RECOMMENDATIONS: THE MANAGEMENT OF DOMESTIC VIOLENCE CASES IN KHAYELITSHA (AND BEYOND) Prof Lillian Artz Director Gender, Health & Justice Research Unit UNIVERSITY OF CAPE TOWN 14 May 2014 Khayelitsha

Recommendations Law reform: Review of the DVA (reinforcing positive legal duties and ‘fault lines’ in the Act) Amendments to the National Instructions (investigations, case management) Systemic reforms: Provision of budget – prevention, intervention and support Documentation and analysis – clarity of process and systematic Compliance measures and oversight Re-visiting training methods (it is not just about “numbers”) Performance indicators and statistics (“more is better”) Station level reforms: Prioritisation of crimes against women & children – budgets, systems, people Monitoring of case disposition In-service training and supervision

Introduction It is evident that compliance with the DVA and the National Instructions is problematic – cited in numerous studies. By imposing positive legal duties on the SAPS through legislation and instructions, the state’s expectations of the quality of service to be delivered by the SAPS is made explicit However, this loses effect when: - There is a indifferent or weak management in place (oversight) - Case disposition is not monitored and reviewed regularly - The law allows for too much police discretion - Instructions are not reviewed, ‘practiced’ and enforced - Instructions appear to complicated for police to follow - The compliance emphasis is on “numbers” rather than service

Context: KCOI Phase 1 Testimonies Detective Swart (14 February 2014): Most common crimes are – street robberies, assault, domestic violence, housebreaking, theft of motor vehicles Colonel Reitz (13 February 2014): 51 members of his station have been trained during a 5 day domestic violence training satisfied that they are completing the forms correctly appointed a domestic violence co-ordinator to check the forms Col. J Marais Head of Detective Unit: Khayelitsha Police Station (19 February 2014): J88s are not completed although injuries are clear

What does this suggest? Domestic violence should be a priority crime There is something problematic with existing training if evidence is showing that: The number of people trained does not speak to the quality of training or ongoing supervision/oversight Occurrence books, Incident Forms SAP508(a) and DV Registers SAP508(b) are not complete or being completed properly There is a continued emphasis – broadly speaking – on physical violence (interpretation of “seriousness”) Cases are not being investigated, followed through or monitored There is little “protection” of complainants when emphasis on compliance focuses on “form filling” as compliance There are still high attrition rates (cases “falling out” of the system)

POSITIVE LEGISLATIVE DUTIES ON THE SAPS TO IMPLEMENT THE DOMESTIC VIOLENCE ACT: CONSIDERATIONS FOR LAW REFORM There are three primary functions: (a) register complaints; (b) provide information to complainants; or (c) follow up on these complaints. These are mandatory but allow discretion. For instance: S. 2(a): The NOTICE if it is reasonably possible to do so, [to] hand a notice containing information as prescribed to the complainant in the official language of the complainant's choice. It should say: The police must hand a notice to the complainant explaining his/her rights under the Act, must explain those rights and, if reasonably possible, to do so in the language of the complainant's choice.

POSITIVE LEGISLATIVE DUTIES ON THE SAPS TO IMPLEMENT THE DOMESTIC VIOLENCE ACT: CONSIDERATIONS FOR LAW REFORM Similarly: S 2(b): Explain rights and remedies if it is reasonably possible to do so, explain to the complainant the content of such notice in the prescribed manner, including the remedies at his or her disposal in terms of this Act and the right to lodge a criminal complaint, if applicable. What would prohibit this from being possible? No resources required and is critical to police-complainant trust Explaining the law and the legal system to complaints IS basic policing.

Other examples of where law can be tightened: S. 3: Arrest: The police, without warrant, may arrest a respondent at the scene of an incident of domestic violence if the police reasonably suspect the individual of having committed an offence containing an element of violence. Reasonable suspicion – defined as? Element of violence – defined as? Police discretion is also required in relation to arresting respondents for acts not prohibited or ordered within the protection order.

More examples S. 8(4)(b): If it appears to the member concerned that there are reasonable grounds to suspect that the complainant may suffer imminent harm as a result of the alleged breach of the protection order by the respondent, the member must forthwith arrest the respondent for allegedly committing the offence. S. 8(5) states that in considering whether or not the complainant may suffer imminent harm the member SAPS must take into account: a) the risk to the safety, health or wellbeing of the complainant; b) the seriousness of the conduct comprising an alleged breach of the protection order; and c) the length of time since the alleged breach occurred. Seriousness is not defined/emphasis on physical nature

National Instructions More prescriptive and definitive about SAPS duties. For example: Members must fully document their responses to every incident of domestic violence on a “Report of Domestic Violence Incident”- form (SAPS 508(a)) regardless of whether or not a criminal offence has been committed. A file with reference 39/4/2/3m must be opened every month and all the forms SAPS 508(a) which are completed during that month, must be filed in it. The month concerned must be recorded after the reference number, for example all the SAPS 508(a) forms which are completed during January 2000 must be filed with the reference 39/4/2/31(/ 2000).

Recommendations: NI Unfortunately the phrase “where reasonably possible to do so” has been abstracted from the substantive law and incorporated into this instruction. The Instructions still seem cumbersome to SAPS members. The National Instructions should therefore be accompanied by a short “compliance checklist” that ensures that: (a) every incident of domestic violence is recorded in the prescribed manner; (b) each complaint is fully investigated; (c) each complainant is provided with information about the legal remedies available under the Act; and that (d) each complainant is supported and protected as required by the law (s. 2[a] rendering assistance as required by circumstances)

GENERAL RECOMMENDATIONS Short and Medium Term Solutions

Training (Medium term) The Khayelitsha police must be (re)trained on: (a) the substantive law on domestic violence; (b) the National Instructions, regulations and forms; (c) the recording and documentation of domestic violence cases; (d) investigation skills with respect to domestic violence; (e) the service of protection orders; and (f) the treatment of vulnerable complainants.

EVIDENCE-BASED TRAINING: Particular attention needs to be paid to: Minimum standards of information that must be imparted to each complainant of domestic violence. Extra-judicial interventions when a child is affected by or at risk of domestic violence. Service of protection orders (personal/missing respondents/feedback). The filing and execution of suspended warrants of arrest. Proceeding with the investigation of cases where there is prima facie evidence of an offence, regardless of complainant withdrawal. After hours complainants (when the courts are closed/after hours applications to bail magistrates). When members of the SAPS are implicated in domestic violence cases/have a protection order issued against them: case management Being fully compliant with the duties imposed on the police by the DVA.

GENERAL: Crime Statistics At both a legislative and policy level, the SAPS should be required to record and report annually the number of domestic violence cases at station level, and that these numbers then be collated to shed light on statistics on a district, provincial and national level [Medium term]; There SAP508(a) and (b) were also designed for this purpose. Domestic violence should be considered a separate criminal offence [Medium term]; and In the meantime, all domestic violence (criminal) dockets should be clearly marked as ‘domestic violence’ somewhere on the docket [Short term].

GENERAL: Budget [Medium term] The “we cannot implement adequately because we have no resources” excuse by SAPS has lost traction after 15 years of implementation of the Act. Some duties require resources, others simply require knowledge, professionalism and commitment to service. Evidence of Appropriate Budgeting: Without the proper resources in place, effective and meaningful implementation of the DVA is virtually impossible. Victim protection and support is particularly implicated by lack of resources [Medium term]

SPECIFIC RECOMMENDATIONS

Service of protection orders Over 20% of DVA applicants reported the PO’s were never served on the respondents (Artz & Jethas, 2011). Attrition: one fifth not returning to court to finalise orders. There is currently some uncertainty about whether “personal service” or “no personal service” is required and what that means in practice. This is particularly problematic when the complainant herself is the only adult in the household at the time of service. Tighten up the law and instructions specifically regarding service of protection orders.

Firearms Control Act The Court is given the discretion to grant an order to seize a firearm from a respondent if the court is satisfied that the safety, health and wellbeing of the applicant is potentially at risk (S. 7). (1) Particular urgency to reinforce procedures in relation to dealing with complaints of domestic violence committed by SAPS members: removal of firearms [Short term] (2) Firearms Control Act must also be strictly applied in domestic violence cases, including laying ancillary charges relating to firearms and initiating section 102 FCA (declared unfit) inquiries where appropriate. (3) In light of compelling empirical evidence, which suggests that there are very real dangers to victims of abuse where the respondents have access to a firearm: afford better legal protections to victims even in instances where the case is withdrawn. [Long term]

Docket Management [Short term] Simple, low/no resource solutions: Criminal dockets: clearly marked as ‘domestic violence’. A copy of DVA Incident form should be put in criminal dockets. Previous history of domestic violence must detailed in docket. Strict compliance with Standing Orders on closing of dockets in relation to cases involving domestic violence Development of clear policies to address cases where:’ (a) complainants withdraw complaints of domestic violence, but where there is prima facie evidence that a criminal offence has occurred; and (b) complainants withdraw charges/complaints of domestic violence, but there is clear evidence that children are likely to be endangered.

Recording, reporting and documentation Proper documentation as required by section 12(3) of NI. Input and analysis of SAPS 508(a)’s – incidence and prevalence. Members must be given more detailed instructions about how (and why) to fill out the DV Incident Reports (SAPS 508a’s) and the DV Registers (SAPS 508b’s). Creating an evidence paper trail vs. “more paperwork” Receive training on how to optimally utilise these records. There could be multiple incident forms for one case, for instance. Revision of SAPS 508(a). For instance: it confuses current and past events; it assumes police are first point of contact; and it is drafted to denote complainant needs vs actual services provided.

ORIGINAL QUESTION:REPLACE WITH or ADD: Did the complainant need or request medical assistance? Add: Was medical assistance rendered? Yes/No Did you enquire from the complainant whether he/she wants to apply for a protection order? Add: Does the complainant want to apply? Yes/No Does the complainant have an existing protection order in place? Yes/No (If yes), did the complainant understand the application process? Replace with: Did you explain the application process to the complainant? Yes/No Did you enquire with the complainant whether this was his/her first report to the police …? Replace with: Is this the complainant’s first report to the police pertaining to domestic violence, where the respondent was involved? Yes/No Did you enquire from the complainant whether he or she wants to lay a criminal charge, if the conduct of the respondent constitutes a criminal offence? Add: Does the complainant want to lay a criminal charge? Yes/No If yes, what charges are being laid? _________

SAP 508(a) examples of additions: A section where the complainant signs the form in addition to the signature of the SAPS member. A section where it can be verified that the complainant has been informed of his/her rights under the DVA. A section denoting whether (i) the accused is in possession of a firearm or dangerous weapon; and (ii) whether the complainant would like that firearm removed. A section to indicate that the complainant is a person with a disability or a child in need of care and protection.

Finally, there is nothing here SAPS do not already know … There are both short term and medium term solutions that can be undertaken simultaneously SAPS has been both receptive and reluctant to engage experts in policy and practice reforms Ideas for reform are well received, but not actioned There is ample research evidence to demonstrate the systemic, legislative and in-service problems with the Act This evidence needs to be used and applied in policy reform Compliance measures need to move beyond the “numbers” and drill down into the review of monitoring case disposition – on a general and case-by-case basis Referral protocols need to be tightened up, systems driven and accountable Protection and intervention (“harm-reduction”) are key priorities Police work ought to be centred around these concepts