africa is a country where a substantial portion of the male population historically bonded in a violent and highly militarised context: both universal conscription of white men and the absorption of many black men into the liberation struggle have contributed to a culture that sees violence as a legitimate means of resolving conflicts – a culture where ‘tough, aggressive, brutal and competitive masculinity is promoted’ and weakness regarded, with contempt, as ‘feminine’. Through this violent struggle, South Africa has developed what many commentators refer to as a ‘culture of violence’, or at least an easy acceptance of violence.
South African society, its culture and its institutions have been profoundly affected by the institutionalised dehumanisation imposed by the apartheid system as well as the levels of force used, on the one hand, to enforce these policies and, on the other hand, to resist them. In this way, the system traumatised an entire nation. Every person in South Africa has been affected by the violence, structural and physical, of apartheid in one form or another. At its worst, this continues to play out in a profound disrespect for human life and the integrity of individual human beings and an attitude of impunity where the consequences of violence are concerned, which in turn causes more violence. An important part of constructing a new shared morality is South Africa’s constitution, which enshrines the right to gender equality. But in the daily reality of many people this remains nothing more than an aspiration, and most commentators agree that interpersonal relations in South Africa remain marked by extreme gender inequality.
The circumstances described above should be considered together with other factors in order to provide a comprehensive explanation for South Africa’s high levels of sexual violence. Situational factors such as poverty and drug abuse are inadequate on their own as explanations; it is only when these factors are seen in the context of the massive and institutionalised violence perpetrated against South Africans by the apartheid system that we can begin to understand why sexual violence is so pervasive across population groups. A failure to recognise that South Africans will carry the scars of apartheid for generations to come is naïve, dangerous and counterproductive to the project of building a new egalitarian value system and to transforming our institutions in accordance with those values.
Political transition and sexual violence
In order to understand rape in South Africa today, we need to understand its prevalence and nature in the past. That, however, is very difficult, as rape statistics from the apartheid era – particularly those for non-white populations – cannot be viewed as reliable. This is due to many factors, some of which are the following:
- Prior to South Africa’s democratic transition, police resources were concentrated in white areas, with policing in black areas being predominantly targeted towards political control. Township residents had little faith in a ‘justice’ system that was at the same time being used to oppress them. As a result, apartheid-era crime statistics are biased by under-reporting.
- Worse still, complainants ran the risk of being seen as colluding with security forces. Writing about sexual violence in 1994, Armstrong quotes an informant as saying that during apartheid ‘no black woman would go to a police station … just to be seen near a police station might mean that you would be perceived as an informer, your home would be burnt down and you would be killed.’
- Furthermore, gender-based violence was seen as a potentially divisive problem that could be used politically against black men and thereby divert attention from the pressing issue of racism.
- It is also quite likely that even when black women reported being raped – to predominantly white police officers – many were not taken seriously and their reports not recorded.
- Before 1993, marital rape was not a crime and none of these assaults would have been included in any statistics.
- Under apartheid, the territory that is today South Africa contained a number of nominally independent homelands and self-governing territories, each with their own police force. In total, prior to 1994, South Africa had 11 different police agencies, with widely varying competencies in the collection of crime statistics. Crimes reported in the so-called independent homelands were not included in national figures. Poor record-keeping makes it impossible to even estimate pre-1994 levels of rape in those areas.
If we look at the decade preceding South Africa’s transition, we see that between 1983 and 1993, reported rapes almost doubled from 15 342 to 27 056. Commentators expressed concern in the early nineties about soaring rates of gender-based violence, linking it to the pernicious effect of apartheid in destroying family structures through the enforcement of migrant labour policies and the perversion of South African masculinities. In addition to the militarisation of South African male identities, as mentioned previously, apartheid shamed and dishonoured black men by disregarding their human dignity and denying them access to education, jobs and power over the affairs of their own country as well as in their own lives, thereby robbing them of choice. White men were shamed and dishonoured by their role as oppressors, particularly those conscripted into the armed forces. These collective masculine wounds expressed themselves not only in armed struggle but were mirrored in a domestic struggle, where the home and the intimate lives of men became a battle ground for reclaiming power in another sphere.
As South Africa began its transition to democracy in the early 1990s, it again saw a rapid increase in reported rapes and other violent crimes.Cases of reported rape increased from 27 056 in 1993 to a peak of 55 114 between April 2004 and March 2005, reflecting a prevalence rate of 118,3/100 000 of the population. This is amongst the highest reported rates of rape in the world.
Although sexual violence, and crime generally, has been typified as a product of South Africa’s transition, the popular focus on post-apartheid crime figures is probably misleading. Certain commentators linked the rising levels of crime to political, economic and social trends which, although accentuated by rapid political reform, originated before the political transition. In all likelihood, this position is correct. It is likely that the increases seen during South Africa’s transition stem from a combination of three factors: increased reporting, better record-keeping and actual increases in the prevalence of criminal offences.
Consequences for victims
The criminal justice system and rape
In 2010/2011 Rape Crisis saw over 2 700 rape survivors for direct support and this number increased to over 5 000 in 2011/2012. Some of these survivors had reported the matter and some had not. Those who had reported, experienced the justice system in many instances as helpful, with distinct pockets of excellence where dedicated officials went the extra mile on their behalf and made them believe that their case was being taken very seriously. But even where this was the case in one area of the CJS, the opposite was usually true in another, with the result that there was no one case where all parts of the system – police services, health facilities and the courts – worked well and in a coordinated fashion to ensure a successful conviction.
Rape survivors describe their lack of support and consequent disempowerment as stemming from a range of flaws within the justice system, which can best be summarised as follows:
- Rape victims know little or nothing about this complex system before they enter it, and they find it almost incomprehensible at times.
- The system does little or nothing to inform survivors about the progress of their case and what is expected of them with regard to next steps.
- There is no provision made for survivors to receive any form of psychosocial care inside the justice system.
- Officials are often biased against survivors and treat them insensitively or inappropriately, causing secondary trauma.
- The system is fragmented, lacking cohesive links between one service provider and another in the overall service chain – from the police services, to the forensic unit to the courtroom. Many cases fall between the cracks and are lost or weakened as a result.
- Government departments responsible for state service providers are unable to collaborate effectively to tackle the problem at higher levels of influence.
- Survivors are unaware of the fact that they can complain about the system, and don’t know how to go about doing so if their rights are not being upheld.
- The way the system is set up gives the accused more rights and greater levels of representation in court than the victim of the crime.
It is no wonder that conviction rates are low, the rate for Gauteng being 4% and the Western Cape 7%. Rape is prevalent in the Western Cape and in South Africa, but, as already discussed, it is also under-reported. This is partly because communities have no faith in a system that lacks the capacity to address their needs and that allows rapists to go unpunished. The resulting culture of impunity can only drive the number of rape incidents upwards, thereby seriously denying women their right to live free from violence.
Levels of violence
Rape in South Africa has emerged as a crime of extreme violence. Commentators liken the types of rape they see in South Africa to those perpetrated during armed conflict, in terms of the degradation, ritual humiliation and the extent of injuries, such as mutilation, that are involved.
Further indicating the extremity of the violence that accompanies rape, researchers have found that twelve times more women are raped and then murdered in South Africa every year than in the United States. A recent national mortuary-based study concluded that in South Africa a woman is killed every six hours by an intimate partner, another record-setting statistic.
Studies at various sites have found multiple perpetrator involvement in 25% to 55% of rapes. In 2011, 55% of the rape survivors counselled by Rape Crisis had been raped by more than one offender. Of these rapes, 25% had been perpetrated by known gangs. In multiple perpetrator rapes, the number of offenders ranged from 2 to 30 in respect of any one victim.
Rape and HIV
The horror of rape in South Africa is compounded by the fact that around 10% of South Africans are estimated to be HIV positive. The highest rates of infection are found among women below the age of 30, who make up a large percentage of rape survivors, with almost one in three estimated to be infected. Scholars have started to draw a link between these high levels of HIV infection and the prevalence of coerced sex within that group.
A study done in 2009 found that 19,6% of men who had committed rape were HIV-positive, confirming that rape is a significant factor in the spread of HIV. Additionally, injuries to the vagina or anus often result from the violence used during rape, which further increases the victim’s likelihood of contracting HIV. Another important factor to remember in terms of HIV and rape in South Africa is the high rate of multiple-offender rapes. In these rapes, there is a higher probability of at least one of the offenders being HIV positive. In addition, the victim is exposed to the virus to a greater degree if more than one offender is HIV positive, and the victim suffers greater damage to the vagina or anus because of repeated penetration.
Under the Criminal Law (Sexual Offences and Related Matters) Amendment Act (Act 32 of 2007), all HIV-negative rape survivors have the right to free PEP (post-exposure prophylaxis) to reduce the risk of HIV infection from the rape. In practice, however, there are various barriers that make it difficult or impossible for rape survivors to access PEP or to take the medication as prescribed. Some of these barriers include:
- inadequate knowledge and awareness of PEP among both health workers and patients
- secondary trauma caused by prejudice among health care workers
- he emotional and psychological effects of the trauma of rape
- the stigma surrounding HIV and the resulting ostracism, abuse or violence that a rape survivor could potentially suffer after revealing a positive HIV status
- the emotional challenges of coming to terms with possible HIV infection on top of the trauma of rape
- pervasive gender inequality and the resultant powerlessness of women, to varying degrees, in South African communities.
A lot of work therefore still needs to be done – in terms of service delivery in the health care system, changing attitudes in communities as well as empowering women – in order to find useful ways of supporting PEP compliance in rape survivors so that they can truly benefit from the provision made for them in the Sexual Offences Act.
In 1997 the Human Sciences Research Council released a report claiming that child rape in South Africa had reached ‘epidemic proportions’. Between 1993 and 1996, child abuse cases reported to the South African Police Service’s Child Protection Unit increased by 47%, from 15 224 to 32 033 cases, with 18 079 of these being cases of child rape. Five years later, on 15 May 2002, it was reported in Parliament that out of 15 650 child rapes reported to the police in South Africa between January and September 2001, 5 859 were of children between 0 and 11 years of age. This means that approximately 10% of all rapes reported during that period in South Africa were of children under the age of 12.
Substance abuse and rape
The high rate of abuse and sexual violence toward women in South Africa is exacerbated by widespread substance abuse among men. Alcohol abuse is a problem throughout the country, and has been linked to violence against women. In the Western Cape, the abuse of methamphetamine (colloquially calledtik) is particularly concerning and has been shown, along with alcohol abuse, to have a direct correlation to the perpetration of sexual violence by male users.
Methamphetamine creates a strong feeling of euphoria in the user and is highly addictive. It increases libido and can lead to violent and irrational behaviour. Methamphetamine is cheap to manufacture, and is therefore easily attainable for people in poor communities. A study conducted in the Western Cape in 2009 showed that the abuse of methamphetamine is specifically connected to the high incidence of gang rape in those communities in which the drug is a problem. Men involved in the study reported planning and organising gang rapes while high on the drug to satiate their increased libidos. In the same study, alcohol use by men was shown to lead to rape by virtue of increased libido, increased aggression and decreased inhibitions.
Interestingly enough, men who participated in this study acknowledged that, when they were sober, they knew that rape was wrong. They confirmed that they thought differently about rape when they were under the influence of alcohol or drugs.
Strong gender norms also impact on the issue of rape by substance abusers. The use of alcohol or drugs, and resultant violent behaviour, has been linked to traditional views of masculinity and men’s efforts to fit in with male peer groups. Gender norms and gender inequality is therefore inseparable from high rates of substance abuse among men and the resultant higher incidences of gender-based violence and rape.
Another important aspect to consider is male views of what is acceptable or allowable female behaviour when it comes to alcohol or drugs. This forms the basis for a pervasive rape myth according to which a woman who is intoxicated by alcohol or drugs brings the rape upon herself by making herself vulnerable and is therefore to blame. The men interviewed in one study believed that rape was permitted or excusable if the victim herself had consumed alcohol or drugs. This kind of attitude condemns female behaviour in order to justify male violence.
Homophobia and rape
Although the South African constitution clearly condemns discrimination on the grounds of sexual orientation, many LGBTI (lesbian, gay, bisexual, transgender and intersex) people in South Africa continue to face severe discrimination and victimisation on a daily basis.
A particularly horrendous form of homophobic victimisation in South Africa is the rape of lesbian women – generally by multiple perpetrators and accompanied by great violence. This phenomenon has become known in the media as ‘corrective rape’, as perpetrators claim their motivation is to turn the homosexual victim into a heterosexual. In this context, rape is used as a brutal way to punish and oppress those who do not conform to societal norms for gender roles, which include sexual orientation. This form of rape has been labelled a hate crime by the media and civil society organisations, as it is motivated by a hatred of the group that the victim belongs to. There is currently no legislation that pertains specifically to the rape of lesbians in order to ‘correct’ their sexual orientation as a hate crime.
The conceptual differentiation (created largely by the media) between ‘corrective rape’ and rape perpetrated against women in general can be counterproductive. According to the Triangle Project, an organisation working for the advancement of LGBTI rights in South Africa, rape can be viewed as a tool used to assert control over women’s bodies and their behaviour, whether sexual orientation is an explicit factor or not. However, discussion of the targeted rape of lesbian women is useful in examining the way that rape and homophobic discrimination intersect in South African society.
Determining the true extent of this kind of targeted rape is very difficult. Official statistics on sexual offences do not provide information on sexual orientation, and rape survivors are not required to disclose their sexual orientation upon reporting a rape. A study carried out by The Triangle Project and the UNISA Centre for Applied Psychology showed that, in the Western Cape, the fear of sexual assault is a reality for 44% of white lesbian women and 86% of black lesbian women.
Reporting a rape and moving through the criminal justice process is often a source of trauma and secondary victimisation for rape survivors. The stigma around homosexuality and the prejudice that exist in South African society mean that LGBTI rape survivors potentially face even greater trauma and secondary victimisation if their sexual orientation were to become known.
Refugees and asylum seekers
According to the United Nations High Commission on Refugees, refugees in South Africa are especially vulnerable to victimisation and abuse, including sexual assault. The sheer number of asylum applicants places strain on the asylum system, with unaccompanied and separated children posing a particular challenge.
‘Refugees are vulnerable to the high levels of random crime that afflict South Africa, as well as sexual violence, exploitation in the workplace and detention due to lack of proper documentation. Poor socio-economic conditions among host communities provide a breeding ground for xenophobia. Documents of limited validity compromise refugees’ efforts to become self-reliant by making it hard for them to hold long-term jobs, while at the same time a law allowing refugees and asylum-seekers to have bank accounts is not being fully implemented. Xenophobia in South Africa undermines refugees’ local integration and the stability of their livelihoods. Due to fear of attacks in the townships, refugees prefer to live in more expensive inner-city areas.’
Responses to rape in South Africa
Rape and the law
Research conducted by the Medical Research Council suggests a reporting rate of around 1 in 9 rapes, which has been generally accepted as credible by both government and civil society. Of the 52 617 rape cases reported in South Africa between April 2006 and March 2007, 60% were withdrawn. A recent studyby the Tshwaranang Legal Advocacy Centre showed that 44% were closed by the South African Police Service (SAPS) and 16% by the National Prosecuting Authority (NPA). The conviction rate for cases in their sample was around 4%.
The rape law reform process in South Africa began in 1997, with amended legislation being passed by parliament and signed by the president in December 2007. The Criminal Law (Sexual Offences and Related Matters) Amendment Act (Act no. 32 of 2007) broadened the legal definition of rape, created a new range of sexual offences and addressed a wide range of issues relating to how sexual offence cases are managed by the police, forensic practitioners and in the courts. However, research studies show that government has failed, to a large extent, to comply with its legislative mandates, through neglecting to:
- budget specifically for the costs involved in implementing legislative changes
- allocate adequate resources
- develop appropriate monitoring and evaluation mechanisms
- put proper oversight and accountability mechanisms in place
- conduct thorough planning exercises
- develop the necessary specialised services
- build the capacity of existing services
- train personnel and officials in the new legislation.
Furthermore, the implementation that has taken place has been characterised by inconsistency and excessive delays. The resulting poor infrastructure and poor service delivery have a direct impact on rape survivors’ access to justice.
Victim empowerment legislation in South Africa
In 2010/11, the United Nations Development Programme (UNDP) contracted the partners to this proposed action together with the Open Democracy Advice Centre (ODAC) in partnership with the South African Government’s Department of Social Development to undertake a Victim Empowerment Feasibility Study. The objective was to review the status of Victim Empowerment (VE) in the country, identify key gaps in legislation and the feasibility of remedying such gaps through a VE law. This study sought to identify the causes of, and the most effective and strategic way forward in resolving the disempowerment of women and children survivors of sexual assault.
The study identified the following gap areas:
- Citizens in general lack the kind of detailed knowledge of the criminal justice system that would make it possible for them to access their rights to services and fulfil the role that is expected of them in order to ensure convictions.
- The strongest complaint from victims of crime is that they lack knowledge of the progress of their own case through the system, namely from police to health facility to court. This is exacerbated by the fact that each of these service providers has its own different system for tracking the progress of cases.
- There is a lack of psychosocial support for survivors within the system. This results in victims of crime being inadequately prepared for trial, seriously impeding the chances of a successful conviction.
- There is no central mechanism or body that monitors cases, takes complaints about the system and holds officials and service providers accountable for non-performance of their duties.
- Government departments coordinating services to victims of crime struggle to collaborate with one another, which results in a lack of coordination between services.
These gap areas represent a combination of social and institutional impediments in addressing violence against women. Our programme aims to address both kinds of impediments. We believe that improving laws to address these gaps, as well as taking practical measures towards addressing them in the interim, will have the overall effect of enabling the rape victim to play a greater role in ensuring conviction of the perpetrator. The consequent increase in reporting and in convictions will begin to address the culture of violence and impunity that continues to erode the fabric of our society in the daily lived reality of women’s lives.
Thus far the Road to Justice Project has achieved the following:
- Formal presentations of the research findings to government representatives nationally and provincially
- The public launch of the research report to a gathering of government and civil society stakeholders
- Publication of the report on partner websites for Rape Crisis, the Open Democracy Advice Centre and the Women’s Legal Centre
- Publication of an op ed piece in the Cape Times newspaper
- Participation in a workshop and pilot study of the Justice Sector Strengthening Programme (JSSP) on developing a monitoring tool for civil society organisations offering services to rape survivors
- Presentation of the research findings at the national strategic planning session of the South African Government’s Victim Empowerment Programme (VEP)
- An interest expressed by the Department of Social Development in partners meeting with their policy and legislation drafting team
- Discussions between partners and the Vodacom Foundation, who expressed an interest in developing the mobile phone technology to support the tracking of cases through the criminal justice system once the pilot has proven successful.
In addition to these achievements Rape Crisis has develop a virtual tour of the criminal justice system, an online application that allows the user to ‘see’ inside a police station, a health facility and a courtroom to gain some sense of the atmosphere of the journey they must take along the Road to Justice. The tour features video clips of actual officials and service providers describing the process of reporting the crime and the role that the complainant is expected to play in ensuring a conviction.
This product is very suitable for workshop-style educational sessions aimed at the youth (in schools and other environments) as well as other stakeholder groups and members of the public. Government partners have expressed a strong interest in publishing the tour on their websites. These partners have been involved in the project since inception, since all relevant departments were required to give permission for the photography. The justification, proposed content and the purpose of the project was vetted thoroughly by these departments before doing so.
Other research-based advocacy initiatives being undertaken by other actors include the Sexual Offences Monitoring Project (SOAMP)of the University of Cape Town’s Gender Health and Justice Research Unit (GHJRU) and The Shukumisa Campaign of the National Working Group on Sexual Offences. Both of these initiatives focus on the implementation of the 2007 Sexual Offences Act and on government’s progress in developing its National Policy Framework.
South Africa’s international obligations
In its concluding observations on South Africa’s second, third and fourth periodic reports to the Committee on the Elimination of Discrimination against Women in February 2011, the Committee urged the State party to strengthen its judicial system to ensure that women have effective justice and to facilitate women’s access to justice. While noting the policy, legislative and administrative measures that have been put in place to combat violence against women in the country, the Committee expressed concern for the high prevalence of sexual violence and widespread domestic violence. It also expressed concern at the high levels of impunity, violence as a social norm and the culture of silence around reporting rape and domestic violence. This was linked with concern about low levels of prosecution and conviction and the latitude employed by some police officers. The committee felt there was a lack of information about programmes in place to reduce incidents of violence against women and girls and a lack of social support services. It also raised the concern that women and girls are disproportionately affected by HIV/AIDS.
The recommendations included:
- reviewing the State’s multi-sectoral action plan to combat violence against women
- adopting comprehensive measures to address violence against women
- raising public awareness through media and education programmes about violence against women as a violation of women’s rights
- putting accountability mechanisms in place to ensure the implementation of the provisions made in the Sexual Offences Act
- ensuring the necessary budgetary allocations for the implementation of planned projects and programmes, including support services to victims
- taking continued and sustained measures to address the impact of HIV/AIDS on women and girls
- paying special attention to the needs of rural women and those that experience violence based on their sexual orientation.
The Special Rapporteur plans country visits that may be seen as an opportunity for government and civil society organisations to consult on these and other concerns held by civil society. In her report on violence against women to the Human Rights Council. Special Rapporteur RashidaManjoo places a strong emphasis on preventive programmes. While she is referring particularly to the killing of women, we believe her comments are equally apt when applied to rape and sexual violence. She speaks about ‘inadequate provision of access to justice, the lack of a rights-based discourse and overall societal transformation, weaknesses in information systems, poor categorisation of crimes resulting in inaccurate reporting and a lack of collective indicators for measuring progress in reducing crime while encouraging reporting’.
The South African Constitution is widely known as one of the most progressive constitutions in the world. It emphasises human rights and places high value on human dignity for all. How it aims to build ‘a society based on democratic values, social justice and fundamental human rights’, However, as shown in this discussion, the nature and extent of rape in South Africa, as well as the inadequate systems in place to respond to it, continue to pose a significant obstacle in the path towards achieving a just society in which citizens, and particularly women, can live with dignity and free from the fear of sexual violence.
Changing the face of sexual violence in South Africa is a crucial and indispensable step towards healing our traumatised society and paving the way for a safer, healthier and more just country for future generations.