By Joy van der Heyde
Gender-based violence (GBV) is prevalent in every aspect of our society, yet so many do not understand what it means.
GBV is broadly defined as “violence directed against a person because of that person’s gender or violence that affects persons of a particular gender disproportionately”.
It is a sad reality that both men and women experience GBV, but in our society the victims of GBV are predominantly women and girls.
In 2015, UK Ambassador Matthew Rycroft made a poignant statement to the UN Security Council Open Debate on Children and Armed Conflict. He said:“How a society treats its most vulnerable is always a measure of its humanity.”
There is, therefore, nothing more important for society to protect our most vulnerable against the epidemic and onslaught of GBV and femicide.
For this reason, I am convinced that the new Criminal Law Amendment Bill, Criminal and Related Matters Amendment Bill and the Domestic Violence Amendment Bill will be greatly welcomed by the legal fraternity, community-based organisations and the public at large.
The Criminal Law Amendment Bill creates new offences in relation to sexual intimidation and extends the definition of vulnerable persons and incest.
It also extends the reporting duty on persons who suspect that a sexual offence has been committed against a child and will allow for the inclusion of all persons convicted of a sexual offence on the National Register for Sex Offenders.
The Criminal and Related Matters Amendment Bill expands offences for which minimum sentences must be imposed and does not allow bail in a GBVF matter unless exceptional circumstances exist.
The Domestic Violence Amendment Bill will establish an integrated repository of protection orders so as to prevent scenarios where a perpetrator can hide past history of domestic violence. It will also allow for on-line applications and make it an offence to not report an incident of domestic violence involving a child, mentally disabled person or elderly person.
These new laws were introduced to address the gaps that have allowed some perpetrators to evade justice and to further strengthen the mechanisms in place to protect the most vulnerable in our society.
For government to implement these new laws effectively, however, it will have to ensure that there are enough resources available.
In respect of domestic violence matters not many people in our communities can afford to apply for an on-line application for a protection order.
A possible solution could be for government to establish a dedicated desk in every police station managed by a skilled official to assist victims in applying for these interim protection orders.
The government will also have to ensure that the employees of all role players (including court staff, prosecutors, magistrates, social workers, medical doctors and police officials) are suitably trained in the new laws, administrative processes and attitudinal issues such as sensitivity training.
It is a pity that Parliament missed this opportunity to legislate the establishment of a OneStop Centre for all GBV matters.
Currently, complainants and the alleged abuser share the same waiting rooms and corridors in some courts where domestic violence, harassment and some GBV matters are handled. This is far from ideal.
Living in a constitutional dispensation, we need to be conscious of striking a balance between the rights of the individual to ensure that we maintain our humanity while trying to protect our most vulnerable in our society.
It is to be applauded that this new law places great power in the hands of a victim, as a perpetrator can now be detained in a correctional facility without bail until the conclusion of the matter.
However, “with great power comes great responsibility” and unfortunately the new law does not sufficiently ensure that this power is exercised responsibly.
Any possible misuse of these new laws could, therefore, result in unintended consequences where an innocent person could be refused bail, remain in a detention facility with hardened criminals and suffer severe lifelong trauma and injury.
Despite the challenges that these new laws may face, it is a giant step in the right direction on our journey to realise a non-sexist and non-violent society.
*Van der Heyde is a practising attorney at Tobin Attorneys.