In South Africa in late 2006 a new spirit seemed to have taken hold in public discussions on how to achieve a more concerted, effective response to the country’s epidemic of HIV infection. The ensuing collaborative efforts, which drew in health department officials, civil society organizations and medical specialists, resulted eventually in agreement on a number of issues: notably that the challenges posed by persistent poverty as well as violence and other forms of discrimination against women had to be addressed as part of an effective overall response to the epidemic and the realization of the right to health of those affected and infected by HIV. The consensus on this and other issues was reflected in a new plan adopted by Cabinet in May 2007 to guide the work of the next five years^.²

This report, which reflects research undertaken by Amnesty International (AI) in 2006 and 2007, provides an analysis of patterns of human rights abuses against women who are exposed to the risk of or are already living with HIV in rural contexts of widespread poverty and unemployment. It draws on the testimonies of 37 women who, to varying extents, had experienced incidents of violence from intimate partners or strangers, were unable to secure a stable income, faced periods of hunger, but were striving to maintain their access to health services and adhere to treatment despite the consequences of poverty, stigma and their low social status.

The women involved were interviewed by AI in Mpumalanga and KwaZulu Natal provinces, in collaboration with local service providing organisations with whom AI has worked for some years. The interviews were conducted with the assistance of interpreters in most cases and the support of the organizations’ lay-counsellors. The interviewees’ identities have been protected throughout this report to ensure their right to privacy and to avoid any possible harmful consequences resulting from their identification. Identifying place names have also been excluded when referring to their testimonies.

While there were singular aspects to each of their stories, some common themes emerged which pointed towards wider, more systemic factors which affected the women’s ability to realize their right to health. In the following chapters some of these factors are examined, including the direct and indirect impact of gender-based violence, discriminatory attitudes and gender stereotypes, and economic marginalisation. In attempting to assess their effects, AI has drawn on information provided to it in meetings and other communications with non-governmental and government sector service providers, human rights and advocacy

Some of South Africa’s international human rights treaty commitments Along with the majority of countries in the world, the government of South Africa has signalled its commitment to human rights by signing, ratifying or acceding to a number of international treaties embodying important human rights principles (set out below). One of the measures of a government’s human rights performance is the extent to which it meets the international commitments it has voluntarily entered into. Governments should also be guided by the recommendations contained in inter-governmental declarations such as the UN Declaration on the Elimination of Violence against Women and UNGASS (2001), as well as general comments of the monitoring committees of the treaties which they have ratified.
Treaty^³	Signed	Ratified (R) / Acceded to (A)
International Covenant on Civil and Political Rights (ICCPR)	3 October 1994	10 December 1998 R
Optional Protocol to the ICCPR permitting submission of individual complaints		28 August 2002 A
International Covenant on Economic, Social and Cultural Rights (ICESCR)	3 October 1994	Not ratified, but has signalled intention to ratify^⁴
Convention on the Elimination of all Forms of Discrimination against Women (Women’s Convention)	29 January 1993	15 December 1995 R
Optional Protocol to the Convention on the Elimination of all Forms of Discrimination against Women permitting submission of individual complaints		18 October 2005 A
International Convention on the Elimination of All Forms of Racial Discrimination (CERD)		9 January 1999
Convention on the Rights of the Child	29 January 1993	16 June 1995 R
Convention against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment	29 January 1993	10 December 1998 R
Optional Protocol to the Convention Against Torture	20 September 2006
African Charter on Human and Peoples’ Rights (African Charter)	9 July 1996	9 July 1996 R
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Protocol to the African Charter on the Rights of Women in Africa)	16 March 2004	17 December 2004 R
African Charter on the Rights and Welfare of the Child	10 October 1997	7 January 2000 R

organizations, policy development and research institutions, health professionals and government officials. The report’s analysis has also benefited from some of the extensive published research undertaken by South African and international organizations. Finally, the report’s analysis and conclusions are underpinned by a framework of human rights standards which reflect the consensus of the international community. South Africa since 1994 has participated in the further development of these standards, as well as shown its acceptance of them through its commitments made under key international human rights treaties. This report and associated campaign are intended as contributions towards South African efforts to overcome the legacies of the past and address current human rights abuses.

Introduction

HIV and AIDS in South Africa

South Africa is continuing to experience a severe HIV epidemic.^⁵ Five and a half million South Africans are HIV-infected, the highest number of people in any one country in the world. Fifty-five per cent of them are women.^⁶ UNAIDS estimated that 320,000 people died of AIDS in 2006.^⁷ The epidemic developed rapidly from the first case recorded in 1982,^⁸ to a national prevalence rate of at least 16 per cent in 2005.

The epidemic had begun during a period of extreme state violence and political and racial oppression which included government imposed states of emergency from 1985 to 1990, and continued to develop while the country was largely preoccupied with the efforts to negotiate the end of the apartheid system and National Party rule and securing the transition to non-racial democracy in 1994. Initially perceived in South Africa as a disease particularly affecting gay men and people receiving blood transfusions, it became apparent that HIV and AIDS was not confined to particular ‘at-risk’ groups but was becoming a generalised epidemic in certain communities.^⁹ From 1991 onwards the majority of transmissions in South Africa were through heterosexual intercourse. In 1993 the national prevalence rate amongst pregnant women attending antenatal clinics was 4.0 per cent; in 1996 it was 14.2 per cent; and by 1999 22.4 per cent of pregnant women attending antenatal clinics were HIV-infected^.¹⁰ In 2005 data from a population survey indicated that 16.2 per cent of adults 15 to 49 years were infected, while UNAIDS, using antenatal clinic data, published an estimate of 18.8 per cent prevalence for adults 15 to 49 years of age.^¹¹

This desperate situation was unfolding while the country from 1994 was engaged in remarkable legal and institutional transformations which began to affect every sphere of life. These changes included the finalisation and adoption in 1996 of a constitution with a legally enforceable bill of rights protecting, among others, the right to equality, to bodily and psychological integrity, to freedom from violence from either public or private sources, and to the realization of the right to health without discrimination on any grounds. Within this framework institutional reforms were initiated, for instance, to improve access to education and to employment for “historically disadvantaged groups”, to integrate and reform the health services,^¹² as well as the policing and criminal justice systems with the intention to improve service delivery for all South Africans without discrimination.

Despite the relentless upward trend in HIV infection rates, the government’s initial responses to the epidemic were slow and erratic during the Mandela presidency.^¹³ From late 1999 the government of President Thabo Mbeki took a direction which turned a public health emergency into a matter of political conflict. For whatever complex reasons, President Mbeki’s decision publicly to question the link between the virus and the onset of AIDS, as well as the efficacy and safety of the then known drug treatments, precipitated a period of confusion and demoralisation within government departments and the public health services and disputes between national and some provincial governments over responses to the epidemic. Adding to these consequences was a growing bitter conflict with sectors of civil society, including medical practitioners, who were pressing for access to antiretroviral treatment for HIV-infected pregnant women and others with AIDS. There was a loss of strong unified leadership at a critical juncture in the life of the epidemic and a further delay in access to life-saving medicines for those with AIDS who were dependent on the public sector for health services.^¹⁴

In late 2001 the Treatment Action Campaign (TAC)^¹⁵ obtained an order in the Pretoria High Court requiring the government to supply antiretroviral medication to pregnant women to prevent transmission of the virus to their babies. The High Court ruling was confirmed by the Constitutional Court in July 2002 after the Department of Health appealed the High Court decision.^¹⁶ The Constitutional Court held that “Sections 27(1) and (2) of the Constitution require the government to devise and implement within its available resources a comprehensive and co-ordinated programme to realize progressively the rights of pregnant women and their newborn children to have access to health services to combat mother-to-child transmission of HIV”.

In November 2003 the Minister of Health, Dr Manto Tshabalala-Msimang, announced the government’s decision to provide antiretroviral treatment in the public health sector within the framework of the National Operational Plan for Comprehensive HIV and AIDS Management, Treatment, Care and Support (NOP). Antiretroviral therapy (ART) finally and slowly began to be provided in public sector hospitals from 2004.^¹⁷ The “roll-out” of treatment occurred at a pace below the targets indicated in the NOP and was dogged by an atmosphere of distrust of government intentions. Advocacy groups observed that the Cabinet-approved NOP had “committed the state in 2003 to placing approximately 645,740 people on ARV treatment in the public sector by the end of 2006/7 financial year,”^¹⁸ but according to Department of Health information, “approximately 250,000 people had been initiated on ARV treatment in the public health sector by this time.”^¹⁹ By mid-2006, 200,000 adults were on treatment while an estimated 511,000 still needed to begin ART.^²⁰ The numbers had risen to 303,788 patients on treatment by May 2007, according to the government’s MDGs Mid-Term report, and to 408, 218 by the following November.^²¹

The tensions between government and civil society over responses to the HIV epidemic appeared to reach a nadir at the XVI International AIDS Conference in Toronto in August 2006. The promotion by the Minister of Health at the conference of a diet-based treatment for AIDS led to further national and international pressure and criticism of the government. ^²² The Deputy President, Phumzile Mlambo-Ngcuka, as Chairperson of the reconstituted South African National AIDS Council (SANAC), began to have an increasingly prominent role in the oversight of the response to the epidemic and the development of the new national strategic plan.^²³ As described in the NSP which was adopted by SANAC in April 2007 and the Cabinet in the following month, the final version of the plan had been developed through an intensive and consultative process over a six month period.^²⁴ SANAC symbolised the changes with its membership and co-chairing role for civil society.^²⁵ The process of developing the new NSP was described to AI as genuinely participatory by civil society organizations.^²⁶ As summarised by the Joint Civil Society Monitoring Forum, the new plan proposed to expand the access to appropriate treatment, care and support to 80 per cent of all HIV positive individuals by 2011; create a social environment which encouraged HIV testing, and promote, protect and monitor human rights involved in these interventions.

Some uncertainties still remained, however, when in August 2007 the goodwill developed during this process was put at risk by the dismissal by President Mbeki of the Deputy Minister of Health, Nozizwe Madlala-Routledge, after she participated in an AIDS conference in Spain without his formal approval.^²⁷ The Deputy Minister had been an active participant in the development of the NSP. In a further sign of unresolved issues, public controversy intensified in late 2007 over the delays in producing new guidelines and budget for the provision of dual therapy treatment to pregnant women prior to labour and to their new born babies to prevent HIV transmission, consistent with revised WHO guidelines and in compliance with the ruling of the Constitutional Court in 2002. Approval of the new guidelines appeared imminent in September, but they had still not been produced by the following February. While the Western Cape Province had implemented since 2004 the dual therapy regime and had reduced infant infection rates reportedly to less than 10 per cent, other provinces continued to use single therapy treatment while awaiting national authorisation. The Southern African HIV Clinicians Society expressed concern that children were continuing to be infected unnecessarily. In KwaZulu Natal Province, a hospital doctor, who in 2007 had raised concerns with the Department of Health about the delays, was charged in February with misconduct for accepting outside funds to implement dual therapy at his hospital. Although the departmental charge was later dropped, the incident and associated public outcry indicated that the new spirit of collaboration which had helped create the NSP was still fragile.^²⁸

Realizing the Right to Health

In the words of the Special Rapporteur on the right to health, “at the heart of the right to the highest attainable standard of health lies an effective and integrated health system, encompassing health care and the underlying determinants of health, responsive to national and local priorities, and accessible to all.”^²⁹A number of international treaties make reference to health-associated rights. The ICESCR states at Article 12 that “Everyone has the right to the highest attainable standard of physical and mental health”.^³⁰The CESCR has provided an interpretation of the meaning of this right in General Comment 14.^³¹In this comment the CESCR notes that “the right to health contains both freedoms and entitlements. The freedoms include the right to control one’s health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.” [para.8] The Comment asserts that the “right to health in all its forms and at all levels contains the following interrelated and essential elements”: health care should be available, accessible (including being affordable), acceptable and of good quality. [para.12]

Meeting the terms of Article 12 “requires the establishment of prevention and education programmes for behaviour-related health concerns such as [STIs], in particular HIV and AIDS, and those adversely affecting sexual and reproductive health, and the promotion of social determinants of good health, such as environmental safety, education, economic development and gender equity” [para.16]. The Women’s Convention at Article 12 states: “States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.”^³²CEDAW, in General Recommendation 15, urged that “programmes to combat AIDS should give special attention to the rights and needs of women and children, and to the factors relating to the reproductive role of women and their subordinate position in some societies which make them especially vulnerable to HIV infection”.^³³The UN Special Rapporteur on the right to health has published numerous reports contributing to the understanding of the right to health.^³⁴In a foreword to the International Guidelines on HIV/AIDS and Human Rights the UN High Commissioner for Human Rights and the Executive Director of UNAIDS draw attention to the fact that “the content of the right to health has been increasingly defined and now explicitly includes the availability and accessibility of HIV prevention, treatment, care and support for children and adults”.^³⁵

Under Section 27(2) of the South African Constitution, the State “must take reasonable legislative and other measures within its available resources, to achieve the progressive realisation” of a number of rights, including “the right to have access to…health care services, including reproductive health care” (Section 27(1)(a).

The female face of the HIV epidemic: the impact of discrimination, violence and poverty

“The HIV epidemic and AIDS [in South Africa] is clearly feminized, pointing to gender vulnerability that demands urgent attention as part of the broader women empowerment and protection. In view of the high prevalence and incidence of HIV amongst women, it is critical that their strong involvement in and benefiting from the HIV and AIDS response becomes a priority.”(NSP)^³⁶

Women are particularly affected by HIV and AIDS. As noted by the Executive Director of UNAIDS in his opening address at the July 2007 International Women’s Summit, “…the most significant development of the AIDS epidemic is its growing feminization. What entered history 25 years ago as a disease of white gay men is now increasingly affecting women all over the world.”^³⁷ Of the 40 million people living with HIV globally in 2007, almost half are women – reaching 60 per cent in sub-Saharan Africa.^³⁸ In South Africa, women under 25 are three to four times more likely to be HIV-infected than men in the same age group.^³⁹ Significantly, the level of new HIV infections amongst women in South Africa continues to increase, while overall incidence of the disease has levelled off.^⁴⁰ Data presented to the Third South African AIDS Conference in June 2007 indicated that of the more than 500,000 new infections in 2005, the highest incidence occurred in young women aged 15 to 24 years.^⁴¹ Provincial antenatal clinic prevalence rates vary considerably, ranging from 15.7 per cent in the Western Cape to 39.1 per cent in KwaZulu Natal.^⁴²

The NSP notes that while the immediate determinants of the spread of HIV relates to behaviours such as unprotected sexual intercourse, multiple sexual partnerships, and some biological factors such as concurrent sexually transmitted infections (STIs), women’s socio-economic disempowerment and the impact of gender-based violence contributed to women’s significantly higher infection rates.^⁴³ Women are biologically more vulnerable than men to contracting the virus through unprotected vaginal intercourse.^⁴⁴ Available evidence globally, as well as evidence presented in this report, suggests that women are also put a greater risk of transmission due to the discriminatory impact of gender roles and stereotypes. They are frequently unable to insist on condom use to protect themselves against the risk of HIV transmission by a male partner where they are economically, socially orculturally dependent on that partner or his family, or risk being subjected to violence as a result of suggesting condom use.^⁴⁵ Their exposure to sexual violence and intimate partner violence increases their risk of HIV infection over time.^⁴⁶ Women are less likely to have independent access to economic resources and recent research in South Africa has shown the direct positive correlation between women’s access to economic resources and their ability to protect themselves from HIV infection and against violence.^⁴⁷ In many countries, women also carry a disproportionate burden as carers once members of a household fall sick - a particular concern in a country like South Africa where AIDS affects a large part of the population.

Concerns of the UN Secretary-General’s Task Force on Women and HIV in Southern Africa, 2004 ^⁴⁸

Preventing HIV in girls and young women – stopping new infections in women and girls through interventions aimed at intergenerational sex and the cultural and socio-economic empowerment of women and girls

Getting girls in school and keeping them there – ensuring continued enrolment and retention of girls in school

Ending violence against women – protection of girls and women from exposure to HIV through sexual violence and intimidation

Securing property and inheritance rights – protecting women’s and girls’ right to own and inherit property

Supporting improved community-based care – protection against exploitation and provision of support in bearing the burden of care for people affected by HIV

Equitable access to care and treatment – ensuring equal access to care and treatment and protection from stigma, discrimination and violence related to women’s HIV status.

As examined in the following chapters of this report, the scale of incidents of sexual and other forms of violence against women has remained persistently high in South Africa, continuing to place women at risk of HIV in the immediate or longer term. Considerable effort has been put into reforming the legal framework, medico-legal, police and criminal justice responses to gender-based violence. Nevertheless, women’s lives continue to be scarred by violence or the threat of violence in under-policed, unsafe communities and in their homes. Nearly ten years after the Domestic Violence Act came into force and after the provision of training on their obligations by official and civil society organizations, there is still evidence that some members of the South African Police Service (SAPS) do not understand their legal responsibilities or do not feel under sufficient pressure to fulfil them. For women in abusive relationships, their access to places of safety also remains very difficult.

Violence against women is a persistent and devastating manifestation of gender-based discrimination. Other forms of discrimination in the social and cultural spheres can also act as barriers to women’s access to prevention, treatment and care for HIV. There has been extensive transformation since 1994 of the legal framework to entrench gender equality, protect women’s sexual and reproductive rights and their right not to be subjected to violence. However, the rural women whom AI interviewed were continuing to experience oppression in their relationships with male partners, within families and the wider community as a result of their low social status, economic marginalisation, and also in some cases because of their HIV status. These manifestations of their inequality as women were associated with a range of consequences, including abandonment, loss of their homes, failure to complete their education, inability to secure maintenance for their children, violations of their sexual and reproductive rights with an associated increased risk of HIV infection, and barriers to access to HIV-related health services and treatment adherence.

While there are many good reasons to test, and sound medical grounds for scaling up testing for HIV as recommended in the NSP, it is more complex in a context of gender inequality, poverty and violence. Where women are tested in greater numbers than men and with limited support, it can leave them vulnerable to stigma, discrimination, abandonment and violence.^⁴⁹ The women AI interviewed spoke of their own experiences of powerlessness, verbal and physical abuse, threats of violence and abandonment in response to disclosing their HIV status.

Finally, poverty is a powerful factor acting as a barrier to access to health services, particularly for rural women who are disproportionately represented among the poor and unemployed. There has been a gradual improvement in the provision of HIV testing and counselling and preventative antiretroviral drugs to rape survivors, along with other initiatives to improve emergency medical and medico-legal services, but some survivors who lack economic resources and the support of NGOs still experience difficulties in adhering to treatment and remain at risk of HIV infection. While ART and other essential treatments for people living with HIV and AIDS are available free of charge, the circumstances of the women whom AI interviewed in KwaZulu Natal and Mpumalanga provinces indicate that women living in rural areas who do not have a secure income face serious challenges and in some cases complete inability to access treatment and ongoing care because they cannot afford the transport costs to get to the hospitals. Their ability to adhere to treatment is also jeopardised because they cannot afford adequate food with which to take ART twice daily. Although some of the women did receive temporary disability grants, food supplements or other social assistance for their children’s welfare, their economic circumstances remained precarious and affected their ability to access or continue their treatment. In addition their access to health services is further compromised by systemic challenges within the health system, in particular shortages of staffing and delays in government implementation of aspects of the HIV and AIDS treatment programme, such as providing sufficient accessible health care facilities to provide ART.

2. Violence against women and HIV

“He threatened to kill me and burn down the house if I did not take him back…So I returned back to stay with him.” [Testimony of SS who had been raped and repeatedly beaten by her husband and was fearing receiving the results of her HIV test.]^⁵⁰

“In spite of ample empirical evidence to this effect, states have yet to fully acknowledge and act upon the interconnection between the mutually reinforcing pandemics of VAW and HIV-AIDS”. (UN Special Rapporteur on Violence against Women, July 2007)^⁵¹

South Africa is continuing to experience a major HIV epidemic within a context of persistent and high levels of violence against women (VAW). As noted in the UN Secretary-General’s Study in 2006 on patterns and consequences of VAW, this is a global phenomenon which is both a violation of women’s human rights and prevents women from enjoying other human rights and fundamental freedoms. These include the rights to life and security of the person, and the rights to the highest attainable standard of physical and mental health, to education, work and housing and to participation in public life. VAW also perpetuates the subordination of women.^⁵² The co-existence of an epidemic of HIV infection has raised the costs of such violence for women in South Africa, both physically and psychologically. The UN Secretary General’s Study observed that:

“For many women worldwide, the threat of violence exacerbates their risk of contracting HIV. …Studies show the increasing links between violence against women and HIV and demonstrate that HIV-infected women are more likely to have experienced violence, and … women who have experienced violence are at higher risk for HIV.” ^⁵³

The South African Constitution of 1996 guarantees that everyone has the right to freedom and security of the person, which includes “the right…to be free from all forms of violence from either public or private sources”.^⁵⁴ Despite this constitutional guarantee thousands of women and girls experience sexual and other forms of violence every year in South Africa. In July 2007 the national Minister of Safety and Security, Mr Charles Nqakula, observed from analysis of the past six years of crime statistics that “the fact that instances of serious and violent crime are very high is disconcerting and unacceptable.” They included rape, “indecent assault”^⁵⁵ and attempts to commit these crimes. The Minister also observed that “poorer communities” were experiencing “more violent crime than wealthier ones,” and “at least two thirds of all serious and violent crimes happen between people who know one another and who will be found mostly within the confines of the same social environment.^⁵⁶

As is evident from the Minister’s comments, violence or the threat of violence is a pervasive problem for many people in South Africa. Women and girls can experience gender-based violence or witness it from a very early age. Indicative of the scale of the problem were the results of a national survey conducted in the early 2000s, in which a third of the 1,000 women interviewed had experienced physical, sexual, emotional and economic abuse, most typically in their home environment, and two-thirds had experienced at least one form of abuse. The South African Human Rights Commission (SAHRC) concluded after hearings on school-based violence in 2006 that schools were the “most likely place where children would become victims of crime including crimes of sexual violence”. A national cross-sectional study of nearly 270,000 high school students in 2002 identified an “expectation of sexual coercion among the youth”.^⁵⁷ A majority of the women whom AI interviewed in May 2007 had experienced, witnessed or were aware of incidents of violence in the home or rapes occurring in the wider community, including in schools or while en route to school, or on farms where some of the women had worked as seasonal contract workers.

The consequences for the health and psychological well-being of the women and girls subjected to these forms of violence can be devastating. At the same time violence against women and girls can have damaging psychological effects on boys who witness their mothers being beaten or their sisters’ abuse at the hands of fathers and partners. Research evidence indicates that men who had witnessed domestic violence during their childhood were responsible for significantly higher levels of abuse against women in their adult lives, as opposed to men who had not witnessed violence against women in their childhood.^⁵⁸ For women and girls experiencing violence and abuse, the consequences are immediate, but can also be longer-term, including through provoking a change of behaviour in the victim. As shown in the results of a large scale 2003 study, “child sexual assault and forced first intercourse” are associated in later adult life with an increased vulnerability to “intimate partner violence and…sexual assault by non-partners.” These events in turn are “generally associated with increased HIV risk behaviours.”^⁵⁹ In addition, women who are living in such circumstances are at increased risk of HIV infection from their violent partners, as men who are perpetrators of violence are more likely to engage in risk taking behaviour themselves.^⁶⁰

South Africa has obligations under both national law and international human rights law to reduce, through violence prevention programmes and the health sector response, the risks of HIV transmission after rape or over the longterm for women living in abusive relationships. They also have an obligation to provide redress for survivors of violence against women through an effective criminal justice and social support system. Although the scale of incidents of sexual and other forms of violence against women remains persistently high, as indicated below, the state has taken some measures to improve the response of the criminal justice system to these crimes and access to civil remedies in cases of domestic violence. The quality of the policing and justice response may decline though if key reforms are not sustained. After some national government resistance there has been a gradual improvement in the provision of HIV testing and counselling and preventative antiretroviral drugs to rape survivors, along with other initiatives to improve emergency medical and medico-legal services. Some survivors who lack economic resources and the support of NGOs do experience difficulties in adhering to treatment and remain at risk of HIV infection. For the women whom AI interviewed, their lives were still scarred by violence or the threat of violence in unsafe communities and within their homes. The police and municipal authorities, with the support of local communities, must act urgently to improve the safety of the environments in which rural women are living.

Sexual violence and its consequences

“We live in fear. There is nothing we can do to protect ourselves.” (Testimony of LE, a rape survivor living with HIV in rural KwaZulu Natal)^⁶¹

“Rape is a very serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the Constitution…” (South African Supreme Court of Appeal, S v Chapman)^⁶²

The World Health Organization has commented on the “profound impact” of sexual violence on the physical and mental health of survivors. Its impact can include physical injury and is associated with “an increased risk of a range of sexual and reproductive health problems, with both immediate and long-term consequences.” There is also a serious and possibly long-term impact on the victim’s mental health.^⁶³ The link between gender-based violence and HIV is most apparent in respect to the crime of rape, which can lead to direct HIV transmission. Due to the high HIV prevalence and high levels of sexual violence in South Africa, women are at risk of contracting HIV as a consequence of rape.^⁶⁴The likelihood of transmission during an incident of rape can be exacerbated by a number of factors. These include that perpetrators rarely use a condom, the “high rate of multiple perpetrator” rapes,^⁶⁵ the frequency of sexual assaults and the presence of sexually transmitted infections (STIs). In a violent sexual assault a victim may also receive wounds in the genital area and associated bleeding which can further increase chances of transmission of the virus.^⁶⁶ The risk of traumatic injury is higher in the case of young children.^⁶⁷ Police statistics for reported cases of rape and indecent assault year on year have shown that as much as 40 per cent of these crimes have been committed against children under18 years of age.^⁶⁸

Reported cases of rape amounted nationally to 117 per 100,000 of the population in the financial year April 2006 to March 2007, with a range from 80.6 (Limpopo) to 142.8 (Northern Cape) in the nine provinces.^⁶⁹ Research and support organizations believe, however, that the actual figures annually are much higher than those cases reported to the police, because of the social and economic pressures which discourage women from reporting rape.^⁷⁰ Although the number of reported rapes over six years, beginning in 2001/2002 and ending in the year 2006/2007, had decreased by 4.2 per cent overall according to police statistics, the total for the most recent reported year was still high, at 52,617. In addition to this figure should be added the 9,327 reported cases of “indecent assault”, which include incidents of anal rape or other types of sexual assault which did not fall within the then legal definition of rape.^⁷¹ In December the Minister of Safety and Security released new crime statistics for the period April to September 2007 including 22,887 reported rapes and 4,249 indecent assault cases.

Police analysis in 2007 of reported cases indicated that “76 per cent of rapes covered by the sample studied involved people known to one another.” In just under a fifth of the total cases the perpetrators were relatives.^⁷² Women in certain areas also seem to be at greater risk of violence. From an analysis of crime patterns at the police station area-level, it appears that 40 per cent of the cases of rape and other “socially motivated contact crimes” such as murder and assault with intent to cause grievous bodily harm (assault GBH), which were reported in 2006/2007, had occurred in only ten per cent of the 1,105 police station jurisdictions.^⁷³ Of the areas where AI conducted its interviews in May 2007, all but one fell within the areas of the police stations with the highest reporting rates.

These official statistics and accompanying analysis indicate that many South African women live in a general environment of high levels of violent crime, including rape, which affects their lives at home, in the community and wider society, placing them at risk of HIV infection in an accompanying context of high HIV prevalence levels.

Among the women whom AI interviewed, a number of them reported being raped and living in a generally threatening environment.

SS’s story ^⁷⁴

Thirty-two-year-old SS was raped by her husband in 2006. He had been physically abusing her for more than seven of their 11 year marriage. Past abuses included beatings and attacks with broken bottles. “The abuse started when he got work and he started buying alcohol,” SS told AI. She had been to the police station several times and had lodged a criminal charge at least once, which led to his conviction on an assault charge and six months imprisonment. When her husband was released from jail he found her living in the home of his parents and he smashed up the door and windows to gain access to her. “He threatened to kill me and burn down the house if I did not take him back…So I returned back to stay with him.” Her only income came from two child social grants. He did not support the children. “If I asked for clothes or food, he beat me,” she said.

Sometimes SS’s injuries were so severe she had to go to the clinic. While the nurses knew that she was being abused and encouraged her to go to the police for help, there were no shelters for victims of abuse in the area. Once when she tried to escape, her husband followed and found her. She returned home with him out of fear of violence against the relative who was sheltering her. When she finally refused intercourse with him, in October 2006, he beat her and then raped her in front of their children. With the assistance of an NGO support organization, she laid a criminal charge at the police station and he was arrested. He was released on bail a month later, but was himself murdered by unknown gunmen. SS, who had undergone a medical examination and tests at a hospital following her rape, told AI in May 2007 that she been too unwell and too short of money to return to the hospital to learn the results of her HIV test.

The pervasive and longstanding nature of violence and insecurity in women’s lives was exemplified in the story of 45-year-old RE. A mother of three children and a widow for five years following the death of her husband from AIDS-related illness, RE had had her own HIV-infected status confirmed in 1997. She told AI that she had been raped when she was about 12 years old by an “old man” who lived in her community in KwaZulu Natal.^⁷⁵

“He was just like that; he was raping people, and if we could find out we took him to the police, but he was always getting away with that. I can’t remember all the story, but I still remember that [incident] because he beat me, nearly killed me. …[H]e came to my home – my mother and I were there…He nearly also killed my mother. He beat her, but he did not rape her. He raped me, and then when I ran home – because I was [on the way back] from school – he came after me again and that’s where he beat my mother.”

Now she was currently living in an area in which a young woman had recently been raped. People in the local community were afraid of the suspected perpetrator, as he had a reputation for raping young women at knife point. They told RE that she “must not report him to the police because it is too dangerous”. She did however report the incident to a woman whom she referred to as the “mother” who looks after the community. RE fervently hoped that she could find some additional income which would enable her to move from this place she described as “too dangerous for us” to live in.

The sense of vulnerability experienced by women living in unsafe, poorly policed areas is also evident in the comments of 39-year-old EZ, who was living with her three children and two grandchildren in Mpumalanga. She told AI that she was worried about the safety of her girls and tried to prevent them from taking risks, such as going out at night or going to shebeens.^⁷⁶ In addition she worried about their vulnerability as a female-only household.“I am trying to keep it quiet that I am staying alone without a man in the home,” she told AI.^⁷⁷

Twenty-four-year-old LE, who supported herself selling fish in the local area and lived with her older “adoptive” sister in a rural area in KwaZulu Natal, was raped one night in February 2007. She was sleeping at the home of a woman relative, who was also raped. The men had broken into the home and covered the women’s faces with pillows so they could not identify the perpetrators. LE told AI that what she most wished for was “a home and to feel at peace”. She was not getting on with her sister and “we live in fear. There is nothing we can do to protect ourselves”. She found her situation so troubling that sometimes she felt like taking her own life.^⁷⁸

The effects of insecurity compounded by social stigma increased the difficulties for another young woman, 23-year-old SW who was trying to re-establish her life after being raped in 2006. She had moved to her grandmothers’ home after her mother’s death from AIDS-related illness in 2006. However she feared she would be chased out of this house because of their hostility towards people they believe have AIDS. SW had learnt that she was HIV-positive at the time of her mother’s illness. She told AI that while she could leave her grandmothers and stay with her auntie, who accepted her status, she feared to stay there. It was from that house she had been abducted at night and then raped in a football field by a man wearing a balaclava. The perpetrator had so far as she knew not been arrested. She had lost her job due to the impact of the rape on her health and had no resources to find her own place to live.^⁷⁹

South Africa has obligations under international human rights law, as well as under national law, to prevent violence against women and provide access to effective remedies and redress for women subjected to violence. Under the Protocol to the African Charter on the Rights of Women in Africa, for instance, “States Parties shall…adopt such …legislative, administrative, social and economic measures as may be necessary to ensure the prevention, punishment and eradication of all forms of violence against women”.^⁸⁰Some initiatives have been taken by the state to improve the criminal justice response to crimes of rape and to a lesser extent to address the lack of safety in local communities. The former initiatives include:

strengthening the coordination of the work of police investigating officers and medical practitioners involved in examining rape survivors and gathering forensic evidence and, in some cases, the development of ‘one-stop’ centres for the provision of medical, investigative, prosecutorial and psychological services for rape survivors;
the development of national policy guidelines for the handling of victims of sexual offences and national management guidelines for care of victims of sexual assault;
the development of specialised sexual offences courts which have achieved a higher conviction rate in the prosecution of rape and other sexual offences;
the training of criminal justice personnel including police in the principles of “victim empowerment” and the establishment in some police stations of “victim friendly” facilities, often in collaboration with NGO support organizations;
the reform of the legal framework for prosecuting sexual offences, in particular by widening the definition of what constitutes rape to include oral and anal, as well as vaginal, penetration by a body part or object without the consent of the victim, which may be confirmed by the presence of ‘coercive circumstances’; and, more controversially,
minimum sentencing legislation in cases of rape.^⁸¹

Part of the SAPS Sexual

Assault Evidence Collection

Kit introduced to improve

the gathering of medical

evidence by doctors and the

management of the chain of

custody of this evidence before

and after it is handed over to

However a number of concerns remain. The Department of Justice and Constitutional Development appears to have decided not to expand the development of the specialised sexual offences courts. Rape remains a difficult crime to prosecute and requires a high level of training for prosecutors and presiding officers. In the ordinary courts the conviction rates are low. In a recent study of the outcomes of over 2,000 police investigation cases in Gauteng province, 359 of the cases went to trial resulting in convictions for rape in about 87 cases, equivalent to less than five per cent of the original group.^⁸² Advocacy organizations who were involved in the decade-long process of reforming the sexual offences legislation have expressed concern that the final version of the reformed law has eroded the protections afforded to rape complainants and other vulnerable witnesses contained in the initial draft law.^⁸³ The controversial trial on a rape charge of the former Deputy President, Jacob Zuma, in 2006 vividly illustrated the risks for complainants in seeking justice through the courts. The presiding judge allowed defence counsel to extensively question the complainant about her past sexual history, took into account the complainant’s clothing and conduct, measured her behaviour against his assumptions of how a ‘real’ rape survivor may act and made no comment on the intimidating effect on the complainant of the conduct of the defendant’s supporters outside the court room.^⁸⁴

The professionalism of the police response to reports of sexual violence may have been weakened by the decision taken in 2006 by police management to decentralise specialist police units, including the Family Violence, Child Protection and Sexual Offences Unit (FCS). Members of the Unit have been redistributed to local police stations, but in a manner which appears to have left them without adequate support and at risk of being de-skilled.^⁸⁵ Some police stations still do not have separate victim-friendly facilities to enable complainants to be interviewed away from the charge office.

Finally, in regard to prevention, much more needs to be done by municipal authorities in cooperation with the police, businesses and local rural communities to improve women’s physical security by identifying and addressing threats to their safety in the physical environment. AI visited a number of areas where poor or no lighting, high bushes along pathways and inadequate transport links increased the risks of violence for women and girls on a daily basis. Police management could also give greater priority to increasing the level of personnel, vehicles and equipment for rural-based police stations.^⁸⁶

Frame2

Domestic Violence as a long-term threat to women’s health

“To the extent that [domestic violence] is systemic, pervasive and overwhelmingly gender-specific, domestic violence both reflects and reinforces patriarchal domination and does so in a particularly brutal form….The non-sexist society promised in the foundational clause of the Constitution [section 1], and the right to equality and non-discrimination guaranteed by section 9, are undermined when spouse-batterers enjoy impunity.”^⁸⁷(South African Constitutional Court in S v Baloyi)

Domestic violence, particularly intimate partner violence, may involve physical and sexual violence, as well as threats of violence and psychological and emotional abuse, and has been identified by the WHO as a serious health problem internationally affecting up to 60 per cent of women across different countries.^⁸⁸The phenomenon is defined by unequal gender relationsand has an impact on women’s ability to protect themselves from HIV infection. The UN Committee on the Elimination of Discrimination against Women (CEDAW), in General Recommendation 19,^⁸⁹ described “family violence as one of the most insidious forms of violence against women” which is evident in “violence of all kinds” and underpinned by ”traditional attitudes” and a lack of economic independence which forces many women to stay in violent relationships. CEDAW concluded that “[t]hese forms of violence put women’s health at risk and impair their ability to participate in family life and public life on a basis of equality.”

In the Southern African region the results of a large scale household survey conducted in eight countries showed that nearly a fifth of the women interviewed reported being a victim of partner physical violence in the preceding year. The study found that men having multiple concurrent partners was significantly associated with the occurrence of partner physical violence. Another significant factor associated with violence was the holding by men of certain attitudes about sexuality and sexual violence. These beliefs included that women do not have the right to refuse sex to husbands and boyfriends; that forcing one’s partner to have sex is not rape; and women sometimes deserve to be beaten. The women who reported experiencing partner physical violence were significantly more likely to believe that they were at risk of getting HIV.^⁹⁰ South African based-studies have found that women who experience intimate partner violence are at long-term increased risk of HIV infection, particularly where their partners were involved in multiple concurrent, unprotected sexual relationships.^⁹¹

The scale of the problem in South Africa has been difficult to assess accurately as the police do not appear to keep separate figures for “domestic violence” or at least include them in their public crime statistics. However, in late 2007 the SAPS submitted reports to the Parliamentary Portfolio Committee on Safety and Security in which they noted a total of 88,784 “domestic violence incidents” had been recorded between 1 July 2006 and June 2007.^⁹² These cases would have included a range of forms of abuse as, under the 1998 DVA, “domestic violence” is defined to include physical, sexual, emotional, verbal, psychological and economic abuse; intimidation, harassment, stalking, damage to property; entry into complainant’s residence without consent where the parties do not share the same residence; or any other controlling or abusive behaviour towards a complainant, where such conduct harms, or may cause imminent harm to the safety, health or well-being of the complainant.^⁹³ Between April 2006 and March 2007, 63,000 applications for protection orders, under the terms of the DVA, were confirmed by the courts.^⁹⁴

Further insight into the levels of violence which may be affecting women in their homes can be gleaned from the SAPS crime statistics for incidents of assault GBH. The SAPS noted that a quarter of the perpetrators were relatives and in nearly 90 per cent of the cases the victim knew the perpetrator.^⁹⁵ The actual number of reported incidents of assault GBH for the year 2006/2007 – 218,030 – is indicative of serious levels of interpersonal violence, with one quarter or some 55,000 incidents involving family members.^⁹⁶ To these figures could also be added the number of cases of murder or attempted murder, both of which could be relevant for an analysis of domestic violence trends. South African legal researchers reviewing the results of community-based, local and regional studies noted that the estimates range from one in two to one in six women experiencing domestic violence.^⁹⁷ A hospital-based survey reported that more than one third of women from a low-income community had experienced domestic violence at some stage.^⁹⁸ Half of all South African women killed in 1999 were “killed by their intimate partners, with violence a factor in many of these relationships.”^⁹⁹

Among the women whom AI interviewed who had experienced domestic violence, there were a variety of social, economic, cultural and institutional factors which obstructed their access to effective remedies and safety.

EZ’s story^¹⁰⁰

Thirty-nine-year-old EZ was living with her three children and two grandchildren in Mpumalanga when she told AI about her efforts to obtain protection when she was being abused by her husband. In addition he had admitted to having extramarital relationships, but refused to use a condom during sex with her. Eventually she sought police assistance, travelling to a police station several hours away from her home intending to lay a charge against him for beating her. While “I was busy talking to the charge office”, she told AI, “I was overheard by this relative who said stop, don’t take this case. And the charge office did stop taking my case”. The intervener was a relative of her husband and also, she said, a SAPS member. He told her that he would talk to her husband about his conduct. Whether or not he did do so, her husband continued beating her and eventually she took steps to separate from him because of his violent behaviour. He was now living with his second wife. EZ, who had tested HIV positive in early 2007, had had to give up her piece work on farms due to ill-health.

In EZ’s case the police had failed her by not upholding their legal duty to assist and inform a complainant of her rights and the available remedies.^¹⁰¹ Other women had felt unable to approach a police station or were unaware of their right to seek help or lay a charge. In the case of 47-year-old AS she had turned to her husband’s family for support when he repeatedly physically assaulted her. Her own parents were not around to offer help as they had passed away, and she had no secure income of her own. Now living as a widow with her three daughters, she told AI that her husband had hit her when they had quarrels over family matters.^¹⁰² Although sometimes suffering serious injuries, she did not go to the clinic. “I just cleaned my own wounds,” she said.However when she told her husband’s family what was happening, “[t]hey used to talk to him to calm him down [but] there was no mention of going to the police.” Most of the time he was away working at a mine near Johannesburg and sent home money. He visited her for several days only every three months. They did not use condoms, but, she said, he did not force her to have sex. Seven years after her husband passed away “from TB [tuberculosis]”, she went to the clinic because she had become too ill to continue doing piece work on the local farms. She tested for HIV and found she was positive.

One of the women whom AI interviewed did manage to obtain a “protection order”, a remedy available under the DVA through the courts. Forty-three-year-old TD obtained the order against her husband after a long period of abuse during which he hit her with sticks, threatened her with a home-made gun and beat their nine-year-old son. TD, a mother of seven children and living in KwaZulu Natal, told AI that she had finally taken the risk of giving evidence against her husband in court after he had threatened to rape their daughter.^¹⁰³ Before she was driven to take this step she had tried at various times to seek help from her husband’s family, but they did nothing. Eventually a member of her own family had approached the local induna (headman). Their intervention may have been what prompted her husband to make an apology, on the basis of which she decided to return to him. However his violent behaviour, which she said was triggered by his heavy drinking, did not change. Now the protection order was making her feel more secure, but she had a new worry. Not long before her interview with AI, TD had taken an HIV test because she wanted to know her status. The clinic advised her to return for a second test to confirm the result. She commented that she and her husband had never used condoms and she felt very vulnerable. “The man might be having other partners…You’ll think you are safe when you are not.”

These three women’s stories, along with that of SS described earlier, illustrate some of the difficulties which rural women face when needing protection from a violent partner. These include a lack of independent economic resources and alternative housing or places of safety, the isolating effect of being dependent for support on their husband’s family, the lack of family encouragement to seek help from the police or the courts, and at least in the case of EZ a failure of the police to provide an impartial service and fulfil their legal obligations. Where this kind of failure forms a persistent pattern, it can discourage other women from taking the risk and finding money for travel to a police station for assistance. In two cases, that of SS and TD, the police and the courts had responded appropriately with a protection order or criminal proceedings. However both of the women had endured years of abuse beforehand. All of the women had been placed at risk of HIV infection while living with their violent partners, at least one of whom admitted to other sexual relationships. As observed in one study from interviews with women survivors of domestic violence living in Gauteng province,

“[a]lthough the connections of physical and sexual assault posed the most direct risk for HIV, emotional and economic abuse also intertwined to inhibit HIV risk reduction efforts. [W]omen in theoretically monogamous, closed sexual relationships may be put at risk of HIV and other STIs by the high-risk behaviours of their partners over which they have little or no control.”^¹⁰⁴

During its visit in May 2007 AI was informed about but did not have the opportunity to seek interviews with other women whose cases were raised by support organizations or health workers. These cases were raised by individuals who had witnessed the police conduct in question. Several of the cases raised contained allegations that SAPS members from a particular Mpumalanga police station had failed to speak directly to complainants, although they showed visible injuries from being beaten on the head and elsewhere, including in one case with a knobkerrie,^¹⁰⁵ and were threatened with firearms; the police had refused to co-operate with a request for a protection order unless the complainant lodged a criminal case, and failed to recognize the need to seize the weapons involved in the incidents.^¹⁰⁶

In a further disturbing case, AI was informed by health care workers at a hospital in KwaZulu Natal that they had intervened at a police station to urge them to take steps against the father of a 24-year-old woman who was pregnant for the fourth time as a result of repeated acts of rape he committed against her. The young woman was HIV-infected, ill with TB, had an epilepsy condition and had already given birth to three children by her father. The police response reportedly was to refuse to go to the house and instead to insist that she must travel to the police station to lodge a criminal complaint. In the view of one of the health care workers, the police do not really see it as their responsibility to deal with violence cases unless the family or victim report directly to the police station.

The Preamble to the DVA acknowledged the severity of the problem of violence against women and noted that the legislation had as its purpose providing victims the maximum protection under the law. The DVA imposed specific obligations on the National Commissioner of Police and the National Director of Public Prosecutions to issue instructions and develop policy for the effective implementation of the new law. Police members have specific legal obligations under the DVA in response to complaints of domestic violence. Failures in the execution of these duties constitute misconduct under the Act and SAPS national instructions.^¹⁰⁷ The National Commissioner of Police in his report to parliament at the end of 2007 acknowledged that the number of complaints against the SAPS for failing to undertake their duties under the DVA had been rising.^¹⁰⁸ The cases referred to above indicate a number of breaches of police obligations, including failing to advise complainants of the availability of civil remedies and how to have access to them, such as obtaining a protection order or a court order for the seizure of a firearm or other defined ‘dangerous weapons’, and failing to act impartially and without gender bias on receipt of a complaint and in circumstances where the safety of the complainant was at stake.

Nearly ten years after the DVA came into force and after the provision of training on their obligations by official and civil society organizations, there is still evidence that some members of the SAPS do not understand their legal responsibilities or do not feel under sufficient pressure to fulfil them. A view that these are “family matters” still persists among some police officers, an attitude which may be reinforced by policing priorities which emphasise combating crimes which have an impact on the economy and more influential sectors of society. The professionalism of the police response to reports of domestic violence may also have been weakened by the decision taken in 2006 by police management to decentralise specialist police units, including the FCS. Members of the Unit have been redistributed to local police stations, but in a manner which appears to have left them without adequate support and at risk of being deskilled.^¹⁰⁹

As stated in the Preamble to the DVA, “victims of domestic violence are among the most vulnerable members of society”. For rural women seeking assistance from the police and the courts, their efforts can be undermined by fear, family pressures, cultural expectations, the burden of child care responsibilities, lack of resources and, ultimately, by an indifferent and unprofessional response from the police. The policing authorities have a responsibility to ensure that all members of the police service, in particular those who have station level duties, are fully trained on their legal obligations under the DVA and in an understanding of the implications of women’s right to equality and “to be free from all forms of violence from either public or private sources”. Disciplinary proceedings should be instituted where these obligations are not observed.

Finally, urgent attention is needed to increase information about and the availability of places of safety. All of the women interviewed by AI, when asked if there were shelters for women experiencing violence in their homes, replied that they were not aware of any. Their only resort was to go back to their parents or other relatives’ homes, but with the risk of being found. A support organization in Mpumalanga informed AI that they were aware of one shelter which allowed a woman to stay for three months, including with her children, but transport was difficult to arrange. According to the national Department of Social Development, which is responsible for approving provincial plans within agreed national policy guidelines, in addition to the Louieville Women’s Support Centre in Mpumalanga which was opened in 2002, a further shelter was opened in 2006, in Badplaas, and planning for a third one was underway.^¹¹⁰ The Western Cape provincial government website lists six facilities for abused women.^¹¹¹ KwaZulu Natal’s provincial Department of Health website provides information on the nature of women abuse and services for victims including the Crisis Care Centres based at hospitals and clinics, and a help line linking the caller to a counsellor.^¹¹² However there appeared to be no facilities available allowing women to stay for more than very brief periods, often no more than a night.^¹¹³ NGOs such as People Opposing Women Abuse (POWA) run several shelters in Gauteng Province which are financially supported by the Department of Social Development and international donors.^¹¹⁴ One NGO-run shelter in South Coast area of KwaZulu Natal, Sinethemba, which AI visited in May 2007, was battling to remain open due to insecurity of tenure, although the quality and importance of its service was widely recognized by the local police, health and judicial services. Finally in December, after an international campaign in support of its work, the shelter received funds from the national government to help it secure the property which houses the Shelter.^¹¹⁵

Caring for the survivors: overcoming barriers to their right to health

“[States should work] to ensure … that women subjected to violence and, where appropriate, their children have specialized assistance, such as rehabilitation, assistance in child care and maintenance, treatment, counselling, and health and social services, facilities and programmes, as well as support structures, and should take all other appropriate measures to promote their safety…” ^¹¹⁶

“[P]rogrammes to combat AIDS should give special attention to the rights and needs of women and children, and to the factors relating to the reproductive role of women and their subordinate position in some societies which make them especially vulnerable to HIV infection”.^¹¹⁷

A prompt and effective state response to reports of violence against women is critical to ensuring that women do not continue to remain at risk of further violence or jeopardy to their health or psychological well-being. Exposure to sexual violence is associated with a range of immediate and longer-term health consequences for the victim. Comprehensive care must address the following issues: physical injuries; pregnancy; STIs, HIV and hepatitis B; counselling and social support; and follow-up consultations.^¹¹⁸Implementation of effective methods of screening for intimate partner violence would also assist the health sector response to women arriving at primary health care facilities and hospitals and requiring a range of medical and non-medical interventions.^¹¹⁹In addition the health sector has to contribute to fulfilling the state’s human rights and legal obligations to investigate crimes of violence against women, including by conducting a full medical-forensic examination with the consent of the survivor and ensuring the safe chain of custody of evidence to the police investigators.

TK’s story

TK had been raped when she had gone to meet a friend on an evening in March 2006.^¹²⁰She managed to get to the police station in the area of Mpumalanga where she lived, but found the station closed. She returned at 7 am the next day. A male police officer took her statement in the public charge office. He asked her what she was wearing at the time of the rape and what she was doing out late at night. He then alluded to her complaint of being raped as another example of ‘this Zuma thing’, indicating to her that he believed she was making a false allegation.^¹²¹The police did not take her to the nearby hospital, but asked her to return the following day. When she did, they took her, not to the hospital, but to the surgery of a district surgeon (General Practitioner) some 35 kms away. TK told AI that she was alone with the doctor when he examined her. “I was crying during the examination and did not feel comfortable”, she said. “I did not feel confident about what he did…He did not tell me anything”about what he was doing. “He did not take my history…He just did a [genital]examination with his hand.”

He completed the police J88 medico-legal evidence form. The whole visit had lasted 10 to 15 minutes, she said. The police then drove her back to the police station, where she waited for an NGO support person who took her to the nearby hospital. There she was examined again by another doctor. He did not check her for the presence of STIs or provide emergency contraception, she said, although he did refer her for an HIV test. She declined to take the test as she already knew her positive status. Fourteen months later there had been no progress in the criminal case. She told AI that she feared this may be because the perpetrator, whose brother was a “well-known businessman”, was related to a senior officer at the police station.

The story of 22-year-old TK is indicative of continuing practices which undermine women’s access to adequate health services and emergency care and jeopardise women’s access to justice. As described to AI, TK had been failed in almost every aspect of the state’s response, with the police showing negligence in failing to take her promptly to the nearest hospital, instead subjecting her to a 24-hour delay and a long drive to the surgery of a district surgeon. Such lengthy delays can add to the distress of the survivor as she is expected not to wash or change her clothing until after the forensic examination. When TK saw the doctor, he in turn failed to conduct a comprehensive examination or show any sensitivity to the complainant’s state of mind or ensure the presence of a female support person.^¹²² Later she had to undergo a second medical examination, but still without receiving comprehensive care or treatment. The conduct of the police in this case jeopardised the integrity of the investigation and the availability of forensic evidence for the criminal investigation.

A more mixed experience of the health response was described to AI by SW, who had been abducted from her home and raped in August 2006. She described to AI that she had had to wait at the hospital for six hours before she was seen by a doctor, possibly as a consequence of the doctor also carrying other medical duties to which the hospital gives greater priority.^¹²³ When she was finally seen, the doctor spent less than 20 minutes with her and did not take her history, although she did explain some of the steps she took in the examination procedure. SW was pregnant at the time of the rape and subsequently miscarried. She was also HIV-infected and apparently not referred to HIV clinical services. As of May 2007 no-one had been arrested in connection with the rape. Several other interviewees who had been taken to hospitals by police soon after reporting having been raped were seen after shorter intervals and appeared to have had full examinations and been offered screening and treatment for STIs and to prevent pregnancy.

These diverse experiences of the health care response to rape occurred in a context of some five or more years of initiatives by the National Department of Health (NDoH) and other government agencies to give priority to improving services for survivors of rape and other sexual offences, and to improve coordination between the criminal justice sector and health care providers in the investigation of crimes of violence against women.^¹²⁴ A number of expert organizations which had reviewed, in co-operation with the NDoH, existing “sexual assault services” in the country’s hospitals, concluded that there were “many systemic problems”. Their 2003 report noted that these service failures were in respect to both the medical care and treatment aspect of the response and the medico-legal examination procedures for criminal justice purposes.^¹²⁵

The problems they identified were not experienced uniformly across the provinces, according to the review. For instance, the availability of a private examination room ranged from less than six per cent of facilities in the Northern Cape to nearly all facilities in KwaZulu Natal. The availability of a working angle lamp, which is a basic prerequisite for conducting a sexual assault examination, ranged from under a fifth of examination rooms in the Eastern Cape to all facilities in North West and KwaZulu Natal provinces.^¹²⁶ In six of the provinces none of the facilities had police Sexual Assault Evidence Collection Kits which meant that patients presenting first at those facilities would have to wait for the police to bring them to the hospital.^¹²⁷ The doctors interviewed in the study frequently mentioned the lack of training in the use of the Kits and some complained that the examination took too long when they did use them. ^¹²⁸ Indeed the study noted that only a quarter of health care providers had received any relevant training on sexual assault management; and little attention had been paid in that training to addressing provider attitudes, the psychosocial aspects of sexual assault or gender issues. A high proportion of the interviewed health care providers had no relationship with NGOs or social workers for possible referral of patients for counselling and other psycho-social support; and about a third of them described their relationship with the police as “poor”.

Medical and psychological needs following sexual assault

- HIV pre- and post-test counselling, testing and post-exposure prophylaxis (PEP) where medically indicated;

- Diagnosis and treatment of any sexually transmitted infections (STIs);

- Detection and treatment of assault-related injuries to any part of the body;

- Emergency contraception, pregnancy testing, termination or management of pregnancy;

- Response to mental health problems (including post-traumatic stress disorder, anxiety and depression);