Browsing by Author "Zain, Satardien"
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Item Sexual violence in prisons – Part 1: The duty to provide safe custody and the nature of prison sex(South African Journal of Criminal Justice, 2011) Lukas, Muntingh; Zain, SatardienWhile the exact extent of sexual victimisation in prisons amongst men is uncertain, it is accepted that this is a universal phenomenon. This article, in two parts, examines sexual violence in South African prisons and emphasises the duty of the state to provide safe custody. It is argued that rape and sexual violence in prisons fall within the ambit of the definition of torture and other ill-treatment, as defined by the United Nations Convention against Torture (UNCAT) and interpreted by the United Nations Special Rapporteur on Torture. The duty of prison officials to prevent sexual victimisation is discussed, reflecting in particular decisions from the United States (US). Particular attention is furthermore paid to the nature of sex in prisons and the relationship between coercion and consent. It is concluded that the duty to provide safe custody and protect the dignity of people deprived of their liberty rests with the state. Further, that this is an active and progressive duty placing the emphasis on managing risks and preventing torture and ill-treatment, as required by Articles 2 and 11 of UNCAT. The state is furthermore not only responsible for its own officials but also for the actions of non-state actors (i.e. other prisoners) when torture and other forms of ill-treatment have been perpetrated.Item Sexual violence in prisons – Part 2: The Criminal Law (Sexual Offences and Related Matters) Amendment Act (32 of 2007) – its implications for male rape in prisons and the Department of Correctional Services(South African Journal of Criminal Justice, 2011) Lukas, Muntingh; Zain, SatardienThe Criminal Law (Sexual Offences and Related Matters) Amendment Act (32 of 2007), referred to here as the Sexual Offences Act (SOA), established in law a gender-neutral definition of rape and this has important implications for male rape in South African prisons. In this article an analysis is presented of the SOA within the prison setting as well as the wider implications for the Department of Correctional Services. The different offences defined under the SOA are contextualised within the prison environment as this environment has implications for the detection and investigation of sexual offences committed there, as well as for the prosecution of perpetrators. Services to victims are also discussed as well as the Sex Offenders Register and the duties of the Department of Correctional Services in this regard. In order for the SOA to prevent and eradicate sexual victimisation in prisons, it will require a concerted effort by the Department of Correctional services to ensure that prisoners feel safe to report such instances and furthermore, to ensure that investigations are done thoroughly, promptly and with the necessary recognition and support for victims.