Abstract

This article is the framing chapter of this collection of articles. It discusses violence against women through the lens of the three main themes that also run through the collection. The first theme focuses on sexual violence as a particular manifestation of violence against women. The second theme includes a discussion of legal and policy discourses of violence in international and regional law, as well as the challenges faced by women at the margins of society. The final theme addresses the difficulties for women who work against violence against women, whether as scholars or practitioners, and considers the toll and costs associated with doing this work. The discussion of these themes is used to both acknowledge the systematic nature of these challenges and to problematise the challenges, by reflecting on the repeated violences, acknowledging new(er) manifestations, and asking probing questions about how trends in public outrage can impact on legal, policy and practice developments.

Abstract

Sexual harassment is rooted in structures and patterns of patriarchy, power and discrimination. The law requires employers to address the root causes of sexual harassment to prevent and protect all employees. When the law intervenes to remedy sexual harassment, the disciplinary rules and procedures set out in the law of sexual harassment can victimise or vindicate both complainants and perpetrators. The law can also legitimise toxic workplace cultures when it directs all its focus on individual perpetrators and complainants, as opposed to interrogating broader organisational cultures that may create a toxic environment in which sexual harassment can thrive. This article explores the limitations of the individualised, adversarial approach to discipline and offers guidance for reimagining what justice and accountability could look like in cases of sexual harassment, through an analysis of the Equal Education sexual harassment inquiry process and outcome.

Tribunal justice may be meaning ful to lawyers drafting legal documents … amid the smoldering embers of destroyed communities. But little satisfaction will come to survivors … the voices of survivors will remain largely unheard and unaddressed.

Abstract

This article is a contribution to the ongoing national discourse on adolescent sexuality. By juxtaposing adolescent sexuality with the high levels of adolescent sexual violence, the article seeks to highlight the tensions and challenges embedded in the current protectionist narrative. The article argues that adolescent sexual violence has a gendered dimension, with girls being the dominant victims and boys the dominant perpetrators. However, in order to understand adolescent sexual violence, one has to first understand the missing discourse, which is adolescent sexuality. It is argued that constructive approaches geared towards curbing adolescent sexual violence should deal with the inherent gender inequality embedded in adolescent sexual agency and violence.

Abstract

Three versions of the Traditional Courts Bill (TCB) have been tabled before Parliament in the last two decades. Each version has raised questions about its impact on women’s experiences in customary law dispute resolution forums and whether sufficient protection is being provided for women’s rights. Concerns relate to the subject matter dealt with in traditional courts, the extent to which women’s voices are heard and taken seriously, and the impact on women of processes used to resolve disputes, including whether there are avenues for accountability. This article describes the evolution of the TCB’s approach to these matters with particular reference to women who have experienced violence or threats of violence and are involved in traditional court processes. The drafting process that occurred after the lapsing of the 2012 TCB version, and which gave rise to the 2017 TCB version, is highlighted. The analysis suggests a correlation between the prevailing gender dynamics within a particular drafting forum and the treatment of women’s concerns in the TCB’s provisions. Yet the TCB, and customary law more generally, could play an important role in protecting women from violence and providing appropriate recourse. It is therefore argued that the TCB law-making process must take public participation seriously and incorporate sincere efforts to build on women’s experiences of traditional courts and violence.

Abstract

Gender inequality, male hegemony and the power dynamics at the core of patriarchal society enable the high rate of sexual offences and the low conviction rate of sexual offenders when incidents are reported. The criminal justice system does not provide a safe space for the sexual offence victim/survivor to relate her experience of sexual violence. Sexual Offences Courts provided a victim-centred approach to the criminal justice system. The closure of these courts has been detrimental to the campaign for social justice and the constitutional rights of complainants. Feminist scholarship is employed as a lens through which to analyse and expose the deficiencies in the current framework used to secure convictions in sexual offences cases. Wishik’s development and expansion of the ‘woman question’ is used to refine this method, subquestions are formulated to provide a systematic process for interrogating the status quo, and for finding remedies to redress the problems identified. The closure of Sexual Offences Courts may be seen as a form of discrimination against women. It is therefore recommended that these specialised courts are reintroduced as a matter of urgency as the state needs to meet its constitutional obligations.

Abstract

Gender discrimination in South Africa is both a historical phenomenon and a current experience. Women continue to be unfairly treated, they are regarded as inferior to men, and they are subjected to violence. This contribution seeks to examine South Africa’s fulfilment of its obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). In terms of this Convention, South Africa is obliged to take appropriate measures to eliminate all discrimination against women. In light of these obligations, domestic law has been enacted to address the inequality and discrimination experienced by women, particularly as a result of violence. This article shows that, despite the country’s international obligations, and the subsequent enactment of domestic legislation, the problems of gender inequality and discrimination persist. Gaps in the enforcement of legislation remain. As a result, women in South Africa are further disempowered. However, women’s movements have contributed to securing women’s rights and they play a key role in ensuring the implementation of these rights. By relying on CEDAW, women’s movements and activists are able to hold government and its institutions accountable for their obligations under CEDAW, which, most importantly, are gender equality and non-discrimination. South Africa may also be commended for taking steps to enact domestic legislation aimed at articulating gender equality and nondiscrimination. Such legislation provides the mechanisms and means to prohibit harmful and discriminatory practices relating to violence against women. However, the inclusion of such rights and to a great extent their enforcement may be attributed to women’s movements and gender activists.

Abstract

This article considers the utility of a specific treaty on violence against women (VAW) in Africa in line with relevant binding regional frameworks in the Inter-American and European human rights systems. It situates the discussion on VAW within a human rights analysis, applying a critical lens to existing normative frameworks and monitoring mechanisms. The article offers a comparative perspective through an overview of the legally binding provisions and implementing mechanisms in three human rights systems, the African, European and Inter-American systems. It is argued that while the Protocol on the Rights of Women in Africa (the Maputo Protocol) has provisions on the elimination of VAW, the Protocol’s weaknesses invite us to consider a specific VAW treaty for Africa, as an opportunity for strengthening the regional human rights system.

Abstract

Gender-based violence against refugees has received increasing attention over the last two decades. However, the tendency worldwide, as well as in South Africa, has been to focus on ‘truly horrific’ and ‘culturally grotesque’ acts while ignoring the more invisible forms of gender-based violence. The tendency to focus on the conditions of the country of origin, rather than individual cases, can hinder women’s access to asylum on the ground of intimate partner violence if their country of origin is hailed as having a more progressive approach to women’s rights. This article seeks to bring the more invisible harm to the fore and will focus on intimate partner violence affecting female refugees in their countries of origin and in their host country, South Africa. We make recommendations for South Africa to recognise intimate partner violence as a valid asylum claim, to tailor effective services for female refugees who are victims of intimate partner violence in South Africa, and to fulfil its international and domestic legal obligations to refugee women by adopting a transformative reparations framework.

Abstract

Intimate partner violence (IPV) is an epidemic that is often viewed through the singular lens of heterosexuality. The discourse about IPV and mechanisms to combat IPV are heteronormative in nature and erase the experiences of queer persons in relationships and the manner in which violence manifests in these relationships. This paper explores third party responses to IPV in lesbian relationships. This violence is informed by heteropatriarchial attitudes and is re-enacted by third party responders, which has the effect of silencing survivors of same-sex IPV. The conceptualisation of the second closet emerges from this phenomenon.

For lesbians, keeping secrets about abuse in our relationships is also linked to homophobia and heterosexism: it is still risky for some of us to be out, and it can be dangerous to reveal abuse within an already oppressive context.

Abstract

Violence against women and children remains a pervasive human rights violation in South Africa, despite laws and policies aimed at preventing violence and advocating for the protection of the rights and dignity of women. The impact of violence on South African society and on women’s mental health and quality of life is significantly encountered in mental health contexts where many women present for psychiatric and psychological treatment. This discursive article presents a mental health practitioner’s perspective and highlights experiences of working therapeutically with female victim-survivors of violence in a psychiatric hospital in the Western Cape. I argue for greater intersectoral collaboration and responsive partnerships between mental health services, non-governmental organisations, legal centres, the criminal justice system and civil society. Further recommendations are made to challenge discriminatory practices and attitudes, and to strengthen violence prevention initiatives to enable the empowerment and safety of women in South African society.