Over the past week, three key Bills relating to gender-based violence have been introduced in Parliament.
The three amendment Bills are designed to fill the gaps that allow some perpetrators of these crimes to evade justice and to give full effect to the rights of our country’s women and children.
The sad reality is that many survivors of gender-based violence have lost faith in the criminal justice system.
Difficulties in obtaining protection orders, lax bail condition for suspects, police not taking domestic violence complaints seriously and inappropriate sentences have contributed to an environment of cynicism and mistrust.
These Bills, once finalised, will help to restore the confidence of our country’s women that the law is indeed there to protect them.
Amendment to the Criminal Law (Sexual Offences and Related Matters) Amendment Act.
This creates a new offence of sexual intimidation, extends the ambit of the offence of incest, and extends the reporting duty of persons who suspect a sexual offence has been committed against a child.
- Expansion of National Register for Sex Offenders
It expands the scope of the National Register for Sex Offenders to include the particulars of all sex offenders. Until now, it has only applied to sex offenders convicted of sex crimes perpetrated against children or persons with mental disabilities. The time an offender’s particulars must remain on the register has been increased, and those listed on the register will have to disclose this when they submit applications to work with persons who are vulnerable. The Bill also makes provision for the names of persons on the National Register for Sex Offenders to be publicly available.
The Criminal and Related Matters Amendment Bill tightens, among others, the granting of bail to perpetrators of gender-based violence and femicide, and expands the offences for which minimum sentences must be imposed.
People are angry that many perpetrators of such serious crimes are exploiting legal loopholes to avoid imprisonment and are frustrated that sentencing is often not proportionate to the crimes. The amendments impose new obligations on law-enforcement officials and on our courts.
When a prosecutor does not oppose bail in cases of gender-based violence, they have to place their reasons on record. Unless a person accused of gender-based violence can provide exceptional circumstances why they should be released on bail, the court must order their detention until the criminal proceedings are concluded.
In reaching a decision on a bail application, the courts are compelled to take a number of considerations into account. They include pre-trial reports on the desirability of releasing an accused on bail, threats of violence made against a survivor, and the view of the survivor regarding his or her safety.
When it comes to parole, a complainant or a relative of a deceased victim must be able to make representation to the parole board.
Amendment to Domestic Violence Act
Given the unacceptably high levels of intimate partner violence in our country, we have tightened the provisions of the Domestic Violence Act.
Domestic violence is now defined to cover those in engagements, dating, in customary relationships, and actual or perceived romantic, intimate or sexual relationships of any duration. The Bill also extends the definition of ‘domestic violence’ to include the protection of older persons against abuse by family members.
Complainants will be able to apply for a protection order online. To prevent a scenario where perpetrators can hide past histories of domestic violence, an integrated repository of protection orders will be established.
The proposed amendments also oblige the departments of Social Development, Basic Education, Higher Education and Health to provide certain services to survivors where needed and to refer them for sheltering and medical care.
The circumstances under which a prosecutor can refuse to institute a prosecution when offences have been committed under the amended Act or to withdraw charges when it involves the infliction of bodily harm or where a weapon was used to threaten a complainant have been limited.
In perhaps the most groundbreaking proposed amendment to the Act, if someone has knowledge, reasonable belief or suspicion that an act of domestic violence has been committed against a child, a person with disability or an older person and fails to report it to a social worker or police officer they can be fined and even imprisoned.
Similarly, failure by a member of the SAPS to comply with their obligations under the Act will be regarded as misconduct and must be reported to the Civilian Secretariat for Police Service.