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Criminal law response to DomesticViolence
1. Introduction
South Africa has experienced many violent crimes, including assault,
rape, and murder. One of the growing problems harming families from
various socioeconomic backgrounds is Domestic Violence (DV).
Domestic Violence refers to violence between people within intimate
relationships, including physical, emotional, sexual, or financial abuse.
Women, men, and children can be victims of domestic violence, thus
extending to various forms of assault, which deprives them of their
rights. The problem seems to be worsening despite the promulgation
of laws to cover the risk of protection and the availability of support
systems. Societal issues and pretend preventative measures have
hampered the progress and effectiveness of such laws, including
magnifying the problem to alarming proportions. Thus, most DV cases
go unreported, further perpetuating the cycle of violence (Morei,
2014).
The Department of Women, Youth, and Persons with Disabilities
recognizes DV as one of the most common and dangerous forms of
gender-based violence. In its most basic and simplistic view, Gender-
based Violence is defined as the perpetration of violent acts against
women, men, boys, and girls due to their gender. Gender-based
Violence occurs at home, on the street or in public spaces, workplaces,
schools, and on the Internet. All individuals, regardless of age or
disability, are victims of gender-based violence. Still, young women,
women in rural areas, domestic workers, sex workers, migrant workers,
and lesbian women are more likely to experience it. The National
Agenda to End Gender-Based Violence and Femicide acknowledges the
connectivity and convergence of these manifestations of violence. It
proclaims a “national state of emergency” in response to profound
social and gender inequalities engendered by apartheid, colonialism,
economic patriarchy, and neoliberal globalization (Lipeleke, 2014).
1
, 1.1. Problem Statement
Domestic violence is pervasive in South Africa, as it is in many
countries worldwide. Globally, almost 2 of every 3 women murdered in
2010 were killed by a current or former spouse, partner, or other family
member (Morei, 2014). As the statistics show, domestic violence is not
an issue isolated to one country or population group. The problem of
domestic violence has plagued societies across the world for hundreds
of years and continues to have tragic consequences for many people.
South Africa is no different; however, the increased sexual violence and
gender violence reported to exist within South Africa places it in a
distinctly negative category. Witnessing domestic violence is viewed as
a violation of children's rights as it relates to the right to protection
(from harm) and the right to a family life (in the context of abuse)
(Malvin Martin, 2018).
South African criminal law has a focused approach toward domestic
violence, such as the Domestic Violence Act. However, domestic
violence can fall within the provisions of other crimes found in common
law and in statutes prohibiting specific conduct. This contribution
evaluates the effectiveness of South African criminal law in addressing
domestic violence within the South African legal framework. The focus
is on both South African common law and statutory law involving
specific conduct.
1.2. Hypothesis Deduced from the Problem
Statement
Domestic violence is a pervasive social ill in South Africa, affecting
numerous individuals across different societal strata. The rapid
implementation of legislation meant to protect the victims of domestic
violence, especially women and children, raises concerns regarding the
effectiveness of such legislation. Briefly, an assessment of whether
Domestic Violence Legislation in South Africa is effective in protecting
women and children from domestic violence serves as a useful tool in
evaluating the legislation, court cases related to the legislation, and
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