Considering the draft bill proposing penal code amendment

Lesego Nswahu Nchunga | Monday June 14, 2021 16:21

The object of the Bill as outlined in the Gazette are to enhance penalties for sexual offences; to provide for compensation of sexual offences; and to criminalise false allegations of sexual offences.

The extensive discussion on the first two objectives is crucial before delving into the most topical, political and problematic of the objectives. The discussions are important because we cannot, in our critique of what is presented to the National Assembly, be seen to throw out the baby with the bath water (such a horrible metaphor).

Undeniably, the proposed Bill addresses a number of key, critical issues. The enhancement of penalties places greater emphasis on the criminal’s motive. Where said motive is found to be particularly depraved, enhancement of criminal penalties against them is possible. Enhancement of penalties is a process by which criminal penalties are increased, such as by increasing a jail sentence. Of course, all crimes are severe to the victims who experience them. However, some are more heinous, demanding stiffer penalties. So, one can imagine the thinking that went into this suggestion. It seems to be a sound suggestion, although the details will elaborate on it more.

Secondly, compensation of sexual violence victims is not a construct novel to Botswana. In the UK for example, there is a statutory body, the Criminal Injuries Compensation Authority, from which persons who have been physically or mentally injured as a result of a violent criminal act, may claim   compensation. In India, a scheme proposed by the National Legal Services Authority and approved by the Supreme Court, provides that there be compensation for victims of sexual assaults and aid attacks. The scheme specifically prescribes the amounts to be claimed by victims and survivors of sexual assault and other crimes, including rape and “unnatural sexual assault”. In other countries, where sexual harassment has been codified, such as the United States of America, employers can be held accountable for sexual harassment which occurs in the workplace.

Through this process, a survivor is able to seek compensation for the damage they have experienced or suffered as a result of the violent act. Currently, in Botswana, compensation for crimes can be sought through a civil law suit, through which a victim or survivor may claim compensation for damages they have incurred/suffered. The question of whether indeed compensation, thorough tort law, is a means for justice has been considered by various writers in other jurisdictions. So too has the question of how monetary compensation can effectively been used to meet the justice interests of victims/survivors of sexual violence. At the core of both these considerations is the reality that the criminal law approach through which the State is the person wronged, charges the perpetrator in an action before Court where the victim is merely a witness; and eventually, in 19% of tried cases, a conviction and sentencing are secured, provides very limited justice for the person against whom the crime has been committed. In jurisdictions where the practice of tort lawsuits is widespread, the main challenges have included financial risk and the risk of impecunious defendants who are unable to pay the necessary compensation. For Botswana, it will be necessary for legislators to consider a statutory right to legal aid for victims of sexual violence.

This would enable the victims to pursue the civil case outside the criminal court, once their criminal claim has been concluded. In addition, the Ministry of  Defence, Justice and Security, through the Department of Justice would have to commission research or the development of a policy paper on ways to strengthen the legal rights and status of victims of sexual violence. In the jurisdictions where the tort law approach has been explored, such as Iceland, there are ambivalent views towards the option it presents and monetary compensation. Monetary compensation and the sexual harm suffered are often incommensurable. Further, it may seem like a trade off, which for the victim will likely always be unfair. In addition to this, monetary compensation is often not aligned to the perceptions of justice that survivors have, where their credibility, moral standing and reputations have been soiled by the perpetrator. Justice is more often aligned with the perpetrator taking responsibility, transformation of the justice system and the prevention of further violence.

The proposal of the Minister, to this extent, definitely bears considerable merit, although it needs extensive community engagement, and research to discover the extents of the needs of the survivors themselves, related to tort laws.

To this extent, and to the first objective of the proposed amendment, of course State intervention is needed to better meet the victim-survivors’ justice interests. Although even internationally there is limited research on the ways in which victims-survivors understand and experience justice, there is need to embark on this very research as soon as practicable, to ensure that justice is not just seen to be served, but is actually in fact served, for sexual violence survivors, especially with the current rise in these crimes.

There are great and substantive merits in the first two objectives. There will be a great need for community engagements to ensure that their implementation is not another instance of failed justice. However, on the face of it, one can say they are would be a great step for legislative advocacy for women’s rights. The final objective however, which provides for criminalisation of false allegations of sexual violence is extremely problematic and will invariably have the effect of undoing the great strides made in ensuring more reporting of sexual violence. In the next piece, we will more deeply engage with it, and present reasons why, in our opinion, it should be struck off the proposed Bill.