Is mediation an option in sexual violence cases?

October 1st, 2023
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‘Sexual [assault] cases are similar in power structure to domestic violence or criminal assault matters. In those cases there is more than a simple dispute over money or property. Instead, there is a dynamic present that involves power, fear, and coercion. These elements underlie the “dispute” being mediated, which may be a “simple” divorce or the resolution of a criminal charge such as “simple” assault. But like an iceberg, only the tip is visible, and the most dangerous part remains unseen. In those situations, there is an imbalance of power between the aggressor and the victim that cannot be reconciled in mediation’ (Mori Irvine ‘Mediation: Is it Appropriate for Sexual Harassment Grievances?’ (1993) 9 Ohio State Journal on Dispute Resolution 27). In a country such as South Africa (SA) where between October and December 2022, 5 935 rape incidents were recorded, and only one in nine sexual assault matters are reported, the emphasis should be on prevention, deterrence, and denunciation. Parliament through the legislature is playing its role to curb the epidemic through enacting Acts, such as the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 and its subsequent amendments and the Criminal and Related Matters Amendment Act 12 of 2021.

The judiciary to a large extent has expressed its concern and dismay about these crimes as stated in Maila v S (SCA) (unreported case no 429/2022, 23-1-2023) (Mocumie JA (Carelse and Mothle JJA and Mjali and Salie AJJA)) where Mocumie JA held: ‘Rape remains under-reported nationally, but there may be no rapes more hidden than those committed within families. Sexual violence victims “often experience a profound sense of shame, stigma and violation”. These factors are compounded by attempts from family members of the victim or the perpetrator to influence the victims not to file charges or, if charges have been filed, to withdraw the case so that the families can resolve the problem amicably. Often the perpetrator offers to pay the medical costs for the victim’s medical treatment, including psychological treatment, and even maintenance of the family in cases of indigent families.’ The National Prosecuting Authority in its Strategic Plan 2020 – 2025 as one of its goals, attempts to eradicate gender-based violence. In the Prosecution Policy Directives with effect from 1 May 2019, it states informal mediation should not be considered in the following cases: ‘Offences such as murder, rape, robbery with aggravating circumstances and any other offences that fall within the ambit of [the Criminal Law Amendment Act 105 of 1997] (minimum sentences)’.

At some magistrate offices, it has become the norm rather than the exception to mediate, specifically when dealing with rape cases. Regrettably, the formal prerequisites to an informal mediation are not complied with as envisaged in the directives. Many articles have been written about the advantages of mediation in criminal matters and rape matters. In its simplest form, mediation is a process through which two or more disputing parties negotiate a voluntary settlement of their difference with the help of a ‘third party’ (the mediator) who typically has no stake in the outcome. I hold the view it should not even be considered in sexual assault matters for many reasons.

Sexual assault is a power-based crime (that is, a crime where there is an imbalance of power, or an abuse of power by the perpetrator, and the victim/survivor feels powerless to stop it. ‘Power-based personal violence is a form of violence that has as a primary motivator the assertion of power, control and/or intimidation in order to harm another’ (Rowan University ‘Facts about Power-Based Personal Violence and Sexual Violence’ (https://sites.rowan.edu, accessed 24-8-2023)). Many victims of sexual violence, ‘particularly women who are assaulted by their intimate partners, suffer ongoing abuse through what is known as “coercive control”, or a pattern of intimidation, humiliation, deprivation, and force that is typically less visible than forms of physical injury’ (Daniel Del Gobbo and Vathsala Illesinghe ‘Restorative justice for survivors of sexual violence’ (https://policyoptions.irpp.org, accessed 24-9-2023)). The power imbalance between the aggressor and the victim is so serious and so unchangeable that any agreement would be unfair. Power can be based on a variety of factors including personality, strategic positions, tactical positions, or gender. Power based on gender is not merely a difference in physical strength. It can be grounded in the emotional, psychological, or financial hold one person has over another. The power imbalance is mostly present in the realm of domestic relationships and abusive relationships. When a power relationship exists and is partially based on gender, it may have its roots in the societal differences between men and women. In a perfect world, men and women should share equivalent power. ‘[A] society characterised by gender inequality, one that is differentiated and stratified by gender, and that has an institutionalised ideology justifying male domination in all socially significant contexts … is a society that routinely provides [men] with greater resources than [women]’ (Irvine (op cit)). A power-based crime makes mediation impossible because the woman is not in an equal bargaining position with her assailant, and they are bargaining over matters that are not negotiable such as privacy, dignity, and an infringement of so many rights. The victim has no chance of exoneration as the person telling the truth is largely irrelevant to the outcome of mediation.

Mediation causes inequality and the concept of equality is ignored or even reflected in the kind of reparation an offender may be required to make. Mediation presupposes that the parties (the assailant and the victim) are on an equal footing and asks them to negotiate an agreement for future behaviour. The assailant is not punished for the crime(s) he has committed. The mediation process seems to imply that victims share responsibility for the unlawful conduct and requires them to modify their own behaviour in exchange for the assailant’s promise not to commit further crimes. Victims are made to feel responsible for impeding the man’s recovery, and causing harm to the community are beliefs that some men require physical force to enjoy sex with women and indeed feel entitled to physically forced sex as a matter of privilege. There may be pressure for the victim to accept at least partial responsibility in mediation which causes victim blaming. Instead of focusing on the wrongdoing of the assailant, victims during mediation processes very often ask themselves questions, such as: What if I did this or that? Would the consequences have been different?

Sexually abused women repeatedly forgive their partners, accept the blame, and believe, if they just try harder, their relationship will work. Mediation in sexual assault crimes is a process that effectively trades justice for harmony. Sexual assault crimes are the one area of criminality where we judge the offence not by the perpetrator but by the victim. Mediation does not favour a victim-centred approach as required by South Africa’s jurisprudence. Mediation places the assailant on an equal footing with the victim which enhances victim-blaming and a lack of reporting by potential victims.

Mediation in sexual assault cases provides credence to the term ‘reasonable woman’. ‘This may minimise the subjective impact on the victims who mostly are women who may be stereotyped as emotional, prone to exaggeration and overreaction, unlike men who are stereotyped as “rational”’ (Dr Angela du Plesiss ‘Using mediation to deal with sexual harassment cases at the workplace’ (www.esap.online, accessed 24-8-2023)). We live in a society where there is a depiction of complainants in sexual assault crimes as over dramatic, disregarding the propensity of women to understate the amount and severity of the violence they have been subjected to. ‘“[M]ediation can be destructive to many women and some men because it requires them to speak in a setting they have not chosen and often imposes a rigid orthodoxy as to how they should speak, make decisions, and be.” Societal norms and expectations of gender do not disappear inside the mediation room because none of the parties themselves can be completely immune to social norms. For example, there is an expectation that women will approach problems and disputes from an ethic of care, or a “relational” standpoint, which can skew the outcome of mediation. This means, that rather than protecting their own interests, women will try to solve disputes in a way that maximises the happiness for all parties involved, having difficulty even recognising that they have self-interests. Furthermore, the more personal the setting, the more women tend to “doubt their positions,”’ and behave like reasonable women instead of ‘recognising and advocating for their own interests’ (Sarah Rogers ‘Online Dispute Resolution: An option for mediation in the midst of gendered violence’ (2009) 24 Ohio State Journal on Dispute Resolution 349). Victims will be ‘compelled to hide emotions that are stereotypically “unfeminine” as … they are physically present at a mediation session. The physical meeting of parties can heighten the need to suppress anger in expression and tone’ (Rogers (op cit)). Due to the meditation setting, victims will not be free to express themselves nor have their true feelings understood by the mediator. Mediation in sexual assault cases normalises it when drastic action has to be taken by the National Prosecuting Authority (NPA) as envisaged by their Strategic Plan. It begs the question as to what standards and tests representatives of the NPA employ to determine what conduct of the victim falls within the threshold of ‘reasonable’ to consider mediation. It must be remembered, prosecutors as representatives of the NPA have not received any training in mediation   a field that requires specialised skill and knowledge, specifically in sexual assault crimes.

Mediation in sexual assault crimes, no matter how well intended, risks trivialising the seriousness of these crimes. ‘In light of the goal of restoration of the relationship, in the context of … sexual assault cases, these processes may seem too much like the admonishment to “go home and sort things out” which until recently was too often the response to charges of sexual assault crimes’ (‘Re-Thinking Access to Criminal Justice in Canada: A Critical Review of Needs, Responses and Restorative Justice Initiatives’ (www.justice.gc.ca, 25-8-2023)). ‘The prime interests that the legislative scheme of sexual offences against [victims] protect are the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children’ (R v Friesen [2020] 1 SCR 424). ‘The unique psychological characteristics of the victim-offender relationship may make a face-to-face, intimate meeting between the two parties more damaging than healing’ (Rogers (op cit)). The courts’ understanding of the profound physical and psychological harm that all victims of sexual assault experience have deepened. ‘While face-to-face encounters are probably the richest experiences of human interaction … there are some situations in which such a meeting is not feasible’ (Rogers (op cit)). Mediation may allow the assailant the first contact with the victim, which may lead to secondary trauma. ‘It is not only the actual threat of physical violence that might interfere with [mediation] during a face-to-face encounter, but the perceived violence by the victims of gendered violence’ (Rogers (op cit)). Pursuing mediation could or ‘would jeopardise a victim’s future safety, because the offender will not be incarcerated’ (Rogers (op cit)). ‘The unique power dynamics between a victim and an offender [may result in] some “victims [being] unable to hold their own in a face-to-face meeting”’ (Rogers (op cit)). ‘Some rape victims experience a feeling of continued, forced connection with their rapists’ (Rogers (op cit)). See S v C 1996 (2) SACR 181 (C) where it was held: ‘A rapist does not murder his victim – he murders her self-respect and destroys her feeling of physical and mental integrity and security. His monstrous deed often haunts his victim and subjects her to mental torment for the rest of her life – a fate often worse than loss of life.’ ‘There may be many situations when the mediator [normally the representative of the state] is unaware that an [offender] is attempting to coerce or intimidate the victim, thereby controlling the mediation, through their “use of words or movements known only to the victim as being threatening”’. With ‘the constant pressure to appear cooperative, women may be discouraged to assert their own interests and also to feel free to confront their [concern] … about losing their composure in the public eye’ (Rogers (op cit)).

The hope expressed in this article ‘pushes the envelope in the realm of current criminal justice, … the process presents promising possibilities for reaffirming victim autonomy, increasing victim safety, and reducing the effect of harmful gender … norms in the judicial process’ (Rogers (op cit)).

Desmond Francke BIuris (UWC) is a magistrate in Khayelitsha.

This article was first published in De Rebus in 2023 (Oct) DR 27.

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