Research Directorate, Immigration and Refugee Board of Canada, Ottawa
1. Legislation on Sexual Violence in South Africa
In 2007, South Africa passed the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007(South Africa 2007). Under the Sexual Offences and Related Matters Amendment Act,
[a]ny person ('A') who unlawfully and intentionally commits an act of sexual penetration with a complainant ('B'), without the consent of B, is guilty of the offence of rape.
[…]
- A person ('A') who unlawfully and intentionally sexually violates a complainant ('B'), without the consent of B, is guilty of the offence of sexual assault.
- A person ('A') who unlawfully and intentionally inspires the belief in a complainant ('B') that B will be sexually violated, is guilty of the offence of sexual assault. (ibid., Sec. 3, 5)
The Sexual Offences and Related Matters Amendment Actalso criminalizes "compelled rape" and "compelled sexual assault," in which a third person is compelled to "sexual penetration" or "sexual violation" with the complainant, and "compelled self-sexual assault," in which the complainant is compelled by the perpetrator to engage in diverse kinds of sexual activity on himself or herself (ibid., Sec. 4, 6-7).
According to the Department of Justice and Constitutional Development of South Africa, the law "requires all criminal justice officials (Police, Prosecutors, Magistrates, and Court Clerks) to deal with all reported sexual crimes without discriminating against victims because of race, nationality, sex, age, sexual orientation or any other reason" (ibid. 2012, 3).
2. Implementation and Efficacy of Legislation on Sexual Violence in South Africa
In correspondence sent to the Research Directorate, the Director of the Gender and Health Research Unit at the South African Medical Research Council, a "science, engineering, and technology institution … established in 1969 by an Act of Parliament," which is funded partly by private grants and contracts and partly by the South African government and which reports directly to the National Department of Health (South Africa n.d.b, 2), indicated that
[the] law is implemented in a fairly standard manner so that a case is opened when a complainant makes a report at the police station or at a hospital …. The case is then investigated with witness statements taken from the complainant and a medico-legal examination and an arrest will follow when the perpetrator is known. … The key issues are whether the perpetrator or perpetrators can be identified and their whereabouts known. (ibid. 6 May 2013)
Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
According to their website, the National Prosecuting Authority of South Africa comprises a Sexual Offences and Community Affairs (SOCA) unit, whose objectives are
- [t]o improve the conviction rate of sexual offences cases;
- To reduce secondary victimization within the criminal justice system by establishing multi-disciplinary care centers and adopting a victim-centred approach;
- Reducing the cycle period for the finalisation of cases. (South Africa n.d.a)
Further information on the SOCA and its effectiveness could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
In their concluding observations on South Africa, the UN Committee on the Elimination of Discrimination Against Women states that they are "concerned at the low levels of prosecution and conviction [for sexual and domestic violence], and at reports indicating that some police officers fine rape perpetrators in lieu of reporting the cases" (UN 5 Apr. 2011, para.24). In a 2010 report analyzing the implementation of the Sexual Offences and Related Matters Amendment Act, the Tshwaranang Legal Advocacy Centre, an organization located in Johannesburg "that promotes the rights of women to live free of violence" and whose activities include free legal services and research (Tshwaranang Legal Advocacy Centre n.d.), states that there is "pressure on the police to reduce reported crimes, encouraging some officers to not register dockets … effectively decriminalising some sexual offences and domestic violence" (ibid. 2010, 2). The Tshwaranang Legal Advocacy Centre also observes that the number of dedicated sexual offences courts has declined from 67 in June 2005 to 40 in October 2010 (ibid., 4). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
An article published in March 2013 on the Internet site of the Parliament of South Africa indicates that the Parliamentary Portfolio Committee on Police has "condemn[ed]" the shortage of rape kits for rape victims, and asked the National Commissioner of Police "to respond to and resolve the issue of shortage of DNA kits for rape cases at police stations" (South Africa 4 Mar.2013). The article also notes that some stations have been using expired rape kits (ibid.). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
3. Sexual Violence, Including Rape, Against White Women by Black Men
The Director of the Gender and Health Research Unit at the South African Medical Research Council stated in that "[t]here is very little evidence of race hate raping" and that a 2003 random sample of rape cases reported to the police in Gauteng Province suggests that
… white women may be disproportionately less likely to be raped as they were 4.5% of the rape cases opened with the police whereas they constitute 21% of the female population. In 77% of cases where a woman was raped the alleged perpetrator was a white man, in 14% of the cases he was an African man. (ibid.)
Corroborating or additional information on the rate of sexual crimes by race of victim or perpetrator could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
4. Protection Available to White Women Who are Victims of Sexual Violence
The Director of the Gender and Health Research Unit at the South African Medical Research Council stated that
[w]hite victims are given the same treatment as all other rape victims and they certainly would not face discrimination in reporting rape. If anything they are advantaged in general when dealing with the statutory services compared to African women as they tend to be more educated and articulate. (South Africa 6 May 2013)
Additionally, the Director also stated that "[t]here is no racial restriction on services" such as care centres, counselling, NGOs, and shelters (ibid.). Corroborating or additional information on whether white women face discrimination when reporting cases of rape to the authorities and when accessing services and further information on the protection available to white female victims of sexual assault could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.
References
South Africa. 6 May 2013. South African Medical Research Council. Correspondence sent to the Research Directorate by the Director of the Gender and Health Research Unit.
_____. 4 March 2013. Parliamentary Communication Services. "Police Committee Condemns Shortage of DNA Kits for Rape Cases." <http://www.parliament.gov.za/live/content.php?Item_ID=2920> [Accessed 14 May 2013]
_____. 2012. Department of Justice and Constitutional Development. Victims of Rape and Other Sexual Crimes. <http://www.justice.gov.za/vg/sxo/2012-sxo-booklet.pdf> [Accessed 14 May 2013]
_____. 2007 (amended in 2008). Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. <http://www.info.gov.za/view/DownloadFileAction?id=77866> [Accessed 14 May 2013]
_____. N.d.a. The National Prosecuting Authority of South Africa. "SOCA." <www.npa.gov.za/ReadContent412.aspx> [Accessed 15 May 2013]
_____. N.d.b. South African Medical Research Council.South African Medical Research Council. <http://www.mrc.ac.za/about/mrcbrochure.pdf> [Accessed 16 May 2013]
Tshwaranang Legal Advocacy Centre. December 2010. Lisa Vetten, Teresa Le, Alexandra Leisegang and Sarah Haken. The Right and the Real: A Shadow Report Analysing Selected Government Departments' Implementation of the 1998 Domestic Violence Act and the 2007 Sexual Offences Act. <http://www.za.boell.org/downloads/The_Right_and_The_Real.pdf> [Accessed 14 May 2013]
_____. N.d. "About Tshwaranang." <http://www.tlac.org.za/> [Accessed 16 May 2013]
United Nations (UN). 5 April 2011. Committee on the Elimination of Discrimination Against Women. Concluding Observations of the Committee on the Elimination of Discrimination Against Women: South Africa. (CEDAW/C/ZAF/CO/4) <http://www.refworld.org/docid/4eeb5fbe2.html> [Accessed 13 May 2013]
Additional Sources Consulted
Oral sources:Attempts to contact representatives of the South African Police Service were unsuccessful. The following organizations did not respond within the time constraints of this Response: Nisaa Institute for Women's Development; People Opposing Woman Abuse; Rape Crisis South Africa; South Africa – Department of Justice and Constitutional Development.
Internet sites, including:AfriForum; AfroAIDS Info; Centre for the Study of Violence and Reconciliation; ecoi.net; Enough South Africa; Factiva; The Guardian; Gender Links South Africa; The Herald(Zimbabwe); The New York Times; Nisaa Institute for Women's Development; Rape Crisis South Africa; Sexual Violence Research Initiative; South Africa – Police Service; United Kingdom – Home Office; United Nations – Office for Human Rights, News Centre, Refworld, World Health Organization; United States – Department of State.
