Cape Town - As the reality of women's safety in South Africa continues to be questioned, Caroline Peters saw the need to seek alternative jail measures for women in conflict with the law.
After running a feeding scheme from her home in Bridgetown during the pandemic, Peters, who is the managing director of the Callas Foundation, noticed that women who came to seek refuge were mostly victims of gender-based violence (GBV) who turned to petty crimes as means of surviving. In that light, Peters launched an intervention programme to address the difficulties experienced by women in conflict with the law.
As someone with first-hand knowledge of the primary and secondary effects of GBV, Peters said she wants the project to shine the spotlight on issues that affect women survivors and secondary survivors of GBV.
“Women’s pathways to criminalisation need to be addressed considering experiences of GBV, women’s involvement in minor, non-violent offences, and the best interest of the child as a primary consideration at all stages of the criminal process when a primary caregiver is implicated,” said Peters.
Thea Illsley, who is a former legal academic who engages with female offenders, said that given the violence, which is deeply rooted in South Africa's social context, GBV is one of the factors that push women to resort to petty crimes.
“Global dialogues in the wake of the Bangkok rules indicate that certain aspects of the lived experiences of women offenders must be considered during sentencing. These aspects include their experiences as victims of GBV, as well as the fact that these same women are the primary caregivers for minor children and extended families.
“Through my interaction with the incarcerated women that I mentor, it has become clear that, regardless of how women end up in prison, in other words, whether they are there because they have been found guilty of committing petty crimes, which often takes the form of shoplifting, but also in cases that are regarded as more serious but that does not contain an element of violence, their experiences during incarceration usually draws them into a vicious cycle. We often see that they get caught up in a downward spiral of criminality, and they re-offend, as a result of which they end up back in incarceration.
“As a result, custodial sentences also punish minor children and the woman’s extended family. Hence, the role of GBV and the best interest of minor children should be primary considerations,” said Illsley.
From the judiciary point of view, acting Western Cape Regional Court president Michelle Adams mentioned that the facts available to a presiding officer about an alleged offender often lack an indication of the social context of a given matter. She emphasised that the information generated by this project would go a long way to eradicate preconceived ideas about offenders and to enable presiding officers to understand the various nuances that affect the position of female offenders.
Legal Aid SA provincial executive Nolitha Jali said that as a leader in the provision of legal advice and civil and criminal legal representation, especially protecting and defending the rights of women, Legal Aid SA is proud to be part of a project which is geared toward addressing any challenge which may improve and increase access to justice for female offenders and their communities.
“Legal Aid SA trusts that projects such as these can make a strong case against all forms of gender-based violence and is committed to upholding justice for both victims and the accused. Legal Aid SA also has complete confidence in the partners in this project, the work these partners have done in the field and the work done since the inception of this project,” said Jali.
Going forward, Peters added that she hopes prosecutors follow guidelines to help women who find them behind for only trying to break free from abuse.
“Going forward, there should be guidelines and rules that the prosecutors and the judiciary should apply when dealing with women in conflict with the law, in line with the Tokyo Rules and Bangkok Rules.
“The domestic provisions should specify explicitly the non-custodial approach that should be adopted once accused persons are placed on remand and awaiting finalisation of trial proceedings. These rules should emphasise the preference to not detain female offenders unless compelling circumstances are justifying the detention of women,” said Peters.