Research & Innovation 2015-16 - Page 44

Why so few reports of rape end in
conviction in South Africa
About 150 women report being raped to the police in South Africa daily.
Fewer than 30 of the cases will be prosecuted, and no more than 10 will result
in a conviction. This translates into an overall conviction rate of 4% to 8% of
reported cases. In this edited extract from her new book, Rape Unresolved:
policing sexual offences in South Africa, Dee Smythe explores why this is the
Attrition and discretion
For a range of reasons, attrition happens in the
criminal justice system, so that not all reported
cases are prosecuted and not all prosecuted cases
result in conviction.
While attrition is to be expected in any functional
criminal justice system, it occurs in an institutional
context that is shot through with discretion. One
scholar has gone so far as to suggest that: “… what
we call the criminal justice ‘system’ is nothing more
than the sum total of a series of discretionary
decisions by innumerable officials.”
The actions of criminal justice actors and the decisions
they make are a crucial part of the attrition story.
The police decide whether to open a case, whether they
will investigate it, and how much effort they will put into
accumulating evidence and finding the perpetrator. It is
their choice (whether they recognise it as such or not)
to encourage a complainant in her efforts to bring the
perpetrator to justice or to acquiesce in her withdrawal
from the justice system. The police decide whether a
case should be referred to the prosecution.
Prosecutors decide how to frame a particular set
of facts as an offence – shaping a fit between
what they can prove happened, and a set of
elements that defines the conduct as criminal.
They decide whether a case has sufficient merit to
be taken to court, what evidence will be brought,
who will be heard.
And ultimately, a judge decides whether the state
will provide redress.
Throughout this process, manifested at key decision
points, cases leave the criminal justice system. In
this way, criminal justice actors have the power to
select those whom the state will protect, who will
be put on trial and who will obtain justice.
Stereotypes of what constitutes rape
Scholars studying attrition in rape cases generally
explain the low rate of reporting and conviction in
these cases by pointing to the stereotypical views
held by criminal justice actors about what constitutes
a sexual offence, and who can validly claim to have
been victimised.
They argue that these beliefs have become scripted
into criminal justice practice, with the result that the
cases filtered out of the system are not those that are
intrinsically weak, but rather those that offend the
normative assumptions of decisionmakers.
There is empirical support for this contention. Studies
conducted over the last 40 years have shown that
the closer the fit between the facts of the rape
reported and the decisionmaker’s conception of
what constitutes ‘rape’ (as opposed to ‘bad’ or even
‘normal’ sex), the more likely it is that the case will
proceed successfully through the system.
On this account, ‘violent’ rapes committed by
predatory ‘strangers’ against ‘respectable’ (for which
read white, middle-class, married or virginal) women,
who are injured while resisting, have become the
paradigm cases against which all rape reports are
measured in the criminal justice system.

Rape Unresolved: policing sexual offences in South Africa Rape Unresolved: policing sexual offences in South Africareport being raped

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