Using common law and statutory offences to address obstetric violence in South Africa

Abstract

In recent years there has been increasing concern about the various forms of abuse faced by birthing patients during labour and childbirth. Common examples include being scolded, slapped, pinched, stabbed with scissors or struck with a ruler or other instruments. This mistreatment is collectively termed obstetric violence.
A growing body of literature examines legal responses to obstetric violence including the potential use of the criminal law.

The present article explores whether, in South Africa, common-law crimes or statutory offences could be used to prosecute healthcare workers for the range of harms falling within the broad definition of obstetric violence. It does not question whether criminal law is an appropriate response in this instance.
The article concludes that existing crimes are sufficient to address obstetric violence. It is clear that the common-law crimes of crimen iniuria, assault, assault with intention to commit grievous bodily harm and the statutory offence of involuntary sterilisation, could be used to address both physical and emotional forms of obstetric violence.

It is submitted that they cater adequately for the broad range of conduct that potentially falls into the definition of obstetric violence. Further research is required in this area and it may mean that prosecutorial guidelines are needed.