Minimum sentence legislation, in the form of the Criminal Law Amendment Act 105 of 1997, was introduced at least partially in response to public concerns about serious crimes

SUBMISSION TO THE PARLIAMENTARY PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT:

THE CRIMINAL LAW (SENTENCING) AMENDMENT BILL

Prepared by:

Tshwaranang Legal Advocacy Centre, Rape Crisis Cape Town Trust, the Women’s Legal Centre, People Opposing Women Abuse (POWA), OUT LGBT Well-being, Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN) and the Centre for Applied Legal Studies (CALS).

15 June 2007

Submission to the Parliamentary portfolio committee on Justice and Constitutional Development:

The Criminal Law (Sentencing) Amendment Bill

We make this submission on behalf of Tshwaranang Legal Advocacy Centre, Rape Crisis Cape Town Trust, the Women’s Legal Centre, People Opposing Women Abuse (POWA), OUT LGBT Well-being, Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN) and the Centre for Applied Legal Studies (CALS), organisations that in one form or another focus on the problem of gender-based violence in South Africa. Our comments therefore focus predominantly on these types of crimes.

We thank Parliament for the opportunity to comment on the proposed Criminal Law (Sentencing) Amendment Bill [B15 – 2007]. The overall effect of the proposed amendments is to make minimum sentences for certain crimes “permanent fixtures”, amongst other things.

We acknowledge that the minimum sentences originally set out in the Criminal Law Amendment Act (No. 105 of 1997) (“the Act”) have increased the overall length of sentences handed down for rape. The length of some of these sentences is welcome recognition by the courts that rape is deserving of severe punishment. Nonetheless, while we support the principle that sentencing guidelines and minima are necessary in cases of rape, as well as other forms of gender-based violence, we do not consider the current Act or the Amendment Bill to provide a framework adequate to this task.

Background to the Criminal Law (Sentencing) Amendment Bill

Minimum sentences, in the form of the Criminal Law Amendment Act 105 of 1997, were introduced at least partially in response to public concerns about serious crimes. In the leading case on the interpretation of Act 105, the Supreme Court of Appeals (SCA) noted: “That situation was and remains notorious: an alarming burgeoning in the commission of crimes of the kind specified resulting in government, the police, prosecutors and the courts constantly being exhorted to use their best efforts to stem the tide of criminality which threatened and continues to threaten to engulf society.”[1] In addition, there also appeared to be a public perception that the courts were too lenient and were handing down “soft” sentences.

Several cases have challenged the constitutionality of the Act, suggesting that minimum sentencing legislation violates the principle of separation of powers, the fair trial rights and the right not to be punished in a cruel, degrading and inhuman way. The discretion to deviate from the prescribed minimum sentences, located in a finding that “substantial and compelling circumstances” exist, has been particularly contested. The debate has however been settled by both the SCA and the Constitutional Court which have found the act to be valid.[2] This submission is, therefore, not contesting the legal validity of minimum sentencing in South Africa, but engages instead with the detrimental consequences of this legislation for all victims of sexual offences and domestic violence.

A temporary measure

From the outset it was made clear that the Act was temporary. Section 53 stated that the provisions of sections 51 and 52 would lapse two years after the commencement of the Act (1998), unless extended by the President by proclamation in the Government Gazette for a year at a time. Parliament would have to concur with the extension. The operations of the provisions have indeed been extended by the President and the Act continues to be in operation.

Prior to the introduction of the minimum sentences contained in the Act, in 1996 the then-Minister of Justice appointed a new project committee of the South African Law Reform Commission (SALRC) to investigate all aspects of sentencing. This committee, known as the Van den Heever committee, operated from late 1996 to March 1998. Later that year a new committee, under the leadership of Professor Dirk van Zyl Smit, was appointed by the Minister of Justice. This committee undertook research to determine the impact of the minimum sentencing legislation both on sentencing outcomes as well as on the perceptions of this form of sentencing by key role players in the criminal justice system. The committee also issued a discussion paper, number 91, entitled Sentencing (A New Sentencing Framework) which included draft legislation. Closing date for comments on this discussion paper was given as 31 May 2000. For reasons unknown to us, the draft legislation proposed never proceeded beyond this point and the minimum sentencing legislation was renewed regularly instead.

This history too suggests that the minimum sentences were intended to be a stopgap while the SALRC completed its comprehensive overview.

Limited scope of the Act

The current minimum sentences are applicable only to rape, murder and robbery. Under defined circumstances minimum sentences are also applicable to drug trafficking; dealing in and smuggling of ammunitions, firearms, explosives or armaments; possessing explosives, armaments and automatic or semi-automatic firearms; and exchange control, extortion, fraud, forgery, uttering or theft. They are thus both narrow and highly specific in scope.

By contrast, the project committee's investigations and recommendations were wide-ranging and comprehensive and intended to apply to all crimes. Amongst other things, they proposed the establishment of a Sentencing Council which would produce guidelines around the length of sentences; procedures for a variety of sentence types (such as fines, suspended and postponed sentences and periodic imprisonment); restitution and compensation orders; committals to treatment centres; and procedures for dealing with dangerous criminals and persistent offenders. The last recommendation could be of particular help in dealing with certain sex offenders.

The narrowness in scope and content of the current Act not only excludes other serious crimes (such as kidnapping and abduction which are sometimes associated with rape), but it also treats only one crime against women – rape - as being sufficiently serious to warrant sentencing guidelines. Other sexual offences such as attempted rape, incest, or statutory rape are not dealt with at all – despite the fact that these crimes too are dealt with in ways that are highly inconsistent and suggestive of inappropriate leniency.

The question of how to sentence in cases of domestic violence is not dealt with at all – despite concerns around the inconsistent, inappropriate and lenient treatment meted out to perpetrators of domestic violence. Guidelines around the use of fines, suspended sentences, correctional supervision, imprisonment and periodic imprisonment, mediation and restorative justice are urgently needed in this regard. Further, by concentrating on murder only, the minimum sentences do not entirely address the serious problem of men’s killing of their intimate female partners, the most extreme form of domestic violence. Rather than being treated as murder, many of these cases are dealt with as culpable homicide or as assaults with intent to cause grievous bodily harm and therefore slip out of the minimum sentencing net entirely.

In addition, these sentences have been used with devastating effect on a group of female victims of domestic violence: women who kill their abusive male partners. Prior to S v Ferreira, Chilambo and Koesyn[3] domestic violence was not recognised as a substantial and compelling circumstance, with the result that women like Ms Ferreira were sentenced to life imprisonment. Unfortunately, not all abused women have access to competent legal representatives familiar with defending abused women. Thus despite the landmark Ferreira decision, abused women are still being sentenced to very lengthy terms of imprisonment on the basis of minimum sentence legislation.

The Sexual Offences Bill recently passed by the National Assembly introduces a range of new offences, including against children. These too will require sentencing guidelines. The current Act and the proposed amendment do not take these new offences into account and will not be applicable to the full scope of offences contained in the Act. This will undermine one of the key objectives of the act, namely to protect women and children and to ensure a consistent and non-discriminatory approach by all stakeholders. In the context of “corrective” rape targeting lesbians, it is necessary to also consider hate crimes enacted in the form of sexual violence.

We are therefore concerned that making the current minimum sentencing legislation permanent, in the manner prescribed in the proposed amendment, endorses an ad hoc and piecemeal approach to sentencing as a whole in the context of a much broader problem of gender-based violence.

On balance, the legislation has not produced the results assumed

Despite the extension of sections 51 and 52 of the minimum sentencing legislation on several occasions, the Department of Justice and Constitutional Development does not appear to have evaluated whether or not minimum sentences have reduced the crimes concerned; led to more consistent sentencing patterns; or allayed public fears around crime. A cursory perusal of recent media reports, including the debacle earlier this year around First National Bank’s anti-crime campaign, suggests that at least in respect of public perceptions, minimum sentences have had little impact. There is also no evidence to suggest that minimum sentences have dramatically reduced the crime of rape.

Research commissioned by the Open Society Foundation (OSF) for South Africa, as well as that commissioned by the SALRC, begins to explore whether or not the other assumptions around minimum sentences have been borne out in practice. The SALRC investigation concluded that the legislation had increased the average sentence for rape from eight to ten years but had also created a distinction in sentence severity, with those convicted of raping girls under 12 more likely to be given substantially longer sentences than those convicted of raping adolescents and adults.[4] In our view, the distinction between adult and child victims is often arbitrary and operates to the detriment of older girls and women, particularly as the courts have tended to use it to distinguish between “innocent” victims, namely children, and adult women, who are often blamed for the rape.

Impact on administration of justice

The OSF research also found sentences for the prescribed crimes tended to have increased as a result of the legislation.[5] However, they also observed that the legislation was neither systematically nor consistently applied.[6] This seems to be particularly the case in respect of rape, with a submission by the Western Cape Consortium on Violence Against Women, made in 2005 to the Minister of Justice and Constitutional Development, illustrating the wide discrepancies in sentences for rape. The submission, which contains an analysis of recent rape judgments, notes that rape myths and gender stereotypes continue to inform the interpretation of “substantial and compelling circumstances” by the courts and are used by the courts to justify a departure from the legislation and the imposition of lower sentences.

The OSF research notes too the impact of the minimum sentencing legislation on court processes and performance. These effects include an increase in the number of appeals against conviction and sentence (with obvious implications for the court rolls of the High Courts and Supreme Court); more ‘not guilty’ pleas and increased requests for legal aid (increasing the number of trials as well as the use of state resources for legal aid); and increased demands for probation officers’ reports. Given the limited number of probation officers, cases will be further delayed while waiting for such reports.[7] The increasing length of case cycles, which the minimum sentencing legislation contributes to, is also reducing court efficiency according to the OSF report. Between 2002 and 2005 the number of cases finalised in the regional courts fell an average of 260 to 179 cases for each court.[8]

The authors of the OSF report also find that rape cases are considerably more likely to be withdrawn at court than other serious crimes. They suggest that pressure on prosecutors to increase the number of convictions is leading to a greater number of cases being withdrawn before the trial commences.[9] Therefore, while heavier sentences for rape are sometimes being handed down, the symbolic or deterrent effect of this must be offset against the fact that fewer rape victims are being permitted their day in court.

Costs of the legislation to the criminal justice system

The memorandum attached to the Criminal Law (Sentencing) Bill states that no costs are attached to this proposed legislation. We submit that this cannot be correct. Allowing for automatic appeals in cases where magistrates have handed down life sentences will continue to impact on the High Court’s already-clogged roll. Such appeals must also be heard by two judges (which also has cost implications). The Bill also has cost implications for the Department of Correctional Services (DCS). An analysis of the impact of the current Act on the size of the South African prison population suggests that if current trends are maintained, the current prison population will swell to over 226 000 in 2015 (from the 157 402 people imprisoned by December 2005).[10] Continued growth in the prison population has definite financial implications for DCS.

Non-financial costs, which will largely be borne by complainants, include a loss of faith in the criminal justice system by the increasing number of rape complainants’ whose matters are withdrawn at court, as well as the reduced efficiency of the criminal justice system. In addition, efforts to reduce prison overcrowding frequently include amnesties and remissions. These periodic releases not only undermine public faith in the criminal justice system but also weaken the supposed deterrent or punitive consequences of crime – thus contradicting the imposition of lengthy sentences in the first place.

The proposed Bill

Some of the proposed amendments are ambiguous and could lead to confusion amongst presiding officers. The proposed substitution for section 51 is entitled “Discretionary minimum sentences for certain serious offences.” Currently minimum sentences shall be imposed unless “substantial and compelling circumstances” are found. Potentially this wording suggests that in future minimum sentences may be applied at the presiding officer’s discretion. If so, then this dilutes the current approach to minimum sentences.

A dilution also seems implicit in the wording of section (3) (a). If “substantial and compelling circumstances” are found, it is proposed that a lesser sentence must be imposed. Currently the act states that it may be imposed. ‘Must’ is peremptory while ‘may’ is discretionary so this wording seems at odds with the notion that these are discretionary minimum sentences.

Additions to “substantial and compelling circumstances”

As Rape Crisis and others have noted previously,[11] the interpretation of “substantial and compelling circumstances” is concerning, especially, with respect, at the High Court level where judges frequently rely on rape myths and gender stereotypes and fail to understand the manner in which sexual violence undermines and infringes the constitutional rights of women and girls to dignity, equality and freedom and security of the person.

The Constitutional Court has explicitly recognized that “sexual violence and the threat of sexual violence goes to the core of women subordination in society. It is the single greatest threat to the self-determination of South African women.”[12] A 2006 judgment of the SCA, Nkomo v the State[13], clearly illustrates the failure of that court to protect women’s rights. Judge Carole Lewis chose to deviate from the prescribed minimum sentence of life, which is prescribed in cases where a victim is subjected to multiple rapes. The deviation was justified on the basis that rapist had not used a weapon (although he had assaulted the victim, who had also injured herself when she jumped some 10m from a window to escape from the rapist) and that he did not “seriously injure” her (which fails to recognise that rape is inherently violent and always injures the victim). Judge Lewis, who herself described the rape as brutal and stated that it “may be difficult to imagine a rape under much worse conditions”, also found there was a prospect of rehabilitation of the rapist (despite there being no evidence at all to this effect) and that he was a first offender. On this basis, she substituted a sentence of 16 years.

The case analysis conducted by the Western Cape Consortium highlights the following factors being relied on to justify lesser sentences for rapists:

· the previous sexual history of the complainant[14];

· an accused’s cultural beliefs about sexual assault[15];

· an accused’s use of intoxicating substances prior to the assault[16];

· an accused’s lack of intention to cause harm to the complainant in committing the rape[17];

· a lack of education, sophistication or a disadvantaged background of the accused[18];

· a lack of “excessive force” used to perpetrate the rape[19];

· a lack or apparent lack of physical harm to the complainant[20];

· a lack or apparent lack of psychological harm to the complainant[21]; or

· any relationship between the accused and the complainant prior to the offence being committed (including a consensual sexual relationship)[22].

In light of this, the proposed additions to “substantial and compelling circumstances” for rape contained in 3(aA) do not go far enough in ensuring that courts do not rely on factors that undermine women’s rights to dignity and equality. The Bill only excludes three of these concerns as “substantial and compelling circumstances”: the complainant’s previous sexual history; the accused person’s cultural or religious beliefs about rape; and any relationship between the accused person and the complainant prior to the rape. The inclusion of the last factor, the prior relationship between the complainant and the accused, is also potentially difficult and requires careful consideration. Rape by a family member, or in the context of an intimate relationship, is as serious as rape by a stranger. However, it is our experience that women and children are sometimes unwilling to pursue cases of rape (or domestic violence) when they become aware of the long-term imprisonment that may result. While they would like to see the perpetrator sanctioned and held responsible for their wrongs, they do not necessarily wish to see them imprisoned for lengthy periods of time. A very careful balance needs to be struck between punishing sexual violence committed by family members and intimate partners on the one hand, and respecting the victim’s wishes on the other – particularly when such perpetrators may escape punishment altogether if the complainant withdraws the charge. Therefore, we would submit that the entire approach to sentencing rapists must be reconsidered – including the mitigating factors taken into account in relation to the accused.

Recommendations:

1. We submit that the Committee allow the current period of the minimum sentencing to run its course. While it is doing so, we recommend that the Sentencing Framework Bill be resuscitated and submitted to Parliament for consideration, as well as public participation. This would allow for the issues canvassed here to be widely debated and a more comprehensive and inclusive approach taken to sentencing generally. We submit further that the issue of minimum sentencing is one that requires a holistic approach and that a piecemeal approach will only perpetuate greater injustice and inconsistency in treatment of cases.

2. We further submit that the minimum sentencing legislation was introduced without opportunity for adequate public participation. Limited notice has also been given to make written submissions on the Criminal Law (Sentencing) Amendment Bill. We therefore urge to Committee to consider inviting oral submissions around this Bill as well.

[2] See S v Dodo 2001 (3) SA 382 (CC); S v Dzukuda 2000 (11) BCLR 1252 (CC); S v Malgas 2001 (1) SACR 469 (2001 (1) SA 1222).

[4] Ron Paschke and Heather Sherwin, Quantitative Research Report on Sentencing Study conducted on behalf of the South African Law Commission (2000), 7.

[5] Michael O’ Donovan and Jean Redpath, The Impact of Minimum Sentencing in South Africa (2006, Open Society Foundation), 69.

[10] Chris Giffard and Lukas Muntingh, The Effect of Sentencing on the Size of the South African Prison Population, (2006, The Open Society Foundation), vi, 1.

[11] Western Cape Consortium on Violence Against Women, Submission to the Minister of

Justice and Constitutional Development in Response to the Evaluation of the Criminal Law Amendment Act 105 of 1997, (2005).

[12] Carmichele v Minister of Safety and Security and Another 2001 (4) SACR 166 (C)

[14] S v Mahamotsa, unreported Judgment dated 28 July 1999, Case No 29/99, Free State Provincial Division

[19] See S v G 2004 (2) SACR 296 (W); and S v Shongwe 2002 (1) SACR 116 (SCA).