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)]