Several studies have been conducted on the area and all such discourses point out the need to establish a better judicial system by restructuring the law. Many references address the plight of women and children who have suffered sexual violence in South Africa. Many of these sources also offer recommendations, which this research study will evaluate. Recommendations made include the training of SAPS members, and to include violence against women and children in general as part of in-service training to SAPS members. In order to create more awareness around the subject, education programmes should be established.

Women’s groups and organisations should become actively involved to create a positive, non-stereotyped portray of women in the media. Women’s access to justice is impacted by gender inequality as well as social and economic disadvantages. Women are more likely to experience financial insecurity which results in barriers when accessing legal services and thus restricting the ability to use the legal system and seek protection. This results in adverse outcomes. Government must adopt the necessary measures in order for victims of sexual violence to be appropriately informed through available communication channels, and in a language that is understood in a timely manner regarding their rights, protection and support measures available at all levels. Women in South Africa continue to experience extremely high rates of violence despite the myriad of legal protections and interventions by state and non-state actors.[10]

The safety of abused women and children should be addressed. Shelters or safe houses should be provided to them. When feeling safe and not being in the same abusive environment, victims may speak up and report these vicious crimes. Women have more difficulty obtaining legal services and have less access to information on their rights. Having access to justice can help resolve problems before they lead to disadvantages such as homelessness, poverty, mental and physical well-being and further disruption to relationships and even increased risk of further violence or death. It can re-establish the rights of victims.

Further, legal aid should be made available to victims, especially where protection orders have been breached. Legal assistance is an important resource for these victims. The media has a responsibility to inform and report these types of cases by ensuring that the public is informed, especially because stigma and prejudice remain major barriers to victims’ access to justice. Regarding court cases and preparing witnesses to testify, research was done by Vetten[11] in which it was found that prosecutors often do not have the time to prepare witnesses thoroughly, especially in regional courts.

Sexual crimes committed against children require the intervention of a multidisciplinary approach to justice. The Department of Justice and Constitutional Development noted that victims generally enter the justice system when all else had failed. Prevention needs to be addressed. One of the objectives of the Department is to promote and protect the rights of children, to offer restorative justice and the management of sexual offences. Much of the legislation was approached from the perspective of rights and it is assumed that there must be an implementation management system that is was effective and coordinated. Each victim must be able to get access to comprehensive service. Change management is a very important aspect. Specific training is needed on all child development issues, linkage between clusters is important, thus communication inter departmentally and to the public is a major issue as access to justice is a crucial part of women and children’s journey out of violence.

Access to Justice for Sexual Violence Victims in South Africa

It is common sense that the justice system in South Africa and across the globe has failed sexual violence victims particularly women and children. On a daily basis, it is approximated that 150 women record rape charges to the police in South Africa. However, it is only less than 30 of these cases that lead to prosecution and not even more than 10 of these cases that will end in conviction[12]. This results in a 4 to 8 percent rate of all the reported cases. In most cases, law enforcers tend to defend the issue by stating that it is driven by the lack of evidence which makes prosecution impossible[13]. In most cases, the perpetrators of the crimes are known by the victims of their families, and this also plays a role in the low level of prosecution. In order words, it would be justified to note there is no justice for women and children subjected to sexual violence in South Africa since there lack more feasible and reliable measures.

From the perspective of access to justice, it is evident that human rights principles highlight that every individual is entitled to live a life that is dignified and this right ought to be claimed from those that violate it and perpetrators held accountable. In other words, justice is a right that every person deserves including women and children. To these victims, sexual violence entails one denial of a dignified life as granted by human rights, and thus access to justice is a necessity in addressing such issues. 

The Justice System Is Failing Women

The capability to acquire justice is a shared human right on its own and is a foundation for the recognition of other human rights that includes the right against discrimination and unequal treatment. Yet there are some important obstacles that obstruct justice access ranging from lack of commitment by law enforcers, corruption, legal representation expense, and lack of awareness and familiarity with regard to human rights. In particular, in South Africa, women are not well established in terms of human rights knowledge which thus expands their vulnerability to such violent crimes and hinders their ability to access justice[14]. Women and children respectively normally experience specific limitations in their attempt to get justice mainly driven by their gender and age factors. Some of the major limitations may include but not limited to the existence of male guard laws, anxiety due to potential stigma and retaliation as well as cultural attitudes which promote the notion that men are the right owners while women and children are inferior and entitled to minimal to zero rights[15]. For women and children, sexual violence survivors and victims’ the limitations for justice access are even superior which explains the low level of prosecutions and convictions of those responsible for such damages.

Legal stereotyping represents one of the most common and malicious limitations when it comes to accessing justice especially for women as survivors or even victims of sexual or other forms of violence. It is the same level of stereotyping that influences the judicial system to make decisions regarding the presented cases on the basis of predetermined or biased beliefs instead of on focusing on relevant evidence, facts and real enquiry regarding the cases. This trend is responsible for an extensive-ranging penalty. For example, such acts are likely to affect the observation of judges towards the presented evidence thus affecting their view with regard to the actual definition of a victim and also has negative effects on how they perceive the credibility of facts or even witnesses reports. Eventually, this affects the ability for the system to remain impartial and uphold integrity as a whole, and this might result in failures of justice and well as victimization of the victims. Since most of the individual who facilitates these crimes are known the fact that they are never held accountable encourages them and others to actively participate in crime based on the belief that there is nothing that can stop them. In turn, the same victims are victimized over and over due to the absence of justice. Most of the survivors have died over the last couple of years due to stigma and suicides resulting from a psychological disorder. Sexual violence by itself destroys women’s dignity in general and in the case that any action is not taken to restore their psychological status they are likely to suffer intensely[16]. In this context, access to justice implies ensuring that those that participate in these violent crimes are prosecuted and convicted while offering psychological services to the victims[17]. Justice should be comprehensive and should never subject women and children due to their vulnerability to trauma and suffering while those that participate in the offenses are walking free.

Unarguably, women and children who are survivors or victims of sexual violence have a right to accessing convenient and affordable justice that is free from bias, misperceptions, cultural limitations and stereotypes as well as a judicial system whose neutrality is not adversely affected by the discriminative assumptions. In this context, for the victims to access justice without any limitation, there is a necessity to eliminate judicial stereotyping. This is a measure that is focused on promoting gender equality and justice for all the survivors and victims’ irrespective of their sex or age. As indicated in the past by the South African supreme court, it is clear that in the attempt to promote justice for all then the priority lies in eliminating stereotypes that are gender, cultural, religion or age-based.

Right to Access Justice  

The right to accessing justice is one of the most fundamental human rights as recognized by both state and international law. The right to accessing justice is definite by several international and local legal tools. This is clearly illustrated by the International Covenant on political and civil rights (1966). According to article 2 of the convention all humans are guarded against any form of torture, inhumane, cruel as well as degrading treatment. Based on this provision it is clear that sexual violence is a cruel and degrading treatment against all individuals including children and women. In other words, it is clear that those that engage in such activities should be punished for violating the victim’s rights. Gender should not play a part in determining the kind of treatment that the survivors deserve. The South African constitution has guaranteed the right to justice access to every person. It holds that this right necessitates appropriate justice administration irrespective of an individual’s gender, beliefs or even age.

However, despite the provisions by both the international and state law post reporting of sexual violence, it is highly common for the law enforcers to experience difficulties while trying to rebuild solid cases. It is highly believed that the reason as to why most of these cases are not as successful as they are aborted earlier is due to the lack of established platforms to deal with the cases. Evidently, police officers are not adequately trained to deal with sexual violence victims when compared to offenders. While they might understand that it is their obligation to ensuring that the offenders are brought to book they fail to identify and address the needs of the victims and survivors suffering from psychological distress. The fact that most victims are forced to retell the horrifying trauma as part of reporting in most cases leads to stigma and fear. Thus, most individuals tend to shy from making such reports to avoid such traumas that affect their wellness as a whole. This clearly shows that even though justice is guaranteed for every individual, it is not accessed by those that need it for the lack of proper systems to address the needs of the victims. Justice appears to be isolating the needs of sexual violence victims by hindering their ability to access justice[18]. Each year the government sets aside part of its budget for the justice system particularly while dealing with criminal cases. It is, however, surprising that for women and children who lack resources such as funds for legal representation are forced to abandon their cases due to the involved expenses that are beyond their abilities[19]. Most victims express their profound frustration and degrading justice procedures as the cause of the low reporting rate. For this group, justice is not guaranteed nor accessible since it is preserved for men and upper-class individuals based on their gender and social status influence.

Challenges to Accessing Justice for Sexual Violence Victims

Based on reports by healthcare providers, humanitarian workers and human right protectors thousands of women and children are forced each year to suffer intensely which is a violation of their wellbeing. Some of the prices that they must pay incorporate the methodical utilization of rape as well as sexual violence supposedly committed by judicial officials, protestors and civilians. The extensive rates of rape and other different types of sexual violence executed against women and children across South Africa. The situation is more prevalent within the rural areas where women and children are vulnerable based on their lack of awareness about their rights or inability to access help from the responsible bodies. In such areas, it has been experienced that cultural norms, as well as beliefs, are highly followed by the members of the community[20]. When the perpetrators are known such norms hinders their ability to report for fear of getting stigmatized or retaliated. When people adhere to certain beliefs, it becomes rather challenging for them to break out and follow prosecution against such persons. In addition in the case that the offenders are unknown then the law offenders tend to isolate themselves and commit less to the success of the based on the involved expenses which the victims might not even afford. Most rural settings in South Africa are guided by cultural beliefs which have in turn formed the rather negative or hesitant perception towards accessing justice or reporting sexual violence cases.

There are some crucial aspects that hinder these victims from accessing justice as a whole. Some of the most pressing hindrances include culture, the anxiety of getting rejected by partners and society, fear of retaliation, stigmatization, intimidation, and minimal interest in the case that the offender is not known, judicial unreliability, lack of awareness and familiarity, corruption as well as impunity[21]. Based on most of the reported cases of sexual cases are unsuccessful which there deter others willing victims to come forward and raise their cases as a whole. Brutality is highly objected in South Africa, but sexual violence is prevalence due to the existence of weak justice systems that tend to offer less value on victims. Women and children are also abducted as sexual slaves, but very few offenders with regard to the crime have been convicted or punished accordingly.

In often cases, sexual violence survivors and victims’ remain vulnerable to further violation and hardships as they lack adequate strategies to accommodate the high cost for legal representation to ensure that the responsible persons are punished. This is just one of the challenge that they face even though the government is supposed to provide representation for victims to ensure that the trials are fair. This situation has even influenced partners from the global sector to offer support to all the state institutions through the provision of resources such as training to the involved officers to improve their roles[22]. In addition, it has been cited that the lack of adequate resources such as vehicles affects such investigations. Even though some institutions are involved in the provision of motorcycles thus enhancing the mobility of the persons involved this does not imply that they are able to cover all the rising cases in relation to sexual violence. Even with the support the lack of proper remuneration for the officers normally affect their motivation which implies that they are not able to handle the cases properly because there is nothing to encourage better performance from them. With regard to corruption, there are several cases, where the victims have suffered because the offenders are wealthy persons and they, therefore, try to negotiate the issue with the involved family thus urging them not to report[23]. In such cases, police officers play a critical role in the development as they are encouraged to be at the middle of the negotiation. In such incidences, the victims are subjected to pressure and fear. Their response is not one that seeks justice, but they act in response against intimidation. Even in such cases, it is hard to raise any facts about the alleged corruption in proving the guilt of the involved persons.

Moreover, there are no legal courts that hold the jurisdiction to rule in rape or any other kind of sexual violence within the rural setting. On often basis, the state’s government usually agrees to offer support to all the private and non-profit agencies from local and international settings in developing mobile courts in regions that are known for high rape and sexual violence cases leading to the prosecution of offenders[24]. This has proven inadequate as well because individuals are denied the opportunity to access justice against those that are involved in such violent crimes against women and children. Sexual violations are also prevalent in areas where medical as well as psychological care is not present. It is therefore very challenging for the victims to prove that such a violation took place after the evidence has been washed. This further complicates the cases while ensuring that the perpetrators are free to just to the next victim without any fear or remorse as the justice system has failed[25]. It is also worth noting that most victims are not aware of the steps that they need to take in the acquisition of evidence that would ensure that those accountable for the crimes are held accountable.

Way Forward To Guaranteeing Access to Justice by Sexual Violence Victims

It is evident based on the above analysis that sexual violence is one of the most pressing human rights issues today in South Africa. More children and women are on a daily basis subjected to the kind of crimes, but very few cases lead to prosecution. In other words, the judicial system is continuously involved in failing women as a whole. Sexual violence is highly criminalized by the law and based on humanitarian law the state owe everyone responsibility to protecting them from any form of harm. Thus, for women, it is rather clear that they should be guarded against the undignified act of sexual violence by ensuring that they are able to access justice when they need it. To ensure that the offenders are held accountable for sexual violence offenses, the right to acquisition of justice is highly guarded by the state’s law. However, most victims and survivors are still facing challenges with regard to justice. To address this situation, it is urged that the government sets up platforms to deal with the issue particularly in the rural settings. This also involves ensuring that police officers are well equipped with the necessary training and skills to deal with sexual violence victims and ensure that they are not subjected to further trauma. In addition, the judicial system needs to be highly equipped to conduct thorough investigations without being guided by gender biases. In other words, there is a need to ensure that stereotyping is fully eradicated within the judicial system as a way of promoting equality as well as increasing the accessibility to justice for all the affected persons without fail[26].

The ability to improve the situation and offer justice to women depends on the level of professionalism that will be set within the judicial system. This means that from the point that an individual has reported an incidence of rape proper mechanisms that are protective need to be adopted. In addition, there is a need to increase awareness and familiarity with the prevalence of sexual violence and individual’s right. In other words, the survivors of these crimes need to be highly prepared, informed and stimulated by medical psychologists to ensure that they know that silence is not a solution. This also includes guarding them against any form of stigma that might result from making reports. Besides, the local communities need to be sensitized about the issue so as they can reject prejudice and isolating the rape survivors just because they have been violated sexually. Most of these challenges are mainly prevalent because of the lack of awareness which can be solved through prioritizing awareness as a whole and improving the already existing resources.