The Domestic Violence Act was passed in 1998. It was assented by the President of South Africa, Nelson Mandela on 20 November 1998. The preamble to the Act states “it is the purpose of this Act to afford the victims of domestic violence the maximum protection from domestic abuse that the law can provide; and to introduce measures which seek to ensure that the relevant organs of state give full effect to the provisions of this Act, and thereby to convey that the State is committed to the elimination of domestic violence.” (Preamble to the Domestic Violence Act). This Act was drafted in response to the alarming high rate of domestic violence in South Africa and in recognition of the vulnerability of domestic violence victims, that domestic violence occurs in different types of domestic relationships and that the current strategies were ineffective. Thus, the Act was to improve on the mistakes made in the past but the question should be posed, was this Act as successful as intended?
This article will address how ‘domestic violence’ is defined in this Act. It will then explore the definitions as to if they relate the reality of South African women in each aspect of the definition.
The Domestic Violence Act of 1998 definition of ‘domestic violence includes physical abuse, sexual abuse, emotional, verbal and psychological abuse; economic abuse, intimidation, harassment, stalking, damage to property, entry into a complainant’s residence without consent where parties do not share the same residence or any other controlling or abusive behavior towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant. Some might argue that there is no problem with the definition of domestic violence and there is agreement that it is a step in the right direction to broaden the spectrum of what constitutes domestic violence. The issue here, is what is how is each aspect defined by this Act and does the Act take cognizance that intended effect is not always possible as there are other (visible or underlying) currents that always come into play especially for South African women living a society where patriarchal norms and values control our lives despite legislative interventions that seek to achieve equality.
The various aspects that construct the definition of domestic violence have been previously mentioned. While it does encompass a broad spectrum of acts against a complainant, it is the first aspect namely physical abuse that society most commonly associates with domestic violence. The Act defines it as any act or threatened act of physical violence towards a complainant. However, the act of physically abusing a woman does not happen in isolation. Most often the perpetrator subjects the complainant to various forms of abuse and the physical act might be the only one that he can be held accountable for as there is physical evidence. For various other aspects of domestic violence such as emotional, verbal and psychological abuse or economic abuse, the burden of proof rest with the complainant. For example, emotional, verbal and psychological abuse is defined by the Act as pattern of degrading or humiliating conduct towards a complainant, including repeated insults, ridicule or name calling; Repeated threats to cause emotional pain; or the repeated exhibition of obsessive possessiveness or jealousy, which is such as to constitute a serious invasion of the complainant’s privacy, liberty, integrity or security. How does a woman prove that her partner insults her at home or has made repeated threats to cause her emotional pain? Would the police take her seriously? What recourse would a woman have against her partner in a patriarchal society where this type of behavior might be described as normal? We live in society where men feel that women are their possession and by them exerting control, they are showing love. It’s a strange world where your sense of love is against the law.
All the aspects that constitute the definition of domestic violence namely physical abuse sexual abuse, emotional, verbal and psychological abuse, Economic abuse, Intimidation, Harassment; Stalking; Damage to property; Entry into the complainant’s residence without consent, where parties do not share the same residence; or any other controlling or abusive behavior towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant has a connection that is very often ignored by most people. There is a connection between domestic violence and the transmission of HIV and AIDS. In all of these situations that constitute domestic violence it is most often that women are in vulnerable positions within a domestic relationship. Men are in dominant positions and exercise power over women within these relationships. If we look at these aspects that constitute domestic violence, it can be seen that all of them illustrate that it is about power. It is about the power over women’s bodies, minds, property, sexual and reproductive rights. This leaves women in a vulnerable position where they are not able to negotiate safer sexual practices and therewith protect themselves from infection. The questions should be asked if a woman is victim to any of these forms of domestic violence, will she still be able to negotiate with her partner. What power will she have over her own sexuality and her body in a context where all her power has been usurped by men?
Bianca Hager
Coordinator Women’s Media Watch
Southern African Media and Gender Institute
4th Floor Dumbarton House
1 Church Street
Cape Town
8001
Telephone: 021-4240653
