types

TYPES OF RAPE
THE DOMESTIC VIOLENCE BILL SIMPLIFIED

Legal Assistance Centre, 2002

What is domestic violence?

The following conduct constitutes abuse in terms of the draft act if it occurs in a domestic relationship:

· physical abuse

· sexual abuse

· economic abuse (including destruction or damage to property)

· intimidation

· harassment (including stalking)

· emotional, verbal or psychological abuse (which requires a pattern of behaviour that seriously degrades or humiliates)

· trespass.

Threats or attempts to carry out any of these acts is also domestic violence.

What is a domestic relationship?

· a civil or customary marriage, a former marriage or an engagement to be married;

· a cohabitation relationship, where two people are or were living together as if they were married;

· parents who have a child together, or are expecting a child together (regardless of whether they have ever lived together);

· parent and child

· any family member related by blood, marriage or adoption, as long as there is some actual connection between them, such as financial dependency or sharing a household (including people who would be family members if a cohabiting couple were married);

· any two people who are or were in an intimate or romantic relationship.

Because times of change can be the most dangerous in terms of domestic violence, a “domestic relationship” for the purpose of the act extends for two years after the connection between the parties has come to an end (such as by a divorce or a break-up). If two people have a child together, their “domestic relationship” continues for the lifetime of the child, or for two years after the child’s death. The court has the power to consider the further extension of a “domestic relationship” if there are good reasons to do so.

The current bill does NOT cover same-sex relationships.

What can a victim/survivor of domestic violence do?

Anyone who has experienced violence or threats with violence in a domestic relationship can do the following:

· Make an application for a protection order which will say that the abuser must stop his/her behaviour, stay away from the people who are being abused, or even leave the family home altogether. Disobeying a protection order is a crime.

· If the abuse amounts to a crime, lay a charge with the police or ask the police to give the abuser a warning.

· Do both of these things at the same time.

PROTECTION ORDERS

Who may obtain a protection order?

· Anyone who has been abused or threatened with abuse in a domestic relationship. A child minor may bring an application unassisted.

· A counsellor, health care provider, police official, social worker, teacher, employer or any person who has an interest in the being of the victim/survivor. The victim/survivor must give his or her written consent unless he/she is

· a minor

· a mentally incapacitated person

· unconscious, or

· a person who is regularly under the influence of alcohol or drug and who is at risk of such serious harm that the court approves an application in the absence of his/her consent.

The person who applies for a protection order (or the person on whose behalf the application has been made) is called the applicant.

Against whom may a protection order be obtained?

Against any person who is in a domestic relationship with the applicant. The person against whom the protection order is requested is called the respondent.

When can an application be made?

During ordinary court hours.

Where can an application for a protection order be made?

Any magistrates’ court nearest to --

· where the applicant lives, carries on business or is employed,

· where the respondent lives, carries on business or is employed

· where the abuse took place.

The applicant may choose. The applicant does not have to be living, employed, or carrying on business in the area of the court for a specific time period before he or she can approach the court. Once granted, the protection order is enforceable throughout the country.

Forms for making an application are available at magistrates’ courts and police stations, or from social workers.

To whom should an application for a protection order be made?

To the clerk of the magistrates’ court.

What procedure is followed in obtaining a protection order?

The following items must be lodged with the clerk of the court when an application for a protection order is made:

· Completed application forms

· An affidavit by the setting out the facts relating to the abuse, which can be made on a prescribed form

· Supporting affidavits from other persons who have knowledge of the abuse, if possible.

If the applicant does not want the respondent to know his / her home address, this can be left out of the application.

It is not necessary to use a lawyer to make an application for a protection order. The forms and the procedure are simple and straightforward. There is no fee for making an application for a protection order.

The clerk of the court will submit these documents to court. The court will consider the application immediately. It may ask for additional oral evidence or evidence on affidavit, or it may make a decision on the information which has been submitted.

The court will grant an interim protection order if there is reasonable evidence that an act of domestic violence has been committed, based on the applicant’s side of the story. (This is called prima facie evidence.) The court will also consider the following factors:

· the history of the domestic violence;

· the nature of the domestic violence;

· whether there is any immediate danger to persons or property;

· the applicant’s perception of the seriousness of the violence; and

· the need to preserve the health, safety and well-being of the applicant and any children or other dependents who may be affected.

An interim protection order is a temporary order which can be granted without notice to the respondent. It is similar to an urgent interdict issued by the High Court. It has no effect until it is served on the respondent.

The interim order will specify a date by which the respondent must say if s/he is going to oppose the protection order. This is called the return date. The return date will normally be one month from the date of the interim protection order, but (in order to be fair to the respondent) the return date must be at least 10 days after notice of the interim protection order was received by the respondent.

If the respondent wants to oppose the order, s/he must send back a simple notice saying so. Then a date will be set for the respondent to appear in court to argue why a final protection order should not be issued. The applicant is also expected to come to court on this date, so the court can consider both sides of the story.

If the respondent does not oppose the interim protection order, then it will automatically become final.

What if the court does not grant an interim protection order?

If the court is not satisfied that an interim protection order is justified, it will direct the clerk of the court to serve notice on the respondent to come to court on a specified date for an enquiry.

The enquiry

The enquiry is the process of hearing both sides on the question of the protection order. It is closed to the public. Only the following persons may be present:

· court officials, the applicant (and a person who is bringing the application on behalf of the applicant) and the respondent

· the parties’ lawyers (if they have legal representation) and witnesses

· a maximum of two people (friends, family members, etc) to support the applicant and two people to support the respondent

· any other person authorized by the court.

* If the respondent does not appear

If the respondent does not appear, the court will issue a final protection order if it is satisfied that:

· Proper notice has been served on him or her and

· There is reasonable evidence of domestic violence.

The court also has the option of postponing the case and issuing a warrant of arrest for the respondent, to make sure that s/he comes to court.

* If the respondent and the applicant are both present

If the respondent appears to oppose the protection order, the magistrate will proceed to consider the matter. For that purpose the magistrate may consider additional evidence, such as testimony from other witnesses or doctor’s reports. If the applicant or the respondent want to bring other key witnesses to court, the clerk of the court will help them arrange this. The applicant and the respondent (or their legal representatives) can ask any of the witnesses questions.

* If the applicant does not appear

The court can postpone the case if there is a good reason why the applicant has not shown up. It can also consider the applicant’s affidavit evidence and order any person who made an affidavit to come to court to testify. The court will also ask the police to find out if there has been any intimidation of the applicant. If this is the problem, then the police must provide appropriate protection. But the application will not proceed if the applicant has simply lost interest.

Is legal representation allowed at the enquiry?

The complainant and the respondent are both free to make use of lawyers, but the procedure is simple enough that no lawyers are required.

Restriction on the publication of information about the enquiry

No one may publish information about the proceedings which reveals the identity of the parties, unless the court gives permission for the publication.

Issuing a final protection order

A final protection order will be issued if the court is satisfied that domestic violence has taken place, after considering all of the evidence that is placed before it. The other factors which must be considered are the same as for an interim protection order.

The original protection order will be served on the respondent. A certified copy of the order will be served on the applicant, and anther copy will be sent to the police station named by the applicant as the one where s/he is most likely to report any breach of the protection order. This is intended to alert the police to the problem.

Terms of protection orders

An interim or a final protection order can be tailored to fit the problem. All protection orders will order the respondent not to commit domestic violence. All protection orders will also direct the police to give the best possible protection to any applicant whose physical safety is at risk until the final protection order is served on the respondent, or as long as needed.

Protection orders may also order the respondent

§ to surrender a firearm or other weapon

§ not to have any contact or communication with the applicant, or with other specified persons who are at risk

§ not to come near the applicant’s residence, workplace, school, etc.

§ to move out of the joint household, regardless of which one of the parties owns or leases it (after considering factors such as the length of time that the residence has been shared, the accommodation needs of the applicant and any dependents, and any undue hardship that might result for the respondent or any other person)

This provision is available only in cases where there has been physical violence. Such an order can include an order about the use of household effects (such as furniture).

§ to pay rent for alternative accommodation for the applicant, or to otherwise arrange for another place for the applicant to stay

This is another option in cases where the parties shared a residence, if the respondent is not ordered to leave the joint household.

§ to give the applicant possession of specified personal property (such as vehicles , agricultural implements, livestock, furniture, chequebooks, credit cards, children’s clothing and toys, identification documents, keys, personal documents or other necessary personal effects)

The court order can also direct the applicant to give specified personal property to the respondent, especially if the applicant is the one given the right to remain in the shared home.

§ not to sell, damage or dispose of property in which the applicant has an interest

The court can also make a temporary order for maintenance, a temporary order for custody and access of any children who are involved, or any other order which is necessary to protect the safety of the applicant and his/her dependents.

In addition the court may include in the protection order a directive to the police:

§ to search for and seize any firearm or other weapon from the respondent,

§ to accompany the applicant to a specified place to assist him/her to collect her personal belongings safely.

How long does the protection order remain in force?

Different provisions of a protection order can remain in force for different time periods.

§ An order for sole occupation of a joint residence can stay in force for a maximum of 6 months (if the house is owned by the respondent), for one year (if it is jointly owned), or for any period set by the court (if the house is owned by the applicant).

§ If the joint resident is leased, an order for sole occupation cannot remain in force beyond the end of the current lease period.

§ An order about the possession of household effects such as furniture will have the same period as the order for occupation of the joint residence.

§ An order about child custody or access to children will remain in force until it changed by another court order. (It would not be safe to allow an order which might affect the safety of children to expire automatically.)

§ A temporary maintenance order can remain in force for a maximum of six months. (A temporary maintenance order is only an emergency measure. It is not intended to replace the role of the ordinary maintenance court.)

§ Any other provision of a protection order can remain in force for a maximum of three years.

The applicant or the respondent can also apply to the court to change or cancel a protection order at any time.

If the respondent files an appeal against the order, the order continues to operate until it is cancelled by the appeal court.

Who will deliver the protection order to the respondent?

The clerk of the court, or the police. There is no charge to the applicant for the costs of delivery of the order.

What does a person do if the respondent violates the protection order?

S/he must notify the police. S/he will be required to make an affidavit giving details about how the respondent violated the protection order. S/he can simultaneously lay a criminal charge against the respondent if his/her actions amount to a crime.

The police have the power to arrest the respondent without a warrant if there are reasonable grounds to suspect that the protection order has been violated. The suspicion that the protection order has been violated can be based on the applicant’s affidavit, on an affidavit from another person, or on the observations of the police officer.

A respondent who enlists another person to engage in behaviour that violates the protection order will be treated as if s/he has personally violated the protection order.

DOMESTIC VIOLENCE OFFENCES

Will the law create any new crimes?

No. But certain crimes which take place in domestic relationships will be referred to as “domestic violence offences” and dealt with in special ways.

The crimes which will qualify for this treatment if they take place in domestic relationships are crimes of violence (such as murder, rape and assault) and certain other crimes (such as kidnapping, trespass, malicious damage to property and crimen injuria - which means criminal insult). Violating a protection order will also be a domestic violence offence.

Who can lay a charge of a domestic violence offence?

Any person who has an interest in the well-being of the victim/survivor - such as a counsellor, health care provider, police official, social worker, teacher, employer. But, if the victim/survivor is an adult, a third person can lay the criminal charge only in cases of physical abuse.

The complainant is the person who is the victim of the domestic violence offence, no matter who has actually laid the charge.

What will the police do in cases of domestic violence?

A police officer who has a reasonable suspicion that a domestic violence offence has occurred can do any the following things, taking into account the wishes of the complainant:

· arrest the suspected offender without a warrant;

· issue a formal written warning to the suspected offender which will be taken into account if there are any further problems

· issue a formal warning AND transport the suspected offender to another place for a cooling off period which may not exceed 48 hours (as the police sometimes do at present with drunken persons).

The police may also search for weapons without a warrant IF they see that a weapon is present or are told that a weapon is on the premises.

The provisions allowing for warnings and “cooling-off” periods are intended to apply to situations where the complainant requests police intervention, but does not want an arrest.

Will a suspected offender who is arrested be released on bail?

The question of bail will be treated in the same way as for other crimes, with one important difference. As in rape cases, the complainant must be informed about the bail hearing and given a chance to put relevant information before the court. For example, if the person who was arrested has threatened the complainant, this might be grounds for denying bail.

Any time that a person accused of a domestic violence offence is released on bail, there will normally be a condition that s/he must have no contact with the complainant and a condition prohibiting possession of a firearm or any other specified weapon. If appropriate, the court will order that the accused must continue to support the complainant and any dependents whilst out on bail at the same level as before the arrest, to make sure that the complainant is not financially punished for asserting his or her rights. The court might add other bail conditions if this is necessary.

If the complainant is not present at the bail hearing, s/he must be notified that the accused person is out on bail and told about any bail conditions that apply.

Will the trial be closed to the public?

Trials for domestic violence offences, like rape trials, will be heard in closed court. And, as in the case of rape, it will be an offence to publish any details that might reveal the identity of the complainant.

What will happen if a person is convicted of a domestic violence offence?

The complainant will be given a chance to give input to the court on what s/he things would be an appropriate sentence. (If the victim was murdered, this input will come from the next of kin.)

The Minister will have the power to set up diversion programmes for first offenders at a later stage - such as counselling programmes for batterers, or courses in dealing with problems in non-violent ways.

Conviction of any domestic violence offence involving physical abuse will disqualify a person from obtaining a licence for a firearm.

POLICE POWERS AND DUTIES

What powers do the police have in respect of domestic violence offences?

· to arrest the suspected offender at the scene without a warrant

· to give a formal warning or remove the suspected offender for a cooling-off period

· to search for and seize weapons without a warrant.

What duties do the police have to assist an abused man or woman?

The Inspector General of Police must issue directives on the duties of police officials in matters relating to domestic violence. These directives must cover the following topics:

· procedures for the provision of police protection to persons who want to make application for a protection order at a time when the court is closed, including protection for any children or other dependents who are affected;

· procedures to ensure that the police respond promptly and give appropriate priority to every report of domestic violence, including reports that a protection order has been violated;

· procedures for interviewing victims of domestic violence and any witnesses in a manner which will ensure that they are able to speak freely;

· the information which the police must give to complainants, alleged perpetrators and family members about-

o assistance in obtaining medical treatment

o the availability of shelters or other appropriate services

o the availability of transport for treatment or to a shelter

o the rights and remedies available in terms of the law and how they work.

The Inspector-General of Police must submit annual reports to the Minister of Home Affairs Failure on these directives, and on the training which has been given to the police to assist them in carrying out their duties effectively in respect of domestic violence. The police are also required to keep detailed records of all domestic violence incidents.