How the law protects children who are exposed to Gender-Based Violence

How the law protects children who are exposed to Gender-Based Violence

Dr Kim Lamont-Mbawuli, a Legal Practitioner, provides advice on how the law protects victims of gender-based violence and how it can protect children affected by it. 

Family conflict
Family conflict/ iStock

Gender-Based violence continues to be a pandemic that affects women in all countries and of different races. 

The United Nations reports that one in three women worldwide experience physical or sexual violence, mostly by an intimate partner. 

In South Africa, over 989 women were murdered and more than 10,000 rape cases reported between July and September this year.

READ: FULL LETTER: Ramaphosa wants more engagement with men as country battles GBV

The law protects victims of GBV because violence against women and girls is a human rights violation.

In his latest address on GBV, President Cyril Ramaphosa says there has been improvements in assisting victims of GBV. 

"Over the last few years, there has been a growing mobilisation of all sectors of society to stop the abuse of women and children. There have been some areas of progress. 

"More than 17,000 trial-ready GBV cases were processed by teams of the SAPS and the National Prosecuting Authority. The courts are also handing down heavier sentences to perpetrators," said Ramaphosa. 

Dr Kim Lamont-Mbawuli, a Legal Practitioner, says there are several laws that have been established to protect victims of GBV. 

Below we spoke to her about what the law says about GBV and how it affects children who are affected by it. 

What are the laws?

There are several laws that assist with GBV mitigation these include;

1. 1. Domestic Violence Act when acts of GBV are between persons who are in a relationship.

1.2. Protection from Harassment Act includes both direct and indirect conduct that either causes harm or inspires a person complaining of harassment (“the Complainant”) to reasonably believe that harm may be caused to them.  Such conduct includes following, watching, pursuing or the accosting of the Complainant or someone in a close relationship with the Complainant such as spouse or family member.  It also includes a Respondent loitering outside of or near the building or place where the Complainant or the related person lives, works, studies or happens to be. Additionally it includes contact through verbal, written and electric communication aimed at the Complainant which causes harm or makes the Complainant feel in danger or being harmed. The Act stipulates that the word “harm” includes any mental, psychological, physical or economic harm to the Complainant.

1.3. Amendment bills announced to close loopholes and curb the exploitation of the legal system by perpetrators of GBV.

The Criminal Law (Sexual Offences and Related Matters) Amendment Act creates a new offence of sexual intimidation. This will mean that it will be a criminal offence to threaten someone else with certain sexual acts.

The Criminal and Related Matters Amendment Bill imposes stricter conditions for the granting of bail to those who are charged for allegedly committing a criminal offence linked to GBV. These amendments will also expand the types of offences for which minimum sentences must be imposed.

Changes to the Domestic Violence Act will see additions to what will be considered as domestic violence. For example, it will also include controlling behaviours, such as isolating the victim from support and regulating the victim’s everyday behaviour.

What happens when the child's life is in danger? 

A social worker will assess the living conditions of the children to assess who is better suited to provide primary care for the child. The best interests of the child/children are always prioritised.

Other options that might emanate from that are supervised visits for the offender or perpetrator.

This should also be at the consent of the child, particularly if the child is old enough to understand what has happened, they will be asked how they feel, if they're comfortable and what their wishes are.

How does the law protect children affected by GBV? 

When abuse or neglect of a child has occurred, or there seems to be a risk thereof, one or more of a range of responses may be appropriate for those charged with legal child protection responsibilities.

4.1. Report the abuse to the police station. 

4.2. Report the abuse to the department of social development and a social worker will be provided to access and navigate the situation and will provide a report therein.

4.3. Where a specific person has been identified as a threat to the wellbeing of a child, the most appropriate way to safeguard that child might be for this person to leave the home. Most typically this is a person who is physically or sexually abusing either his or her adult partner, or the child concerned, or both. Such a person can be arrested and incarcerated if found guilty for the offence.  

4.4. Reinforcement of protective potential within the family(other family members) or neighbourhood (community) where the child's safety cannot be assured through support of the family or removal of the child to substitute care. 

4.5. Substitute family care - which usually means the placement of the child into foster care - tends to be the preferred option.

4.6. Some Centres that can help;

Support programmes – Family and Marriage Society of South Africa (FAMSA) for counselling, Tears Foundation for CRISIS interventions, The Trauma Centre for trauma counselling, and the Thuthuzela Care Centres, which are the anti-rape strategy centers to help victims from secondary victimisation.

READ: Good Morning Angels: Supporting a gender-based violence survivor who's changing lives

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