At the police investigation stage
- In 50% of the rape incidents reported the investigating officers are constables, the lowest rank in the SAPS, who have the least training and the lowest access to resources.
- In 93% of cases there is no indication in the docket that the investigating officer gave the victim his or her contact details. In the sample recorded in the RAPSSA Report, it was found that the records showed that investigating officers gave their contact details to only 7.0% of victims.
- In only about half of cases where another witness was present or near when the rape occurred, do the police take all the other witnesses’ statements.
- Members of the police visit the crime scene in only slightly more than half of all rape cases.
- Over a fifth of sexual assault evidence collection kits (SAECKs) completed within 96 hours of the incident are not sent to the Forensic Science Laboratory (FSL) and so are never analysed.
- Details of another contact person besides the victim (or guardian) opening the case are recorded in only 36.8% of cases. (Victim contact details and details of another person are crucial for the investigating officer so that he or she can contact the victim when investigating the case. Without contact details, it is difficult for the investigating officer to follow up with the victim and all cases without traceable victims are prematurely closed.)
- 35% of cases are closed by the police before referral to a prosecutor. This is appropriate if there is no suspect. However, there is also evidence that failure to undertake key investigative processes have a bearing on the closing of cases by police. A higher proportion of cases are closed by the police in instances where the crime scene was not visited, where there was no written victim statement, where the first report statement was not collected and where the crime scene DNA and fingerprint evidence was not collected.
- Victim withdrawal is an important problem during the police investigation stage and does result in a high proportion of cases having to be closed.
- Pressure is often brought to bear on victims to drop charges. This can be done by their family in cases where the perpetrator is a relative, by his family where he is a neighbour and by the perpetrator directly when he is an intimate partner.
- If victims are not treated as important partners in the rape case investigation and feel that the response from the investigating officer is not always empathetic, they are much more likely to withdraw their case.
At the prosecution stage
- Prosecutors decline to prosecute in 47.7% of cases referred to them (i.e. 34.4% of all cases included in the RAPSSA Report study). It is also noted that prosecutors placed other cases on the court roll but before trial half of the enrolled cases were also withdrawn.
- Reasons for declining to prosecute are mostly that the victim wanted to get on with their life (67.6%), followed by insufficient evidence (32.4%), and sometimes both. The most common reason for declining to prosecute as found in the RAPSSA Report was that the victim wanted to get on with her or his life.
- It has been found that the police refer many cases for a prosecutor’s decision when a perpetrator has not been arrested or charged, which is not appropriate as the police should have closed these cases themselves.
- Prosecutors decline a higher proportion of cases where there is no abduction, no weapons, no physical force used and where the perpetrator did not threaten to kill the victim. The RAPSSA Report found that this may suggest that the availability of less evidence or prosecutors’ biases and acceptance of certain rape myths may be influencing decisions for rape cases to proceed to court.
- Prosecutors are 22% more likely to decline cases where the victim was intoxicated.
- Prosecutors are twice as likely to proceed with cases involving strangers compared to cases involving a relative.
- Cases are more often taken forward by the prosecutor where physical violence was used and weapons displayed.
- The initial enrolment of cases by prosecutors on the court roll is not the final stage of case review before trial. After the prosecutor decides to take on a case, the investigation and preparation of evidence continues, and the case is reviewed by other prosecutors prior to a trial.
- During these stages, cases may still be withdrawn for further investigation or closed, and the RAPSSA Report found that almost half of the cases were withdrawn. Prosecutors withdraw 46.3% cases they had enrolled before trial started.
This combination of factors makes it very difficult for cases to move forward. We advocate for sexual offences courts because these are specialised courts that specifically deal with sexual offences and provide special services to survivors. These courts are sensitive to the survivor and help to reduce the trauma and secondary victimisation of survivors and witnesses. As they are specialised courts they also have better skilled court personnel which helps to speed up cases and deliver better court judgements. Sexual offences courts are equipped to offer better support for survivors, with dedicated court supporters and specially designed facilities. We believe that establishing sexual offences courts will help address a number of the issues outlined above and it is our hope that if we can deliver better services to survivors, we can achieve better justice for all.
Report citation: Mercilene Machisa, Ruxana Jina, Gerard Labuschagne, Lisa Vetten, Lizle Loots, Sheena Swemmer, Bonita Meyersfeld, Rachel Jewkes. (2017). Rape Justice In South Africa: A Retrospective Study Of The Investigation, Prosecution And Adjudication Of Reported Rape Cases From 2012. Pretoria, South Africa. Gender and Health Research Unit, South African Medical Research Council.
Download the full RAPSSA Report: Rape Justice in South Africa
Some important terms:
Attrition: the filtering process by which cases drop out of the criminal justice system.
J88: the standard medical examination form that is completed by a healthcare provider for medico-legal cases. The form is used during trials to provide evidence of findings during a medical examination after a general assault or rape.
Nolle prosequi: A prosecutor’s decision to decline to prosecute.
Withdrawal: this is when the prosecutor decides to retract a matter, this is not final, and the matter can be re-enrolled. This can happen if there is insufficient evidence and the investigating officer is required to complete further investigation. In the case of victims this means expression by the victim that they are no longer interested in pursuing a case for different reasons.