How to respond to rape and other gender-based violence: A guide for survivors and activists Published by the Treatment Action Campaign (TAC)
Acknowledgements This guide was drafted by Alice Clarfelt and edited by Liz Sparg and Catherine Tomlinson Design and layout was done by Design for development, www.d4d.co.za Printed by Creda Communications The guide draws on existing guides and literature in the field of gender-based violence. There are certain organisations that have contributed significantly to the information provided in this guide, which are acknowledged here: Centre for AIDS Development, Research and Evaluation Medical Research Council Raising Voices Rape Crisis Cape Town Trust SECTION27 Shukumisa Campaign Small Projects Foundation Sonke Gender Justice Thohoyandou Victim Empowerment Programme Tshwaranang Legal Advocacy Centre to End Violence Against Women Womankind Worldwide TAC would like to thank these organisations for their valuable contribution. Additionally, we would like to thank all individuals that have assisted in the development of this guide by providing feedback and reviews. We hope this guide will be a resource to all those working in the field of gender-based violence in South Africa and globally. Support was provided by the MAC AIDS Fund of Tides Foundation for the development of this book.
How to respond to rape and other gender-based violence For survivors and activists This book is dedicated to all of TAC s branch members for their tireless campaigning against gender-based violence in their communities.
Contents Aims of the guide...7 Part 1: If you have just been raped... 9 Steps to take...10 Important things we need to know about rape... 11 Getting help from health services... 11 Taking care of yourself after rape...12 Feelings after rape... 12 Steps to take to deal with the trauma of being raped... 13 How your family may react... 14 What medical help do I need if I have been raped?... 14 The medical examination... 15 Counselling after rape... 16 Challenges in service provision to survivors of gender-based violence (GBV)... 16 Part 2: National Policy Guidelines for the Department of Health...19 Understanding the National Guidelines...20 What is GBV...20 The definition of rape and consent... 21 Sexual assault... 21 Sexual offences against children... 21 Domestic violence... 22 Protection from harassment... 22 How big is the problem of GBV in South Africa?...23
Part 3: Laying a charge of rape...25 Deciding whether to report a rape to the police... 27 The Family Violence, Child Protection and Sexual Offences Unit... 27 Why should I lay a charge against the abuser/perpetrator?... 27 Steps involved in laying a charge... 27 How should the police respond to me as a survivor of GBV?...28 What do I do if the police fail to act?... 28 What happens after I report a case of GBV?... 29 The trial...29 Preparing for the trial... 30 What happens when my case goes to trial?... 30 What can I do if the perpetrator continues to abuse or harass me?...31 Applying for a protection order... 31 Civil litigation...32 What can I do to take action if the state fails to assist me as a survivor?...33 Part 4: How can I respond as a partner, family member or friend of a survivor?...35 Emotional and practical support... 37 What can I do to help a survivor through the legal/criminal justice process?...38 Part 5: How can I respond to GBV as a service provider?...41 Police officers, health and other emergency workers...42 How do I respond to the survivor of GBV as a police officer?... 43 How do I respond to a survivor of GBV as a health worker?... 43 Part 6: Community action against GBV...45 Change attitudes towards GBV... 47 Engage people in your community... 48 Organise a public meeting or workshop... 48 Use participatory learning and action methods... 48 Create and develop support groups... 51 Advocate for better services for GBV survivors... 53 Know your rights...53 Build a campaign... 54 Aim activities at decision-makers to achieve policy change... 56 Be creative in your campaigns... 59 Part 7: Case studies of GBV...61 Stories to learn from... 62 Appendicies...69 Definitions... 72 Useful contact details... 74 References... 76
Aims of the guide This guide is for all people who want to learn more about gender-based violence (GBV), the laws that protect survivors rights, and how to take action. It will help you understand what GBV is and what you can do about it. If you are a survivor of GBV, this guide provides clear steps that you can take to help you to feel safe, to heal and to bring the perpetrator to justice. You might want to find out about how you can protect yourself from ongoing abuse, and where to go for support and care. The guide explains where to report the abuse, and also what help you can get as a survivor of GBV. You will also find specific information on what happens after rape, including your medical care, examination, emotional reactions, the role of family support and legal processes. If you know someone who is a survivor of GBV, the guide will give you information on how you can assist her or him to get help such as health care and counselling, and to open a case against the perpetrator. In South Africa the statistics of GBV are extremely high. The majority of victims of sexual violence are women and the majority of perpetrators are men. Therefore, we have chosen to refer to the abuser as male and the survivor as female in the guide. We do, however, know that men are also victims of GBV, and if you are a man that has been raped then the steps laid out in this guide can help you too. People who need to access services in relation to GBV often experience problems. Service providers, such as healthcare workers and police, are often not victim-friendly, due to the lack of resources and poor training. Also, many survivors do not know their rights and how to demand an appropriate response. The purpose of this guide is to inform you of your rights, in order to empower you to exercise your rights and to prevent further acts of violence from being committed against you and others. If you know your rights, you are in a better position to demand that your rights are respected and protected. This guide includes a section on what you can do in situations where the state fails to uphold your rights and/ or fails to carry out its duties. If you are a community activist, this guide is a resource you can use to help you run campaigns to change attitudes that drive GBV in your community, as well as to advocate for better access to care, support and justice services for survivors and their families. 7
8
Part 1: If you have just been raped
Steps to take Surviving rape and other forms of GBV is not easy. Rape is traumatic and affects your mind and your feelings, as well as your body. Your emotional reactions are normal responses to an abnormal situation. You might feel overwhelmed now, but it will get better in time. If you feel that you are not coping, you should seek help from a health/medical facility or a counsellor. Don t be afraid to ask for support from your friends and family. If there are women s organisations in your area they may provide counselling or have support groups you can attend. Here are a few important steps that a survivor should take as soon as possible after the rape has occurred: 1 Go to a safe place as soon as possible. 2 Tell someone you trust. It s hard to talk, but very important. The first person you tell is usually asked to go to court to support your story. So, if you decide to report the rape, the police must be able to find and talk to that person. 3 Don t throw away your clothes or wash yourself, no matter how much you want to. There may be hair, blood or semen from the rapist on your body or clothes. If you decide to report the attack, this will be important evidence. 4 Don t drink any alcohol or take medication before the district surgeon or doctor examines you. If you do, tell them what you have taken. 5 If you re badly hurt, go straight to a hospital or a doctor. They can call the police to the hospital if you want to report what s happened to you. The police can also take you to a hospital. 6 The sooner a doctor examines you, the better the chances of finding strong proof like blood or semen from your attacker on your body or clothes. 7 Put the clothes you were wearing when you were attacked into a paper bag or wrap them in newspaper. The chemicals from a plastic packet can destroy evidence from the rapist. 8 You will also need to undergo anti-retroviral treatment, as soon as possible, to decrease your chances of contracting HIV. You must take this treatment within 72 hours of the rape. 10
If you have been raped Important things we need to know about rape Rape can happen to anyone - a male or female, of any age, race, class, nationality, or religious affiliation. No one asks to be raped, no matter what they wear, where they are, what they have done, or whether they have been using drugs or alcohol. You can be raped by a stranger, or by someone you know and trust. Rape is about power and control. Rapists use sex as a way of taking control and making themselves feel powerful. Nobody deserves or asks to be raped. It is not your fault that it happened to you. Rape is not a crime of passion, it is a crime of power. Rape is an abuse of your human and sexual rights and it is against the law. People may not use their marriage as an excuse to sexually assault their partners You have not consented to a sex-act if: someone forces or threatens you with violence or threats of violence someone in a position of power or authority threatens you, for instance if someone tells you that you will lose your job if you do not have sex with them you are lied to by a doctor or other health worker, who tells you that a sex act is part of a physical examination, or is necessary for your mental or physical health you are asleep you are unconscious you are under the influence of drugs or alcohol you are a child under the age of 12 you are a person with a mental disability Getting help from health services If you are raped, it is important that you get health care as quickly as possible. If you are badly hurt, you should go straight to the nearest health facility before you go to the police. It is best if you can go to a facility where a doctor can give you treatment and can collect evidence to support your case if you choose to report the rape to the police. If you go first to the police, they are meant to transport you to the hospital rather than keep you at the police station. Sometimes the police delay because the patient has 72 hours before she has to get medication (called post-exposure prophylaxis or PEP) to prevent HIV infection, but you can insist that they transport you quickly to the nearest health facility. This is your right. Remember it is important that you see a medical professional as soon as possible, to get treatment for injuries or sexually transmitted infections (STIs), and to collect evidence before it breaks down and becomes unusable, as time goes by.
Taking care of yourself after rape Feelings after rape Rape survivors experience different feelings. You may find you experience severe distress soon after the rape, or you may feel you are coping well at first. Then, after some days or weeks you may develop new feelings, concerns and problems. The emotional reactions that are often experienced by rape survivors include: very strong feelings of powerlessness and vulnerability anger and aggression, as a reaction to the feelings of powerlessness fear that you are not safe and that it could happen again the need to get away from a place which reminds you of the rape loss of trust in others inability to see a future where things look different from what you are experiencing right now feelings of being dirtied and loss of self-esteem wish to avoid other people due to shame, low self-esteem or a sense of being different or apart from others feelings of being separated from your life: inability to feel all the emotions you previously felt, such as love for your children and parents or even feelings of pain, pleasure, anger or grief fear of any physical contact and sex, even with your intimate partner (boyfriend/girlfriend/husband) and those close to you feeling uncertain about where you are and how to act, lack of concentration and forgetfulness nightmares that might repeat themselves and often involve scenes of moments of extreme insecurity, powerlessness and terror anxiety and panic attacks flashbacks: experiences of reliving the rape or part of the rape (they can be caused by images or a smell, sound or touch) changes in sleep: difficulty in either getting to sleep or staying asleep eating disturbances, such as reducing food intake or over-eating an usually strong sense that you need to defend yourself, due to a fear that the rape could happen again and a need to take very great precautions to prevent it feelings of being responsible for what happened, or even of guilt feelings of shame or embarrassment thoughts of suicide: you need to tell someone if you feel this way. Remember you still have choices and can exercise your rights as a survivor of GBV, even though, during the rape, choice was taken away from you. You can take back your power to choose and there are people who can support you in doing that. 12 It is important for you to understand that rape can happen to anyone (man, woman, boy or girl) and it is not your fault. Rape is an abuse of your human and sexual rights and it is against the law. It is important not to blame yourself if you have been raped.
If you have been raped Steps to take to deal with the trauma of being raped Rape is a traumatic experience and there are steps you can take to help yourself recover from it. Here are some practical suggestions: Thinking through why you were raped and what happened You should acknowledge the trauma that you are going through and remember that it will make an impact on your life for a while. You can t be expected just to carry on as before. It is normal for you think a lot about why you were raped. It s important to remember that the people who rape are the ones to blame: not you. Talking Talking about the rape with a close friend, family member or counsellor can make it feel less frightening. You should not feel pushed to talk, if you are not yet ready. If talking is difficult, write down what happened. Caring for your emotions You may feel emotional pain and suffering as a consequence of being raped. These feelings are very important. They can be the real key to our healing, even though they hurt so much that all we want is for them to stop. Give yourself space and time to feel. Pay attention to your feelings. Trying to push them away could make your healing take longer. Try to express feelings and share them. If you feel so upset that you are thinking about harming yourself, or anyone else, you need to contact a counselling service or a doctor. There is nothing to be ashamed of from experiencing a strong reaction to an extreme situation. There are some antidepressants and other medicines that may help your upset feelings. If you need medication, talk to your healthcare worker about how to get it. Cry if you have to. And most of all, if there is something to laugh at, then laugh. There is nothing like laughter for healing. Getting control of your life again You will have good days and bad days. You are in control of most aspects of your daily life, even if it doesn t feel that way. You can make choices about what steps to take or what you want to do. For example, if you feel unsafe, put bars on your windows or another lock on your door, or make an arrangement for someone you trust to stay with you, or walk with you, so that you are not alone. Taking care of your body Take care of your body by trying to eat healthy foods, do some exercise every day and try to rest as much as you can. If you have lost your appetite and don t feel like eating, then try to eat small amounts at a time and then try to increase how often you eat. If you are not sleeping well at night, take a half hour walk each day if you can; don t eat, drink or smoke soon before going to bed, and don t panic if you can t sleep. Try to do relaxing things like taking baths with rock salts, rosemary or lavender, soaking your feet in a basin of hot water or taking a hot water bottle to bed with you on a cold day. Massages are also good. Try and find other things that will comfort your body and soothe your mind. Support and safety It s good to think about the situations in which you feel unsafe and to work out what you can do to feel safer. If the rapist s family or friends contacts you, follows you or hangs out near your house, report this to the police immediately. Positive thoughts What you think can affect the way you feel. You did the best you could in the situation. Do not dwell on what you should have done differently. You may need to make an effort to stop criticising yourself or having negative or frightening thoughts after the rape. Try and educate yourself about rape. The best way to start feeling in control of the decisions you make is by learning as much as you can about the medical, legal and emotional aspects of rape. Remember your faith in life. This can be a religious faith, your own positive beliefs about life, or your personal philosophy. Go to people who have helped you keep faith in life in the past, read the things that have previously helped you and go to the places that help you with your faith. 13
You are not alone. Join or form a support group and meet other survivors. You will be able to help them and they you. Touching and sex after rape Survivors of rape often do not want sex or to be touched. This feeling will pass in time. Remember, you do not need to touch or trust anyone more than you feel comfortable doing. You may only be able to enjoy sex properly if you can feel in control of sexual situations. You must talk to your partner about how you feel so that he or she knows that you are not just rejecting him/ her. You do not have to have sex to show love. Your partner owes it to you to respect your feelings at this time. Take things at the pace that feels right for you. Follow-up visits at your health facility You will need to return to your health facility for follow-up visits, test results, more tests, medication and counselling. Your doctor or nurse will provide you with dates to return for follow-up visits. You can return to the health facility if you experience side effects from medication or need advice and further assistance. For all follow-up visits, it is a lot easier if you return to the place where you were first helped, as your file and all your medical details are there. Do not miss appointments. How your family may react The rape may also affect your family members, friends and your partner. Sometimes our friends and family are very helpful and at other times they can make us feel worse. Good supporters are very important to you at this time, but they also may feel that they need support for themselves. The health facility staff should be able to talk to your family members and friends, to help them to help you. Your family, partner or friends will have their own feelings of trauma and distress, but you are not responsible for making them feel better. You should not feel responsible for causing their feelings. You should also not try to protect them from such feelings. However, it may be helpful for them to seek counselling to get through this difficult time. What medical help do I need if I have been raped? Injuries Rape is a violent act, and you may have internal as well as external injuries. It is important to get these treated. STIs and HIV You do not know how many sexual partners a rapist has had, or what state of health he is in. It is very important to see a doctor for treatment that will prevent you from contracting HIV or any other sexually transmitted infections (STIs) as a result of the rape. If you are HIV negative, there are pills available that can help prevent HIV infection. It is very important for you to have an HIV test so that the nurse or doctor can know whether you should be taking these pills. You need to take the HIV prevention treatment (PEP) as soon as possible after a rape within six hours if possible. If you wait longer than 72 hours (three days to start the treatment), it will not work. If you agree to the HIV test, you will be asked to sign a consent form and give blood. You will receive counselling before the blood test and when you get your result. The test result is usually available immediately. The result of the test will be kept totally confidential. If your test is positive, it means that you had HIV before the rape. It will be painful to be told that you have HIV, but it is also very important to know your status. Having HIV is not a death sentence, but it means you have to look after yourself in order to be healthy. You will be provided with information on how to live positively with HIV/AIDS. You will also be referred for further medical assessment to see if you need anti-retroviral pills and ongoing help and support. If your test is negative, you will be given pills to prevent you from acquiring HIV from the rape. It is important for you to undergo more HIV tests and you will be offered these regularly for up to six months after the rape, to be completely sure that the pills have worked. Your partner should use a condom every time you have sex, until your six months test is negative. Explain to your partner that this is for his protection. 14 You can ask for a copy of your signed HIV consent form and your HIV test results.
If you have been raped Hepatitis B test All survivors should have a blood test for Hepatitis B. This is an infection which you can get during rape, especially if there have been cuts and injuries. Hepatitis B is spread by contact with the blood of someone who is infected. It can be prevented by vaccination within three weeks of the rape. Possible pregnancy No-one wants to fall pregnant as a result of being raped. So it s very important to receive treatment to prevent pregnancy. It is possible for you to fall pregnant if you have started menstruating and have not yet reached menopause. Even if you are using a contraceptive like the injection or pill, you will be asked to provide urine for a pregnancy test. The results of this test will be available to you immediately. If your test is positive within two weeks of the rape, then you were pregnant before the rape. Any pills that you will be given will not harm your baby. If your test is positive two weeks or more after the rape, you could be pregnant from before the rape or from the rape. You will need to have an ultrasound scan to find out how long you have been pregnant. If your test is negative and it is still negative within five days of the rape, you will be given pills to prevent pregnancy from the rape. The pills might make you feel sick, and you will start to bleed. This bleeding is like a normal period. If you do fall pregnant from the rape and you decide you do not wish to continue with the pregnancy, then you can obtain an abortion or termination of pregnancy. The medical examination Remember, you should be asked to give consent (permission) before any examination. You can refuse this at any time. You may choose to only receive medical care and not be examined at all. If you consent to be examined, you will have to sign a police form (called a 308 form) to say you agree, or give your consent, to be examined. During the examination you may ask any questions and have a friend or family member present to support you. Why is the medical examination important? The examination is done to find injuries you may have anywhere on your body from the rape. Injuries are documented on a form called a J88. This will be part of your docket if you open a case with the police and it can be used as evidence in a court case. What can I expect to happen during the rape exam? The doctor or nurse will ask for your medical history. This includes when, where, and what happened during the rape. He/she will ask when last you had consenting sex, whether you have had children, and when you last menstruated. This helps the doctor to know whether any tears occurred in the vagina as a result of the rape. The examination may be embarrassing and uncomfortable. You will be asked to take off your clothes, and this might make you feel vulnerable and exposed. The doctor might not be as sympathetic as he/she should be. If the doctor is male, there should be a female nurse present during the examination. Some health facilities have a Thuthuzela Care Centre, where you should find be a psychologist or counsellor who can talk you through the examination process. Otherwise, try and get a family member, friend or community counsellor to be with you whilst you are having the medical examination. (There is a list of Thuthuzela Care Centres and their contact details at the end of this guide.) Before you can drink water and take tablets, the doctor must take a swab from inside your mouth to try and obtain a saliva sample from the perpetrator. If the rapist did not kiss or force you to give him oral sex, tell the doctor immediately, and you can drink water and take your tablets. The doctor will examine your whole body, taking tissue samples to find evidence of the rapist s hair, saliva and semen. There will be swabs that may be uncomfortable, including a vaginal and anal swab. The doctor will also use a comb to get samples of your pubic hair and the hair on your head, if the rapist touched either of these areas, or ejaculated on you. It is important to tell the doctor where the rapist touched you and whether you scratched him, so that as much evidence as possible can be collected. Remember that this process is important for gathering evidence against the rapist. The evidence can be used in a court case to convict the rapist. If you feel upset after the 15
16 rape examination, try to talk to a counsellor, or to a friend or family member. Why tissue samples are collected During the examination, tissue samples from the survivor s body can be taken and sent to a laboratory for testing for the rapist s DNA. DNA is a biological fingerprint that is present throughout our bodies. DNA is found in saliva, blood and semen. If someone has sexual or other contact with you, for example, ejaculates, bites, licks or kisses you, DNA may be left behind. If evidence of someone else s DNA is found on your body it proves that they had contact with you. Counselling after rape Where can I get counselling? All forms of sexual assault, including rape, are traumatic, and you are likely to have psychological as well as physical after-effects. You might want to see a counsellor if you have been raped, and this is a good idea. Getting access to a counsellor often depends on where you live and what services are close to you. There may be a Thuthuzela Care Centre where you can receive counselling from a psychologist, nurse or social worker. Organisations such as Rape Crisis also provide support and counselling after rape, and you can call the Lifeline national helpline. (contacts are listed at the end of this guide). However, it is true that there is not enough counselling provided for survivors of GBV and rape, especially if you live in rural or hard-to-reach areas. What is a Thuthuzela Care Centre? A Thuthuzela is a one stop facility for survivors of sexual and other forms of GBV. The aim of Thuthuzela Care Centres is to reduce secondary trauma for the victim, improve the rate of conviction of perpetrators, and to reduce the time it takes to convict a perpetrator. When Thuthuzela Care Centres are working properly, a rape survivor is taken in an ambulance with a trained volunteer who gives her comfort and counselling. In the Thuthuzela Care Centre, you should find a quiet, private space, a doctor ready to do the examination, counselling, and the opportunity to take a bath or shower after the examination and to change into clean clothes. After this, the investigating officer on call should take your statement, and you should be given your medication, before being transported home. The Thuthuzela Care Centre should also offer you a referral letter or appointment for long-term counselling, arrangements to go to a place of safety, if necessary, and legal and court preparation support. The aim of Thuthuzela Care Centres is to provide the rape survivor with all services in one location, rather than moving her around between different service providers. Thuthuzela Care Centres are meant to be in operation in public hospitals in communities that experience particularly high rates of rape. Some are working well, but others are not fully operational. The government is aiming to set up more Thuthuzela Care Centres in South Africa. (You can find the contact details of your nearest Thuthuzela Care Centre at the end of this guide.) You can also ask your local police station to take you to the Thuthuzela Care Centre if you have been victimised. Challenges in service provision to survivors of GBV After surviving an act of GBV such as rape, you can get help from the police, public clinics and hospitals, and the courts. Good quality service from these institutions is very important in helping to bring about justice, as well as in supporting survivors so that they can carry on with their lives. Unfortunately, there are a lot of problems with these services, and survivors who do try to access them may experience secondary trauma. Despite very high levels of rape and HIV/AIDS, studies indicate that no more than 30% of staff caring for rape survivors have received specialised training on assisting rape survivors. Some of the problems experienced by survivors include: Police may have too little knowledge and awareness of how to respond sensitively and appropriately to survivors of GBV. For example, they may fail to take your case as seriously as they should, or they may fail to take you to a private space where they can take down your statement confidentially. The process of taking an alleged perpetrator (the suspected rapist) to trial and successfully convicting him is long and hard, and very emotional for the survivor.
If you have been raped Health workers may be unsympathetic, judgemental and impatient to survivors of GBV. In a study of sexual assault service provision, one in three health workers said they did not consider rape to be a serious medical condition. The waiting period for rape examinations at the health facility can be very long. There are delays in providing medical treatment such PEP (Post-Exposure Prophylaxis). There is little privacy and confidentiality during the rape examination. Health workers are not properly trained in how to examine and treat rape survivors. There are poor referral systems, as well as poor counselling services for rape survivors and their families. Often rape cases are dropped or somehow lost from the criminal justice system, before the trial s conclusion. 17
Part 2: National Policy Guidelines for the Department of Health 19
20 Understanding the National Guidelines The National Policy Guidelines recognise that the Department of Health plays an important role in the criminal justice system with regard to sexual offences. The Department accordingly needs to develop processes in order to provide the court with physical and psychological evidence on the survivor s condition and to provide the necessary medical evidence to assist courts in prosecuting the perpetrator successfully. As a survivor, a community activist, or health worker, it is important that you understand the National Guidelines so that you can make sure they are observed if you decide to take action about a case of sexual assault. The National Guidelines state that: The health care professional should assume that the survivor s allegation that a sexual offence was committed against her is true and should treat survivors with dignity. The healthcare professional must provide services to the survivor, regardless of whether the survivor has, or plans to, report the rape to the police. The health care professional should conduct the medical examination as soon as possible after the survivor presents herself to the health care professional. Prior to the medical examination, the health care professional should introduce herself/himself to the survivor and explain her/his qualifications. The health care professional should obtain information from the survivor on her medical history and the alleged sexual offence. The statement by the survivor regarding the event will not be as detailed as that made by the police and the health care professional s notes should state this. This is to ensure that the differences in the survivor s statements do not cause issues at trial. The health care professional should explain the criminal procedures to the survivor, as well as the survivor s right to lay a charge against the perpetrator. He/she should also explain how the medical examination will be conducted and what the purpose of the examination is. Such information should be explained in a language understood by the survivor. The health care professional should obtain consent from the survivor to collect medical evidence and submit it to court. He/she should then take all necessary samples, record his/her or findings, and submit the findings to the court. After the medical examination, the health care professional should refer the survivor for emergency medical treatment if necessary and for treatment for sexually transmitted infections and pregnancy. The survivor should also be referred for HIV testing and counselling. The health care professional should assist the survivor in regard to referral to hospitals and must ensure that the necessary medical certificates are provided to the survivor for purposes of absenteeism from school or work. Health care professionals who assist survivors need to have specialised training and skills in order to be qualified to assist survivors. Those who do not have these qualifications may still assist survivors, but they must keep comprehensive records so they can give evidence at court during the trial. Medical services should be available to survivors 24 hours a day and the survivor must be assisted with minimal delay. The health care professional should deal with the survivor in a sensitive manner and take steps to ensure that the survivor does not experience secondary victimisation or trauma. What is gender-based violence (GBV)? GBV is any act of violence that is committed because of someone s gender if they are a woman or a man. GBV includes acts of physical, sexual and psychological violence. These can be committed by strangers, and also by people we know, such as boyfriends or husbands, family members, and neighbours. Childhood sexual abuse, sexual harassment, forced prostitution, genital mutilation and forced marriage (for example, Ukuthwala ) are all forms of GBV. The most prevalent form of GBV is that which occurs between intimate partners.
National Policy The acts of GBV we are mostly concerned with here, and are most common in South Africa, are acts of violence against women. Acts of violence towards women and children are, at some level, generally accepted by our society. The definition of rape and consent Rape is when someone puts their genital organs into the mouth, anus or genital organs of a victim, without their permission. Rape also includes an act such as when someone puts their finger or any object like a stick or a bottle into the anus or genital organs of the victim, or the genital organs of an animal are put into the mouth or organs of a victim. (A man s genital organs are his penis and testicles. A woman s genital organs are her vagina, labia and clitoris.) The new Sexual Offences Act that came out in 2007 has made rape mean more things than it used to. One of the changes to the law on sexual offences brought about by the Act relates to rape. Previously, according to the Act, only a man could rape a woman by forcefully penetrating her vagina with his penis without the woman s consent. Now it is acknowledged that people of the same sex can rape each other by use of genital organs or objects. The Sexual Offences Act also states that all forms of sexual abuse or exploitation are crimes, and that both men and women are considered to be victims and perpetrators of rape. The Act also states that rape victims must get antiretroviral drugs like PEP to prevent them from being infected with HIV. Sexual assault Sexual assault includes the act of touching the genitals, anus or female breasts of any person of any age without their consent, for example: touching a woman s breasts kissing someone touching someone s body in any way that causes sexual arousal inserting an object that resembles human or animal genitals, for example, a dildo. Other kinds of sexual offences in relation to adults aged 18 or older include: compelling or causing someone to witness sexual offences, sexual acts or self-masturbation exposing or displaying genital organs, anus or female breasts exposing or displaying child pornography to persons 18 years or older engaging the sexual services of persons 18 years or older for financial or other reward exposing or displaying, or causing the exposure or display of child pornography or pornography to children compelled rape (compelled rape occurs when one person forces another to sexually penetrate someone else against their will) compelled sexual assault (forcing another to sexually assault someone else against their will) compelled self-sexual assault (forcing someone to masturbate themselves, to act in a way that is sexually arousing or degrading. Forcing someone to penetrate their own genitals or anus, either with a finger or an object) incest (forcing a relative to engage in sexual acts) Sexual offences against children A child under the age of 12 is too young to give his or her permission to become involved in any sexual act. This means that a sexual act with a child under 12 is automatically a crime. Boys and girls can consent to sex from the age of 16 but if they did not give consent, then a case of rape or sexual assault should be opened. Statutory rape is when children between the ages of 12 and 16 experience sexual penetration into their genitals or anus. Even if the child was willing to consent to the act, and the perpetrator is over 16, the older person can still be charged. For example, if Babalwa is 14 years of age and agrees to have sex with Vuyo, who is older than 18 years, Vuyo has committed the sexual offence of consensual sexual penetration with a child. Committing a sexual act with a child between 12 and 16 years of age, without the child s consent, amounts to statutory rape or sexual assault. For example, if Tania is 13 years of age and Benjamin, who is older than 18 years, forces her to have sex with him, Benjamin has committed a criminal sexual offence. 21
22 When two children under the age of 16 have consensual sex, this can still be a crime. The two children should not be arrested but may be summoned to appear in court after an investigation has taken place. For example, if two children aged between 12 and 16 years engage in penetrative sex with each other, they can both be charged with statutory rape. However, to prevent prosecutions of children that are unnecessary or that do not make sense, the decision to prosecute the children must be authorised by the National Director of Public Prosecutions. Sexual offences against children (under the age of 16) include: sexual exploitation of children, when a person engages the services of a child with or without his/her consent for financial and other reward, favour or compensation sexual grooming of children exposure or display of child pornography or pornography to children using children for pornographic purposes or benefiting from child pornography. Any person who is 16 years of age, or older, can consent to a sexual act with another person who is 16 years of age, or older. Domestic violence Domestic violence occurs in many different ways within a marriage or dating relationship. Such abuse can be physical, sexual, emotional, psychological and economic. The Domestic Violence Act of 1998 provides South Africa with its first legal definition of domestic violence. The Act creates a protection order that prohibits the abuser (or respondent) and anyone acting on their behalf from engaging in acts of physical, sexual, emotional, psychological and economic abuse. The Act commits the government to the elimination of domestic violence. In this guide, when we refer to the complainant we are talking about the person who has been abused and wants to seek protection from that abuse. The Act defines the following as domestic violence: physical abuse, including threats of physical abuse sexual abuse, which includes any action that humiliates, degrades, abuses or violates the sexual integrity of the complainant emotional, verbal and psychological abuse intimidation, which is when a threat is made or conveyed which causes fear to the complainant economic abuse, which includes situations where an abuser takes away his partner s money; refuses to provide enough money for household expenses; does not pay maintenance for the children even when he can afford to; or abandons or threatens to abandon his partner when he finds out her HIV status is positive harassment, which includes repeatedly watching the complainant or loitering outside or near the area where the complainant is; repeatedly making telephone calls or getting someone else to make telephone calls to the complainant (whether or not a conversation happens); or repeatedly contacting the complainant via letter, telegram, package, facsimile, electronic mail or other object stalking, which includes following, pursuing or accosting the complainant damage to property entering the home or part of the home without the complainant s permission any other abusive, controlling behavior which harms, or may cause harm to the safety health or wellbeing of the complainant. Protection from harassment The purpose of the Protection from Harassment Act (2010) is to: afford all persons in South Africa the rights to equality, privacy, dignity, to freedom and security, which includes the right to be free from all forms of violence from either public or private sources and the rights of children to have their best interests considered to be of paramount importance afford victims of harassing behaviour an effective remedy against such behaviour through providing for the issuing of protection orders against harassment introduce measures which seek to enable to relevant organs of state to give full effect to the provisions of the Act.
National Policy Under the Act harassment means directly or indirectly engaging in conduct that causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonably: a. following, watching, pursuing or accosting the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies or happens to be; b. engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means, whether or not conversation ensues; or c. sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person or leaving it where it will be found by or given to, or brought to the attention of, the complainant or a related person. Under the Protection from Harassment and Domestic Violence Act, survivors of harassment and domestic violence may apply to the Magistrate s Court to have a protection order issued. Such an order may be handed down against any person who engages in prohibited activities such as stalking, persistent electronic messaging, sexual harassment and any other behaviour calculated to cause psychological and/or other kinds of harm to the victim. A protection order is intended to interdict and restrain the perpetrator from engaging in the unwelcome conduct. Information on how to apply for a protection order is also provided in this guide under the section on What can I do if the perpetrator continues to abuse or harass me? How big is the problem of GBV in South Africa? The facts and figures quoted below have been taken from a variety of sources, which are listed at the end under References. South Africa has some of the world s highest rates of GBV. As many as one out of every two women will experience some form of abuse in their lifetimes. In a recent study of 1 394 men working for three Cape Town municipalities, approximately 44% admitted to abusing their female partners. Another study found that one woman was killed every six hours by her intimate partner (husband or boyfriend). In a report on male violence against women, 42% of men disclosed that they had abused their intimate partner and 28% of men disclosed rape of a woman or girl. South Africa s rate of rape has been found to be the highest in the world. In 2006/2007, the South African Police Service (SAPS) received 52 617 reports of rape. This figure is probably not an accurate version of the true extent of rape, because sexual offences are often under-reported. A representative community-based survey in South Africa found that in the 17 48 age group there are 2 070 sexual assaults per 100 000 women per year; that is, approximately 1 in 5 women. The highest risk group for sexual assault are teenagers and young women. More than a third of girls have experienced sexual abuse before the age of 18 (for example, unwanted touching, forced sex or being exploited into sex by much older men). Sexual assault among men has not been the subject of much research and may be equally or more underreported. Whilst GBV is an issue that affects everyone, it is often the case that poor, undeveloped areas such as townships and deep rural villages experience the highest levels of GBV. Here, many children lack care and protection and therefore are more vulnerable to sexual abuse. Inadequate safety and security services, such as street lights or police presence, can increase the vulnerability of people living in these areas to violence. Additionally, high levels of unemployment can increase feelings of frustration, dissempowerment and depression, which can fuel acts of violence against women and children. 23
Tantaswa Ndlelana, TAC member and national administrator One in every two South African women is sexually assaulted in their lifetime. Some women don t report rape and abuse cases because they are afraid of losing financial support. As women we have rights and men have to respect those rights the same way they want their rights to be respected. 24
Part 3: Laying a charge of rape 25
26
Laying a Charge Deciding whether to report a rape to the police In this section we will explain about laying a charge of rape, getting a protection order for domestic abuse and getting an eviction order. Deciding whether or not to make a report to the police can affect you in many different ways, and you should consider it carefully. Reporting sexual offences can be an empowering experience that helps the survivor to begin to heal, but it can also be painful or even traumatic, and you may find it difficult to report your experience to the police. When it goes well, the police are sensitive to the victim, and the perpetrator is arrested, brought to court and prosecuted. This sends a message to the community that sexual offences are criminal acts and will be punished. However, sometimes the police and other officials are insensitive and poorly trained in how to deal with traumatic experiences like gender-based violence (GBV) and rape. You may also have to talk about your experience in front of several people. In addition, the legal process is long and slow it takes months or even years to reach court and you may need to make many appearances in court. The result of the trial depends very much on your involvement as the survivor in helping the police to do their job. You can be supported through this process with counselling and legal advice, should you choose to go ahead with it. Remember, it is your choice to file a case against a perpetrator, and to give consent for the medical examination, which is necessary to get the legal evidence for your case. Decide whether you want to report the attack to the police. You may not feel like making this decision so soon after being raped. However, the sooner a doctor examines you, the more chance there is that she or he will find strong proof like blood or semen on your body or clothes, which will help result in a conviction if you lay a charge. The Family Violence, Child Protection and Sexual Offences Unit Because family violence is so common in our country, the police have a special unit dealing especially with family violence, the protection of children and sexual offences. It is called the Family Violence, Child Protection and Sexual Offences Unit (FCS Unit). Many police stations have detectives trained by an FCS Unit. The staff in these units receive specialised training in dealing with family violence. Violence in the family is a crime like any other, and the police must listen to your complaint, and may arrest the perpetrator. Why should I lay a charge against the abuser/perpetrator? There are some good reasons for laying a charge against the perpetrator. One reason is that you may have been the victim of a serial-rapist in the area, and the police need to know about this. Another reason is that you can take action in seeking justice against the perpetrator, which can be empowering and assist in your own healing process after the rape. If he is successfully prosecuted, he will be sent to prison, and you will reduce the danger for other potential victims. Remember that the prosecutor needs your help during the legal process of proving the guilt of the perpetrator. The survivor is often the most powerful source of evidence that the prosecutor has. Your courage in coming forward and working with the prosecutor during the case can result in a successful conviction. Steps involved in laying a charge If you are going to open a case against your abuser, you should go to the police station and make a statement. This is your story about what happened. If you are feeling traumatised, the police will only take a short statement, and then follow up later. It is your right to report the rape to the police. When you lay a charge of rape, it means that you want the police to investigate the case and arrest the perpetrator. It s your right to give your statement to the police in a private room, where you feel safe and have confidentiality. This is sometimes called the victim empowerment room. If you are a woman, you can ask for a female police officer to take your statement, and the same applies if you are a man. It is your right to say who you want in the room while you make your statement, provided that person is not a witness to the rape, in which case he/she will also be asked to make a statement in a private room. It is a good idea to bring a friend or family member, whom you know and trust, for support. 27