South Africa

OP-ED: Sex crimes: Prosecutors’ job performance targets hinder justice

Shamila Batohi took office only on 1 February 2019, but already the nation has high hopes and expectations of what the National Director of Public Prosecutions will achieve. Most public conversations on this topic have centred on corruption and addressing #StateCapture, but what can a new NDPP mean for ordinary South Africans?

The National Prosecuting Authority has long boasted of achieving increasingly higher conviction rates on prosecuted sexual offences. Conviction rates are included in the Annual Report presented to the Parliamentary Portfolio Committee on Justice and Correctional Services. In 2018, a rosy picture of a conviction rate of 72.7% was presented for sexual offences in 2017/2018 year. This was met with great enthusiasm from MPs and the media. However, it is always important to read the small print. This shows that the 72.7% conviction rate was, in fact, for only 5,004 convictions — a small figure compared with the number of sexual offences reported each year, which has averaged about 50,000 a year for the past five years, according to police crime statistics. An important piece of this puzzle is to understand that conviction rates are calculated based on the number of cases referred for trial (prosecuted) by the National Prosecuting Authority. If we now regard the conviction rate of 72.7% resulting in 5,004 convictions, we can calculate that only 6,883 cases were actually prosecuted. Given the average number of reported sexual offences for previous years, then less than one in seven cases of sexual offences reported is prosecuted. That is an alarmingly low rate of prosecution. The obvious question then:Why does this happen?”. One easy answer is that the performance of prosecutors is measured on the rate of convictions they secure in the cases that they prosecute. The decision of whether to prosecute is left to the discretion of the prosecutor. Although prosecutors are guided by legislation and other policy documents, the discretion is fairly wide — prosecutors will prosecute a case if there is a reasonable prospect of a successful prosecution. Note that the requirement is not absolute certainty of conviction, but if prosecutors’ performance is measured on conviction rates, then it might be tempting to prosecute only cases where a conviction is fairly certain. Not only does this mean that about 86% of perpetrators are never held accountable for the sexual offences they committed, but it also means that the survivors of these crimes do not get a sense of justice being served. They do not have the opportunity to give testimony and have their moment in court. For this reason, we have urged the National Prosecuting Authority to review the performance targets that prosecutors are measured against. Specialised courts to hear sexual offences will go a long way to restore faith in the criminal justice system, but these courts have to function within a system that will ensure justice — and this can only be done if prosecutors are not deterred from prosecuting cases because it might reflect negatively on their performance. If Batohi and her office really want to ensure that justice is delivered, one of the first points on her agenda must be the revision of prosecutor performance targets. DM Jeanne Bodenstein is an advocacy co-ordinator of the Rape Survivors’ Justice Campaign.