PARLIAMENTARY DISCUSSION: WOMEN IMPRISONED FOR DOMESTIC VIOLENCE

1. thokomajokweni 20 August 2004

2. PARLIAMENTARY DISCUSSION: WOMEN IMPRISONED FOR DOMESTIC VIOLENCE Oral Presentation by: Adv Thoko Majokweni thokomajokweni 20 August 2004

3. Introduction • DV is difficult to monitor as it is not a specific offence • Grossly under-reported • High attrition rate • Dynamics not easy to understand (psychological & behavioral patterns) • Often attract inappropriate responses (civil & criminal) & sentences thokomajokweni 20 August 2004

4. Status quo From the Annual Report 2002/3 & CS Budget Vote 21 dd 15/ 06/04 • 63.2 % Overcrowding • 3 040 - Women prisoners with +50% being mothers • 164 - Domestic homicides inmates • MRC Study- 50% of women killed in domestic femicides in 1999 thokomajokweni 20 August 2004

5. The CJS Response • Reporting • 1st Court appearance & Bail considerations • Police investigations • Decision to prosecute/ Diversion/ ADR • Trial • Verdict • Sentencing • Correctional Supervision – s276 thokomajokweni 20 August 2004

6. Cont. The CJS Response • Failure of the CJS in providing adequate legal protection to abused women to a state of desperation for women who resort to killing partners • SvBaloye 2002(2)SA425- the ineffectiveness of the CJS in addressing family violence intensifies the subordination and helplessness of the victim. This also sends an unmistakable message that the daily trauma of vast numbers of women counts very little. Yet it is precisely the function of constitutional protection to convert misfortune into injustice to be remedied • The Constitution has added a new dimension to the sentencing discretion-section 39(2) requires due regard to the spirit of the Constitution thokomajokweni 20 August 2004

7. Role of Prosecution in CJS Civil Process- role limited- advisory Criminal Process • 1st Court Appearance & Bail Considerations • Provide guidance in investigations • Decide whether or not to oppose bail • Decisions: Prosecute/ Divert / Withdraw/ Decline • Trial- prosecute in the public interest thokomajokweni 20 August 2004

8. Cont. Role of Prosecution… • Verdict: address court on facts and law • Sentence: May lead evidence to ensure that appropriate sentence is imposed • Prevalent Trend I.r.o Sentence Considerations • Personal circumstances of the offender • Nature of crime • Public interest • Blend with mercy thokomajokweni 20 August 2004

9. New Trend: Ferreira’s case • History of violence from the years of childhood • Mental & behavioral pattern arising from long standing abuse • Adopted the Walker Cycle of Violence Theory • Evaluated facts not from a male or objective perspective, but from the relevant woman’s perspective • Accepted the subjective belief that there was no alternative route to escape violence other than by homicide (premeditated contract killing) thokomajokweni 20 August 2004

10. Offender’s age at offence. Period post conviction-10yr Circumstances of offence Nature & serious of offence Accused circumstances Interests of State & Community Whether sentence includes imprisonment Blameworthiness attaching to offence Whether case distinguishable from similarly convicted cases Opportunities within the Existing Policy Framework: Presidential Pardon Policy thokomajokweni 20 August 2004

11. The Constitutional Framework • Constitutional rights should inform and underpin sentencing • Freedom and Security -12(1)(c) • Equality and Non Discrimination -9 • Fair trial -35(3) • The State must respect, protect, promote and fulfil the rights in the bill of rights7-(2) • In interpreting section 9 we cannot achieve the goal by insisting on identical treatment. Equal concern and respect across differences • It must be remembered that the extent that the systemic,pervasive and overwhelmingly gender specific,domestic violence both reflects and reinforces patriarchal domination in a brutal form thokomajokweni 20 August 2004

12. Factors to be Considered in addition to Existing Framework • Socio-economic reason for staying in abuse • Seeking of/ Access to assistance • Inappropriate assumption- fleeing minimises harm • Profiling victims (discrimination) • CJS understanding latitude of acceptance & the straw that broke the camel’s back • Premeditation not equal to cold-bloodedness thokomajokweni 20 August 2004

13. Cont: Factors… • With the cycle of violence attack is always imminent (never out of sight) • Due weight to the rights to life, freedom, dignity & security of persons, awa equality for victims of domestic abuse • Homicide may be the only answer for victims • Custodial sentences may be irrelevant to public interest thokomajokweni 20 August 2004

14. Recommendations • No place for blanket amnesty. Case by case approach recommended • Extend application of s276A to lengthier terms of imprisonment, simplify the process & allow individual applications for/ by prisoners to court (for a limited period as with Min Sentences) • Publish guidelines & selection criteria • Intensive training of role-players on DV • Imprisoned mothers to be considered for Corr superv, early release and clemency (stick to 5 yrs requirement) thokomajokweni 20 August 2004

15. Cont: Recommendations • Revise Prosecution Policy in response to the Ferreira judgement • Adoption of a multi-pronged approach to DV management (Courts/ Diversion/ ADR/ Life skills development & empowerment for both) • Extensive multi-disciplinary training-DV Manual thokomajokweni 20 August 2004

16. thokomajokweni 20 August 2004