Vivienne Mentor-Lalu: Shukumisa Sam Waterhouse: CLC, UWC

1. Comment on the DoJCD, NPA Annual Reports and the DoJCD Annual Performance Report on Sexual Offences 2013/14 Vivienne Mentor-Lalu: Shukumisa Sam Waterhouse: CLC, UWC Incorporating research and recommendations from Resources Aimed at the Prevention of Child Abuse and Neglect

2. Sexual Offences in South Africa • SAPS statistics 11/12: 64 514 • SAPS statistics 12/13: 63 057 • SAPS statistics 13/14: 59 700 • Under-reporting rates estimates vary • SAPS targets to reduce SVC by 7% extremely problematic – resulting in cases being turned away • Anecdotal evidence supports this • Drop in reporting numbers is not reliable indicator that there is a drop in actual SO

3. Misconceptions about sexual violence • The attitudes of staff in the CJS often reflect general societal attitudes regarding sexual violence: • Victim blaming (drunk, revealing clothes, out late at night) • Perpetrators are mentally ill strangers lurking in the dark • The sexual history of the survivor is used against her (sex workers cannot be raped, it cannot be rape if the survivor has consented to sex with the alleged perpetrator before) • One can prevent sexual assault if you try hard enough (if a survivor cannot prove she fought her attacker she must have wanted it)

4. Misconceptions are harmful • Myths cause the victim to be blamed. • Myths result in the victim not being believed • Myths make survivors feel ashamed or guilty • Myths hide the fact that a rapist can come from any race, social class or environment. • Myths take away the dignity and humanity of the survivor, causing her more trauma and pain and lowering her chances of recovery. • Police, prosecutors and other staff in CJS who believe these myths result in many perpetrators not being prosecuted. • The majority of victims of sexual violence do not pursue criminal prosecution. • Fear of privacy and confidentiality being breached • Fear of poor and even abusive treatment by officials in the system. • Fear that the system cannot keep them safe.

5. Policy Framework – Developments since 2000 • There has been an enormous effort to change the legal and policy framework • Criminal Law [Sexual Offences and Related Matters] Amendment Act 2007 – • Objective: afford complainants of sexual offences the maximum and least traumatising protection that the law can provide • Changed the definitions of offences, • Increasing access to ‘protective measures’ in the CPA • HIV testing of accused • Sex Offender Register • Some rules of evidence changed to address • Includes requirements for policy directives and national instructions – different departments developed these in the few years after 2007 • National Policy Framework in accordance with the SOA - 2013 (five years late) • High level of parliamentary oversight included

6. Other initiatives • Many different initiatives and some investment into improvements. • SOCs, • Thuthuzelas, • FCS units, • Court preparation • Victim’s Charter • VEP • Over the past 20 years there’s been significant development in understanding what is needed but commitment and resourcing has lagged

7. Conviction rates • NPA conviction rates are based on cases prosecuted (67% p62 NPA report) it only speaks to the NPA performance in court. • NPA AR reports 5484 convictions in 2013/14 on p50 and p62 • DoJCD Ann Progress Report on SO for 2013/14 reports 4401 convictions on p63 • What is cause of difference in figures? • But many cases don’t reach prosecution stage. (DoJAPRSO 13/14) • Very large numbers of cases Struck off the Roll (1794 13/14) and Withdrawn (5478 13/14) • We recognise that these numbers are decreasing and that the DoJCS planning to investigate why cases SOR • Links to myths and lack of protection in the system

8. But so little change for survivors • Many cases reported to SAPS don’t register in NPA statistics • Of the approximately 60 000 cases reported to SAPS, NPA only record around 10 000 new cases every year • SAPS reporting rates and NPA conviction rates for sexual offences the 2011/2012 and 2012/2013 around 7% (Estimate) • cases reported in that year compared to convictions in that same year. • If we look at this year’s figures its either 9.2% or 7,4% (two different DoJ/NPA figures) • A study in 2000 that tracked cases from reporting to conviction rate in rape cases was 7%, • 9% children • 5% adult. • More recent case-tracking research in smaller jurisdictions. • 2008 in Gauteng: conviction rate for rape 4%. • 2012 one police station (Mpumalanga) rape; children 4.1% and adults 0.8%

9. How things stay the same • What are we counting: Rape/Sexual offences • Vetten 2008 shows conviction rate in rape tends to be lower than for other sexual offences. • We are not doing ‘victim satisfaction’ surveys • In addition Shukumisa members report that improvements in the treatment of many survivors at court have reversed. • Lack of respect for rights widespread • Few survivors (child or adult) feel protected in the system. • Questionable if there are any improvements for survivors – pockets of excellence • Leads to withdrawals because CJS reopens trauma, and leads to emotional and sometimes physical harm

10. What can we do differently? • The investment has been in policy reform • We have a good idea of some of the things that make a difference. • Resourced SOCs • Quality court staff • Quality court preparation • Psycho-social support: Counselling • Thuthuzela Centres with required skilled staff • Local multi-sectoral implementation teams • Need to ensure long term investment including infrastructure to human resources

11. Judicial Matters Second Amendment Act of 2013 (SOC Act) • Positive because it establishes a legal framework for SOCs - safeguards their existence in light of ‘on-again, off-again’ history. • Formulation of the Act does not safeguard standards or resourcing for these courts. • No provisioning clauses. • Does not provide direction on the roll out of the courts • Not include minimum standards for resourcing and practice • What is the status of the regulations? Note they’ve been sent to govt. stakeholders (p19 DJAPRSO 13/14) • Will these be open to public comment?

12. Ministerial Advisory Task Team on Sexual Offences (MATTSO) • Not policy but indicates govt. awareness of what is needed • Thorough investigation into the possible re-establishment of SOCs • Includes detailed recommendations to improve the management of sexual offences. • Mostly consistent with recommendations made by Shukumisa to parliament in April 2013 • Minimum standards must be prescribed - Will the MATTSO standards be included in the regulations?

13. The MATTSO model • MATTSO model could address some of the systemic problems if implemented • Infrastructure • Courtroom, • a separate room for testimony through CCTV and intermediary systems, • CCTV equipment, • separate waiting rooms for adult and for child witnesses • anatomically detailed dolls. • Staff • Presiding officer, • interpreter, • intermediary, • designated clerk, • designates social worker, • legal aid practitioner • court preparation or victim support officers. • two prosecutors be assigned to each court. • Does not specify length of experience needed.

14. The MATTSO Model • Minimum Training • SOA and the Victim’s Charter, • the trauma related to sexual violence, • the effect of testifying in court on victims, • communication with children, • child development, and • working with people with mental disabilities amongst others. • Victim Support • court preparation programmes, • information, • victim support and • a feeding scheme for child witnesses. • Data Collection • Finally the model requires a data collection system to enable proper tracking of cases and trends in each court.

15. Roll out of SOCs • DoJCD Report p 38 • Completed 19 Courts • Target 57 by 15/16 • DoJAPRSO p32 • Established 21 (36 to achieve by 15/16) • P60 long term target is 106 courts • 19/21 courts in place based on those that already had most of the infrastructure and staff • P71 – “There is no dedicated budget for re-establishing SOCs” • What is the plan and budget allocation to reach target of 57 by 2016?

16. SOC performance: applying the law • Concerning that the standards at many of the 19 courts are extremely variable depending on quality of staff • Protective measures unevenly applied by prosecutors and magistrates in spite of SOA, directives and training: • Interviewer: So how did you feel when you were inside the court?Child: it was painful … Yes, because I did not want to see him again because he said to me if I did speak he would kill me (child 4 RAPCAN) • “What I don’t like is that when people are waiting for their cases, everybody comes and sits inside and everybody comes to hear your story. And then outside, when you get the people that were in there… and they look at you with that intention… I think they have to leave those people outside, and it’s only the lawyers and the policemen that have to be there and that man and whoever, and the people who are supporting you, but not someone from outside… like private, private… no one else should have access to hearing your story and to be in the court room, except those who were involved.” (child 2 RAPCAN) • “… [the] prosecutor doesn’t come up and say, listen here, this is what is happening, the case is going to be postponed.” (CSW 4)

17. SOC performance: Attitude and aptitude • “…And yes, there was never a time when he [the prosecutor] said he’s busy, can’t we do this later? … there was also a time when the court went out so late so we couldn’t get the witness fees. So he took out of his own pocket… it was a very good gesture he made too because we told him we were dependent on the money.” (Caregiver 1 RAPCAN) • “I felt that she was rude… she would complain to my mommy that I’m getting an attitude, but it’s because I got upset about it. It was almost like they were shouting, man, and convincing me that I’m lying, and I know I am not lying. It feels like she’s not even on my side here… I think they can be more polite” (child 2 RAPCAN) • “The prosecutor is harsh to my child, even if they must be like that, then I will ask why is she talking like this to my child and I feel she is unfair sometimes to them.” (Caregiver 8 RAPCAN) • “… the lawyer told me that if I started crying, they are going to think that I’m lying.” (Child 2 RAPCAN)

18. SOC performance: postponements • Even though there has been tremendous improvement in finalisation times over the past 10 years (anecdotal) postponements still having very negative impact on survivors • “there were times when we now went to court and then we must hear, no, he’s ill… [the child witness] must stay out of school, and it was on two occasions that we had to go through for nothing.”“… feels like it’s going on and on, and you are not getting closure” (Caregiver 1 RAPCAN)

19. SOC performance: infrastructure • We support the department’s commitment to appropriate infrastructure • Separate waiting rooms help • I actually felt safe (in the waiting room) … I was watching the TV and I was keeping myself busy” (child 2 in RAPCAN research) • But court-buildings induce fear and may impact on withdrawals • ”…when it’s lunchtime and we had to go outside, then she will always hide behind me and say: mommy, there is his mommy sitting. Then she will now stand so they can’t see her. So I don’t think that is very good, because she was very nervous whenever she saw him or his parents, and even his witness.” (Caregiver 1 RAPCAN).   • “I saw his family, of that man [crying], and I saw him, he was very happy and I was not happy with that.” (Caregiver 7 RAPCAN) • ‘When you see the person that did something to you, you change your mind and then don’t want to go further. Not that you are lying, but just because you are scared of what can happen outside. … my granny always tried to calm me, but I would always get myself worked up because I know I had to go there and I was going to see the man.” (Child 2 RAPCAN) • Public Works and DoJ must prioritise

20. Thuthuzela Care Centres • Increase in TCC sites from 35 - 38 (NPA AR p79) but decrease in number of matters reported to TCCs (2 406 or 7,8%) • Improvement in convictions at TCCs 12/13 – 13/13. • NPA AR (p50) states that the TCCs are not performing better on conviction rates – why?   • Anecdotal evidence that the standards are also extremely variable at the TCCs. • Recognise staffing plan for these in DoJAPRSO • Previous research has shown that even when TCCs don’t improve convictions they can improve victim experience and access to other critical services

21. Court Preparation • Court Preparation provided by NPA and Civil Society (funded by DSD and donors) • 140 CPOs in 79 courts (NPA AR p65) • Positive development what is the plan to increase access to the service? • Not dedicated to SO but do prioritise children • Training in NPA on working with children and child trauma is poor – this is dangerous • Standards for court preparation vary • Number of civil society led, specialised court preparation initiatives funded by the Department of Social Development, • Consider: Greater reliance by the NPA on specialised court prep by CSOs. • Funding from DSD (will address some NPA funding constraints) • Will strengthen access to psychosocial support • Can support court staff • Can assist to improve case outcomes

22. Psycho-social support • Psycho-social support is not only important for the survivors recovery but also provides support through the CJS and improve the quality of prosecution. • SALRC report in 2002 recommended that survivors of sexual offences receive psycho-social support • Not the responsibility of DoJCS, DSD or DoH and currently international donors • Victim support services provided at various stages of the CJS largely by CSOs: • Police station’s victim friendly rooms • Psycho-social services at TCCs • Victim support servicers at courts • DOJ has poor policy regarding victim support: • In the current economic and funder climate when CSOs close down their services it no longer exists.

23. Taking it forward: The Shukumisa recommendations

24. 1. The MATTSO report model for SOCs • We support the MATTSO model for SOCs with some improvements. • Incorporate MATTSO model into regulations to SOC law.

25. 2. Experience and qualities of staff • Extremely variable, lost standards when SOCs closed • Temperament. Ill-suited people prosecuting and presiding. • Knowledge. Knowledge of law and procedures often insufficient. • Understanding. Lack of understanding of emotional trauma • Recommendations • Prosecutors minimum of three years experience. • Magistrates at least one year experience • Selection criteria must be stipulated. • What are the selection criteria for all staff at SOCs?

26. 3. Training • Positive that NPA report 3 day training course for prosecutors. • DoJAPRSO reports on • Frontline training • Intermediary training • NPA AR reports (p80) 158 prosecutors trained • Who’s training the magistrates? • What is the quality of social-context/psycho-social training?

27. 4. The role of CSOs • Essential that DOJCS collaborate and partner with CSOs that provide services to survivors to promote victim support at all stages of the CJS. • Essential that DoJCS consult in a meaningful manner with CSOs providing services around the development of policies and operational plans addressing sexual offences. • CSOs provide a wealth of psycho-social support services • The NDP recognises the critical role of civil society in the CJS and calls for ‘support to non-governmental organisations who engage in citizen safety’ to be ‘stepped up’. • CSOs do not claim to be experts in policing or law but are experts in managing psychological impact and social consequences • Not only NGOs also child development experts

28. 4. The role of CSOs • Expert CSOs excluded from many processes: • ISCSO • Developing and implementing training • MATTSO • Local oversight committees • Regulations to SOCs • Note DoJAPRSO ‘co-opting NGOs’ onto ISCSO. • Who is being approached in that process?

29. 5. Intersectoral collaboration • Previously local committees at many SOCs. • Range of stakeholders, including CSOs to engage and address challenges • As political commitment to these courts waned, many of the committees stopped functioning. • Anecdotal evidence from Shukumisamembers indicates that with strong leadership and the regular meetings, they provided an important forum in which to resolve problems and improve standards at those courts. • Recommendation • We strongly recommend that local level oversight forums should be established as a permanent feature of sexual offences courts. • CSOs have expertise. This should be recognised by including CSO stakeholders in national, provincial and local level

30. 6. Resourcing and roll-out of sexual offences courts • Framework needs effective costing and sufficient resources in line with the scale of the problem. • Otherwise, the priority does not translate to the changes in practice. • The NPF requires that ‘interventions must be appropriately costed and resourced’ and that budget allocation and expenditure on SO must be tracked • But, it then refers to ‘progressive realisation’and fails to specify the timeframes. • MATTSO provides a detailed costing of the SOC model and sets targets and timeframes.

31. 6. Resourcing and roll-out of sexual offences courts • SOCs require more than just physical infrastructure, • Greater concern is NPA salaries budget for two specialised prosecutors per court. • In 2013-2018 Strat indicate that there is ‘severe stress’ on their compensation budget and that they don’t see how this will improve over the MTEF period. • Are developing a Human Resources Plan and a ‘reprioritisation process’. Not clear how these will address this issue for SOCs • NPA AR (p80) indicates that a further 26 posts were advertised for specialist prosecutors. • Have they been filled?What’s the plan for 14/15 and beyond? • MATTSO recognised that budgets will not be realized without ‘political support’.

32. 6. Resourcing and roll-out of sexual offences courts • Consider the implementation time frames for roll out of SOCs against a resourcing plan. • Beneficial to establish the courts on sound footing. • Build inter-sectoral support teams (including CSOs), • Invest in specialised court preparation services funded by the DSD • Ensure that the experience, training and salary requirements of prosecutors and presiding officers for these courts can be met. • This may mean revising the timeframes for the 57 courts by a period of six months to a year. • The envisaged 10 year frame for a further 106 courts is entirely feasible and could probably be shortened to a five year implementation period.