Justice for Women Campaign: Women Convicted for Killing Abusive Partners

Meeting report

CORRECTIONAL SERVICES PORTFOLIO COMMITTEE
15 April 2003
WOMEN CONVICTED FOR KILLING ABUSIVE PARTNERS
 

Justice for Women Campaign: input by Centre for Study of Violence and Reconciliation (CSVR)
Women convicted for killing their abusive partners: presentation by Correctional Services
Department on Draft Correctional Services Regulations (see Appendix 1)
ANC submission on the draft Regulations of the Correctional Services Act
Draft Regulations of the Correctional Services Act

Relevant document:
Husband-killers seek pardon from Mbeki Independent Newspapers April 21 2003

Chairperson: Mr J N Mashimbye (ANC)

SUMMARY
The CSVR presented the findings of their research conducted in Gauteng on women convicted for killing their abusive husbands. The Department of Correctional Services also made a presentation on the measures they are planning to implement for women convicted for killing their abusive husbands. Their approach will take into consideration the principles of restorative justice.
The ANC submission on the draft Regulations of the Correctional Services Act was handed over.

MINUTES
The Chairperson noted that the Centre for Study of Violence and Reconciliation had wanted to present its findings to the Justice Portfolio Committee. However, owing to the workload of Justice, they had been directed to appear before the Correctional Services Portfolio Committee. The Department of Correctional Services had indicated their interest in listening to the CSVR presentation.

Regulations on the Correctional Services Act 1998
Mr Carel Paxton (Director of Legal Services, DCS) recapped that the Act was assented to on 27 November 1998. The supporting regulations were drafted along the same structure as the Act. The Regulations examined the following: definitions, admissions of prisoners in prison, accommodation of prisoners, nutrition, clothing and bedding, exercise, healthcare, contact with the community, death in prison, development and support services, creation of recreation services, access to legal advice, library at every prison where practicable, discipline, safe custody, conditions for searches, identity of prisoners, mechanical restraints, non-lethal incapacitating devices, firearms, other weapons, sentenced prisoners, care management, location and transfer of prisoners, length and form of sentences, internal services evaluation, HR matters, emergency work, medical examination of employees and different categories of leave.

The Chairperson indicated that the ANC had written a document in response to the previous briefing on the Regulations of 2 April 2003. This document reflected several omissions in the Regulations amongst other things. (The ANC response document was not handed out.) These included: the inclusion of foreign prisoners; the recognition of international humanitarian law by permitting the International Red Cross Committee to have an opportunity to assist foreign prisoners; further detail and clarification on the establishment of a correctional services fund.

He hoped that other political parties had done the same, but thus far, there was no indication of this. [He earlier noted that the official opposition was not present at the meeting]. The DCS did not have to respond to the ANC's comments, he added. In general, however, the Committee was satisfied with the rules and regulations. The Dept must ensure that their proposed changes are in accordance with the Constitution.

Ms J Sishuba, Deputy Commissioner: DCS, thanked the Chairperson and the committee for the comments which they would address.

Mr Paxton clarified that the use of the word 'prisoner' - in terms of law, 'prisoner' has a specific meaning. Therefore from a technical point of view, the Dept has continued to use the word 'prisoner' rather than ' inmate'.

Mr Ferriera (IFP) commented that when a person changes from being a 'prisoner' to 'non-prisoner', this does not change his mind/outlook. He asked if the head of prison allowed communication between a prisoner and their family. Second, on the regulation that deals with religious clothes: he wished to know whether Rastafarian prisoners who kept their hair long were compelled to wash their hair. He was deeply concerned that unhygienic hair and the lice that breeds in such hair would pose a health threat to other prisoners.

Mr D Bloem (ANC) enquired about the Department's response at the previous meeting on the issue of nutrition (no. 8). His concern was the wording of the regulation that made it seem that the interval between meals was too long - apparently 14 hours before the next meal. Evidently, the language used to express this was legal jargon and DCS should consider using simpler language.

The Chairperson pointed out that the DCS would have an opportunity at the next meeting to respond to these questions as well as to the submission by the ANC members.

However, Ms Sishuba wished to respond briefly to some of the questions raised:
On the issue of family ties, she said that this did not mean that only the head of the prison is responsible for seeing to this. Social workers and others are also responsible to preserve family ties. She did concede that some families did not want contact with prisoners, and therefore restorative justice aims to address this division.

The Chairperson wondered why there were no conjugal rights afforded to married prisoners in prison. He enquired whether this issue had been raised before.

Mr Bloem responded that the problem was overcrowding and there was a fear that people might rape each other.

Ms Sishuba replied that in her personal opinion overcrowding was certainly an issue. Additionally such activities will have to be managed in a responsible way. DCS would have to think about planning appropriate family accommodation.

Continuing, the Chairperson asked what international practice was.

Ms Sishuba stated that they would have to look at international responses and adapt it to the South African environment.

The Chairperson added that if they planned to talk about restorative justice/ rehabilitative justice, then they should go all they way. He saw his role as introducing debate, and this seemed like an appropriate area to debate.

Mr Bloem replied that as a Committee they would have to be cautious about their response, as they do not want to convey to the public that they are "providing hotels". They could not just look at the experience in Scandinavian countries.

Mr Paxton responding to an earlier question on hygiene and dreadlocks stated that everything was subject to hygienic conditions, including religious practices.

Justice for Women Campaign by Centre for Study of Violence and Reconciliation (CSVR)
Ms Lisa Vetten (CSVR Gender Unit) in her introduction said that the research had been carried out by herself and Ms Khailash Bhana. She noted that much of their unit's work was legal and self-funded and it was difficult to find lawyers who were prepared to take on pro-bono work.

The Justice for Women Campaign began in 1997 with the case of a prison warder, Solly Ramontoedi, who killed his wife over a maintenance dispute at Johannesburg Regional court. He was sentenced to three years correctional supervision.

Thus in 1998 they began focusing on the cases of women who had killed abusive partners and received sentences in excess of 15 years. In the same year, CSVR began comparative research into conviction and sentencing patterns in cases of spousal homicide. Limited forms of assistance were offered to women serving lengthy sentences for killing abusive partners at Johannesburg Prison.

The Justice for Women campaign was launched in 2001 by the CSVR and its partners the National Network on Violence Against Women and the Commission on Gender Equality.

Their research investigated laws applied internationally to women who have killed abusive partners. She cited the example of the television programme 'Carte Blanche' that in 2002 had aired an insert on the five women currently applying for presidential pardon. 89% of viewers participating in a poll after the programme supported the early release of the women.

Proposed outcomes and strategies
- Reform of legal defences to murder and the reform of sentencing guidelines/provisions
- Establishment of review mechanism to allow for early release of women
- Support services for women (for example: preparation for and assistance with family and community reintegration - children, housing, the husband's family, employment and therapeutic services).

Comparative research investigating convictions and sentences in cases of spousal homicide
Out of total of 164 cases identified: 39 involving women and 125 involving men, their findings indicated that:
- More men than women killed their intimate partners and the men who killed their female partners outnumbered their female counterparts by approximately four to one.

- Men and women's reasons for killing their intimate partners were different (The greatest proportion of men killed their female partners over their sexual choices and behaviour. Most women killed their male partners in response to ongoing abuse.)

- Domestic violence had featured in a number of these killings. The majority of women (56%) killed their partners under circumstances in which they were being abused. No men killed in response to ongoing abuse at the hands of their female partners but at least a third (31%) of the men had been abusing their female partners before finally killing them.

- One quarter of men who killed their female partners have previous convictions for offences such as drunken driving, murder, assault, theft, robbery and rape.

- Fifteen percent of men who killed their female partners also killed other people such as the children, the woman's mother or sister, or her new partner. The greatest proportion of this group received sentences ranging between 11 - 15 years.

- The greatest proportion of women were acquitted and given non-custodial sentences. The greatest proportion of men received sentences ranging between 6 - 10 years. On the question of whether the courts were treating men more harshly than women, she stated they were not. Men and women's reasons for killing their intimate partners are very different to one another and therefore direct comparisons between men and women's sentences were impossible.

- The greatest proportion of women who killed their abusive partners were given non-custodial sentences. Yet, a minority of abused women fared particularly badly at the hands of the criminal justice system. This is the group of women who kill their abusive partners using atypical methods ie. they employed third parties or killed the man while he was asleep or otherwise vulnerable. For this group of women, the history of abuse appeared to play no role as a mitigating factor. Instead, they were compared with those who kill for financial gain and their sentences are equally as lengthy.

Research Findings:
Conclusions from their research indicated that:
- As more men than women kill their partners, men's experiences have, inevitably, come to constitute the norm in criminal justice proceedings. Thus, as long as women behave in ways that resemble those of men, they will enjoy access to the same defences and mitigating circumstances that men do.

- The greatest proportion of women in this sample killed their abusive partners during a confrontation with him. However, as the findings also illustrate, not all battered women respond identically to actual or threatened abuse and it is therefore dangerous to create a paradigmatic abused woman against whom all other abused women should be measured.

- Current law does not adequately take into account differences in physical strength between men and women. As a result, some women are excluded from using the defences of provocation or self-defence.

- Answering the important question: why should women be released, she argued that there was a historical failure by society until very recently to address domestic violence.

- The Constitution: when interpreting the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. Three key constitutional rights are relevant to women who kill abusive partners - the right to freedom and security of the person, including the right to be free from all forms of violence, the right to equality and the prohibition of unfair discrimination, the right to a fair trial.

- On how should equality be achieved, she referred to the Hugo and National Coalition for Gay and Lesbian Equality cases and argued that equality cannot be achieved by insisting on identical treatment in all circumstances.

In conclusion, she noted the pivotal role of the DCS and she highlighted relevant issues.

Discussion
Mr Ferreira (IFP) commented that he did not buy too much of the CSVR presentation. It sounded like 'excuse-society syndrome'. He would prefer for South Africans to move away from this syndrome. He related a personal experience - that he came from the Eastern Cape, and every woman who killed her husband, received a suspended sentence or a correctional services sentence. He asked the presenters did they not think that the Domestic Violence Act (DVA) did more harm than good, as he saw the DVA as being abused by women.

Responding, Ms Vetten said they had based their research on the DVA. All laws are open to abuse. In their research, in some cases, the Act was abused. On whether the DVA harmed relationships, she answered that if relationships were abusive, there was already a problem. The DVA ultimately remained necessary, albeit there are some problems that required addressing. On the issue of 'excuse-society syndrome' - the fact that women were abused (evidenced by physical manifestations of abuse, corroboration by several witness etc.) were not statements made up after the fact. Among the notable findings of their research, there was well-documented evidence that women went out looking for help. Yet, these multiple responses had failed. Thus one had to look at the circumstances under which these events occurred or the specifics of each case.

Ms S Rwexana (ANC) pointed out that the CSVR research had been conducted only in one province, Gauteng. When persons appeared in the National Assembly, as Committee members they required countrywide research findings. The trend in South Africa, she continued, was curative instead of preventative. The problem did not start at sentencing, rather it started at home. These campaigns had to be linked to preventative ones.

Women convicted for killing their abusive husbands: Department of Correctional Services
Ms Sishuba (DCS) presented the department new approach (see document). Points made were:
- The number of women incarcerated were 3035 (1291 were unsentenced).
- Rehabilitation is now at centre of all activities. Thus the Department is engaged in a re-engineering initiative of its structures, procedures & systems to contribute to effective rehabilitation.
- Their new release policy included a change to the composition of the Parole Board such as now including members from the community. Importantly the new parole board will have decision-making powers.
- Their structured process of intervention included among other things: assessments examining the specific need of the individual; developing a correctional plan in consultation with the offender; implementing the correctional plan in a structured way that involved the community; continued evaluation and monitoring the impact of intervention which continued after incarceration.
- The benefits of this framework for women were several (for example, it provided a structure for analyzing emotional problems and situations associated with domestic violence, monitoring and continuous evaluation.
- The rehabilitation programmes were offered to all offenders, including female offenders who killed their abusive partners; development programmes and services and the active engagement of the community in the rehabilitation of female offenders. This would include counselling services, improving their mental health and well being, encouraging spiritual upliftment among other things. Essentially this would take a broad restorative justice approach.
- Among the specialize programmes that will be available to women include: intensive psychotherapy, focus on offender crisis intervention around the abusive relationship/trauma of incarceration, trauma counseling etc.

In conclusion, she noted that DCS formed part of an inter-departmental committee on domestic violence to deal with gender-based violence. The DCS participates in a campaign of 'activism on non-violence against women and children'.

The challenges the DCS faced were that
- correctional officials must undergo a paradigm shift towards a rehabilitative approach,
- specialised training of staff dealing with female offenders
- improving their Management Information System to better indicate statistics of women abused.
- addressing overcrowding, as this impacted negatively on service delivery.
Once these women were released - factors that require consideration are the support systems that did not exist before, women finding employment upon release, after care services (links with NGOs are envisaged), the impact of the criminal record label that one carries after release.

Discussion
The Chairperson felt that some thought should be given to the public representatives that want to be part of this reforms. However, the purpose of the presentations at the meeting were to conscientise members. Therefore, no decisions will be taken and the Committee members will revert to the presenters.

He did discuss items that ought to be considered such as :
establishing a forum to bring the relevant people in the justice cluster together,
Judge Fagan,
A fair representation of the legal fraternity
He was aware that this may not be an easy discussion. He also added his praise to the researchers from CSVR for mentioning the role DCS could play. He mentioned some strategies that the Researchers could use to raise funds - either writing to the Speaker or himself to request that some of the funds raised on the golf day could be allocated to their research.

Mr Bloem (ANC) wished for further clarification on the meaning and application of the 'credits system' as referred to by Ms Sishuba.

Mr Paxton stated that credits did not shorten the length of imprisonment, it merely brought the date for consideration of parole earlier.

In conclusion, Ms K Bhana, CSVR Researcher, expressed her content that the DCS and CSVR were not working at cross-purposes. They would leave their two proposals with the Department and the Committee. This proposal looked at :
- life-skills development, and
- had a mediation component in light of fragmented families. They saw a need to collaborate with the restorative justice project.

Ms Sishuba enquired about directive form the Committee on the DCS regulations.

The Chairperson responded that he would await the response from the opposition in order to discuss the matter further.

In her conclusion, Ms Sishuba stated that DCS engaged with the Restorative Justice Centre in 2001.They had a delivery package on that and they had several NGO's engaged in mediation and mediation training. The DCS would also like a copy of the CSVR proposals.

Meeting was adjourned.

Appendix:
PRESENTATION OF DRAFT CORRECTIONAL SERVICES REGULATIONS

"The Minister may make Regulations not inconsistent with the Act …"

• The Section then lists matters about which the Minister may make Regulations.
• It also provides that the Minister must refer proposed Regulations to the relevant Parliamentary Committees in both Houses dealing with the Department.

1. It is important to note that if the Minister makes Regulations it must not be inconsistent with the Act, which places a duty on the Committees to scrutinize the Regulations as to whether it is in line with the provisions of the Act which was previously approved by them.
2. The Regulations were drafted, following the same structure as the Act. The same headings were used in the Regulations which make comparison with the Act relatively easy.
3. The Regulations give more detailed instructions to Correctional Officials as to how the provisions of the Act should be applied. The Act states the principles and the Regulations guide the Department how to apply those principles in practice. For example:

The Act states the principle that the food must promote the health of the prisoner, but does not give detail. The Regulation drafted for this Section then specifies the types of food, calorie content etc."

5. The last level of "sub-ordinate" legislation is the Departmental Orders issued by the Commissioner. This is also provided for in Section 134(2) where the Act prescribes the matters about which the Commissioner may make orders. The principle also applies that this orders should not be inconsistent with the Act or the Regulations. The Orders deal with the day to day administration of the prison in line with the Act and the Regulations for example what registers should be completed on admission of a prisoner, what should happen to his or her private clothing etc.

6. I trust that the above will assist you in your task to evaluate the draft Regulations.

NOTE:

The question about meals of prisoners was raised:

This matter is dealt within section 8 of the Act which states as follows:

"8. NUTRITION:

1. Each prisoner must be provided with an adequate diet to promote good health, as prescribed in the regulations.
2. Such diet must make provision for the nutritional requirements of children, pregnant women and any other category of prisoners whose physical condition requires a special diet.
3. Where reasonable practicable, dietary regulations must take into account religious requirements and cultural preferences.
4. The medical officer may order a variation in the prescribed diet for a prisoner and the intervals at which the food is served, when such a variation is required for medical reasons.

    

5. Food must be well prepared and served at intervals of not less than four and a half hours and not more than six and a half hours, except that there may be an interval of not more than 14 hours between the evening meal and breakfast."

The above is then further amplified in regulation 4 which states the following:

"4. NUTRITION

(1) Each prisoner must be provided with a diet consisting of a minimum protein and energy content of:

(a) 2 000 kilo calories per day for adult females;

(b) 2 500 calories per day for adult males; and

(c) 2 800 kilo calories per day for children, between the ages of

13 and 18 years of which at least o.8 grams per kilogram of body weight per day must be from the protein group.

(2) The diet must provide for a balanced spread of food items amongst the five major food groups, namely:

(a) food items rich in calcium;

(b) food items rich in protein;

(c) vegetables and fruits;

(d) cereals; and

(e) food items rich in fats and oils.

(3) Food must be stored, prepared, cooked and served in compliance with the provisions of the Foodstuffs, Cosmetics and Disinfectants Act, 1972 (Act No. 54 of 1972) and the principles of good hygiene."

I trust that the above clarifies the matter.

DIRECTOR : LEGAL SERVICES

C.H. PAXTON