Ghanotakis Et Al Agenda 74 Stop Prison Rape in South Africa 2007
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Stop prison rape in South Africa Elena Ghanotakis, Marianne Bruins, Dean Peacock, Jean Redpath, and Raoul Swart abstract South Africa has some of the highest rates of rape in the world. Activists have drawn attention to the devastating effect this has on women and children. However, insufficient attention has been paid to rape - predominantly of men - in prisons. This article aims to educate gender activists about the phenomenon of prison rape in the context of South Africa. It hopes to make the case that prison rape reflects and reinforces rape culture in South Africa (and elsewhere). In so doing, it aims to galvanise action to prevent prison rape and all forms of rape. keywords prison rape, human rights, masculinity, health, violence against women ‘No one truly knows a nation until one has been in prisons is often joked about as though it is a inside its jails. A nation should not be judged predictable part of the sentence, the spectre of by how it treats its highest citizens but its which might serve as a useful deterrent against lowest ones.’ Nelson Mandela, A Long Walk to criminal behaviour. Freedom. While some anti-rape activists have begun to South Africa has some of the highest rates meet the needs of prison rape survivors, in general of rape in the world. Activists have appropriately organisations working to end sexual violence drawn attention to the devastating effect this has in South Africa have focused on responding to on women and children and have made explicit endemic violence against women and children. the links between sexual violence, a culture of We argue here that there are a number of male entitlement to women’s bodies and high reasons why gender, HIV/AIDS and human rights rates of HIV infection and the limited effect of activists should pay attention to prison rape. Firstly, HIV prevention. However, insufficient sustained the continued existence of prison rape constitutes attention has been paid to rape – predominantly of a gross human rights violation. Secondly, prison men – in prisons. rape represents a threat to our attempts to build Rape in prisons elicits little concern in most and entrench a human rights culture. Thirdly, societies – South Africa included. Instead, rape the phenomenon of prison rape provides useful 68 AGENDA 74 2007 article insights into gender theory and constructions of masculinity. Fourth, prison rape contributes to a range of public health problems. Fifth, prison rape contributes to violence against women. This article aims to educate gender activists about the phenomenon of prison rape in the context of South Africa. We hope to make the case that prison rape reflects and reinforces rape culture in South Africa (and elsewhere). In so doing, we aim to galvanise action to prevent prison rape and all forms of rape. Research methods The authors used four forms of data collection. Firstly, we conducted a desk review of reports and official documents published on prison conditions in South Africa and a broad review of literature pertaining to sexual violence in South African ARTWORKS prisons. Secondly, we reviewed interviews with inmates, Department of Correctional Services (DCS) officials, health officials and independent Prison rape is a gross violation of human rights. prison visitors conducted by Elena Ghanotakis in 2004 and 2005 to understand their perspectives on rape in prisons. All interviewees signed consent forms in which they released the information in prison impinges on these rights. they shared to be used for purposes of raising The South African Constitution of 1996 awareness. Thirdly, using a snowball methodology, includes a modern set of rights in its chapter 2, we interviewed researchers and activists working the Bill of Rights which states that: in prisons or on prison reform in South Africa. Consent forms and information about the study ‘Everyone who is detained, including every were handed out and signed by interviewees. sentenced prisoner, has the right to conditions of detention that are consistent with human Background dignity, including at least exercise and the Prisoners form one of society’s most marginalised provision, at state expense, of adequate groups. Perhaps contrary to common belief, accommodation, nutrition, reading material prisoners retain all rights except those curtailed to and medical treatment.’ (Constitution, 2006). implement the imposed sentence. South African jurisprudence has supported this view on numerous It also states that ‘Everyone has the right to bodily occasions (Berg, 2007). The state thus has a duty to and psychological integrity’, which includes the care for prisoners in a manner that does not violate right to security in and control over their body. their rights. The practice and threat of being raped In addition to the South African Constitution, a Stop prison rape in South Africa 69 article range of international conventions ratified by South As a result, conditions in many prisons Africa protect the rights of prisoners, including: the frequently fail to meet the minimum standards Convention against Torture (CAT, ratified by South established in national and international legislation Africa in 1998); the International Covenant on Civil and declarations and represent serious breaches of and Political Rights (ICCPR, ratified in 1998); the rights enshrined in the South African Constitution. African Charter on Human and Peoples Rights (the The Report of the Office of the Inspecting Judge Banjul Charter, ratified in 1996) and, for prisoners provides a clear picture of the conditions faced by under 18, the Convention on the Rights of the some inmates: ‘Examples in recent reports are: Child (ratified in 1995). medium and maximum prisoners being mixed; 44 Despite clear constitutional requirements that beds for 100 inmates; about 74 inmates in cells the state has a duty to protect inmates from for 16…; sharing of beds’ (Judicial Inspectorate violence and provide humane prisons conditions of Prisons 2006). in South African prisons over the last decade have worsened largely due to chronic overcrowding. These conditions and a litany of scandals emanating from Correctional Services in the late 1990s and early 2000s drew significant public South Africa has the largest number of inmates of any African nation and the ninth largest prison population in the world attention to the dismal state of South Africa’s prisons. To address this, the South African Government appointed the Jali Commission of Inquiry in 20011 to investigate prison conditions and to issue recommendations for improving In line with trends in countries with punitive the state of South Africa’s prisons. As part of its sentencing regimes such as the United States, the mandate, the Jali Commission was tasked with post-1994 period saw a rapid increase in South examining sexual violence in South African prisons Africa’s prison population, particularly amongst the and recommending strategies to prevent it2. sentenced population. A large proportion (currently During the Jali Commission the South African 30 percent) of ‘awaiting trial’ or ‘unsentenced’ public heard many chilling stories of pervasive inmates remains cause for concern. In 1995, prison rape – including stories of some inmates South African prisons held 111 090 prisoners. deliberately raping others to infect them with Within nine years that number increased to HIV – a practice reportedly known as a ‘slow 186 468 giving South Africa the dubious distinction puncture’ (Reuters, 2001). of having the largest number of inmates of Jali Commission presents evidence that rape any African nation and the ninth largest prison is rampant in prison, in which the Commission population in the world (Sloth-Nielsen, 2007). expresses its concern: Chapter 8 of the While the total prison population is now somewhat reduced to 159 713 (April 2007), largely ‘… if the Department [of Correctional Services] due to special remissions of sentence, this still keeps on ignoring the fact that sexual abuse represents 41 percent more prisoners than the actual is rife in our Prisons and that there is an capacity of South African prisons (114 549). This extreme likelihood that prisoners who are growth in the prison population has led to chronic exposed to violent unprotected sex will in all overcrowding, which is exacerbated by varying levels likelihood contract AIDS, then it is effectively, of overcrowding among prisons – some prisons are by omission, imposing a death sentence on vastly more overcrowded than others – the worst are vulnerable prisoners (Jali Commission, Chapter occupied in excess of triple capacity. 8, page 43). 70 AGENDA 74 2007 Sexual violence is rampant in received since the Jali Commission hearings, this South African prisons article examines the period 2001 to the present Testimonies of inmates in South African prisons and attempts to identify what has been done suggest that sexual violence continues to be by government and civil society organisations to rampant: article Given the limited public attention prison rape has address prison rape since the Jali Commission was appointed. ‘There is a lot of rape going on in prison’ Findings A South African prison warden describes how The Jali Commission was appointed in August quickly someone can get raped once they enter 2001 to investigate and report on corruption, the prison system: maladministration, violence and intimidation by the Department of Correctional Services and ‘There is one communal cell, which is a court handed in its final report on December 2005. It cell. Everybody going to court tomorrow will was presented to the public in November 2006. sleep in that cell. And during that sleepover, This substantial report devotes a chapter to Sexual you know, “things” happen there. So he arrives Violence and seems to set out an honest and there in court as the perpetrator in any case, but well-informed description of the pervasiveness he arrives there being the victim of male rape in of the problem in South Africa’s prisons. The prison last night. So he has been branded as the Commission does not hide its deep concerns perpetrator coming to prison, but he can arrive at when it speaks about: court or at home as the victim because of what happened to him in prison.’ ‘the horrific scourge of sexual violence that plagues our Prisons where appalling abuses and acts of sexual perversion are perpetrated on helpless and unprotected prisoners’ (Jali He has been branded as the perpetrator coming to prison, but he can arrive at court or at home as the victim Commission, 2005). The Jali Commission has also addressed the An inmate discusses what happens when people existence of gangs in prisons and the ongoing first come to prison and how this experience can overcrowding in South Africa’s prison system. change a person’s life: These phenomena clearly perpetuate and exacerbate the problem of rape in prison. The ‘A person comes to prison, he doesn’t have report generally describes a culture of lawlessness a clue really what prison is about. He’s being in the prisons. The effect of this on the prevalence exposed to people that are in prison for rape, of rape is obvious. murder, you name it. At the end of the day The DCS staff and inmates interviewed he comes out with a court sentence and with for this article corroborated the findings of the the new system in place, the court sentences Jali Commission and were critical of the you to seven days, where after seven days, Department’s attempts to address the problem you have to go to court arraignment. What of prison rape. From the interviews the following happens in those seven days, it changes a description of the reality in the prisons was person’s life. Prisoners get in the court cells. deducted: There is a possibility to be raped. And he Stop prison rape in South Africa 71 article comes to prison and in those seven days, he is do it because you are afraid something will exposed to so many criminal activities. When happen... you will get hurt or you can get he gets out, he probably doesn’t have a job killed. So, if someone wants to abuse you anymore. So there’s only one way out. He’s sexually, you must just go with it... no matter going to put the things he learned to test now. if you doesn’t agree or what... they will do it And that person gets out and rapes innocent with force upon you.’ people, you know babies, because for him it’s As a result, few victims do report prison rape, normal, he’s been raped in prison.’ which obstructs the collection of evidence on Intimidation and violence surrounding the extent of prison rape. The recent former sexual violence persist Judicial Inspectorate of Prisons provided insight Testimonies of inmates in South African prisons into issues surrounding the reporting of prison suggest that intimidation and violence continue to rape cases: be associated with rape. One key informant working in the prison ‘The criminal trials resulting from prison rape, alluded to the intimidation that occurs in the is very little from my own experience. The prisons: few that you have is negligible – that means they barely go to trial. What we often find at ‘The cases are withdrawn because of the inspectorate is that the person would have intimidation by the gangs. lodged a complaint and then withdraw the Most of the They complaint or come forward and say “We’ve are sometimes committed individually – an solved it”. But we also know that it being individual perpetrator, sometimes two or linked to gangster activity in prisons, there is a three together, but there is always threat and lot of pressure on that victim coming forward intimidation and often beating that goes on and going through with the charges.’ rapes are committed by the gangs. around that rape. People don’t just give in straight away. This is a very unpleasant thing. Although very few statistics are available on Nobody wants to be raped. And they put up prison rape and reporting to authorities, a study often quite a fight, but they are intimidated or done by the Centre for the Study of Violence and they are threatened before the rape and then Reconciliation in Boksburg Youth Centre revealed of course after the rape. They are not allowed that 58 percent of recent assaults were not to tell because they will be killed or they are reported by the victim (Gear & Isserov, 2006). not allowed to tell because this will happen. A doctor at a trauma hospital in the Western They have already been beaten, they have Cape gave an account of a rape survivor he already been raped. Many of them then decide treated, which provides insight into the challenges it is not worth telling.’ in collecting proper evidence of rape in the prison context: ‘If the gangs find out (that you report rape) they will stand up they will stab you with ‘It was after he was released and he spent knives or they will kill you if they get chance time at hospital for psychiatric observation that to kill you.’ he actually spoke about it and the caretakers of the hospital brought him where I saw ‘If they just say you must do that, you must 72 AGENDA 74 2007 the patient. Now the fact that the rape had article happened for a few weeks in prison and over two weeks ago, there was nothing I could do to collect medical evidence other than noting that his perineum was bruised and had scars of violation.’ Male rape is not recognised as such in South Africa and there is no data on prison rape An attorney for the National Prosecuting Authority explained the problem that male rape is not recognised as such in South Africa: ‘I must admit that I have only ever dealt with the male on male rapes (in prison), which as you know in the law at this stage is not really recognised as such yet.’ Key informants indicated that there are no official statistics on rape, and that there are no specific ARTWORKS programmes that address rape in prison. As one informant said: ‘We sit still in a journey, while anything happens.’ One informant calculated a sexual assault rate of ‘at least 50 percent’. Male rape is not recognised in South Africa. The Sexual Offences Bill, which extends the definition of rape, could have a positive effect on the perception of male rape and the collection of data. people. So that is the thing that is concerning There are major staffing issues, including by the wardens also that is working on the shortages and corruption, which exacerbate sex and what to do they don’t know because the situation in relation to prison rape every day they come with new inmates, every day there is new inmates, so they must ‘We are supposed to have a clinical psychologist accommodate the people.’ on the rotation. I haven’t even met that person so I don’t know if that person sees any of my As determinants of overcrowding key informants prisoners.’ brought up the lack of places of safety for young offenders, forcing them into the prisons, where An inmate describes overcrowding and staff they are a vulnerable group when it comes to shortages: sexual violence. Informants are especially worried about the combination of the overcrowded cells ’There’s almost no place for the people and the early lockup of inmates (after which because we are sleeping in rooms that they the wardens are literally invisible to inmates accommodated for 24 people and we are 40-50 and vice versa). Even though constructive Stop prison rape in South Africa 73 article programmes have been offered throughout the professionals) with 3 927 posts vacant – and morning and early afternoon, the early lockup in only 30 809 of 33 074 correctional official posts the overcrowded cells means that ‘everything are filled, so that the national average ratio of constructive that has been done during the day correctional officials to prisoners is in the region can be undone after that’. of almost 6:1, and much higher in overcrowded One key informant described how prison facilities (Department of Correctional Services, staff facilitate an environment for sexual abuse 2007). Shift work would also imply an even higher to flourish: ratio in practice. Inadequate training is indeed likely to exacerbate the impact of staff shortages. ’They (wardens) are supposed to control things in the prison have themselves become Insufficient healthcare in prisons something of a gang because they collude Our key informants confirm the lack of professional with the gangs, they allow things to happen. caregivers. In one prison for instance one would They don’t necessarily intervene when things find ‘one psychologist for 7 000 inmates’. Indeed, go wrong. They may very well look one way data from the DCS shows a high vacancy rate when something happens.’ among professional staff, with 2 203 posts filled but 1 119 vacant (DCS, 2007). A health care worker in a South African prison The lack of health care workers means that identifies the problem of sexual violence and staff screening upon admission is not done (properly) shortages: and sexually transmitted diseases such as HIV are brought into the prison, having a devastating effect ‘There is a lot of abuse going on in the prison, when inmates are subjected to (forced) sexual which is not necessarily sexual, but it is activity or even consensual sexual activity. On the certainly leading to breakdown of health. And absence of an adequate system of psychological where it is sexual, it leads to very serious counseling an informant says: ‘No one should go consequences for the health of the prisoners. through that without the proper counseling and They are very demoralised by that act and healthcare.’ working with them it is difficult because, as I said, there isn’t much back-up service.’ The Sexual Offences Bill does not seek to provide victims of rape with psychosocial counseling at state expense3. However, the bill Sexually transmitted diseases such as HIV are brought into the prison, having a devastating effect when inmates are subjected to (forced) sexual activity in its current form does seek to provide for postexposure prophylaxis where the victim reports the rape within 72 hours. One of our key informants pointed out that the Lack of Training DCS has quite a substantial budget and claimed Our interviews indicate a substantial need for that that there is ‘one DCS official for every four training on rape and HIV transmission, amongst inmates’. This informant did not see the problem other issues. One DCS healthcare worker in South in staff shortages but in inadequate training and Africa offered what this person called a ‘maverick’ the fact that people ‘simply do not do their job’. interpretation of the risk of HIV transmission: Data from the DCS however shows that as at January 10, 2006, the DCS had 35 143 ‘Sexual activity is not the same as rape. Rape staff positions filled (including management and is traumatic and against the will of a person 74 AGENDA 74 2007 it they will use force on you to achieve the going on here in relation to the trauma. With things that they want to do to you to abuse sodomy there is very little injury that occurs you like they use you like you are a lady.’ with the sodomy cases that we see in prison. But there is very little open wound injury in A key informant who has counseled prison rape rape within the prison. So I think that might be survivors revealed how inmates frame their rape an extra reason why. And the third reason is experiences: article concerned. I think there is something else probably because the anal passage itself is not only large in proportion to the ejaculation but ‘I will say things like, “When you’re raped, you it is also covered with bacteria, which would feel as if you have been turned into a woman. make it hard for the virus to get through to the Is that what you feel?” And then I try and get internal organs, the blood system.’ them to respond. Or “you will feel as if you have been turned from a man into a woman?” This view, held by a DCS health care worker, Cause this is the way they complain about it is of great concern, since (unprotected) anal and at the same time this is the intention of the intercourse has been identified as carrying the rapist; to turn them into a passive sex slave.’ highest probability of transmission of all types of sexually transmitted diseases (World Bank, 1997). Lack of rehabilitation in prison An inmate describes the lack of rehabilitation Gendered nature of rape in prison structures in prison: In their description of the circumstances in which rapes occur, inmates and key informants pointed ‘The court sentenced me with the objective out the gendered construct of perpetrators and to be rehabilitated in prison. victims and revealed how rape in prison reflects don’t rehabilitate anyone in prison, I had to and reinforces men’s understanding of sex as an rehabilitate myself. Where do the wardens expression of male dominance and men’s sense come from? Are there structures in place for of entitlement to women’s bodies or to bodies him to change in order to change me? It’s positioned as female. not there. So at the end of the day we’ve But they got rape, HIV, crime… these are some of the ‘It didn’t feel better the second time, it was things that exist in this country. Cause why? still sore. They male raped me. I think that Because nobody gets involved. That’s what they think I am a woman. it is like.’ But I’m not a woman, I’m a man. Because I was sodomised, sodomise and get rid of my anger.’ Rape in prison reflects and reinforces men’s understanding of sex as an expression of male dominance ‘If you come inside prison and you don’t know A warden speaks about the essential need for prison, and they will get you and call you at rehabilitation: I’m more streetwise now. So I sodomise. I enjoy sodomising because it is now time to night, maybe you sleep and they wake you up and call you and they will talk to you and ‘If you punish and keep on doing that with the talk that opens is always to abuse you, an overpopulated prison, send them back have sex with you, and if you don’t agree with to society, what is going back to society? Stop prison rape in South Africa 75 article Monsters. We are making monsters and the innocent people… because for him it’s normal; same people that are here today in prison are he has been raped in prison. And for him it tomorrow what we are putting out on the feels like, he’s retaining his manhood.’ streets. We need to correct. We need to Another inmate talks about the cycle of abuse restore.’ and how sexual violence in prison carries into the communities: Implications for the community Evidence provided by key informants shows that rape in prison might very well be the beginning ‘Since I came here to prison, things happen; of a spiral of sexual violence that continues in the they infect us and leads you to the point community upon release; it has been stressed where, for a man to be abused, it is like your that this is particularly true of young prisoners manhood is taken away from you. At the end (Parliamentary Portfolio Committee on Sexual of the day, you feel justified by raping the next Violence, 2005). person, whether it is a male or female. It feels A psychologist who has developed and implemented sex offender like retaining your manhood.’ rehabilitation programmes at correctional facilities in South Africa Discussion states that: Interviews with inmates and a host of reports suggest that rape is pervasive in South African ‘When men are victimised and traumatised, prisons. However, the response from the DCS they carry on victimising others at different to date has been wholly inadequate. No official levels and in different ways. If a man gets statistics on rape within prison are available. No brutalised in prison, he comes out and his rape-specific prevention programmes are currently first target is his family, his wife and children. offered at prisons, and psycho-social support Unfortunately, sexual violence is a gift that and medical treatment is chronically unavailable keeps on giving and the family is often the first – reflecting dire shortages of health workers, target upon release.’ especially critically needed social workers and psychologists. The response from the state ‘Get a person in prison and he is raped in prison. That person goes out and rapes innocent people… because for him it’s normal' (and, sadly, from most civil society organisations) suggests that preventing prison rape is not a priority at all. While our still new democratic government is faced with many pressing social problems, One inmate describes how he rapes to pay back we argue that prison rape should be addressed for what has happened to him: urgently for at least the following reasons: ‘I can say it makes me feel like paying back Prison rape represents a gross human rights for what happened to me, it even makes me violation and a dereliction of the State’s feel good inside. I want them to feel what I constitutional duty to protect felt, at that time when it happened to me.’ Perhaps contrary to common belief, prisoners retain all rights except those which have to be 76 ‘Get a person in prison and he is raped limited to implement the imposed sentence. in prison. That person goes out and rapes South Africa’s Constitution guarantees rights to AGENDA 74 2007 Rob Morrell, editor of two anthologies on men in or been accused of crime and are incarcerated. South Africa and the region, argues that ‘masculinity In fact, because prisoners are incarcerated by the and violence have been yoked together in South state, the state has an especially clear duty to care African history’ (O’ Donovan and Redpath, 2006). for prisoners in a way that does not violate their Discussions of interpersonal violence appropriately constitutional rights, which include the rights to centre on men’s violence against women; after humane conditions of incarceration, dignity, life, all South Africa has some of the highest levels and freedom and security of the person. of domestic and sexual violence anywhere in article all citizens, including those who have committed the world. However, men’s violence against men The continued existence of prison rape should also generate significant alarm. In 2003, constitutes a threat to our human rights roughly seven times as many South African men culture as women died as a result of homicide. Based on Sacrificing the rights of inmates sets dangerous the National Injury Mortality Surveillance System, in precedents for a new democracy such as ours. 2003, 7 359 men died as a result of homicide, while When we sacrifice victims of prison rape – whether 1 197 women were killed (NIMSS, 2004). While it be with arguments of expediency, such as not usually defined as such, we posit that this, too, those made about costs and limited resources constitutes a form of gender-based violence; much or the pressing priorities of other groups – we of the violence carried out by men against other run the risk of seeing our social contract with men serves as a way to assert male dominance. other groups gradually eroded and undermined, This is especially true in prisons. first marginalised groups, such as migrants and refugees (who are already often blamed for crime and unemployment) and then quite possibly other groups such as people living with HIV and AIDS South African prisons manufacture violent forms of masculinities (witness calls for mandatory HIV testing), sex workers or perhaps survivors of rape in general. Kopano Ratele argues that a first step in dealing with our violent past and present entails Prison rape sheds light on how masculinities are acknowledging ‘the longstanding violence of our constructed and makes clear the damage done society, our own vile history’ (Ratele, 2003). to men and women by hegemonic masculinity Admitting the impact that it had and continues The publication in 1995 of Connell’s Masculinities to have, he says, allows us to admit ‘that we contributed to an understanding that men are not are talking about men who are not mad, but are monolithic. Instead, Connell argued that men’s rather the embodiment of a mad society’. He experiences, understandings and embodiments poses a question first asked by Eric Miyeni that of what it means to be a man are shaped by and organisations working with men need to attend reflect their life experiences (Connell, 1995). The to urgently. Describing his friends traumatised by quotes in this article make it clear that prisons apartheid, Ratele quotes Miyeni, ‘I hear people say foster particular forms of masculinities. In his these men belong to the lost generation. And so I book The Number Jonny Steinberg chronicles the ask, “Where is the search party?”’ ways in which South African prisons manufacture Surely the ‘search party’ Miyeni calls for would especially violent, predatory forms of masculinities find many men of the ‘lost generation’ in prison. that reflect and reinforce a history of violent His question requires that we question our shift masculinities (Steinberg, 2005). towards more punitive ‘lock ‘em up and throw Stop prison rape in South Africa 77 article away the key’ responses to crime and that we Gender analysis and beyond instead explore ways to address the social causes A gender analysis provides useful insights into of crime and provide inmates with effective how masculinities are constructed and enacted rehabilitative options. both within and outside of prison. A gender analysis helps us understand that rape in prison Prison rape compromises public health and reflects, reinforces and valorises predatory forms increases levels of violence – especially violence of masculinity. However, gender is only one against women determinant of prison rape. Challenging prison rape, insisting on humane prison A range of broader structural forces such as conditions and holding the state to its commitment race, class and economics determine who ends up to provide rehabilitation programmes and effective in prison, what conditions they face there and what alternatives to incarceration is also good public recourse to justice they have. It seems futile, for health and crime prevention. After all, inmates leave instance, to offer inmates workshops on gender prisons and return to their communities. When and alternatives to violence without simultaneously inmates contract HIV or TB, develop AIDS-related advocating for immediate solutions to the chronic opportunistic infections and receive inadequate overcrowding that contributes to rape in prison. In medical treatment they are more likely to contribute other words, gender theory is useful but should to a range of health problems. be part of a broader framework when developing effective responses to prison rape. Inmates who come into prison for crimes that are not in any way related to sexual violence are desensitised in prison as a result of sexual assault Recommendations Address overcrowding Overcrowding is not only a key correlate of rape in prisons, but also impedes the upholding of Simultaneously, when inmates experience the rights and maintenance of standards in prisons. A trauma of rape and suffer ongoing humiliation and comprehensive overhaul of sentencing in general degradation, or are forced to join gangs for safety is required, not least because there is evidence and survival, they are more likely to contribute to to suggest current sentencing practices may be a range of health problems and are more likely skewed against young Coloured and black men. to engage in criminal activities – including, we Such a sentencing overhaul should provide for contend, violence against women and children. real alternatives to imprisonment for less serious What’s more, inmates who come into prison offences, as well as a sensible framework of for crimes that are not in any way related to imprisonment for serious offences, taking into sexual violence are desensitised in prison as account the capacity of prisons. a result of sexual assault and may themselves The Correctional Services Amendment Bill become perpetrators of the violent and aggressive seeks to give the Minister wide discretion to grant crime of rape. Given the ways in which prison parole and thus shorten the sentences handed rape exacerbates a more generalised culture down by courts, as a solution for overcrowding. of male entitlement to women’s bodies, and This is likely to undermine both the rule of law given the expertise of anti-rape organisations, it and public trust in the criminal justice system. is important that organisations focused on rape Sentencing reform in the courts should be – including women’s rights organisations – engage preferred over a wide discretion to grant parole in in advocacy to prevent prison rape. the hands of Correctional Services. Such reform 78 AGENDA 74 2007 Notes alternative programmes provided or funded by 1 the Department of Social Development, which may form part of sentences for non-custodial sentences of correctional supervision. 2 Implement the Jali Commission recommendations The Department of Correctional Services should seek to implement the Jali Commission Recommendations. This process should be accompanied by an operational plan and indicators for each recommendation so that proper monitoring and evaluation can take place. An independent, 3 The Commission of Inquiry to investigate and report on corruption, maladministration, violence, and intimidation in the Department of Correctional Services (DCS) became known as the ‘Jali Commission’ after Mr. Justice T.S.B. Jali, serving as the Chairperson of the Commission. Although the law does not yet consider forced anal penetration of men to be “rape”, the Sexual Offences Bill, which has been approved by the National Assembly and is awaiting approval by the National Council of Provinces, seeks to change the legal definition of rape so that any form of non-consensual penetration of the vagina, anus or mouth constitutes “rape” rather than sexual assault. In this article we use the term “rape” as it is defined in the Sexual Offences Bill. For an outline of the Sexual Offences Bill: M. Bruins, Taking stock of the Sexual Offences Bill. external body should conduct assessments of the situation initially to ensure implementation. Through monitoring, the impact of various interventions can be measured. The performance of the system in integrating these recommendations should be enforceable at every level, including the Minister of Correctional Services and the Department should be held responsible if the recommendations are not implemented with urgency. Strengthen civilian oversight The Judicial Inspectorate should be strengthened instead of weakened as is currently proposed by the Correctional Services Amendment Bill. In addition the Judicial Inspectorate should collaborate with departments beyond the DCS to ensure that prison rape is addressed, including the Department of Health, the South African Police and the National Prosecuting Authority. Civil society co-operation Women’s rights organisations, HIV/AIDS advocacy organisations, organisations working with men to promote gender equality and organisations working to promote prisoners’ rights should develop working coalitions and networks to demand services for rape victims, including prison rape. There is a need for greater CSO involvement in holding the DCS accountable. References ‘Commission of inquiry into alleged incidents of corruption, maladministration, violence or intimidation into the department of correctional services appointed by order of the president of the Republic of South Africa in terms of proclamation no. 135 of 2001, as amended’ (2005) Final Report. Connell RW (1995) Masculinities, Cambridge: Polity Press. The Constitution of the Republic of South Africa Act 108 of 1996 The Criminal Law (Sexual Offences and Related Matters) Amendment Bill B50-2003 DCS website: http://www.dcs.gov.za/WebStatistics/, site accessed 5 August 2007 Gear S, Isserow M, & Nevill C (2006) Situational Analysis of Boksburg Youth Centre, Sexual Violence in Prison Pilot Project 2006 Available from the Centre for the Study of Violence and Reconciliation. Judicial Inspectorate of Prisons 2006:18, quoted in Sloth-Nielsen. National Injury Mortality Surveillance System (2004) News 24.com (2005) Jail Rape: The sordid facts 1/3/2005. http://www.news24.com/News24/South_Africa/Politics/0,,27-12_1669654,00.html, site accessed 4 August 2007. O’ Donovan M. and Redpath J Submission to the Justice Portfolio Committee on Sentencing Law Ratele K (2003) ‘Recovering the ordinary’, in M Pieterse & F Meintjies (eds) Voices of the transition: The Politics, Poetics and Practices of Social Change in South Africa, Johannesburg: Heinemann. Sloth-Nielsen J (2007) ‘The State of South Africa’s Prisons’ in S Buhlungu, J Daniel, R Southall and J Lutchman (eds) State of the Nation, Cape Town: HSRC Press. Steinberg, J (2005) The Number, Jonathan Ball: Cape Town. World Bank (1997) ‘Confronting AIDS’, Oxford University Press. Stop prison rape in South Africa 79 article should include expansion in the availability of article ELENA GHANOTAKIS has a Bachelors degree in government/international relations from Dartmouth College in the Us and a MSc in public health in developing countries from the London School of Hygiene and Tropical Medicine. She works for the Clinton Foundation HIV/AIDS Initiative. Her main focus areas are gender-based violence and how international trade laws affect access to medicines. She is working on a documentary film about rape in South Africa. Email: firstname.lastname@example.org MARIANNE BRUINS did her MSc (Drs.) in Health Sciences,at the University of Maastricht, The Netherlands. She worked for the Child Health Unit of the University of Cape Town, then returned to the Netherlands to do a Law degree while working for the Netherlands Study of Anxiety and Depression and the Institute of Immigration Law. At present, she is doing her internship at the Gender, Health and Justice Research Unit at UCT. Email: email@example.com JEAN REDPATH works as an independent research consultant, predominantly in the criminal justice field. She was a researcher at the Institute for Human Rights and Criminal Justice Studies at Technikon SA, and a parliamentary analyst for the South African Institute of Race Relations. She has a BSc. in Mathematics and Chemistry, and an LLB, from the University of Cape Town, and has been admitted as an attorney in the Cape High Court. DEAN PEACOCK is co-founder and co-director of the Sonke Gender Justice Project. He founded and directed the Men Overcoming Violence (MOVE) Youth Program, co-authored The United States Agenda for the Nation on Violence Against Women, developed and co-ordinated the Building Partnerships Initiative to End Men’s Violence for the Family Violence Prevention Fund, and from 2001-2005 he co-ordinated the implementation of the South African Men as Partners (MAP) Network. Dean has worked as a consultant to many national and international organisations. Email: firstname.lastname@example.org RAOUL SWART coordinates Sonke Gender Justice’s prisons project. Part of this work was supported by the UCLA Program in Global Health through support from The Ford Foundation and The Diana, Princess of Wales Memorial Fund. The views expressed herein are those of the authors and not those of the funders or any employees of the funders. 80 AGENDA 74 2007