A solution to tackling high rates of domestic violence recently put forward by the Department of Justice in its proposed amendments to the Domestic Violence Act (DVA) is to call for mandatory reporting of domestic violence cases. Failure to do so, however, may lead to criminal charges. This article interrogates this new proposed provision, and offers a different perspective as to what ought to be focused on instead. This piece is based on a joint submission to Parliament on this matter by the author in collaboration with Callas Foundation; the Gender, Health and Justice Research Unit; Lawyers for Human Rights; Mosaic; the National Shelter Movement; the Saartjie Baartman Centre for Women and Children and the Heinrich Böll Foundation.
The amendments to the Domestic Violence Act represent a further attempt by the law to undo the violence it has sanctioned historically. But against, and in contrast to the efforts of the 1990s, some of these current proposals seek to reassert a restricted vision of women’s autonomy.
First published in Daily Maverick 168
Domestic violence puzzles people. Why does one person in a relationship hit, strangle, kick, rape or otherwise abuse another? Why does the person being hit, strangled, kicked, raped or otherwise abused remain in a situation where they continue to be hurt? And even more mysteriously, why does the person being hit, strangled, kicked, raped or otherwise abused, still love this dangerous other? And what should those who know about this violent and abusive relationship do about the situation?
The solution to these dilemmas, proposed by the Department of Justice and Correctional Services in its amendments to the 1998 Domestic Violence Act, is this: that everybody everywhere reports any knowledge of domestic violence to the police or a social worker – or face criminal charges.
Specifically, the provision requires functionaries (such as health workers, educators and social workers) and “adult persons” to fill out a form reporting that they know a child, or person with disability, or older person, or adult in a domestic relationship, has had an act of domestic violence committed against them. The form should also be completed when a reasonable suspicion exists that a child, or person with disability, or older person has had such an act committed against them.
Mandatory reporting will disproportionately affect women because they represent the majority of domestic violence complainants. Further, law that has historically been profoundly gendered in intent and effect is not magically made gender neutral by reference to “persons”. Indeed, use of “persons” functions to conceal how profoundly gendered the law will continue to be even if it does capture some men in its net.
First, a quick detour through legal history to show why the law is fully complicit with the abuse women have experienced in their relationships.
Law and the 2,000-year journey to women’s full legal capacity and status
South African law has been shaped by the principles and practice of Roman-Dutch law, whose foundations were laid more than 2,000 years ago. Central to these early roots was the patria potestas, the head of the Roman family who exercised complete control over his wife, children, agnatic descendants, slaves and freedmen. In its earliest formulation this power even included the right to punish by death.
While this authority was modified over time, especially in relation to sons, the hierarchical structure it instituted between husbands and wives remained. Up until the late 1980s, for example, the existence of the marital power meant that women classified as white, coloured and Indian by the South African state still required their husbands’ permission for something as trivial as opening a clothing store account.
Colonisation, and its marriage of two patriarchies, placed African women in a particularly invidious position. The Natal Code of 1878, the first attempt to codify the main elements of customary law, subjugated women to men, children to their father or the head of the family, and entrenched the rule of primogeniture. The patchwork of colonial codes was later consolidated in one national law, the 1927 Black Administration Act, which made African women perpetual minors, regardless of their age or marital status, and denied them any legal parental rights concerning their children.
The last kick of this legal regime came in 1993, when a daring judge convicted one Mr Ncwanya for the rape of his wife – the first such conviction ever. However, the conviction was overturned on appeal on the basis that marriage was a hierarchical relationship in terms of Roman-Dutch law which subjected wives entirely to the guardianship of their husbands, who had authority both over their wives’ property, as well as their persons. This dominion included marital privileges (otherwise known as sex) and an entitlement to meet any attempt to withhold those privileges with force or violent conduct.
But the decision was out of time. In 1993 the Prevention of Family Violence Act was introduced. This removed husbands’ immunity from prosecution for the rape of their wives, as well as the last vestiges of the marital power for white, Indian and coloured women. In 1998, with the promulgation of the Recognition of Customary Marriages Act, African women ceased being legal minors and were granted equal status and capacity in marriage. A new Domestic Violence Act followed in 1998.
Why mandatory reporting is a bad idea
We can remove the visible scaffolds of law that sanctioned violence, reduced women to children and denied them the right to make decisions about their lives – but still allow the ghostly imprints of its thinking to haunt us. Indeed, by making it mandatory to report on women in abusive relationships, we summon up its spirit once more by giving others the legal power to override, ignore and undermine women’s decisions. More, the provision implies that women are only allowed to make decisions “we” like and understand and that their assessments of their circumstances, as well as their choices, are not to be trusted; others understand their situations and options better than they do.
In effect, this shifts women from private patriarchy to public paternalism, meaning that some of us like policy that treats others as subordinates or dependants whose freedoms and responsibilities can be limited in the name of their supposed best interests.
If recent engagements with some officials and parliamentarians are anything to go by, part of the appeal of these provisions lies in the way they take decisions out of the hands of complainants who are apparently too psychologically broken to think for themselves. This is well-meaning but stereotypes women in abusive relationships and resurrects a set of debates last seen in the early 1990s, when an attempt was made to introduce the category of “self-defeating personality disorder” (or “masochistic personality disorder”) into the Diagnostic and Statistical Manual of Mental Disorders – the handbook of psychological disorders.
Key features of this proposed disorder were that its sufferers be drawn to situations or relationships in which they will suffer, and that they prevent others from helping them. The disorder was ultimately not recognised precisely because it implied that women sought out abusive relationships on the basis of their pathological need to suffer.
And yet here we are, about 30 years later, seriously arguing that women’s failure to report their partners – and worse, their willingness to continue loving them – signals a mental instability so great that their autonomy should be denied them. What should actually be bothering us is how easily some of us want to take on a controlling role in women’s lives – just as their abusive partners do.
It is especially inappropriate to introduce such power dynamics into the context of family relationships and friendships, which ought to be primary sources of support for women. Women should feel they can confide in, trust and rely on friends and family – not fear being exposed by them or having their wishes disrespected. Further, the likelihood of being criminally charged for failing to report domestic violence may well discourage others from providing assistance to the complainant. And its potential for endangering the complainant cannot be underestimated.
Mandatory reporting also undermines the principle of confidentiality so central to counselling relationships and attacks good, empowering therapeutic practice. Globally, it is not considered good practice. In fact, the World Health Organisation (WHO) strongly discourages its adoption as policy, not least because the evidence supporting its application is poor.
The mandatory reporting provision also appears to serve no practical purpose. A functionary fills in a form, as does a concerned adult – and that is it. No alternative housing, job or other form of financial support is offered – let alone any hint of a 24-hour police guard or contract with a security company. And no directive on the follow-up process to be undertaken by the recipients of such reports is offered either.
In other words, no real attempt is being made to address the constraints on women’s decision-making. This makes mandatory reporting a fig leaf – a hollow gesture disguised as help.
The alternatives to mandatory reporting, or responses that affirm, inform and support decision-making
To reject mandatory reporting is not to be opposed to intervening in domestic violence. Rather, it is to be against a particular kind of intervention, for it is entirely possible to address domestic violence in ways that affirm, inform, support and enhance women’s decision-making – and even encourage them to report. Indeed, the seeds of such an approach are already contained in the same amendments. These lie in the duties to inform women of the various options available to them, along with the variety of services, from healthcare and counselling services, to shelters. These duties both recognise that domestic violence is a social problem, rather than a purely law and policing problem, and open the way to crafting a wider, more innovative and integrated set of responses to the problem.
Take the health sector, for example, whose hands-off approach to domestic violence has persisted for far too long.
It is not unusual to find the same woman appearing in casualty, three or four times a year, requiring treatment for her injuries. While this should set off alarm bells, it doesn’t because there is no obligation on health workers to ask a question as simple as “How are things at home?” and to follow this up with referral to services. Instead, the woman is merely given some painkillers, stitched up if necessary, and then sent right back home. Sensitive questioning about such suspicious circumstances, asked while a solicitous partner is not hovering persistently, conveys the message that domestic violence is not invisible, can be spoken of, and points to where help can be obtained.
This sort of approach also respects the fact that taking action against domestic violence is a process; losing hope and giving up on a relationship happen by degrees, rather than all at once with a bang – especially when children are involved. When this point arrives, options must be in place so that women are not trapped by the absence of alternative accommodation, or inadequate financial resources, or paralysing fear of their partners.
The law is especially important to addressing this fear – and yet no sustained attempt has been made to understand why it fails, especially for women in possession of protection orders.
In 2009, the only year for which information is available, approximately 5% of the women (or one in 20) killed by their partners had a protection order at the time. Had they died in hospital, perhaps during an operation, their deaths would have been reviewed, not least with the aim of learning how to improve future patients’ care. The same ethic ought to infuse the legal system’s response to domestic violence. For when complainants have actively sought the law’s protection and died nonetheless, it is imperative that we understand why the protection order failed in its objective. Mandatory review of such deaths would immeasurably strengthen the practice of risk assessment and potentially protect complainants in future.
The amendments to the Domestic Violence Act represent a further attempt by the law to undo the violence it has sanctioned historically. But against, and in contrast to the efforts of the 1990s, some of these current proposals seek to reassert a restricted vision of women’s autonomy. Now that is the real puzzle of domestic violence.
This article was originally published on The Daily Maverick