South Africa is thought to have one of the highest rates of Gender-Based Violence (GBV) in the world. It’s no wonder then that more and more people have begun to consider this issue in a very critical light. South Africans around the country have begun to petition the government for more proactive policing measures and harsher penalties for those convicted of GBV. But what does the law say? How do we define GBV and what kind of legislation has been set up to combat it? What is the Law on Gender-Based Violence?
Gender-Based violence comes in many forms, mostly, it is considered as violence that is carried out towards an individual because of their gender. GBV is notoriously hard to define with many prominent institutions giving somewhat varied specifications. However, definitions used by other groups include violence that is carried out as a result of normative gender roles and unequal power relationships. Others go further still by using the term synonymously with any form of violence against women.
Those last two addendums broaden the prerequisites of GBV to an extreme degree and make it harder to differentiate between violence done to a woman and violence done to a woman because she is a woman. Perhaps then, the easiest solution is to identify actions that are normally viewed as types of GBV within South Africa.
Commonly, acts such as domestic violence, rape, sexual abuse and femicide are seen as instances of GBV, although it should be noted that many forms of non-physical abuse are included into the definition such as psychological abuse and intimidation.
It is widely accepted that any person may suffer from GBV including men however women are the primary victims of the crime, hence the substitution of GBV with terms like violence against women.
How is Gender-Based Violence Policed?
There are currently 3 acts which deal with GBV in some way, shape or form, they are –
- The Criminal Law Amendment Act of 1997 – This act helps determine the minimum sentences that can be given for certain crimes. Additionally, it identifies instances in which bail may be granted.
- The Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007 – This act helps to define and prosecute instances of sexual abuse and rape.
- The Domestic Violence Act of 1998 – This act identifies the various forms of domestic abuse and helps to determine the respective punishments for those found guilty.
As you can see, these laws don’t tend to deal with GBV specifically, but instead deal with criminal acts which are often associated with GBV such as rape, assault, etc.
In addition to these laws, the Commission for Gender Equality also exists with the purpose of reviewing and evaluating current levels of gender equality while investigating instances of inequality and making policy recommendations to the government.
How are Laws being Changed to Combat Gender-Based Violence?
Recently, the government has proposed amendments to the 3 aforementioned bills which it hopes will reduce instances of GBV. The proposed changes can be summarised as follows –
- Criminal Law Act – Amendments have been proposed which would make it harder for perpetrators of GBV to achieve bail. It is believed that this would safeguard victims who might otherwise be at risk should the accused be released from custody.
- Sexual Offences and Related Matters – The current draft for this new amendment introduces 3 new elements. Firstly, it identifies ‘sexual intimidation’ as an offence. Secondly, it increases the reporting duty for those who suspect or know that a child is being sexually abused and, thirdly, it would increase the scope of behaviours that may place a person on the national register for sexual offences.
- Domestic Violence Act – This amendment would broaden the definition of domestic violence so that individuals who are in less formal relationships would still be able to report instances of domestic abuse. Additionally, protection orders would become available online rather than only through a formal court proceeding.
How do you Report Gender-Based Violence?
Individuals suffering from gender-based violence may either open a formal criminal case against the accused or instead seek a protection order to prevent further abuse.
Additionally, there are many helplines and organizations that can be contacted which specialize in assisting victims of GBV and other forms of abuse.
What is a Protection Order?
A protection order is a court order that can be requested by those suffering from domestic violence which will hopefully prevent further abuse. The order may highlight certain behaviours that the accused is no longer allowed to engage in such as generalised abuse, entering into the residence of the abused individual if they are not living together, contacting the children, etc.
The protection order will usually come with a suspended warrant of arrest of the accused. If they break the rules set out in the protection order, they may be arrested immediately by police.
Any person who has suffered from domestic violence may apply for a protection order, including minors, additionally, people may apply on behalf of a minor. People with a material interest in the well-being and safety of an abused individual may also apply although the written consent of the abused must be provided unless said person is unconscious, mentally impaired, etc.
It should be noted that you do not have to receive a protection order before laying a criminal charge. If the abuse suffered meets the threshold of being an actual criminal offence, the abused can approach the police at any time.
What is Domestic Violence?
Domestic violence/abuse is one of the most common types of GBV and can affect any member of a family, including children and the elderly. That said, most people are not sure as to what specifically entails domestic abuse with many people believing that it relates to physical abuse only. This is not the case, domestic violence is an umbrella term that encompasses many different forms of abuse such as –
- Physical Abuse
- Sexual Abuse
- Emotional or Psychological Abuse
- Economic Abuse
- Intimidation
- Harassment
- Stalking
- Property Damage
- Entry into a residence without consent
The aforementioned amendments to the Domestic Violence Act could also see this definition broadened to include actions such as isolating the victim or attempting to control or regulate their everyday behaviour.
Do you have a Duty to Report Instances of GBV?
While there isn’t a general legal duty to report a crime in South Africa, there are some exceptions and many people who have witnessed GBV or suspect that it has occurred may be wondering if they have a duty to report it.
Many groups strongly encourage these individuals to report the encounters but, for the most part, this isn’t a legal duty. That said, when there are reasonable grounds to believe that a child or somebody with a mental disability is suffering from such abuse, the law does make reporting a legal obligation and failure to do so can be punished with either fines or imprisonment.
In Conclusion – What is Gender-Based Violence and What does the Law Say?
Gender-Based Violence (GBV) is defined differently by various groups. Originally, it was used to describe the violence that was done to a person due to their gender, however, in recent years, the definition has broadened and many organisations now use it interchangeably with violence against women.
Generally speaking, the law punishes acts that are commonly associated with GBV rather than GBV itself, this normally includes things like rape, sexual abuse and domestic violence. That said, the Commission for Gender Equality was created to investigate and review the level of GBV and gender imbalance in the country before making reports and providing recommendations to the government.
Individuals who suffer abuse can report it to the authorities and have criminal charges laid against the perpetrator, alternatively, they may seek a protection order from a court which highlights certain behaviours that the accused may no longer partake in and is accompanied by a suspended warrant of arrest which makes provisions for the immediate arrest of the individual if they break the rules set out by the protection order.
It is accepted that any person, regardless of gender, may be a victim of GBV although women are usually viewed as the prime targets. The abuse may not be strictly physical and may include things like psychological, economic and emotional abuse along with things like intimidation and harassment.
While there is no general legal obligation to report instances of GBV or suspected GBV that you become aware of, there is an expectation made in cases involving children or those with mental disabilities. In such cases, those with reasonable grounds to believe that abuse is being done to such vulnerable parties are legally obliged to report them or face either fines and/or imprisonment.
Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.
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