INTRODUCTION

Until recently, little attention was paid to the plight of the victims of crime in South Africa. As elsewhere in the world, the attention was on offenders and their rights within the criminal justice process, marginalising victims to a large extent. Courts, for instance, granted offenders the rights to a fair trial, bail, and competent legal counsel and to remain silent.2 Promoting justice was largely seen as balancing the interests of the State against those of the accused.

However, during the last two decades attention was increasingly paid to the needs and rights of the victims of crime, mainly as a result of public concern with rising crime rates and the activities of various victims’ movements which emerged to lobby for changes to the victim’s position in the criminal justice process.3 Current international trends, as well as recent proposals to improve the position of victims in South Africa, as reflected in the recently released National Crime Prevention Strategy (NCPS), will be discussed in this article.

In considering crime prevention, it is generally agreed that preventing crimes from occurring in the first place is the best approach, as criminal justice agencies are increasingly unable to respond appropriately to crimes once they have been perpetrated. Traditionally, the response to rising crime rates has been to devote more resources to law enforcement and to introduce tougher penalties in the hope of deterring offenders from committing further crimes. However, in recent years these so-called ‘offender-based’ strategies have become less prominent, as ‘get-tough’ policies involving harsher penalties have not had the desired results.4 For these reasons, the focus in crime prevention research and policy has shifted from the actions and motives of offenders to those of victims. While focusing on victims may initially seem reactive, it is argued in this article that mobilising around the victims of crime may yet prove to be one of the most effective ways to curb increasing crime rates in South Africa.

SOUTH AFRICAN CRIME PREVENTION INITIATIVES

Recent developments in crime prevention in South Africa are embodied in the NCPS. This article does not attempt an in-depth critical analysis of the document, but its claims regarding a victim-centric approach to crime prevention are of particular interest and will form the basis of discussion. In recognising the inadequate support given to victims of crime in the past, the NCPS acknowledges that, "[v]ictimisation lies at the heart of much retributive crime and the absence of means of victim aid and empowerment play an important role in the cyclical nature of violence and crime in South Africa. While victim aid is often regarded as remedial rather than as preventative in dealing with crime, this view is dangerously misleading. Victims of past or current criminal activity if untreated, frequently become perpetrators of either retributive violence or of violence displaced within the social or domestic arena" (4.10).

The victim-centric approach of the NCPS is summed up by the following:

"The onus is on government to deliver a crime prevention approach which places the rights and needs of victims at the centre of the strategy" (2.3.3.) and;



"It is of primary importance that the NCPS represents a victim-centred approach to the problems of crime" (4.10)

In order to avoid accusations that the rights of offenders may be unfairly jeopardised by focusing on the victims of crime, the NCPS frames its focus on victims with a human rights perspective. It argues that an uncompromising commitment to build popular respect for human rights (for both victims and offenders) can be achieved best by "investing considerable energy in the development of a victim-centred crime prevention programme, rooted in the effective delivery of victim aid and empowerment, which demonstrates that the human rights of victims are prioritised - without this being at the expense of the rights of any other citizens. In this manner, public resistance to the extension of human rights (such as the rights to legal representation, the rights not to be subjected to cruel and unusual punishment, or rights in respect of bail applications) may be offset by the demonstrable investment in the rights and needs of victims" (6.8.2).

In seeking to address one of the most frequent obstacles to the successful reduction of crime, namely the lack of co-operation and co-ordination between and within responsible agencies, it can be argued that if civil society and agents of the criminal justice system are mobilised around the victims of crime, the basis for a long term, proactive crime prevention strategy for South Africa may become entrenched. Focusing on the victims of crime may help to unite these agencies and promote collaboration and agreed solutions through providing a ‘reactive’ response when a crime has occurred, and a longer term ‘proactive’ response to prevent recurrence.5 In this article, an attempt is made to identify the ‘proactive’, preventive strategy of focusing on victims.

The following issues are taken into account by the NCPS and form the critical focus of this discussion:

the need for accurate crime information in the form of victimisation surveys that elicit information from the victim’s actual experiences, as well as their attitudes and concerns about crime;



the need to address inappropriate or unsympathetic responses particularly by the police and the courts, i.e. secondary victimisation, which may actually serve to disempower and multiply the effects of crime on the victim; this can be achieved through



provision of services for victims of crime at police stations and in courts;



sympathetic policingtactics, reinforced by continuous training on the treatment of crime victims and the addressing of their needs for information and counselling, among others; and



provision of information on court procedures and witness protection programmes for victims.

Does South African policy-makers’ thoughts on theseissues currently support such factors? Does the NCPS - admittedly an open-ended working document - deal adequately with these issues?

WHO ARE THE VICTIMS

Effectively structuring interventions aimed at crime prevention relies on knowledge of the nature and extent of crime. Conducting a victimisation survey represents a democratic and successful way to achieve this. Since police statistics are notoriously unreliable indicators of crime, victimisation surveys that elicit information from victims on their experiences, attitudes and concerns about crime provide a broader, and arguably more accurate source of information on the extent and nature of crimes in a particular area or society. As such, these surveys can provide the basis for a democratic discussion about the significance of different forms of crime, and by implication the allocation and distribution of limited resources.6

An important finding of victimisation surveys that supports the limited resources/targeted intervention theory, is that people and places repeatedly victimised, account for a significant proportion of all crime. In the UK, the 1992 British Crime Survey found that half of those victimised were repeat victims and suffered 81 per cent of all reported crimes. Of these respondents, four per cent were chronically victimised in that they suffered four or more crimes a year and accounted for 44 per cent of all reported crimes.7 This finding has important implications for the development of crime prevention strategies. In recognising that victimisation is concentrated among certain sections of the population who tend to be victimised repeatedly, and that the best predictor of future victimisation is past victimisation, it becomes possible to pre-empt certain forms of victimisation. Preventing crime against these people and places through interventions constructed to protect victims and reduce vulnerability, should ultimately have an impact on overall crime levels.8 Although relatively new, the victimisation approach promises to make an important contribution to the formulation of effective crime prevention measures, as it provides an answer to the difficult question of how to identify the most vulnerable victims, and provides a basis for intervention that is potentially both effective and objective.

It appears that this approach is supported in the NCPS and the section on crime information and intelligence gathering (1.3.5.1) refers to victim surveys as "a critical gap to be filled". It recognises that "developing effective prevention strategies requires the identification and analysis of the range of factors that give rise to each crime problem" (29.1.2.3), and that crime prevention strategies may be prioritised on the basis of data acquired by these surveys (6.2.1). It is somewhat problematic, however, that victimisation surveys, as a method to address problems of under-reporting to the police, are not mentioned in the section noting problems with existing crime data (3.6), even though they could be "effectively utilised as a strategic yardstick in the allocation of resources". The fact that they are referred to in the section dealing with the "impact of media representations of crime" (3.7), may indicate a misunderstanding of the use of such surveys: instead of public opinion surveys on what people may fear, victimisation surveys are useful tools to determine the nature and extent of crime. While expensive to undertake and requiring serious commitment from local authorities and the State, the information elicited from such surveys ultimately allows police to use limited resources more effectively.

To date, no official, national victimisation survey has been conducted in South Africa, even though it could be an effective way of correcting the discrepancy between actual and recorded crime rates.9 The reference to victimisation surveys in the NCPS is a significant advance in terms of crime information, but surveys need to be conducted urgently on a national and regional scale, as well-intentioned interventions to curb crime will only be effective if they are based on accurate information.

VICTIMS AND THE CRIMINAL JUSTICE SYSTEM

Victims of crime have certain emotional and practical needs, such as counselling, referral, information on investigations and court procedures, as well as compensation. Between the initial contact with the police and an encounter with confusing court procedures, few provisions or services are available to accommodate the crime victim’s needs or to reduce the impact of a traumatic experience. It is argued that a growing awareness of victims’ needs and recent reforms in the police services and the court system in South Africa, in line with international trends, may assist in alleviating such secondary victimisation. In the interests of preventing crime, these needs, as well as drastic reforms to the victim’s position in the criminal justice system, must be addressed as a priority by criminal justice authorities.

In line with a victim-centric vision for the criminal justice system as a whole, the NCPS claims, among other things, to aim to

"enhance the effectiveness of it as a deterrent to crime and as a source of relief and support to victims" (8.1.1);



"improve the access of disempowered groups to the criminal justice process, including women, children and victims in general" (8.1.5);



"redesign the criminal justice process to reduce blockages, empower victims and reduce unnecessary time delays" (8.2.1);



"provide a greater and more meaningful role for victims in the criminal justice process" (8.2);



"improve the service delivered by the criminal justice process to victims through increasing accessibility and sensitivity to the needs of victims" (8.1.8), (1.9.1.3); and



"deal with the damage caused by criminal acts by providing remedial interventions for victims" (8.2.9), (1.9.1).

Motivations for changing the system to make it more accessible, user friendly and understandable, include the enhancement of both its legitimacy and of the public’s understanding, in order to reduce incidences of intense dissatisfaction that lead to vengeful and retributive cycles of crime and violence. Accessibility requires that police and justice officials show sensitivity to the trauma experienced by victims and are service-oriented, that the public are able to understand the criminal justice system and that communications to victims about the progress of their cases are integral to the procedures of criminal justice. Recognising this, the NCPS sets a task to "investigate possible procedures and guidelines which can be adopted within the Police and Justice Departments to better inform complainants of the status and progress of cases, as well as information on investigation, prosecution and bail" (1.9.9.1).

This new direction underlines the belief th

at both victim support and victim empowerment programmes have an enormous contribution to make to crime prevention: that victim support, including counselling and steps to protect victims, can lead directly to a reduction in repeat offences (1.9.2.2), and that, in the longer term, a judicial process which provides a real role for victims imposes a more meaningful moral burden on offenders, hence reducing the justification for crime inherent in a system which conceals the victim entirely (1.9.3).

Having sketched the NCPS vision for a victim-centric criminal justice system - a commendable advance in South Africa’s criminal justice thinking - the reality of developments on the ground, specifically in relation to the police and court services as they currently affect victims of crime in South Africa, require critical consideration.

VICTIMS, POLICE AND SUPPORT SERVICES

As ‘gate-keepers’ to the criminal justice system, the police play an important role in shaping the crime victim’s initial experiences. Although dependent on victims to report crime and co-operate throughout the investigation, internationally police attitudes towards victims are found wanting, and in South Africa - where the police were seen as victimising agents of apartheid - historical circumstances tend to exacerbate the situation. To address these problems, a variety of reform measures have emerged over the past decade, including special training, statutory amendments, administrative guidelines, as well as establishing state funded or voluntary services connected with police stations to provide counselling and information to victims.

In South Africa, the current focus on community policing - strongly promoted in the new Police Plan - is an attempt to address a tradition of reactive policing that has led to the isolation of the police from the broader community. Developing proactive strategies and closer relationships with community representatives is effective on a pragmatic level since the key to the establishment of viable crime control policies is the flow of information from the public to the police. As such, good policing requires the cultivation of a co-operative relationship between the public and the police, for instance to ensure that victims will report incidents, especially if they know that the police will keep them informed of the progress of their case. On the other hand, policing without consent, and an inefficient and generally ineffective flow of information, involves a massive deployment of personnel and resources in order to cover all contingencies.10

In line with international policing developments, the introduction of community policing and community safety plans in South Africa bodes well for increased co-operation from the public. However, community police forums that involve police and citizens in addressing crime in local areas are characterised by apathy, lack of resources, questionable representivity and a lingering distrust of police personnel who are inadequately trained for this type of policing.

In terms of support services for victims, police activities internationally focus on juvenile victims and victims of gender crimes. South Africa is no different in this regard and a limited number of specialised services for victims of certain crimes, such as sexual assault or child abuse, have been established countrywide at specialised units. Police officers are specially trained to deal with these victims in a confidential and sympathetic manner. However, the training has been criticised as inadequate11 and has yet to be applied in a wider context. Apart from these specialist areas of innovation, little has changed with respect to police attitudes or responses towards victims of crime in general.

According to the NCPS programmes for victims, the initial establishment of victim support services at a limited number of police stations (with the first recently opened in Port Elizabeth), are part of SAPS’s Reconstruction and Development Programme (1.9.4). Training police officials in victim aid, for instance with counter staff trained in the sensitive taking of statements, will be complemented by the establishment of referral systems for victims. This programme will eventually be extended to include justice officials. The programme also encourages the growth of a victim support infrastructure, in co-operation with the departments of Health and Welfare, as well as relevant non-government organisations (NGOs).

These moves are laudable in the light of the negative findings of research conducted in 1990 and 1995 on South African victim support services.12 However, if a victim-centric approach to crime prevention is to be seriously promoted, all police officers need to be trained continuously in victim aid skills and every police station, as a matter of priority, needs to provide services - whether in the form of a separate waiting room, or immediate referral to community resources - to all victims of crime, not just women and children. Though this sounds difficult, there are existing international models that can be utilised. Such an approach will encourage citizens to report crimes and co-operate with the police during the investigation, instead of taking the law into their own hands. Unfortunately, current police training curricula fail to address these needs adequately. The new Police Plan - punted as the operational wing of the NCPS - refers to training and retraining of police officers as a priority,13 but fails to identify specific training around victim issues. Unless the Department of Safety and Security spearheads such initiatives, it is likely to remain on the back burner of criminal justice thinking.

COURTS, CONCERNS AND COMPENSATION

In South Africa, criminal procedure is mostly focused on apprehending the offender, rather than consoling the victim. Deterrence rather than restitution is the pivot of South Africa’s justice system, and of all the role-players, the victim tends to be the most marginalised. If an accused is arrested, the case is conducted as a matter between the State and the offender, where the State in effect ‘steals’ the conflict from the victim, to render a crime that has been committed, a crime against the State.14 The victim is often merely a witness to proceedings, and is considered an ‘item of evidence’ or a ‘non-person’.15 Apart from the consequences such an approach has for compensation and restitution, the victim is made to feel that justice is on the side of the offender, giving criminal justice a whole new meaning. Since the system is not designed to deal with the practical, financial, medical or mental health problems that victims may face, many might resort to retributive action - a scenario well-documented in the NCPS - if the situation does not improve. However, focusing on the victims of crime may impact on wider perceptions of courts as places where justice is done, and may inhibit retributive action.

During the last twenty years, a ‘rediscovery’ of the role of the victim in the criminal justice system has taken place and certain measures have been introduced to counter secondary victimisation that may occur in court. Internationally, reforms have been introduced that ensure that victims are not treated as mere witnesses, but are provided with information on the outcome of their case, as well as compensation and counselling. In some countries, improvements to the victim’s position in the criminal justice process have been embodied in a victim’s charter dealing with specific rights, including:

the right to be heard with regard to the impact of the crime on a victim’s life;



the opportunity to submit the victim’s wishes and desires to the court, and that these are taken into account during sentencing; and



the right to restitution, protection and separate waiting areas at court.16

In the United States, certain measures have been instituted that allow more active participation by victims in the criminal justice process through, for example, ‘victim impact statements’ or ‘victim statements of opinion’. This is a document intended to provide information to the court concerning the physical, financial, emotional and psychological effects of a crime on a victims’ health and, where relevant, his or her family.17 Recent research in South Africa about the viability of introducing such measures for victims into South African courts showed that "allowing a victim to submit into proceedings details of how the violent crime affected his or her life, will help deliver more appropriate sentences and promote credibility for the criminal justice process."18

However, while there is emerging consensus that the balance between victim and offender must be restored in the criminal justice system, these measures are by no means without controversy.19 Arguments have been made that such statements can prejudice the criminal justice system’s ability to maintain equality in punishment and that the call to address victims’ needs and reorient the criminal process away from the offender towards the victim may have certain dangers. For instance, a ‘law and order’ approach that characterises victims as weak innocents, may manipulate their cause to lobby for harsher penalties, stricter measures, such as stiff bail conditions, and more oppressive treatment of offenders - all disguised under the noble cause of securing a better deal for victims. The danger is that a healthy victim movement will be transformed into a backlash against criminals, and that advances made over the years to humanise the criminal justice system, will be reversed.20 Research indicates, however, that victims are not excessively punitive or vengeful, nor do they desire heavy sentences.21 While wanting to "provide a greater and more meaningful role for victims in the criminal justice process" (NCPS 8.2), it will undoubtedly take some time before victim impact statements are seriously considered by South African law makers, and only if such initiatives are led by the relevant line function Department of Justice.

With regard to particular services for victims in court, the Department of Justice’s efforts relating to juvenile and female victims referred to in the NCPS, are noted. While it is a reality that limited resources are inhibiting the development of such services, priority should be given to the creation of ‘additional special courts’ for victims of sexual offences, especially since South Africa scored a world first in this regard. Specialised training at the Justice College in dealing with juvenile and female victims (5.7.4.5.7), needs to be broadened to include the needs of all crime victims who find their way to court.

There is currently a growing concern in South Africa over the need for restitution or State compensation for victims of crime. Internationally, government compensation rests on the premise that since the State is obliged to maintain law and order, and that crime results from a failure to fulfil this duty, compensation must be paid accordingly.22 Compensation schemes abroad differ depending on the following:

definitions of crimes included in their cover;

the degree of loss or harm;

the obligation to co-operate with authorities; and

consideration of the victim’s conduct.

Usually, only victims of violent crimes receive compensation. In most countries, the prevailing notion is that compensation is not a right, but a reward given to ‘deserving’ victims. Consequently, compensation schemes only reach a small proportion of victims, with most either unaware of their eligibility for compensation or not being encouraged to apply.

In South Africa, Sections 300 and 301 of the Criminal Procedure Act (1977) deal with compensation and restitution claims. However, research has shown that the courts are reluctant to make use of these powers, and in most cases victims are left empty-handed.23 Since the State acts on behalf of victims in criminal cases in South Africa, the State is usually the beneficiary of the fine. Victims are often unable to institute civil charges, thus forfeiting any possible monetary restitution. The entire sentencing procedure was recently scrutinised by the Law Commission. A Private Member’s Bill on a Fund for Victims of Violent Crime - approved in principle by the Minister of Justice - has been tabled and proposes a central fund into which all court fines will be paid, except those paid to local authorities, and forfeited bail money.24 In effect, the costs of restitution will not be carried directly by the State, but rather by fines imposed by the courts on criminals - currently a figure of approximately R80 million a year. It is envisaged that compensation claims will be assessed by a Board of Trustees - a multi-disciplinary group of experts - appointed by the Minister of Justice for a five year period. If successful, victims of violent crime or their dependants could receive between R200 and R30 000. Although fraught with problems, such as criteria regarding the amount per crime and measurements of the harm suffered, international research indicates that victims of violent crime are not necessarily interested in the size of the settlement. Instead, compensation is regarded as an important symbol of society’s recognition that they have suffered a loss.25

Similar schemes are operating throughout the world to ameliorate the social damage caused by violent crime, and there is no reason why such a scheme cannot work in South Africa. While the Minister of Justice has argued that increases in violent crime have rendered justice for victims, including expeditious restitution, particularly relevant, the NCPS makes no reference to these legal developments, apart from stating its aim to "develop a programme for the extension of policy proposals around victim compensation and restitution" (1.9.9.7).

CONCLUSION

To streamline and co-ordinate fragmented services for victims of crime provided by NGOs, police and justice officials, the NCPS envisages an ambitious National Programme aimed at victim empowerment and support led (somewhat surprisingly) by the Department of Welfare (1.9.10). Such a programme will seek to:

address the negative effects of criminal activity on victims through programmes which mediate these effects and provide support and skills to address them (1.9.1.1);



establish a directory of service providers and identify critical gaps (1.9.9.4);



examine existing resource usage and re-prioritise resource allocation to meet public needs and expectations around crime (6.4.2.1);



focus available resources - NGOs and private sector groups which provide victim support, counselling and other related services - on those areas of crime categories causing the most damage, where victim empowerment has a substantial chance of reducing repeat victimisation and cycles of violence (1.9.5);



conduct ongoing customer research on how the criminal justice system is experienced by victims and their communities (1.9.7);



conduct an audit of victim complaints, identifying the most critical areas (1.9.9.2);



conduct an audit of victim support practices internationally in order to identify appropriate local interventions (1.9.9.3);26 and



identify gaps in the provision of information to the public regarding available services (1.9.9.6).

These are praiseworthy efforts to address stumbling blocks in the provision of services for victims. Unfortunately, if it is to be led by the Department of Welfare, only lip service will be paid to the creation of a better deal for victims of crime in South Africa. Although this Department already provides some services to offenders and to victims of crime (5.6.1), the departments of Safety and Security and Justice, as line function departments, are as important, if not more, in addressing issues around the victims of crime.

There are not sufficient reasons for the Department of Welfare to be leading this programme. The accommodation of victims of crime in the criminal justice system through aid and empowerment requires hard policy decisions, commitments, resources and training from the departments of Justice and Safety and Security that have traditionally been concerned with crime. Attempting to marginalise crime victims’ concerns by making it a soft issue and the responsibility of the traditionally ‘caring’ Department of Welfare seriously questions the sincerity of the commitment in the NCPS to a victim-centric approach to crime prevention, as well as the commitment to make the criminal justice system with its traditional bureaucracy, more user/victim friendly.

This article was presented as a paper at the conference on Crime and Justice in the 90s, UNISA/IDASA, University of South Africa, Pretoria, 3-5 July 1996. It is published as part of the Crime and Policing Policy Project, a venture jointly sponsored by the British High Commission, the Hanns Seidel Foundation of Germany, the Open Society Foundation for South Africa, Q Data Consulting, the Rand Merchant Bank, the Royal Netherlands Embassy in South Africa and the United Nations Development Programme.



B Naude, Taking Victims to Court: A call for victim impact statements in South African courts, Crime and Conflict, 5, Autumn 1996, pp 22-24.



Ibid.



Schwendiger & Schwendiger, Giving crime prevention top priority, Crime and Delinquency, 39(4), 1993, pp. 425-446.



National Board for Crime Prevention, Wise after the event: Tackling repeat victimisation, May 1994.



K Pease, Judgements of crime seriousness: evidence from the 1984 British crime survey, Home Office Research Unit, 44, HMSO, London, 1988.



G Farrel & K Pease, Once Bitten, Twice Bitten: Repeat Victimisation and its Implications for Crime Prevention, Crime Prevention Unit, 46, Home Office, London, 1993.



National Board for Crime Prevention, op. cit.



The Nedcor Report on Crime, Violence and Investment conducted a national victim survey of 2 163 adults in October 1995. However, this was not official nor of a scale envisaged by the author.



R Matthews, Crime Prevention, Disorder and Victimisation, pp. 87-101.



J Rauch, An independent assessment of basic training on the police response to rape, in P. Skiwward, S Jagmanth & B Grant (eds), Women under the criminal justice system in South Africa, HSRC, Pretoria, 1992.



See H F Snyman, ‘n Kriminologiese Perspektief oor Dienslewering vir Slagoffers van Misdaad, unpublished D Phil thesis, University of South Africa, Pretoria, 1990; L Camerer, A Comparative Perspective of Victim Support Services with Specific Reference to South Africa, unpublished M Phil thesis, Oxford University, UK, 1995.



SAPS, 1996/1997: Annual Plan of the South African Police Services, 1996, p. 18.



See N Christie, Conflicts as property, British Journal of Criminology, 17, 1977.



J Shapland, Victims, the criminal justice system and compensation, British Journal of Criminology, 24, 1984.



Naude, op. cit.



Ibid.



Ibid.



See A von Hirsh & N Jareborg, Gauging criminal harm: a living standard analysis, Oxford Journal of Legal Studies, 2, 1991.



E A Fattah (ed), From crime policy to victim policy: reorienting the justice system, Macmillan, London, 1986.



Naude, op. cit.



Council of Europe, Convention on compensation for victims of violent crime, Strasbourg, 1983.



D J McQuoid-Mason, The role of legal aid clinics in assisting the victims of crime, in W Schurink, I Snyman & W Krugel (eds), Victimisation: nature and trends, HSRC, Pretoria, 1992.



J Selfe, Fund for Victims of Violent Crime Bill, Parliament, Cape Town, 1995.



M Maguire & J Pointing (eds), Victims of Crime: A new deal?, Oxford University Press, Milton Keynes, 1988.



See Snyman, op. cit.; Camerer, op. cit.