By Shaun Bergover
In our previous article, we discussed civil laws, including the Constitution, which are applicable to gender-based and domestic violence. In this article, we will focus on criminal offences specifically.
A person who commits an act of domestic violence may also face various criminal charges. Domestic violence is not a criminal offence, and the National Prosecuting Authority (NPA) may decide whether there is enough evidence to charge a person with a criminal offence. It will also depend on the complainant and whether they want to lay criminal charges. Domestic violence cases are between two private individuals i.e., the State is not involved, however, the courts facilitate the process from the application to the granting of the order.
A criminal charge, in addition to the application for a protection order applied for at court, is laid at the police station. Some of the more common criminal charges which can be laid against an abuser will be discussed.
Crimen Injuria
If an abuser says something which is deliberately and unacceptably hurtful to someone, this may amount to a criminal offence. In addition to being hurtful, the statements must also be defamatory, in other words, they must damage or hurt the reputation of the complainant. Hurtful and derogatory statements also amount to abuse in terms of the Domestic Violence Act.
Common assault and assault GBH
Any unlawful physical attack on someone is assault, usually known as common assault. This will also include any threat of attack. Assault is one of the most common offences experienced by victims of domestic violence.
Any serious attack or assault amounts to assault with intent to do grievous bodily harm (assault GBH) and usually this may involve assault where the abuser used a weapon (gun, knife, etc.) and has inflicted serious bodily harm. If the assault was so serious and intention can be proved by the NPA, the abuser may also be charged and found guilty of attempted murder.
Rape and sexual assault
Rape
Rape occurs when a person unlawfully and intentionally commits an act of sexual intercourse with someone without their consent. The Act also makes it an offence for a person to force another person to rape someone. This is known as compelled rape.
Sexual Assault
Sexual assault occurs when a person sexually violates another person without their consent. The Act includes various instances of sexual assault which include direct and / or indirect contact between genitals of one person and / or body parts of another person. The main point of this section of the Act is contact, whereas with rape it is penetration.
It is important for a victim of rape or sexual assault to be examined by a doctor as soon as possible after the incident and for the victim to report the incident to their nearest police station.
Trespassing
A victim of domestic violence can lay a charge of trespassing against someone who does not live at the property and enters the property without permission. This includes partners and spouses who no longer live at the property. During domestic violence proceedings where parties still live together, a court may suggest to a party that they temporarily move out of the property in an attempt to resolve the issues between them. A person cannot be charged with trespassing if they have a lawful right to be on the property.
Housebreaking
This occurs when someone forces entry into the home or workplace of someone else. For example, someone breaks into the house where they used to live, but no longer lives there since the separation from their partner. This is tricky when both the victim and the abuser have equal rights to the property. A person cannot be charged with housebreaking if they are a lawful owner of the property.
Domestic violence and harassment
Any breach of a protection order automatically amounts to a criminal offence and the abuser will be charged with breaching the protection order. A breach of the order means that the abuser has continued with the abuse despite the order being in effect. It is important to note that if the victim abuses or misuses the protection order, he or she could also be charged criminally and may face imprisonment of up to two years or a fine, or a combination of both. Once a protection order has been breached, a complainant may not decide to withdraw the charges and it is only a senior member of the NPA who may decide to do so.
Criminal offences generally
An abuser may also be charged with various criminal offences as discussed above. Each criminal offence has particular requirements, as well as valid lawful defenses, which are beyond the scope of this article.
When the Domestic Violence Act is discussed later on in this series, you will see that the Act is applicable to people who are in a domestic relationship or who were in a domestic relationship. This means that even if the parties no longer live together, the complainant can still get relief in terms of the Act.
(Shaun Bergover is an attorney at the Rhodes University Law Clinic).
