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Women in conflict with the law: Alternatives to imprisonment
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South Africa’s experience in addressing the challenge
By Judge President D. Mlambo
Gauteng Division of the High Court
INTRODUCTION
1. In the last two decades, the prison system in South Africa has been transformed from a segregated and militarised penal system to a correctional system that is consistent with democracy and aims to protect the basic rights of all citizens as entrenched in the Constitution. This process of transformation has been guided by two White Papers published by the Department of Correctional Services (DCS) in 1994 and 2005, and by new legislation enacted by Parliament, in particular the Correctional Services
Act 111 of 1998.
2. The White Paper recognises many challenges that the Department faces in realising its vision. Among these are the state of Correctional facilities, overcrowding in prisons, and the needs of special categories of offenders, including women. Currently, there are 241 prison facilities in South Africa. According to DCS statistics these facilities are designed to accommodate 118 154 sentenced prisoners and a further 25 000 awaiting-trial detainees.
3. In that White Paper document, only a few paragraphs are devoted to the needs of women as a “special category of offenders” and two of these relate to the needs of mothers of children. Although the Paper notes that “rehabilitation processes must also be responsive to the special needs of women” and that the Department’s “approach to Gender will inform the management of female offenders” the Paper provides very little insight as to what those special needs are or what impact gender will or should have on the management of female offenders. The only specific issues mentioned in relation to women are the obligation to incarcerate women as close to their homes as possible and the obligation to provide women with development opportunities on a nondiscriminatory basis. For mothers of young children, the Department recognises the need to provide
appropriate crèche or nursery facilities and mother child units, as well as an appropriate environment for visitation, for those children not living with their mothers.
4. There are approximately 4 300 women imprisoned in
South Africa, including sentenced women and those who are awaiting trial. These women constitute 3% of the overall prison population in South Africa. This is similar to the proportion of female prisoners in other African countries, where the continental average is 2.65%, and lower than the proportion of women and girls in prisons in the Americas and Asia, where the average is 5.3% and 5.4% respectively, and in prisons in Europe and Oceania, where the average is 4.4% and 4.8% respectively.
5. There has been a significant fluctuation in the rate of female incarceration in South Africa during the last decade. Only eight of the prison facilities in South Africa are female-only correctional centres, while 91 facilities have special sections for female inmates. According to
DCS, the largest percentage (45.2%) of female inmates are in prison in relation to economic crimes, with the percentage of women convicted of “aggressive” crimes a close second, at 36.6%. The remaining 18.2% of female offenders are incarcerated for narcotics crimes, sexual crimes and intimate partner violence crimes. These statistics reflect a very high proportion of aggressive crimes in comparison to the United States, for instance, where violent crimes committed by women make up only 10-15% of female offences.
6. Rising rates of female incarceration reflect disturbing social trends. The push to incarcerate more women ignores the social and psychological forces that often underlie female offending, including higher-thanaverage rates of lifetime exposure to cumulative trauma, as well as physical and sexual victimization; untreated mental illness; the use of substances to manage distress; and behavioral choices that arise in conjunction with gross economic disparities. Compared to male inmates, females report higher rates of incidences of physical and sexual abuse, as well as histories of emotional and behavioral disorders. Having led lives where they were sole caregivers for children and with reliance on extremely limited income, women inmates tend to be poorer on average than males. In fact, in situations where bail money is required as a condition for release, more women languish in jails in pre-trial detention.
7. Correctional facilities exacerbate the vulnerabilities of female inmates, regardless of age, without providing rehabilitation or treatment services needed. Given the prevalence of abuse histories of women and girls in correctional facilities, the need for trauma-sensitive settings and services is paramount. Females in adult settings report higher rates than males of physical and sexual victimization during incarceration with more violent acts perpetrated by fellow inmates than by correctional officers. In the recent Constitutional Court judgment of Sonke Gender Justice NPC v President of the Republic of South Africa and others1 the court highlighted that substance abuse and mental health treatment are scarce in correctional facilities, and in some settings, nonexistent. The judgment further
1 [2020] ZACC 26.
highlights the fact that offenders further lack basic hygiene and adequate nutrition, limited sexual and reproductive health products, therefore depriving inmates of the most basic of human rights afforded to them by the Constitution. Taken together, the harsh rules and regulations of correctional facilities, the climate of violence and dysfunction and the pre-existing vulnerabilities of inmates place them at greater risk of destabilization and distress. For some, acting out behaviours result in infractions and greater restrictions, including solitary confinement.
8. Upon release, women and girls face uphill battles as they return to their communities. Many women have significant health challenges as well as emotional and behavioural disorders. For those who have not received the mental health or substance abuse treatment needed during incarceration, rates of relapse are high, especially in the absence of appropriate community-based services. Stigma facing female parolees has been found to be greater than that facing males. Fewer programs or shelter homes exist for women. Female parolees have greater difficulty obtaining employment and housing than males. Without comprehensive supports, women and girls are likely to be revictimized and experience the panoply of distress associated with it.
9. With the above in mind Judicial Officials should be sensitized to impose imprisonment sparingly on women offenders. Imprisonment should be imposed for severe crimes, for those criminals who offend regularly and are not deterred by other forms of punishment. As I’ve illustrated, in practice imprisonment is less an ideal than it is often made out to be and other sentences have widely become known as alternatives to imprisonment. There is increasing support for the majority of custodial sentences for female offenders to be replaced with an alternative method of punishment or control. Alternatives to imprisonment may also supply a better medium for therapeutic intervention than the current prison system which is devoid of rehabilitative outcomes. These alternatives are, of course, clearly punishment in their own right and exist independently of imprisonment.
10. The CPA contains a variety of sentencing options that, properly considered, can enable Judicial Officers to be more gender sensitive when imposing sentence to women offenders.
11. When determining an appropriate sentence that is fair and balanced, the court will consider the substantial or mitigating circumstances of the accused. When considering an appropriate sentence, the purpose of the sentence must also be considered by the judicial officer, namely, rehabilitation, prevention, deterrence, and retribution. Assessment reports at pre-trial and at trial made by social workers or probation officers are submitted to the presiding officer of that case.
These reports dictate the mitigating and aggravating factors in the committal of the offence. Other factors the court must consider include first time or repeat offences and the trajectories of the same. In some cases, gender-specific criteria should be considered by both prosecution and Judicial Officers when making decisions. These can include women’s histories regarding their socioeconomic circumstances, exposure to GBV, the type of drug-related and other offence, and gender-specific mitigating factors such as caring responsibilities, the best interest of the child/children, history of victimization or mental health care needs and other factors.
12. The court has a wide scope, to order custodial or noncustodial punishment provided for by legislation.
Community-based alternatives are example of such.
13. Community-based alternatives to incarceration were developed in an effort to deal more effectively with the offender’s problems, to avoid breaking social ties, and to prevent exposure to the negative effects of custodial confinement. Appalling prison conditions provided additional incentives to retain female offenders under community supervision, much of what had previously been called ‘community-based alternatives’ became known as intermediate sanctions, reflecting more punitive attitudes and concerns that such programs assure the safety and protection of society.
14. Community corrections as practiced in South Africa is an internationally recognised concept or method, meant for dealing with those offenders who could possibly be dealt with more effectively in the community than in prison. Correctional supervision does ensure that a significant number of female offenders can be dealt with in a more balanced manner. This approach goes a long
way to satisfy the need to limit the growth in the prison population and to provide a more affordable system, which will be to the benefit of everybody in South Africa.
15. Community-based alternatives have enabled the justice system to pursue a more balanced approach to reducing crime and its cost to society and an already overly burdened correctional services budget. They provide courts with more options to distinguish between serious female offenders who should be removed from society and those who can be dealt with more effectively outside of prison. Less restrictive community-based treatment programs and restitution-focused sentences punish non-violent offenders, while teaching them accountability for their actions and heightens their chances of rehabilitation. Such an approach treats prisons as a backstop, rather than the backbone of the corrections system. These alternatives are among the varieties of programs that serve as intermediate sanctions. I will briefly deal with the various communitybased alternatives we find in this country.
CORRECTIONAL SUPERVISION
16. Correctional supervision in South Africa is a communitybased punishment to which a person is subject in accordance with Chapter VIII A of the Correctional
Services Act No 8 of 1959 and the regulations made under that Act. Thus courts are provided with a sentencing option to deal effectively with offenders who pose no threat to the community. This fits in well with the call to be more gender sensitive when dealing with women offenders. The purpose of correctional supervision has been described as a reform through punishment and to improve the offender through supervision. This fits in well with the main advantages of correctional supervision, namely, that it offers punishment of high penal value, with above average potential for reform.
17. The Criminal Procedure Act 51 of 1977 (the CPA), provides courts with correctional supervision sentencing options in terms of section 276:
a. Section 276(1)(h) of the CPA empowers the magistrate to sentence an accused person to a maximum of three years and a minimum of one year correctional supervision after receiving a report from a correctional official or probation officer. b. Section 276(1)(i) of the CPA authorises the court to impose a sentence of imprisonment not exceeding 5 years upon an accused person which sentence may be converted into correctional supervision by the
Correctional Supervision and Parole Board, after serving at least 1/6 of the sentence.
18. Section 84(1) of the Correctional Services Act No 8 of 1959 provides that such offenders will be subject to monitoring, community service, house arrest, placement in employment, performance of service, payment of compensation to the victim and rehabilitation or other programmes as may be determined by the court, the
Commissioner or a parole board.
19. Correctional supervision allows for those female offenders who are mothers/caregivers to continue to care for their families while generating an income in a conducive environment, while under supervision. In M v
The State 2 the Constitutional Court made reference to the caregiving principle with regards to sentencing. The court qualified the long-standing precedent set by the
Zinn case, of focusing on the offender’s circumstances, and instead, highlighted the impact of incarceration on the offender’s dependents. In dismissing the traditional approach adopted by the lower courts, the Constitutional
Court held that “the emancipatory character of section 28 presupposes that in our new dispensation the sins and the traumas of fathers and mothers should not be visited on their children.”3
20. The Court added that section 28 of the Constitution requires the law to make the best efforts to avoid, where possible, any breakdown of family life or parental care that may threaten to put children at increased risk.
The court concluded that, where possible, primary caregivers of young children should not be imprisoned due to the nature of dependence and support children require. If there are alternative sentences, using the broad sentencing principles, then the court must use the paramountcy principle concerning the interests of the child as an important guiding principle in deciding which sentence to impose. This approach is more suitable for women offenders who are the majority primary caregivers in our society.
21. This as suggested by the UNODC4, aligns with the guiding principles that gender-specific mitigating factors should be considered during sentencing, mandatory sentences
2 [2007] Zacc 18. 3 Ibid, at para 18. 4 UNODC, “An assessment of relevant national laws, policies and practices in South Africa, used to apply non-custodial measures, with a focus on women in conflict with the law” 2021 https://doc-04-a4-appsviewer. googleusercontent.com/viewer/secure/pdf/ulmcq0dt606rbp91e05nm7hv3t123r2a/ hq4l gljgnibu4a9hainn633mkrtvtd8p/1621239150000/gmail/08988459657206847535/ACFrOgB0hJKX2yQAAK4gtvZIEeNQX6D3Pot7 yT1lyhrbf8HIpxBymKnnTCqgRK47Ftmah1xJLMlWrX41toN9neCUqzdIBJmQtjs7v-rsUMG0FXnF3Q8yb8Lv-UJcIA4=?print=true&nonce=mh5re0i5fqc1q&user=08988459657206847535&hash=ma9qovolp16pbdjga2ne3tse93td27el [Date of use: 16 May 2021].
eliminated, and that the least interventionist noncustodial sentence should be imposed considering each woman’s circumstance, e.g. caring responsibilities.
FINES
22. Fines are considered a less harsh alternative to incarceration. Fines, which are specifically provided for in section 27 (1)(f) of the CPA, are the most common imposed sentence in South Africa. They are however, mainly directed at the lower crimes listed in Schedule 1 of the CPA. Fines have quite a number of advantages; they are a considerable source of revenue, do not require any expensive public resources to execute, can be fixed so that they accurately reflect the blameworthiness of the offender, and can be used to withdraw some of the profits which the offender may have made through her crime. The use of fines as a punishment should be encouraged, for the imposition of fines allows the state to generate revenue off the disutility of criminals.
23. As I previously mentioned, a lot of female offenders are primary caregivers and breadwinners and generate a low income. A major problem that is experienced with fines in South Africa is the large number of fined offenders afford the fines imposed on them. This problem largely stems from the fact that sentencing courts impose fines, where the means of the offender is not yet taken into account. Fines as an alternative to incarceration defeats its purpose when large numbers of offenders are imprisoned because they cannot pay their fines. SUSPENSION OF SENTENCES
24. A suspended sentence is one where a specific sentence of imprisonment is imposed, but not put into immediate effect. The offender is released on specified conditions and is liable to serve the term of imprisonment in the event of breach of those conditions. The preconditions for, and operation of, suspended sentences vary. The conditions upon which a sentence may be suspended are very wide including compensation, community service, good conduct or ‘any other matter’. South African courts usually prescribe community service as a condition for suspension of sentences.
25. Suspended sentences like correctional supervision allow the offender to continue their normal activities in the community, maintaining family contacts and meeting social obligations. Offenders are also protected from the possible negative effects of imprisonment and are given a chance of becoming lawabiding citizens. The offender remains in society and rehabilitation and reintegration is expected based on the offender’s character and social resources.
COMPENSATION
26. Section 300 of the CPA, makes provision for the payment of compensation to certain victims of crime at the request of the prosecutor. Claims for damage or loss are limited to damage or loss of property. For the purposes of determining the amount of compensation; the court must consider the evidence at the trial or call for further evidence. Compensation and restitution
are key elements of the comprehensive new sentence of community corrections, which also allows victims to benefit from other orders such as community service by the offender and victim-offender mediation.
27. In practice, evidence relevant to compensation is often led during the criminal proceedings. Section 300(2) of the CPA empowers the court to have regard to this evidence. During the inquiry the accused should be given an opportunity to challenge this evidence. The court should also investigate whether the accused can pay the amount of compensation. If the accused has no assets that can be sold in execution or if she has no income, a compensatory order cannot be enforced.
DIVERSION
28. Diversion from the judicial system can be defined as a method of relieving the judiciary of its load and at the same time obviate the problem of re-offense among petty offenders. Diversion programmes essentially try to prevent people who have committed an offence from being imprisoned by providing alternatives to prosecution and convictions. The diversion of offenders from the criminal justice system has a dual function:
a. It prevents further exposure to negative influences of the criminal justice process.
b. It attempts to prevent the accused from committing further offence by providing a variety of options, for example, community work sentences, referring offenders to drug and alcohol treatment programs, etc.
POSTPONED SENTENCES
29. Lastly the courts may consider postponement of the female offenders’ sentence whereby the imposition of the sentence is expressly postponed. The postponement can either be conditional or unconditional. Section 297(1) (a) of the CPA makes provision for the postponement of sentences. Committal to Treatment Centre
30. Another sentencing option is that a court convicting any person of any offence may, in addition to or in lieu of any sentence in respect of such offence, order that the person be detained at a treatment centre established under the Prevention and Treatment of Drug
Dependency Act, 1992, if the court is satisfied from the evidence or from any other information placed before it, which shall in either of the said cases include the report of a probation officer, that such person is a person who qualifies for such committal. 31. Community-based alternatives are becoming increasingly attractive as society continues to explore mechanisms for dealing with prison overflow, keeping costs in line with what taxpayers will support, and providing help to those who can remain in the community without endangering public safety.
32. To what extent community-based alternatives will be maintained in the face of pressure for stiffer sentences will largely determine the shape of future public policy. In this regard, such programs cannot afford to be viewed as ‘freedom without responsibility’ or ‘sanctions without accountability.’ Rather, they must be seen as involving real penalties that are as stringent as incarceration would have been. This fits in well with the the drive for gender sensitivity when dealing with women offenders.
33. Therefore, judicial officers may consider the use of existing legal provisions to nuance sentencing from a gendered lens and South African courts ought to do so in the case of women offenders, given the unique social determinants affecting women, taking into consideration the benefits that flow from a noncustodial sentence to the offender and the benign effect of such victimless offences on the community.
34. Women in South Africa are recognised as a vulnerable group. Women who become perpetrators of crime, have in most cases been exposed to some sort of abuse – whether physical, emotional or psychological. All roleplayers in the Criminal Justice System need to take cognisance of this and to adjust their approach to ensure that the vulnerability of women is acknowledged and that the rights of women are protected.
35. Our Criminal Laws are currently gender neutral and make no provision for the vulnerability of the female accused person during arrest, trial and sentencing.
Whilst parliament is being lobbied to give legislative effect to the vulnerability of women in conflict with the law, there is no reason why role-players such as the
South African Police Service, the Prosecutions and the
Legal professions cannot implement changes already without compromisisng the Justice system
36. Criminal Justice professionals need to also get involved with the plight of the woman at arrest stage and intervene as soon as possible before the case gets to court. All possible avenues need to be explored, including, but not limited to ADR, diversion and alternative sentencing options as already discussed. n
