The Justice for Women Campaign

1. The Justice for Women Campaign • Began in 1997 with the case of a prison warder, Solly Ramontoedi, who killed his wife over a maintenance dispute at Johannesburg Regional court. He was sentenced to three years correctional supervision. • In 1998 we began focusing on the cases of women who had killed abusive partners and received sentences in excess of 15 years. • In the same year CSVR began comparative research into conviction and sentencing patterns in cases of spousal homicide. • The following forms of assistance were offered to women serving lengthy sentences for killing abusive partners at Johannesburg Prison, including: • Filing and preparation of appeals • Legal representation during applications for conversion of sentences to correctional supervision • Assistance with applications for parole

2. Cont. • The Justice for Women campaign launched in 2001 by the CSVR and its partners the National Network on Violence Against Women and the Commission on Gender Equality. Maria Scholtz’s application for presidential pardon submitted to the Department of Justice. • In 2002 the children’s report “Now we have nothing” is released. • Planning for a children’s programme and reintegration programme is completed during the same year. • Research investigating laws applied internationally to women who have killed abusive partners completed. • ‘Carte Blanche’ airs an insert on the five women currently applying for presidential pardon in 2002. 89% of viewers participating in a poll after the programme support the early release of the women.

3. Outcomes and strategies • Reform of legal defences to murder and the reform of sentencing guidelines/provisions • Precedent via ‘ideal’ test cases - defences and sentencing • Statutory reform (based on two pieces of research – comparison of legal approaches applied internationally to women who kill abusive partners, and an analysis of how self-defence and provocation are applied locally) • Legal education

4. Outcomes and strategies • Establishment of review mechanism to allow for early release of women • Presidential pardon - Department of Justice • early parole - Department of Correctional Services • conversion of sentence to correctional supervision - Department of Correctional Services • amnesty - Department of Correctional Services • review panel - Department of Justice

5. Outcomes and strategies • Support services for women • Preparation for and assistance with family and community reintegration - children? Housing? His family?Employment? Therapeutic services?

6. Comparative research investigating convictions and sentences in cases of spousal homicide • All cases of spousal murder heard between 1994 -1998 at Witwatersrand Local Division High Court, Transvaal Provincial High Court and one regional court, the Johannesburg magistrate’s court. • Sources of information included: • Probation officer’s reports, expert witness reports, judgments and sentences, trial transcripts, charge sheets and taped proceedings. In addition, newspaper reports for the same period were also surveyed to assist in the identification of cases. A total of 164 cases were identified: 39 involving women and 125 involving men.

7. Findings • Finding 1: More men than women killed their intimate partners and men who killed their female partners outnumbered their female counterparts by approximately four to one. • Finding 2: Men and women’s reasons for killing their intimate partners were different: • The greatest proportion of men killed their female partners over their sexual choices and behaviour. • Most women killed their male partners in response to ongoing abuse.

8. Findings cont. • Finding 3: Domestic violence featured in a number of these killings. The majority of women (56%) killed their partners under circumstances in which they were being abused. No men killed in response to ongoing abuse at the hands of their female partners but at least a third (31%) of the men had been abusing their female partners before finally killing them.

9. Finding 4: One quarter of men who killed their female partners have previous convictions for offences such as drunken driving, murder, assault, theft, robbery and rape. • Three women had previous convictions, two for drunken driving only and one for assault and robbery.

10. Findings cont. • Finding 5: Fifteen percent of men who killed their female partners also killed other people such as children, the woman’s mother or sister, or her new partner. The greatest proportion of this group received sentences ranging between 11 - 15 years. • Only 1 woman killed other people in addition to her partner (this was her partner’s mistress).

11. Findings cont. • Finding 6: The greatest proportion of women were acquitted and given non-custodial sentences. The greatest proportion of men received sentences ranging between 6 - 10 years. • Are the courts treating men more harshly than women? NO: because men’s and women’s reasons for killing their intimate partners are very different to one another, straight comparisons between men’s and women’s sentences are impossible. Indeed, the difference is to be expected given how many women kill their partners either in accidents or through defending themselves.

12. Findings cont. • Finding 7: The greatest proportion of women who killed their abusive partners were given non-custodial sentences. • BUT: a minority of abused women fared particularly badly at the hands of the criminal justice system. This is the group of women who kill their abusive partners using atypical methods ie. they employ third parties or kill the man while he is asleep or otherwise vulnerable. For this group of women, the history of abuse appears to play no role as a mitigating factor. Instead, they are compared with those who kill for financial gain and their sentences are equally as lengthy.

14. Conclusions from the research • Because more men than women kill their partners, men’s experiences have, inevitably, come to constitute the norm in criminal justice proceedings. Thus, as long as women behave in ways that resemble those of men, they will enjoy access to the same defences and mitigating circumstances that men do.

15. Conclusions cont. • The greatest proportion of women in this sample killed their abusive partners during a confrontation with him. However, as the findings also illustrate, all battered women do not respond identically to actual or threatened abuse, and it is therefore dangerous to create a paradigmatic abused woman against whom all other abused women should be measured.

16. Conclusions cont. • Current law does not adequately take into account differences in physical strength between men and women. As a result, some women are excluded from using the defences of provocation or self-defence.

17. Why release the women? • Historical failure by society until very recently to address domestic violence • first law to specifically address domestic violence passed in 1993 (the PFVA) • Many problems led to the PFVA being replaced by the DVA in 1999. • Police’s historical reluctance to deal with DV leads drafters of DVA to place a number of obligations upon the police. • In 2001 national SAPS Commissioner Selebi publicly states that the police are unable to implement the DVA effectively • Lack of shelters and social services – particularly in rural areas NOTE: Research conducted in the USA shows a decline over the last 20 years in women killing abusive partners as services and laws have become increasingly available.

18. The Constitution • When interpreting the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. • Three key constitutional rights relevant to women who kill abusive partners: • The right to freedom and security of the person, including the right to be free from all forms of violence • The right to equality and the prohibition of unfair discrimination • The right to a fair trial

19. How do we achieve equality? • Hugo: we cannot achieve equality by insisting on identical treatment in all circumstances. • The National Coalition for Gay and Lesbian Equality: “Equality should not be confused with uniformity; in fact uniformity can be the enemy of equality. Equality means equal concern and respect across difference. It does not presuppose the elimination or suppression of difference.”

20. President of the Republic of South Africa v Hugo • “Where the power of pardon or reprieve is used in general terms and there is an ‘amnesty’ accorded to a category of prisoners, discrimination is inherent. The line has to be drawn somewhere, and there will always be people on one side of the line who do not benefit and whose positions are not significantly different to those persons on the other side of the line who do benefit” • “There are at least two situations in which the power to pardon may be important. First, it may be used to correct mistaken convictions or reduce excessive sentences and second, it may be used to confer mercy upon individuals or groups of convicted prisoners when the President thinks it will be in the public benefit for that to happen.”

21. Hugo cont. • Key considerations informing the President’s decision: • It would serve the interests of children, given that mothers are generally responsible for child care • The female prisoners in question constituted a very small portion of the prison population • The early release of the category of women in question would not bring the administration of justice into disrepute

22. The role of Correctional Services • Government has a stated commitment to achieving gender equality • Recommendations around conversion of sentence to correctional supervision • Parole • Amnesty • Special advisory boards? Eg the case management committee (for DCS), or an Executive Pardon Advisory Board (for the President)