Women lawyers speak on 16 Days of Activism

ANNA MOTLHAGODI | Friday December 10, 2010 00:00

 

The campaign is between November 25, International Day against Violence Against Women and December 10, International Human Rights Day. In Botswana the campaign is supported by government, NGO's and society in general. However, women lawyers have to date not made their voices heard by speaking out against the scourge of violence against women and children. We have decided to be part of the campaign this year.

As women lawyers we fully support the campaign and would like to take actions to support the 16 Days of Activism for no violence against women and children. We want to be part of the campaign to create awareness of the negative impact of violence on women and children. We want to take this opportunity to speak out against abuse of women and children.

We jealously uphold fundamental human rights and it is our belief that women's rights are human rights. Women and children have the right to live in an environment that is free of violence, and is safe and secure. Further, they are entitled to the full protection of the law. We reject the notion that domestic violence is a private family matter.

As women lawyers we are service providers to both perpetrators and victims of violence and therefore we are in position to know the effectiveness of the current legal framework. The coming into effect of the Domestic Violence Act is a welcome development. However, our concern is that there is so little awareness of the Act among the very people that it was intended to benefit. Our second concern is that the Act seems not have been operationalised or fully implemented by the various institutions within the criminal justice system and outside. Further we would like to see domestic violence treated in a holistic way within the criminal justice system as well as social welfare system.

Lack of awarenessIt is now several years since the Domestic Violence Act came into effect. It is worrying that there is still so little awareness of the provisions of the Act. This is manifested in the low number of women who seek remedies through the courts in terms of the act. Women who are victims of domestic violence end to report the matter mainly to the police. Reporting domestic violence to the police is the correct step once an act violence has actually been committed but very few women seek civil remedies such as interdicts and injunctions against potential abuse or other forms of undesirable behaviour such as harassment whether in person, on the phone and stalking. In the instance of homicides of lovers or ex lovers, there is a pattern of behaviour committed by the perpetrator which leads to the ultimate act of killing the victim.

Such behaviour includes, but is not limited to, a desire to control the victim, refusing accept to termination of the relationship, harassing the victim on the phone or making unwelcome visits to the victims home or work place and stalking.

There is need to create awareness of the act so that women can know what steps to take in order to get appropriate relief through the courts in the event that they find themselves in certain situations. If there is awareness more women will know their rights, they will be able to identify behaviour that is undesirable or wrongful that leads them to feel insecure and threatened. Once they have identified the behaviour which is wrongful and undesirable women will feel empowered to take steps to seek appropriate relief.

Standardised training for police officersIt must be understood that domestic violence is a crime that has its own dynamics and idiosyncrasies. It is a crime that has to be understood in a certain way and dealt with in a certain way. It is therefore important that police officers get training but it has to be standardised training so that there is a response procedure in domestic violence cases. Victims of domestic violence have certain patterns of behaviour such as initially reporting a case and when the wounds have healed and the perpetrator acts all remorseful they become reluctant to pursue the case. In certain instances they fear retaliation and become reluctant to participate in criminal proceedings. Trained police officers will understand the victim's behaviour and mentally and will know how to go about handling the matter.

The state should take authority and responsibility for criminal prosecutions in domestic violence casesAt the moment in our criminal justice system it is left up to the victim to decide whether the perpetrator should be prosecuted or not. As in all other instances of crime, when a crime has been committed it is an offence against the state. Domestic violence cases are no exception. The state should make a perpetrator of violence against women and children accountable for his actions. A victim may have various reasons for dropping the charges such as fear of retaliation, fear of losing a bread winner, threats by the perpetrator, begging for forgiveness and apparent remorse by the perpetrator etc. However, the violence then becomes a pattern of behaviour. It is imperative for the state to make it a policy that the ultimate decision to prosecute lies with the prosecution. In such a case the victim is not burdened with the decision to prosecute or not. Therefore the state should have a 'no drop policy' which leaves only the prosecution with the decision to prosecute.

Evidence based prosecutionOnce the state has adopted a policy which does not allow for dropping of charges, it means the state may in certain situations have to go without the evidence of the victim as they may be reluctant to testify in criminal proceedings. Therefore the police should enhance their  evidence gathering techniques to reduce the prosecution's dependency on the victim to testify. It is generally useful to prosecute soon after the event while the victim is still willing to testify.

Gathering of evidence may include writing statements by the victim and other witnesses, medical reports, photographs, video recordings, audio recordings etc.

Strategies to provide victim safety and confidentiality Once a domestic violence case has been initiated certain safety considerations should be taken into account, like taking the victim to a place of safety, getting a restraining order not to come near the victim, keeping the victim's location and other particulars confidential.

Role of the courtsThe administration of justice should also play a role in improving their system and internal procedures to make the courts system simple and accessible to women. They could have domestic violence procedures for reporting and hearing the cases. We recommend that once a domestic violence case is reported and registered the usual rules should not apply as in other cases.

There should be standard tailor made forms in the courts that women just fill in order for them to get interdicts, injunctions and restraining orders. If the court system is user friendly to victims of violence or potential victims, particularly in the provision of assistance in respect of civil remedies, it will go a long way in reducing the incidence of violence against women and children and the high incidence of what has come to be known as passion killings.

Counselling services for victims or violence as well as perpetratorsIn order to provide a holistic approach to the issue of domestic violence cases, the prosecution and administration of justice should work with the social welfare department so that beyond the system of retribution victims of violence and the perpetrators should get counseling services. The victims should get their own form of counseling specific to their own needs to deal with the trauma and emotional effects of violence against them. On the other hand perpetrators also need help.

As part of the sentence imposed, the court could also make a condition of the sentence that the perpetrator should undergo counselling. Understandably, the courts should exercise its sentencing discretion depending on degree and severity of the offence. However, the bottom line is that perpetrators of violence are members of our society and should be assisted to manage their anger and also helped to deal with other underlying factors that lead to them committing acts of violence against women and children.

ConclusionIn domestic violence cases, the identities and gender dimension of the parties affected and participating in the violence play a role in the decision to prosecute the matter. In that vein, women should be accorded the rights that are accorded to all other human beings of having crimes committed against them treated like as criminal acts. However, due regard to the peculiarities of domestic violence should be taken into account.

We believe that there should be a concerted and holistic effort by all stake holders of matters involving domestic violence to educate women on the legal developments in this area and the manner in which to access the protection that is currently that is inherent in domestic violence matters.

The lack of awareness of the cross cutting nature of domestic violence has led to a failure in the system to effectively handle domestic violence matters. This in turn has resulted in instances of victims of violence being let down by the system.

Anna MotlhagodiOn behalf of women lawyers of the Law Society