The Constitutionally Inspired Approaches to Police Accountability for Violence Against Women in the U.S. and South Africa: Conservation versus Transformation

In the summer of 2005, the United States Supreme Court in Castle Rock v. Gonzales and the South African Constitutional Court in N.K. v. Minister of Safety & Security overturned decisions from their appellate courts. N.K. drew on the Constitutional Court decision in Carmichele v. Minister of Safety & Security. All three were torts cases involving the duties of the police, their accountability to the public, and rights of women to be free from violence, and each depended on the respective court’s interpretation of its constitution for resolution. This article focuses on the comparison, or rather, the sharp contrast between, the values and spirit animating these decisions. The respective courts’ interpretations of the underlying values or spirit of their constitutions either help forge a special relationship between victims and the police, thereby altering the existing distribution of entitlement and duties, or they hinder those attempts. The contrast is between a Court that views its Constitution as a progressive covenant between the people and its government, which fosters a culture of justification and accountability, and a Court that views its Constitution as a charter of negative liberties, and which will go to great lengths to conserve the status quo distribution of rights and entitlements. One is intent on protecting the vulnerable members of its society and the other is skeptical of attempts by the legislature to do so through the creation of new rights and the imposition of new duties on the police