KRM 220 Exam - Section A Part 1 PDF

KRM 220 - Exam - Section A ─ Study unit 4 The Carmichele case, and how the Constitution protects the rights of victims of crime. Carmichele v Minister of Safety and Security and Another Alix Carmichele (Victim) - Attacked & seriously injured by man (Coetzee )on free bail (No payment or restrictions...

KRM 220 - Exam - Section A ─ Study unit 4 The Carmichele case, and how the Constitution protects the rights of victims of crime. Carmichele v Minister of Safety and Security and Another Alix Carmichele (Victim) - Attacked & seriously injured by man (Coetzee )on free bail (No payment or restrictions) for attempted muder and rape (Friend’s sister) had previous history of indecent assault & violent behaviour towards woman but bail wasn’t opposed. Coetzee was found acting suspiciously outside Carmichele’s house by police & prosecutor said there’s nothing they can do, he attacked her in a friend’s house causing great harm. Carmichele then brought a civil claim against the Dept. of Safety and Security that police were under legal duty to protect her. High court and supreme court said nothing they can do & not fault the police. She then argued in the Constitutional court that the South African constitution was not abided by and they agreed, after 6 years. She won the case after 12 years when they started discussing her compensation for damages (1mil only) NB as it sets the precedent for other cases with similar facts Protections of the rights of victims Two important international instruments: 1. The UN Declaration (1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power) and the 2006 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. 2 2. SA’s ratification of international declarations and conventions (conventions and declarations that we are signatories to) places the state under a duty to act in fulfillment of obligations placed on it by those instruments. Thus SA must develop legislation enforcing these principles. Please note that you do not have to know the names of the declarations, just take note of the existence of such documents. The SA Constitution of 1996 Section 12(1) states that everyone has a right to freedom from all forms of violence. Thus, the state has an obligation to protect the citizens of the country [Section 12(1)(c)]. Section 7(2) requires the state to respect, promote and fulfill the rights in the Bill of Rights. Another important right in the Constitution includes the right to dignity and to equality and that everyone is equal before the law and has the right to equal protection and benefit of the law (Section 9(1)). Laws and policies aimed at reducing violence and supporting victims of violence are only as good as the people and systems that have to enforce it. It can be very comprehensive on paper, but if it isn’t enforced on ground level it is ineffective. For example, despite the fact that the definition of sexual assault and rape does not require the use of force, or resistance by the victim, some criminal justice officials still believe that an absence of physical resistance and injury proves that a woman wasn’t raped. Legislation aimed at protecting victims can therefore only be effective if the appropriate mechanisms are put in place to monitor the implementation of legislation and to ensure that where it is not being implemented as prescribed, effective remedies are available to victims. Integrated Victim Empowerment Policy This policy focuses on service delivery to victims of crime. It is emphasised in this policy that victimisation amounts to a human rights violation. It aims to move the focus from the state that focuses on a guilty finding of the offender, to the importance of services for victims, and it sets standards for the provision of victim empowerment services. Central to the VEP is the Victim’s Charter. In order to realise and implement these rights that were discussed above, specific legislation must be in place. Subsequently, legislation that aims to improve the position of victims will be discussed The Domestic Violence Act 116 of 1998 and the problems in implementing it Domestic Violence Act 116 of 1998 The Act came into force in December 1999. Previously domestic violence was viewed as something that happens in the privacy of your home and was considered to be a private matter that no one discloses. This view was largely reinforced by police responses. Lots of women will say that domestic violence and marital rape is only a reality in legislation, not in practice. 3 A domestic relationship - A relationship between a complainant and a respondent in any of the following ways: 1. 2. 3. 4. 5. 6. 7. 8. People who are married (Whether living together or not) Same-sex partners Any person who is/was in an engagement Dating or customary relationship An actual or perceived romantic relationship Intimate or sexual relationship of an duration Parents of a child People who share or recently shared a residence Domestic violence includes any of the following acts: 1. 2. 3. 4. 5. 6. 7. 8. 9. Physical abuse. Sexual abuse. Emotional, verbal and psychological abuse. Intimidation. Harassment. Stalking. Damage to property. Entry into the complainant’s residence without consent, where the parties do not share the same residence. Any other controlling or abusive behaviour towards a complainant, where such conduct harms or may cause immediate harm to the safety, health or well-being of the complainant. Obtaining a protection order ● Protection order is a civil order therefore if broken, it is a criminal offense. ● Prevents respondents (Offender) from committing certain acts of violence The Act places positive duties on members of the SAPS to render assistance to the victim. Such assistance may include help in finding suitable shelter, providing the complainant with information about his/her rights in relation to the Act and assisting the complainant with obtaining medical attention. Failure to comply with the duties constitutes misconduct and must be reported to the Independent Police Investigative Directorate (IPID). This Act is in line with international conventions and policies. This Act marks progress on paper but the true test of effectiveness lies in its implications. Even though this Act has been in place for more than 20 years it has not had the desired effect of reducing DV. Subsequently problems with the implementation of this Act will be discussed. Some of the problems with regards to implementation 4 ● ● ● ● ● Some police officials are also reluctant to arrest someone who has breached the protection order, unless there is clear evidence of physical violence (even though the DV Act states that any type of violence is sufficient). Furthermore police members are often not informing victims that in addition to the protection order they can lay criminal charges. If the victim does not lay a criminal charge, he or she is not taken to a medical practitioner – in other words if they later want to press charges there is no evidence. Corruption – especially where the police member knows the offender. Statements do not always contain all the necessary information. Certain myths such as the following, are rampant: women apply for protection orders because they are getting back at their partners; or to remove their husband and bring their boyfriend in to live with them; or women who apply for protection against emotional abuse are not in any real danger of being harmed. In reality one out of five cases of women who go to the police or courts are threatened with death or other harm by their domestic partners if they pursue the CJS process Provide an overview of The Protection from Harassment Act 17 of 2011. The Protection from Harassment Act 17 of 2011 In a DV relationship, the DV Act can be used to restrain harassment and other similar violations within the domestic sphere. On the other hand, the Protection from Harassment Act 17 of 2011 deals with all types of harassment including stalking which occurs outside the domestic sphere. Its remedy – a protection order – can apply to a range of circumstances including harassment by strangers, co-workers or harassment in an educational setting (bullying) and even in the Internet environment (cyberbullying). Victims can apply for a protection order or lay charges of crimen injuria, assault, trespassing or extortion. A child, or someone on behalf of a child, may apply for a protection order. The order may include the seizure of weapons. If the protection order is breached, a person can be sentenced to 5 years imprisonment – mostly in the form of periodic imprisonment, treatment programmes and community service. Indicate how the Criminal Law (Sexual offences and related matters) Amendment Act (32 of 2007) provides protection for victims of sexual offences. Amendment Act (32 of 2007) Set out to legislate a comprehensive state response to a range of sexual offences. It codified and repealed the common law,enacted new statutory offenses and amended a number of existing laws 5 Definition of rape and sexual The SORMA (Sexual offences and related matters amendment act) defines two main categories of offending, namely rape and sexual assault. ● ● Rape - Unlawful penentration by a penis into the mouth,anus or vagina or unlawful penetration of an object into the anus or vagina Sexual assault - Sexual violation, indirect/direct contact between genital organs, anus or female breasts on one person and any part of another persons or animals body or object. As well as indirect/direct contact between one person's mouth and another person's organs, anus, female breasts or mouth Absence of consent It must be noted that consent was retained as an element of the offence in the SORMA, thus penetration or a sexual violation is only unlawful if the prosecutor is able to prove that the complainant did not consent, a requirement that inevitably focuses attention on the conduct of the victim. Coercive circumstances 1. Complainant submits as result of force or intimidation or threat of harm 2. There’s an abuse of power or authority to extent complintent feels unable to indicate unwillingness or resistance 3. Sexual act is committed under false pretences including where the accused leads complaintnent to believe they’re having sex with one persons when in fact it’s another or the sexual act is another kind of act (Gyncological exam) 4. Where complainant is unable to consent or in a state where judgment is impaired (Use of drugs or alcohol or children under 12) Consensual sexual violation The most controversial part of the SORMA was the consensual sexual violation section. With regards to consensual sex between peers, it must be noted that the SORMA, criminalised penetration between children who were older than 12 years and younger than 16 years. Furthermore, it criminalised sexual interactions without penetration (sexual violations) between children who were older than 12 years and younger than 16 years in instances where an age gap of more than two years existed between the two children. These sections have, however, been deemed unconstitutional in the recent Constitutional Court case: Teddy Bear Clinic for abused children and Another v Minister of Justice and Constitutional Development and Another [2013] ZACC 35. Consequently the SORMA has been amended. NB Please note that you do not have to study the section focusing on consensual sexual violation, you just have to take note of it. Previous sexual history of the complainant 6 ● ● ● To protect complainant from inappropriate focus on character & previous sexual experiance SORMA tightnted ‘rape shield’ - Such evidence may only be led with permission of the court Only granted after considering: ○ Weather in interest of justice ○ The accused right to a fair trial ○ Societies interest in reporting sexual offences ○ Complintents personal dignity and right to privacy ■ May not be provided if only use is to prove complainant more likely to of given consent Other protective measures ○ Strengthen provisions of the use of intermediaries and CCTV- link up to protect complaints from directly confronting the accused ○ Abolition of cutrionary rule in respect of rape victims ○ Restrictions of inferences that courts may draw solely from the absence of previous statement from the complainant or a delay in reporting the sexual offence ■ Courts should be careful to draw conclusions pertaining to whether a person was sexually victimised or not based on whether they immediately reported the offence. Many victims only report the sexual offence a while after it was committed. Some report it years after it was committed, due to various reasons. Thus, the court may not assume that the delay in reporting makes the victim less credible. Other criminal acts defined by the SORMA The SORMA also criminalises other acts such as the showing of pornography to a child, benefiting from child pornography (thus making money from the creation and distribution of child pornography), exhibitionism (flashing), necrophilia (having sexual interaction with a corpse), incest, engaging in sexual activities in the presence of a child younger than 16 years, grooming of a child via the Internet, sexual exploitation of children and child trafficking. HIV-related provisions ● ● Provison to rape victims of state-funded post-exposure prophylaxis (PEP) to prevent HIV infection ○ Needed asap but no later than 72 hrs ○ Criminal charge not needed for victim to access PEP ○ Tempreted by lack of other post-rape services for rape victims Alleged sex offender have to take HIV test ○ Support victims rights but controversial ○ Give victims peace of mind ○ Perpetrator may be in window period therefore must take PEP 7 National register for sex offenders The SORMA also makes provision for a national register for the protection of children against sexual offenders and lists people not suitable to work with children. Outline the aspects that are specifically excluded as a justification for imposing a more lenient sentence than the prescribed mandatory minimum sentence Mandatory minimum sentences Legislation pertaining to mandatory minimum sentences that should be imposed for serious crimes came into force in 1997. ● ● ● This includes life imprisonment for ○ Certain types of murder ■ where certain body parts were removed ■ where it was premeditated ○ Rape ■ where the victim was raped more than once ■ where it was committed by more than one person ■ where the perpetrator knows that he is HIV positive ■ where the victim was a child under the age of 16 years ○ And a minimum of 15 years for other types of murder and 10 years for rape (if it is a first offence). Some view it as positive – severe sentences for serious crimes. Others argue that the minimum sentences are overly severe as it places limits on the discretion of the presiding officer to determine an appropriate sentence and to take all the matters into consideration. Legislation, states that the presiding officer may decide to deviate from the minimum sentence if there are substantial and compelling reasons to do so. ○ It does not however define or give any guidance as to what a substantial and compelling reason might be. In S v Mahamotsa two victims, both girls under the age of 16 years had been raped more than once by a 23 year old man after he threatened them with a weapon. The presiding officer augmented that the girls were not virgins, didn’t sustain physical or psychological harm as a result of the violation and that this constituted mitigating circumstances. He further said that although there was intercourse with each victim more than once, this was the result of the virility of a young man who had intercourse with other school pupils against their wishes and emphasised that these girls had previously been sexually active. He said that we have to see things in perspective – the victim had in any event been naughty a few days earlier and had intercourse with someone else. According to him, the injustice that she suffered does 8 not demand an unusually severe sentence. This judgment draws on a number of rape myths including that rape is only traumatic if there are physical injuries, that previous sexual activity lessens the negative impact of rape and that rape is often merely a matter of misunderstanding male virility. This proves once again how important it is to train magistrates and judges pertaining to what exactly victimisation entails and what the impact is on victims. According to the Criminal Law (Sentencing) Amendment Act 38 of 2007, the following aspects are specifically excluded as a justification for imposing a lesser sentence than the prescribed minimum sentence: 1. 2. 3. 4. The complainant’s previous sexual history. An apparent lack of physical injury to the complainant. An accused person’s cultural or religious beliefs about rape. Any relationship between the accused person and the complainant prior to the offense being committed. Please note that you do not have to study the following Acts for the exam: The Prevention and Combating of Trafficking in Persons Act, the Child Justice Act and the Children’s Act. 9 Study unit 5 Explain the rationale for victim empowerment by highlighting the reasons why victims need attention. Why do victims need attention? When taking SA’s high crime rate into consideration it is clear that victim support and empowerment is essential, especially when taking into consideration that victimisation has a negative impact on a physical, financial and emotional level. The different needs of victims include. ● ● ● ● ● ● Emotional needs ○ Defusing,debriefing and trauma therapy Acknowledgement needs ○ For their loss and trauma and ‘normal’ response to abnormal situation Practical needs ○ Locks changed, transport to/from clinics and police station Information needs ○ About CJS and resources in community to assist them in their time of cr Need for understanding ○ Not be blamed or questioned for their involvement Need for contact with judicial process ○ Provide a statement Outline the objectives of victim empowerment. ● ● ● ● Reduce psychological shock and trauma victims may suffer by providing emotional support and practical assistance immediately after incident Identify symptoms of PTSD and refer victims to trauma counseling and other professional services Prevent or reduce secondary victimisation by CJS by providing information about matters such as status of investigation, functioning of court systems and rights of victims within it Prevent repeat victimisation by advising and guiding individual towards a preventative lifestyle by creating awareness among public of risks of crime Distinguish between victim support and victim empowerment. Difference between victim support (care for the immediate needs of the victim) and empowerment (care, active role in the CJS and preventing repeat victimisation). Two models: 10 1. Care model: Focus on immediate needs of the victim – victim support. . 2. Criminal justice model: Wants to give victims a meaningful role to play in the CJS. Discuss Van Dijk’s crime prevention model. Van Dijk’s crime prevention model combines the two above mentioned models. He is of the opinion that victim services are essential (as mentioned in the care model), and is also of the opinion that victims must play a meaningful role in the CJS (criminal justice model). In addition he adds a crime prevention component and emphasises that victim services must be part of crime prevention. He provides the following reasons why the victim must be part of the fight against crime: He says that victims must be part of the investigation in order to improve the chances of successful arrest, prosecution and conviction – not only report and testify, be part of the whole process. By educating victims, one can also reduce the chances of repeat victimisation. Provide an exposition of the Thuthuzela rape care centres’ approach towards victim empowerment. ● ● ● ● ● ● ● 2000 - first Thuthuzela Rape care centre (TCC) was established in Cape Town by the National Prosecuting Authority (NPA). Is led by the NPA’s sexual offences and community affairs unit, in partnership with various donors, as a response to the urgent need for an integrated strategy for prevention, response and support for rape victims. Thuthuzela is the Xhosa word for comfort, and according to them they named their centers Thuthuzela as the word awakens feelings of warmth, freedom from emotional and physical concerns, safety, security, being cared for and above all reinforcing dignity, hope and positive expectations. Are one-stop facilities that have been introduced as a critical part of SA’s anti-rape strategy Aiming to reduce secondary victimisation of the victim, improve conviction rates and reduce the time for finalising cases. Mostly situated in public hospitals, in communities where the incidence of rape is particularly high. ○ Linked to sexual offences courts, which are staffed by prosecutors, social workers, investigating officers, magistrates, health professionals, non-governmental organisations (NGOs) and police members. Thuthuzela’s integrated approach to rape care is one of: ○ Respect ○ Comfort ○ Restoring dignity 11 ● ○ Ensuring justice for children, women and men who are victims of sexual violence. When reporting, the rape victim is removed from crowds and intimidating environments at the police station, and taken to a more victim-friendly environment before being transported by ambulance to the TCC. ○ Enroute, the victim receives comfort and crisis counseling from a trained ambulance volunteer. ○ Once they arrive at the TCC, the victim is ushered to a quiet, private space, and welcomed by the site-coordinator. ○ A doctor is immediately summoned to conduct a medical examination. The victim is then given information on the procedures to be performed. The victim (patient) signs a consent form for medical examination and blood tests. ○ If the medical examination happens within 24 hours after the rape, the victim is offered the opportunity to take a bath or shower and to change into clean clothes. ○ After that, the investigating officer on call at the TCC takes the victim’s statement. ○ Thereafter, the victims receive medication and are given a follow-up dateor further medical treatment, before being transported home. ○ According to Advocate Thoko Majokweni, Head of the Sexual Offences and Community Affairs Unit (SOCA), the following: “This process ensures that service providers are available to a rape survivor in one location, rather than her being shuttled around throughout the criminal justice system.” .