Gender-based violence: alternatives to incarceration

Sohela Surajpal | Amandla Issue 73/4 | December 2020

Last year, South Africans took to the streets after the tragic rape and murder of Uyinene Mrwetyana, a University of Cape Town student murdered by a postal worker. Mrwetyana became the latest brutal instance of gender-based violence to make headlines. Thousands marched on university campuses, the World Economic Forum on Africa in Cape Town and the South African Parliament asking #AmINext?

These protests were neither the first nor the last against gender-based violence in South Africa, a country in which seven women and three children are killed every day and which ranks fourth in the world for our rates of femicide. It is understandable, in this horrifying context, that South Africans are angry and that many of the demands and solutions put forward have centered around retribution, policing, and incarceration.

Lock them up

Addressing protestors in September 2019, President Cyril Ramaphosa declared that, “Men that kill and rape must stay in jail for life. The law must change that once you have raped and kill you get life, no bail.” His statement was a response to various calls to deny bail to those accused of gender-based violence, establish more police stations and special courts, impose mandatory life sentences and even bring back the death penalty. These demands and Ramaphosa’s statement are in line with what is known as “carceral feminism.”

Carceral feminism views increased and improved policing and imprisonment as the primary solution to violence against women. It has been much criticised by black, queer and leftist feminists but has unfortunately been embraced by an increasingly desperate South African population. In the South African marketplace of ideas, carceral feminism has established a monopoly.

Part of carceral feminism’s allure is in how it presents itself as a logical and ideologically neutral approach. Sure, we must do more to end violence against women, it tells us, but our starting point must always be prison. Imprisoning dangerous rapists is objectively necessary, objectively good. It is easy to buy into this view, especially when reading yet another headline about yet another brutal murder. However, an analysis of the reality of prisons and policing reveals that they are at best unhelpful and at worst actively harmful to victims and the cause.

Reporting GBV

Most victims do not report abuse or violence. A 2017 study in Gauteng province revealed than only about 1 in 23 women who had experienced sexual abuse reported it to the police. This unwillingness to report is due to a variety of factors, including that most people experience abuse or sexual violence at the hands of someone they know and potentially care about, most often their partner. Many victims want the abuse to stop but do not necessarily want a family member, friend or partner to spend years in prison. An unfortunate reality in South Africa is that many victims also depend on their abuser for financial support.

Additionally, many victims are acutely aware that when attempting to report, they will be met by misogynistic, homophobic or transphobic police officers. Numerous studies have reported that police officers have an inadequate understanding of the law, engage in victim blaming and view domestic violence as a private family matter rather than a crime. Social media abounds with stories of victims who have been dismissed and told by police officials to go home to their abusers. Carceral feminism, while recognising these problems, generally argues that they are easily fixed.

As a result, we have seen activists advocate for equipping police officers with better resources and sensitivity training in the hope that this will create a more welcoming environment for victims. Unfortunately, this is not the case. Sensitivity training has been proven to be largely ineffective. In The End of Policing, American sociologist Alex Vitale shows that most police officers view sensitivity training as a political exercise that has no bearing on the reality of their jobs. Additional training and resources simply pours more into a failing system. If the South African Police Service is able to effectively quash protests and illegally evict people from their homes with its budget, we must consider that its failure to respond to GBV is a matter of will not of resources.

The problems of criminal trial

But even if the system worked perfectly, if police took their jobs seriously, if courts were not groaning under the burden of extreme caseloads – there is still the nature of a criminal trial. The stakes are high – it might end with someone sentenced to years in prison. That demands that the onus must be on the state to prove guilt beyond reasonable doubt. This means that victims must rehash their abuse for an audience, endure harsh cross-examination and have their story picked apart in front of them. Often, prosecutors choose not to let victims testify, for fear that their emotional testimony will damage the case. But even where they do testify, victims are at best mere witnesses in trials about their own experiences. It is ultimately the state and not the victim that is a party to the case and that makes decisions such as whether to prosecute, whether to accept certain plea deals, what evidence to raise, which witnesses to call, and what sentence to ask for.

Additionally, the entire process is adversarial – a hostile form of legal combat rather than a truth-seeking exercise. The trial process, even when working perfectly, is one that strips victims of control and relegates them to the sidelines. It is often conducted in a language that they barely understand. It is an inherently violent process– and it is generally an unsuccessful one too. Few prosecutions result in convictions. The nature of abuse means that there are often very few witnesses, and very little evidence beyond the claims of those involved. And the burden of proof is always in favor of the accused, who is innocent until proven guilty. In fact, a national study in 2012 found that only 8.6% of rape cases resulted in a guilty verdict.

On the rare occasions that prosecutions occur and result in convictions, victims are left retraumatised, with generally no reparation, support or closure beyond the knowledge that their abuser is in prison.

Prison makes no difference

Many would argue that this is no less than what abusers deserve. While this response is understandable, it ignores a wide range of literature that has proven that many sexual offenders in prisons in South Africa have histories of dysfunctional families and abuse, childhood trauma, addiction disorders and low socio-economic status. The average offender is not a serial rapist and murderer, but someone who knows their victim and is often a victim themselves, failed by a society rife with abuse and inequality. We banish this person to prison, which is itself a site of massive levels of extreme violence, sexual assault, and rape.

South Africa’s prisons are grossly overcrowded, haunted by reports of torture and plagued by disease including HIV/AIDS and Tuberculosis. Despite extensive reform efforts instituted under the new constitutional dispensation, including judicial review processes, the creation of new rehabilitation programmes and a shift towards a culture of human rights rather than authoritarianism, prison conditions remain abhorrent. Former Justice of the Constitutional Court Edwin Cameron, who now heads the Judicial Inspectorate for Correctional Services, wrote this year that the problems highlighted by his office twenty years ago remain rampant in prisons today: “For how long did democratic South Africa turn its back on apartheid’s prison patterns? The sad answer is: Not for long enough.”

All imprisonment really does is contain violence within prison walls. We rest easy knowing that rather than harming the people “outside”, imprisoned people are harming or being harmed by people “inside.” Furthermore, prisons in South Africa entrench violent masculinity through gang systems and the use of violence and rape as a form of coercive power. Our rehabilitation programs are poorly resourced and poorly designed.

In general, people leave prison not having “learnt their lesson,” but thoroughly dehumanised, mistreated, and with a decimated support structure. In the case of sexual offenders and abusers, they also leave having had none of their perceptions of women challenged and generally having imbibed an even more violent form of toxic masculinity. As a result, recidivism is rampant in South Africa. It is estimated that 55-95% of prisoners in South Africa reoffend upon release. Prisons therefore do not end sexual violence but perpetuate it, and they leave offenders more likely to use escalated sexual or other violence in the future.

Given the sheer magnitude of evidence pointing to the failure of the criminal justice system to prevent gender-based violence, we must ask ourselves why we continue to put our faith in this system. Most likely it is because it is easier to lock individuals in cages and call it justice than it is to truly challenge the structures that cause gender-based violence.

Fight all oppression

The Santa Cruz Women Against Rape argue that rape cannot end within the present capitalist, racist, and sexist structure of our society. A fight against rape must thus be a fight against all forms of oppression. Prisons that have functioned as tools of colonialism, Apartheid and capitalism for centuries have been incapable of furthering this fight.

Prisons arrived in South Africa with the Dutch and proliferated under the British, when the abolition of slavery forced colonialists to find new, cheap sources of labour. Prisons and police were used to secure much of the cheap labour that built colonial infrastructure and kept private industry running. Simultaneously, they were used to enforce racist laws as well as to suppress the fight against colonisation and later Apartheid.

Little has changed in democratic South Africa. While most South Africans bemoan their inefficiency in combatting crime, the police are violently efficient when evicting the poor and suppressing protests, poor people’s movements, student movements and workers’ strikes. Prisons too are filled with the poor. It is clear that these institutions function primarily to protect landowners, capital and the interests of elites. By positioning them as necessary to combat violence against women, carceral feminism assumes that women’s safety and the interests of the poor and racialised communities are fundamentally opposed. Progressives and leftists must refuse this framing. The vast majority of women in South Africa are also poor, working class, black and brown. Genuinely ensuring the safety of women thus requires us to dismantle structures of poverty, racism and the violent agents of the state that uphold these systems.

So a solution to gender-based violence that does not include prisons must tackle a range of oppressions and must include a network of alternatives working in tandem to crowd out prisons. If we know that many sexual offenders in South Africa struggle with trauma, addiction and poverty, then our solutions should tackle those root causes.

Alternatives

Immigrant and refugee women in Canada have implemented a strategy that shows on a small scale the success of these interventions in empowering victims to leave abusive situations. They created an informal support group, offering one another emotional support and childcare assistance. They formed a cooperative catering business to allow them financial independence and used the profits to offer housing assistance that enabled women to leave abusive relationships.

There are a range of social movements in South Africa similarly advocating for access to quality education, housing, healthcare, economic justice, and social welfare. These organisations may not consider themselves abolitionists, or even feminists, but the services they fight for have the potential to prevent violence and abuse.

Anti-rape groups in the US have also been successfully exploring a range of alternatives, including community block watching, organising at workplaces to prevent sexual harassment, starting self-defense classes, training people to respond to a call for help, and orchestrating confrontations that allow women to confront their abusers with the support of their families and friends.

South Africa has the potential to embrace these strategies. Some are even mentioned in the National Strategic Plan on Gender-Based Violence and Femicide. Encouragingly, it establishes changing social norms, providing support to victims and economic empowerment as key pillars of its strategy.

South Africa has also acknowledged the central role of restorative justice in our legal system. Restorative justice is victim-centric, reconciliatory and reparative rather than retributive. It involves families and communities in addressing and preventing harm and has proven its merits. Studies by criminologists from around the world have shown that restorative justice significantly reduced repeat offending, victim’s post-traumatic stress symptoms and desires for revenge and reduced costs, thus allowing more offenders to be brought to justice. Both victims and offenders reported more satisfaction with restorative justice than with the criminal justice system. Unfortunately, neither restorative justice nor the progressive solutions put forward by the National Strategic Plan have been widely implemented.

We have before us a plethora of alternatives, many of which have proven to be more effective than the status quo. Divesting from carceral feminism will require more than minor reforms and budgetary allowances by the state. It will require the state, as well each of us, to invest in structures of community care and accountability. It will require a complete restructuring of the way we think about justice. But it is vital if we are to build a South African feminist movement that is truly dedicated to equality and liberation. Perhaps there is no perfect alternative, but there must be something better than what we have settled for. Putting people in cages is not liberation and prisons are not feminist.

Sohela Surajpal is an aspiring public interest lawyer with
a Masters of Law specialising in Human Rights and Democratisation in Africa.