sarah baartman legal advice and training project gender project, community law centre, uwc &...
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SARAH BAARTMAN LEGAL ADVICE AND TRAINING
PROJECT
Gender Project, Community Law
Centre, UWC &
Saartjie Baartman Centre for
Women and Children
ASPECTS COVERED IN SUBMISSION
• Context of legislation
• Rights of sexual assault victims
• Standards for management of sexual assault cases
• National policy framework
• Bail in sexual assault cases
• Defining rape and indecent assault
CONTEXT
• Sexual assault different from other violent crimes requires differential treatment, eg protective measures
• Duty on SA state to reform sexual assault law – within specific normative framework outlined in international instruments
• Please see p 5-8 of submission
RIGHTS OF VICTIMS
‘If he has a lawyer, who’s going to
be my lawyer?’
RIGHTS OF VICTIMS
• Why?
• Scope of rights
See proposed clause on p 14
STANDARDS FOR MANAGEMENT OF SEXUAL ASSAULT CASES
• National instructions or policy directives are not strong enough to ensure proper compliance with acceptable standards
• Ideal: statutory duties (e.g. Domestic Violence Act)
• Alternative: enabling clause in Bill requiring drafting of binding standard-setting instruments – promulgated as Regulations
NATIONAL POLICY FRAMEWORK
• Currently: fragmentised approach• Need for inter-sectoral approach• SALRC proposal provides contents
and process• Numerous examples of duties on
executive in recent legislation• ‘Restorative’ or ‘protective’
legislation
BAIL IN SEXUAL ASSAULT CASES
• Currently: no provisions in Bill• Areas of concern:
- Factors considered by court in deciding on bail- Focus of bail investigation- Intimidation and harassment of the
victim
Amendment of s 60(4) of the CPA- p 28
RAPE & INDECENT ASSAULT
• Consolidate three penetrative offences into one offence of rape
• Delete provision regarding prima facie unlawfulness
• Delete failure to disclose life-threatening STI
• Delete provision regarding common law defences
RAPE & INDECENT ASSAULT (2)
• Redefine common law definition of indecent assault
• Compelling or inducing indecent acts• Compelling or inducing acts that cause
penetration• ‘Abuse of power or authority’
Proposed redefinition on p 42-43
‘The Courts are under a duty to send a clear message to the accused in rape cases, to
other potential rapists and to the community that the Courts are determined to protect
the equality, dignity and freedom of all women, and they will show no mercy to
those who seek to invade those rights.’[S v Chapman 1997 3 SA 341 (SCA)]
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