Conviction rate hides reality of broken system

For six-year-old Lesego*, fireworks will always be a reminder of the night she was abducted and raped.

In 2015, her parents went out and left her home alone. Lured outside by the sound of fireworks, she became mesmerised by the sky show in her yard. A man abducted and raped her, leaving her with a broken arm.

Seeking justice, her mother, who may not be named in order to protect her child, reported the incident to the police. But the case was dropped by the Kagiso Magistrate’s Court with no explanation.

Lesego is one of many rape survivors who have been failed by the justice system.

The numbers don’t tell the story

The latest Victims of Crime Survey conducted by Statistics SA shows that an estimated 50 800 people, mostly women, were the survivors of a sexual offence in 2016-17.

The Department of Justice’s latest annual report shows that 6 669 cases of sexual offence were finalised in courts during 201617. Of these, 4 780 resulted in guilty verdicts.

The department has celebrated this 72% conviction rate as its highest-recorded rate in the past five years.

But experts say the conviction rate is no cause for celebration.

Samantha Waterhouse, of the Women and Democracy Initiative, said the department’s figures obscured the reality of sexual violence in South Africa.

“They are hiding the fact that they are actually getting convictions in fewer and fewer cases every year. This is not because we have seen any decrease in the rate of sexual offences; it is because they are deciding not to prosecute more cases,” Waterhouse said.

Bronwyn Pithey, of the Women’s Legal Centre, said the “fallout rate” of cases before they went to trial was high and questions needed to be raised around why the reported matters were high but the number of cases finalised was low.

Shaheda Omar, of the Teddy Bear Clinic, an organisation that provides services to abused children, said there were many reasons fewer cases were being finalised.

“They include inefficient or inadequate investigations by police, bungled forensic investigations, witnesses incompetent to testify, recanting of disclosures and withdrawing of cases and a low probability of a conviction,” Omar said.

Pithey said more resources needed to be put into the training of police and prosecutors to deal with sex offence cases.

“The delays are phenomenal, there’s very little feedback and so survivors lose faith in the system. There are plenty of people who don’t trust the system, people feel like it’s not worth staying in the system. We’re in a serious crisis around sexual violence in South Africa, that’s no secret,” she said.

The department’s report includes matters stemming from the 55 operational Thuthuzela Care Centres across the country. The centres are specialised, one-stop facilities that operate in public hospitals in communities where incidences of rape are high.

They are also linked to sex offence courts and were established to help reduce secondary trauma for survivors, improve conviction rates and cut the time taken to finalise cases.

The report states that 32 239 matters were reported at the centres during the financial year. Of these, only 6 920 were referred to court for prosecution and only 2 334 resulted in a guilty verdict.

Prosecutors go for shock and awe

“Conviction rates are not a meaningful measure of success,” said gender rights activist and researcher Lisa Vetten.

“There is a lot of pressure on prosecutors to get convictions. Therefore they are pulling out of cases that require more time to prepare. These are often cases that involve children or the mentally disabled.”

Vetten said prosecutors often wanted to see severe injuries before they prosecuted a case. “In doing that, magistrates are not being challenged in understanding what real rape is.”

Waterhouse added that cases in which extreme violence has been used during an attack were often regarded as “slam dunk” cases by prosecutors. The more “tricky” cases involving adolescents or those raped by a stranger were harder to prosecute and thus more likely to fall out of the system.

NPA spokesman Luvuyo Mfaku pointed to the prosecuting authority’s annual reports and said it was “absolute rubbish” that prosecutors cherry-picked cases.

The Department of Justice did not respond to requests for comment.