• Jackie Nagtegaal

The Cost of Rape

Violent crime in South Africa is rife and horrific, but the prevalence of sexual assault and rape has led to South Africa being dubbed “the rape capital of the world”. Unfortunately, the criminal justice system is failing survivors as few cases are reported and even less get justice. Do the Civil Courts offer an appropriate alternative and what does compensation look like locally and internationally?

The law is simply not doing enough for rape survivors in South Africa. According the 2016/2017 crime statistics, over 100 people are raped every day in our country, and that’s just based on the attacks that are reported. This means that the number of people being brutally violated adds up to tens of thousands every year.

In general, violent crime in South Africa is rife and horrific, but the prevalence of sexual assault and violence has led to South Africa being dubbed “the rape capital of the world”. This is largely attributed to the pervasive rape culture that exists in the country.

Feminist author Emilie Buchwald describes rape culture as, “a complex set of beliefs that encourage male sexual aggression and supports violence against women. In a rape culture, women perceive a continuum of threatened violence that ranges from sexual remarks to sexual touching to rape itself. A rape culture condones physical and emotional terrorism against women as the norm . . . In a rape culture both men and women assume that sexual violence is a fact of life, inevitable”.

One of the biggest problems with an inescapable rape culture is that it directly affects survivors getting justice for the crime because not only do many victims feel as though they won’t be believed; there is a widespread belief that many victims are to blame for being raped because of wearing revealing clothes, being intoxicated or even due to their sexual orientation among others. Of course, this is all nonsense as the victim is never at fault.

These normalised ideas also impact how many law enforcement authorities view victims and, thus, process rape kits and investigate cases. Naturally, this has a knock-on effect because a survivor might then think that a case will be thrown out of court due to insufficient evidence or the rapist will be given a lesser jail sentence. And it is all backed up by statistics: it is estimated that 90% of all rapes are not reported to the police. Arrests are made in less than 50% of the reported cases. Less than 15% of accused are taken to trial and 5% of rapists who are tried are convicted. When it comes to sentencing, over 15% of convicted rapists get less than the mandatory sentence of 10 years. More than 40% of convicted rapists are eligible for life sentence. Less than 9% of those eligible for life sentence get life sentence.

Many rape survivors turn to civil lawsuits against various institutions to seek justice and compensation. Civil cases usually involve private disputes between persons or organisations. A civil case begins when a person or entity (such as a corporation or the government), called the plaintiff, claims that another person or entity (the defendant) has failed to carry out a legal duty owed to the plaintiff.

One of the reasons why this is often preferred is the fact that the criminal case won’t succeed due to the burden of proof being “above reasonable doubt” while in civil cases it is “a balance of probability”. The burden of proof is thus much lower in civil court. Of course, here you can also hold others responsible as well where they were negligent in carrying out their legal duty.

In South Africa, a rape victim who sues for civil damages will usually be entitled mainly to general damages, which are paid as compensation for shock, pain and suffering, disfigurement, disability and loss of enjoyment of life. General damages are granted on a case-by-case basis and are at the discretion of the judge, although awards made in previous, comparable cases often play a big role.

Civil cases against the SAPS are on the increase and it was revealed last year that during the 2015/2016 financial year, civil claims against the SAPS amounted to just under R15-billion.

In an ongoing case, Gauteng businesswoman Andy Kawa is currently in court suing the South African Police for wrongfully and negligently breaching its duty to investigate her allegation that she had been abducted, held hostage and gang-raped by a group of men in 2010. Kawa is seeking damages of just under R6-million. This isn’t the first time that the state might be held liable.

In 2003, a woman sued the state for damages after she was sexually assaulted and robbed by a dangerous criminal and serial rapist who had escaped from police custody two-and-a-half months prior to the attack, and in 2002, a woman sued the Minister of Safety and Security damages for the harm that she suffered due to being brutally attacked by a man who was awaiting trial for the alleged attempted rape of another woman. Despite his history of sexual violence, the police and prosecutor had recommended his release without bail. In the High Court the Applicant alleged that she had been attacked.

Other institutions and businesses are also being taken to task and being held liable. In South Africa, companies can be made to pay large damages for criminal acts by their employees either because the employees were acting in the course of their employment or they were simply just negligent. In these cases, negligence can be something like companies not properly screening potential employees or overlooking the fact that someone might have a criminal record, and thus placing other people in the company in danger.

In 2017, the Court awarded a woman who was raped by three men at a holiday resort owned by the Witzenberg Municipality R840,000 (the highest damages award to date in a local civil case relating to sexual assault). Of course, the men were employed by the municipality.

Looking abroad, the highest damages amount ever awarded was to a woman in Georgia, US, who was raped at the age of 14 by an armed security guard employed by a security company without the proper licence. The amount was $1-billion.

“What that number stands for is the most important thing,” said the woman’s lawyer to The Washington Post. “We don’t care what we end up finally recovering from this company. We know they don’t have $1-billion. But it’s what 12 people in the state of Georgia said a victim of rape is worth that echoes louder.”

Bernard Wessels, a lecturer of private law at Stellenbosch, believes a compensation fund of sorts for victims is feasible. 

“South Africa’s legal position when it comes to crime victim compensation is unsatisfactory. In my doctoral dissertation I sought to establish whether creating a compensation fund for crime victims could be justified. I also wanted to know whether such a fund would be appropriate in the South African legal context,” maintains Wessels.

Wessels goes on to say that he examined experiences of legal systems that have already introduced statutory compensation funds, such as the UK and the Netherlands. “In principle, I found that providing a similar form of statutory relief for crime victims would be justified in South Africa.”

Considering the terrifying statistics and pervasive rape culture that exists, South Africa still has a very long way to go in terms of eradicating sexual violence. Hence, it is going to take a concerted effort from society and government to get rid of the scourge of rape in South Africa.

Published by The Daily Maverick on 7 September 2018.