DVA Implementation Hearings

1. DVA Implementation Hearings Portfolio and Select Committee on Women, Youth, Children and People with Disabilities Centre for the Study of Violence and Reconciliation 29th October 2009

2. “Cops left me to be raped. Police refused to enforce protection order”(The Star, September 2007) • Police refused to enforce a protection order when a woman tearfully begged the police to rescue her from her child-sex abuser and mental patient ex-husband. Police accused her of being drunk. •  “Talk nicely to this man” they said, “because he is talking nicely to you”. • After the three officers refused to arrest the HIV-positive former husband, despite the protection order she had obtained against him, the man, in a drunken rage, raped her. • The woman sued the SAPS and won the case where the judge, Leon Kemp, was scathing in his condemnation of the police describing their evidence as “deliberately deceitful” and “ridden with improbabilities and lies”.

3. But …Who is a good cop? • The citizen expects police officers to have the wisdom of Solomon, the courage of David, the strength of Samson, the patience of Job, the leadership of Moses, the kindness of the Good Samaritan, the strategical training of Alexander, the faith of Daniel, the diplomacy of Lincoln, the tolerance of the Carpenter of Nazareth, and finally, the intimate knowledge of every branch of natural, biological, and social sciences. If he had all these, he might be a good policeman! (August Vollmer, police chief of Berkeley, California 1905-1932). • This resonates in the current day South Africa – particularly in the implementation of the DVA, where there is a big emphasis on the role of the SAPS. • They are a key actor, but we need to look at the domestic violence problem more holistically.

4. Overview: Domestic Violence Act No. 116 of 1998 • Purpose: afford victims of domestic violence the maximum protection from domestic abuse that the law can provide. • Definition of ‘domestic violence’: • Physical abuse, economic abuse, intimidation, harassment, stalking, damage to property, entry into the complainant’s residence without consent (where the parties do not share the same residence), or any other controlling or abusive behaviour towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant. (S 1 viii) • Domestic relationships include: civil and customary marriage partners or former marriage partners, current or former cohabiting partners, the parents of a child or people who have had parental authority for that child, family members, engaged, dating or customary relationships, sexual relationships of any duration, and people who share the same residence. (S 1 vii) • Gender neutral and include same-sex relationships.

5. Positive duties of SAPS: • Assist and inform the complainant of his/her rights; • At a domestic violence scene, render whatever assistance is necessary; • Serve the protection order, together with a warrant for arrest, on the respondent; • Arrest the respondent if there is reason to suspect that the complainant may suffer imminent harm as a result of a breached protection order; • Remove any firearms from the respondent if there is a belief that the firearms may be used to kill or harm the complainant; • Domestic violence incidents reported to a police station must be recorded in the Domestic Violence Register (SAPS 508 (b)) – it is the responsibility of the Station Commander to ensure an accurate record is kept. Police must document their response to any complaints or their reason for not taking action. • SAPS and ICD are obliged to report on SAPS compliance with DVA once every 6 months to Police Portfolio Committee.

6. Problems and Implications • Inadequate/inefficient police responses to DV are a result of both institutional problems and individual views on DV. • Implementing the DVA: • Lack of human, material and financial resources to implement the DVA properly • Police dockets do not identify the relationship between victim and perpetrator: incident not prosecuted as domestic violence • Violation of a protection order only charged as such, without reciprocal criminal charges: prosecution of accused downgraded to a lesser crime • Safety dimensions behind DVA not fully understood: no risk assessment conducted e.g. removal of firearm • Discretion of a police officer whether or not to arrest the respondent and guidelines are unclear: arrests are seldom effected. Allegations of police stations issuing guidelines whereby only when police is witnessing violence and arrest will be conducted.

7. Challenges • Implementation cont: • Pressure on police to reduce crime statistics: police discourage reporting, send complainants directly to court for protection orders or refer complainants for counselling • Police acting as mediators/counsellors in order to deflect cases or deal with matter at a family level • Failure to register cases of DV at police stations: limits our understanding of the extent of the problem. • Police attitudes: • Patriarchal views among some police officials – denial of efficient service to victims of domestic violence • Dislike of serving protection orders, because of difficulties in locating respondents: serving protection orders not a priority in most police stations • Domestic violence only seen as serious when it involves physical violence: only those cases amounting to serious and violent crime investigated

8. Challenges • Police attitudes cont: • High levels of domestic violence within police service • Reluctance to interfere in what is seen as “family squabbles” • Failure to recognise danger facing victims and failure to take steps to protect them • Lack of access to SAPS to vulnerable populations, e.g. gay and lesbian couples, migrant and refugee women. • DVA does not adequately outline the responsibilities of other role players: • Impacts on SAPS’ ability to do its work. E.g.: availability of services for victims, such as shelters • Poor oversight of DVA: • Few reports by ICD and SAPS to Parliament

9. Recommendations • Develop a five year strategy plan for the effective policing of domestic violence: clear goals, timelines and targets for the effective implementation of the DVA, necessary budget allocations. • Develop norms and standards on training on DV - Social context capacity building needed as well as refresher training, applying innovative methods, e.g. peer review of cases handling. • Police need to approach their work with professionalism and within a legal and human rights framework: police response should not be the DVA only, need for creative ways of dealing more effectively with withdrawals, or situations where victims do not wish to lay charges but protection still required.

10. Recommendations • Specialised unit within SAPS dealing with DV and SV needs to be re-established with adequate resources.

11. Recommendations • Rather than trying to reduce crime statistics, police should be encouraged to record statistics accurately so that trends can be properly analysed and acted on • Enforce regulation that request police officials to record domestic violence incidents and the relationship between the parties • ICD should have their powers broadened - Disciplinary action needs to be taken against police members failing in their duties in terms of the DVA or offering sub-standard service • Public needs to be made aware of the complaint mechanisms for poor SAPS service • Strategy needs to be put in place to tighten the managerial oversight of police officers

12. Beyond the criminal system response • 365 Days National Action Plan to End Violence against Women focus on prevention – but no resources or clear strategy • One size does not fit all - Primary prevention of domestic violence needs to be a long-term, community-specific, well resourced intervention • Driver of national strategy to address domestic violence – new Ministry for Women, Children and People with Disabilities • PCWYCPD should use its oversight powers and call upon relevant government departments and the new ministry to forward concrete strategies to address domestic violence in a holistic and co-ordinated fashion.