Abuse takes many forms – attorney
Domestic violence against women and children is prevalent in our own community which is why awareness campaigns are critical to call upon all of us to make a difference.
Magdaleen de Klerk DDKK Attorneys Incorporated, Polokwane
Domestic violence, in the words of Constitutional Court Judge, Albie Sachs, is often hidden from view and devastates its victims physically, emotionally, spiritually and financially.
It threatens the stability of the family and negatively impacts on everyone, especially the children who learn from it that violence is an acceptable way to cope with stress or problems.
For purposes of this article I want to concentrate on sexual abuse within the family context.
Because it is often concealed and due to the dynamics of family life it frequently goes unpunished. Concern for their children and the lack of alternative means of economic support are only some of the stumbling blocks. Ignorance of the law is another contributing factor. That is why campaigns like these are critically important.
Section 10 of the Constitution provides ‘Everyone has inherent dignity and the right to have their dignity respected and protected’.
Section 12 of the Constitution further provides ‘Everyone has the right to be free from all forms of violence’. Our courts have sent out a clear message that they are determined to protect the dignity and freedom of all women and have showed no mercy to those who seek to invade those rights.
The Domestic Violence Act was enacted to give victims of domestic violence a legal recourse that will ensure their protection.
What most women, and men for that matter, do not know is that a husband can be found guilty of raping his wife.
In a recent case in the High Court in Cape Town, a man was convicted on two counts of rape in respect of the woman with whom he was involved in a romantic relationship.
During sentencing proceedings the court held that when rape is committed in the context of an abusive relationship, this should be regarded as an aggravating factor in the consideration of an appropriate sentence.
It was further held that ‘this is a situation in which many women in this country find themselves, and that is why spousal rape or rape between partners are seldom, if ever, reported to the police’.
It further bears mention that in terms of Section 57(1) of the Sexual Offences Act, a child under the age of 12 years is incapable of consenting to a sexual act.
In a judgment delivered by the Supreme Court of Appeal in Bloemfontein on 2 June 2017, an effective sentence of five years imprisonment imposed by the High Court in Pretoria on a man for the rape of his 10-year-old stepdaughter, was set aside.
The background to which this change relates is: The accused and the 10-year-old victim’s mother were married.
All of the offences were committed at the family home on various occasions when the victim’s mother was not at home.
The victim’s mother stumbled upon photographic images of the accused engaged in sexual acts with the victim while she was scrolling through the family computer.
With regard to the sentence, the judges in the High Court in Pretoria said there was no indication of distress or trauma about the incidents on the part of the victim and found same to be a mitigating factor in relation to sentence.
Dissatisfied with the sentence imposed, the state (the Director of Public Prosecution) appealed against it.
In setting aside the sentence, the Supreme Court of Appeal held that one must keep uppermost in mind the accused’s un-fatherly conduct in sexually molesting his stepdaughter.
Domestic violence against women and children is prevalent in our own community which is why awareness campaigns like these are critical to call upon all of us to make a difference.
