Op-Ed: Does a rape have to be brutal to ensure a conviction?

“In most public talk, people distance themselves from rape and express incomprehension about how rape continues to have such a firm grip on our society” – Pumla Dineo Gqola, author of Rape: A South African Nightmare

“It’s boring, it’s just another survivor story.” That’s what filmmaker Uga Carlini was told by funders of her documentary, Alison. They urged her to explore more “interesting” subjects instead – the perpetrators.

Rape and violence have become so normalised in South Africa that a documentary about a woman who was abducted, raped, disembowelled, almost completely decapitated, left for dead, and yet miraculously survived, is considered “boring”.

On Saturday, 26 November 2016, I attended a special screening of Alison at the Labia Theatre in Cape Town, commemorating the start of 16 Days of Activism for No Violence Against Women and Children (16 Days of Activism). The documentary, narrated by Alison herself, recounts her harrowing ordeal at the hands of two men in 1994. Doctors called her survival a miracle.

Within hours of the assault, the perpetrators were caught and within a few months they were tried, convicted and given multiple life sentences. Criminal justice was served.

Based on my work on gender-based violence at Sonke Gender Justice, I couldn’t help but wonder if justice was only served due to the brutality of the attack. Both men had raped before, were arrested and released either on bail or on their assurance that they would appear in court a few months later. Would Alison have got justice if they had not stabbed her abdomen 37 times and slit her throat 17 times? This is a question worth asking, as data shows that brutality plays a role in our conviction rates on rape.

But considering brutality as the only factor influencing our criminal justice system diminishes the complexity of convictions in the country. Numerous factors including the survivor’s race, class and socio-economic background, the police station where the case is opened (if it is reported at all), sustained community pressure and mobilisation around the case (as we have seen with the recent conviction of former-ANC Youth League Leader Patrick Wisani, and available resources, all contribute to the outcome of a case.

The National Prosecuting Authority (NPA) boasted a 69% conviction rate in sexual offences prosecutions for the year 2014/15. The NPA defines a conviction rate as “the percentage of cases finalised with a guilty verdict divided by the number of cases finalised with a verdict”.

The lack of evidence due to the non-violent nature (one could read this as meaning no physical wounds to show) of the crime often results in the NPA not pursing charges against an alleged perpetrator. Understandably, the NPA only prosecutes cases it thinks it has a reasonable chance of winning. But what about cases the NPA decides not to prosecute? Where is the justice for those women, and what happens to the perpetrators?

In her book Rape Unresolved: Policing Sexual Offences in South Africa, Dee Smythes, Professor of Public Law and Director of Research at the University of Cape Town, unpacks this further. She writes: “About 150 women report being raped to the police in South Africa daily. Fewer than 30 of the cases will be prosecuted, and no more than 10 will result in a conviction. This translates into an overall conviction rate of 4%-8% of reported cases.”

So again, does a rape have to be brutal to increase a rape survivor’s chances of seeing a conviction of the rapist? Sadly, I believe so. The onus falls onto the victim to prove that she was raped and there are problems with evidence if there are no or little physical injuries. Remember, the NPA only pursues cases it thinks it has a chance of winning, and thus chooses cases with vigorous evidence to support their case. With brutality, comes outrage and increased media attention.

Still, brutal rapes and murders occur daily across the country and some receive swifter justice than others. So clearly there are other factors at play. The survivor’s background and financial and social resources to propel the case forward, the political will and resources of the police station and clinic she attends, the quality of evidence gathered, and the urgency with which the NPA and court system deal with the case, all contribute to whether justice is served.

Take for example the case of Nomanesi Klawushe. A 38-year-old unemployed mother of three living in Delft, who went missing on 6 August 2016 and was found six days later burnt beyond recognition. The only identifying feature was the colour of her nail polish. DNA tests later revealed that the charred remains were Nomanesi’s.

The shock of Nomanesi’s vicious murder, and the lack of immediate police action, reverberated across the community. The Social Justice Coalition mobilised the community and on 31 August, I joined 150 community members and activists marching through Delft to the local police station under the banner “Justice for Nomanesi”. A memorandum from the community was handed over to Colonel Sedrick Hermanus – demanding that the South African Police Service (SAPS) conducts a speedy and thorough investigation. The Colonel promised his team would do everything they could to bring Nomanesi’s killers to book. I personally witnessed this promise.

It’s been four month since that promise was made. I phoned a relative of Nomanesi’s on 6 December, to find out if there has been any progress. That phone call has left me feeling despondent. The police did not contact her after the march. On 6 October, a month after Nomanesi’s disappearance, Nomanesi’s relative reported the Delft detectives to the police ombudsman. One month thereafter, Advocate Pikoli from the police ombudsman, called the Delft police station management, who in turn called Portia to inform her that they would actively investigate her case.

Two weeks ago, three suspects were arrested. Three men, who had allegedly boasted for months to community members how the one had raped Nomanesi and the others set her alight. These men were released 48 hours later, as they would purportedly not provide statements. They are still free.

A family with few resources and social capital to leverage. A community with an under-staffed and under-resourced police station. The Khayelitsha Commission of Inquiry noted that the Delft police station falls into the 10 most understaffed police stations in the Western Cape. These are injustices in themselves and tightly entwined with race and class, and the powerful social inequalities of Cape Town. Where is justice for women who live in informal settlements that are notorious for their lack of service provisions and safe spaces?

While 16 Days of Activism is primarily an awareness-raising campaign, the “it’s boring, it’s just another survivor story” response Carlini received is indicative of the apathy felt by South Africans at the mention of rape. It shows that awareness-raising is never enough. Most of us are “aware” of the scourge of gender-based violence in our country, and the staggering rates of rape permeating our communities, but we blunt ourselves against it. Awareness is not necessarily tied to action. What South Africa needs now more than ever, is action. And implemention of policies and frameworks.

We need the South African government to actively roll out Sexual Offences Courts (SOCs) across the country, particularly in rural and impoverished areas.

We need to roll out violence prevention interventions, such as Sonke’s One Man Can Campaign (a training programme on gender, HIV, communication and relationship skills developed in Uganda), which encourages men to become actively involved in advocating for gender equality, preventing gender-based violence (GBV), and responding to HIV and AIDS. This is achieved through helping men change their belief on gender norms and taking an active stand against domestic and sexual violence. Other strategies include banning corporal punishment in the home and the provision of psycho-social support services for adult and child survivors of violence. 

We need government to adopt and implement a fully-costed and co-ordinated national plan that addresses GBV and provides the necessary resources for government, civil society, and the private and public sectors to work together effectively to end the scourge of GBV – through prevention programmes and services.

We need citizens to speak out against gender violence and not accept this crime as the norm, or substandard responses by public services – not just during 16 Days of Activism, but every day of the year.

Let us not nod and wring our hands with “awareness”. Let us be active in stopping gender-based violence. Let us ensure that there are no more Nomanesis or Alisons. DM

Marike Keller is Policy Development & Advocacy Consultant at Sonke Gender Justice.

Photo: A community protest after Nomanesi Klawushe, a 38-year-old unemployed mother of three living in Delft, went missing on 6 August 2016 and was found six days later burnt beyond recognition. The only identifying feature was the colour of her nail polish. DNA tests later revealed that the charred remains were hers. (Sonke Gender Justice)