A key goal of service provision is to assist the investigation and prosecution of rape cases and thus to provide justice for survivors. Unfortunately this often does not occur. From the time of a rape occurring to the time of obtaining a conviction, there are a few places when cases can drop out of the criminal justice system (Figure 5). The first most notable is the initial underreporting of cases to the police. This is followed by the investigation of the cases once reported, which ultimately leads to a referral to the prosecutor, if the investigation is completed for a decision to
70 be made about whether to prosecute or not. As not all cases are successful, the final source of attrition after a trial commences occurs when there is an acquittal or a non-guilty verdict for rape. Withdrawals of cases by survivors can occur at any time period. Efforts are made to reduce and minimise the attrition of cases through societal and system level interventions.
Figure 5. Process of case with potential points for attrition, and areas where the health care system and care provided can influence attrition
There are numerous reasons why survivors do not report cases to the police (79, 109, 225, 365). This includes the fear of not being believed, feelings of shame, guilt and confusion about whether rape occurred or not. A number of women who are subjected to rape do not view it as such, especially when the perpetrator is an intimate partner (366). The lack of reporting may also depend on their ability to inform partners and family, and the potential impact it would have
Influence on attrition
HEALTH SYSTEM AND CARE PROVIDED
Access to health care
Quality of care
Availability of health care providers
Competence of health care providers
Health care providers attitudes
Quality of evidence collection and documentation
Improved health outcomes
minimising risk for future high risk behaviour
71 not only on themselves but also on others close to them. Cultural beliefs on what constitutes rape and how it should be handled also play a major influence. Survivors may also have a bond with the perpetrator and may feel pity or love for him. They may not want to cause difficulties for the perpetrator and/or his family or may even depend on the perpetrator financially. On the other hand, they may fear the perpetrator and there may be retaliation and intimidation by him or those related to him. This is especially problematic when the perpetrator is a person in authority or in a position of power. The poor availability and accessibility of services, and the judgmental attitudes and incompetence of service providers in the police, health and legal fields can also act as a barrier (322). Studies have reported that survivors receive more negative reactions when reporting to formal providers compared to the supportive reactions that they receive from friends and family (367, 368). Survivors may not feel that they are able to cope with the legal process of the case, while others may also fear that their personal history will come under scrutiny during this process or that they will not be believed (76). This is of special concern to women who participate in socially unacceptable behaviour (e.g. sex work, drug usage, etc.) (366, 369). In addition, personal or anecdotal experience on the attrition of cases through the system may impede reporting, resulting in a cyclical process of further loss of reported cases (76). Some survivors find the legal process, and even the medical process, invasive and traumatic, resulting in them repeatedly reliving the experience of the rape and are not able to forget the experience (366).
In contrast, there are factors that increase reporting of rape cases (79, 370). Survivors who feel that they need help, either medically or legally are more likely to report a rape especially if they are aware that the necessary services are available (366). Studies have found that survivors with more injuries are more likely to report their case either for medical care or possibly because they may feel that they have a stronger case to present to the police (163, 366, 369). Survivors may fear their safety and report the rape with the hope that the perpetrator would be arrested, and in addition not cause harm to others (370). They feel that the process of reporting helps them to gain control over their lives.
One of the major reasons that a woman may report a rape is that she hopes that the perpetrator will be arrested and punished for his crime. Although this is not feasible in every case, and in
72 some situations, survivors themselves withdraw cases or are untraceable; data on the conviction of cases in South Africa paints a dismal picture. As can be seen in Table 4, conviction rates for rape cases in South Africa have remained below 10% of reported cases over time. The findings were no different to those reported in a community study conducted in 1998. Results showed, that for children less than 12 years of age, 55% of reported rape cases resulted in an arrest, 22% went to trial and 10% resulted in a conviction (109, 111). A similar proportion of arrests (57%) were made in cases pertaining to girls aged 12 to 17 years of age, with 21% also going to trial, yet the conviction rate was slightly lower (8%). Amongst adult women, arrests were only made in 47% of cases, a trial commenced in 15% of cases and a conviction was only obtained in 5% of cases. Overall, in 1996, the conviction rate was just over 7% for this population of survivors in South Africa.
Table 4. Conviction rates for rape cases in South Africa (1996 – 2003)
Location Sample Reported cases
referred to court
Conviction
1996 (79) South Africa All rape cases
reported to the police
43% 7% of total cases
19% of referred cases
1998 (365) South Africa All rape cases
reported to the police
48% 9% of total cases
20% of referred cases
2000 (371) South Africa All rape cases
reported to the police
46% 8% of total cases
(9% in children, 7% in adults) 17% of referred cases
2002/2003 (37) Cape Town city Rape cases reported
to the TCC at GF Jooste Hospital 18% of total cases 2003 (78) Gauteng province 2 068 women who reported rape cases to the police
43% 4% of total cases
23% of referred cases
Although conviction rates in some developed countries are higher, the problem with attrition of cases through the justice system remains significant. In a comparative study using data from 13 studies, covering five countries (i.e. USA, Canada, England and Wales of the United Kingdom (UK), Australia and New Zealand), it was noted that estimated conviction rates for rape in all of the countries except the USA decreased from the period 1970 to 2005 (372). The most dramatic decrease has been noted in Canada, England and Wales, where estimated conviction rates of over 30% were reported in the 1970s, which dropped to around 10% in 2000, based on the best-fitting
73 line per country. In Australia, the estimated conviction rate declined from around 20% in the 1970s to about 15% in 2000, while in the USA estimated conviction rates showed a slight increase from 12% to 15% over the same period. The author estimated that if the rates were combined, for a 100 reported cases to the police, an actual total of 714 sexual assaults took place, and out of the 100 reported cases only 13 convictions would be obtained.
Researchers argue that there is selective filtration of cases in the justice system, which is based on the normative belief of what constitutes rape (170, 171). Studies conducted in other countries have shown that cases that fit into a specific profile are more likely to receive attention in the justice system and obtain a conviction. The expectation is that rape is perpetrated by an armed and violent stranger against a respectable woman who then suffers from injuries during her struggle to protect herself (76, 171, 366, 373, 374). This notion is reiterated at every point as cases that are considered more likely of achieving a successful outcome progress up the system. The factors that play a critical role in this movement include the previous sexual experience of the survivor, her relationship with the perpetrator including whether she had previous consensual intercourse with him, circumstances of the initial contact, use of a weapon and/or physical force, promptness of reporting, proof of resistance and penetration with injuries (168, 375, 376). Not surprisingly, when these factors are present, conviction rates of up to 100% are achieved (377). The presence of injuries, in particular, plays a major role in the conviction of cases (166, 168). Similarly, cases with children and older women are more often prosecuted, whereas those with survivors who had previous convictions are less likely to be prosecuted (378). These beliefs are not only found in the criminal justice system, but also within communities, which play a major influence in the initial reporting of the case to the police (163). Moreover, based on the initial history, the details of the incident are recorded by the police and often already being considered by them to judge the survivor and the merits of her case. Thus, the path that a survivor follows to get help could be described as one that is full of potential hazards, discouragement and lack of access, and survivors are often submitted to other forms of hostility such as prejudice, judgment and intolerance (270, 293).
Although not often considered, the health care system can play an influential role in improving this path and reducing the attrition of cases (Figure 5). Access to health care without
74 requirements for official reporting, and the attitudes of health care providers can improve attendance rates and potentially reduce long-term health outcomes of the rape (379). The quality of care including evidence collection and documentation, can affect the way in which the survivor, police and the judicial system view the case. Availability and competence of the provider in explaining the findings in court influences the final step in the process. The delivery of health care itself can also have an indirect role. It is hoped that survivors who receive better health care would have improved mental health outcomes, and with it, enhanced coping mechanisms for dealing with the stressful situation and more strength to continue the process, although this might be challenging. Seemingly this may lead to less withdrawal of cases.