CHILD JUSTICE PROJECT A UN Technical Assistance Project Of the Government Of South Africa
Directorate: Children And Youth,
Department Of Justice and Constitutional Development
SUBMISSION TO PUBLIC HEARINGS ON SEXUAL ABUSE OF CHILDREN BY THE CHILD JUSTICE PROJECT, A UNITED NATIONS TECHNICAL ASSISTANCE PROJECT TO THE GOVERNMENT OF SOUTH AFRICA FOR THE IMPLEMENTATION OF THE PROPOSED CHILD JUSTICE LEGISLATION
This submission seeks to address the issue of protecting children from sexual abuse by treating child sexual offenders. The submission addresses:
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The need for an early intervention and prevention approach towards child sex offenders;
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The inherent dangers of criminalizing child sex offending;
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The proposals of the Child Justice Bill on the use of programmes for diversion and alternative sentencing in as far as they relate to child sex offenders;
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Availability and use of programmes for child sex offenders and gaps in the delivery of programmes as an early intervention and preventative measure.
2. An early intervention and prevention approach towards child sex offenders
International research evidence indicates that between 50% and 65% of adult sex offenders commit their first sexual offences as children and young persons. Children who commit sexual offences are typically aged between 13 and 17 years and most of them are males. There are anecdotal reports of children younger than 13 committing crimes and courts are reporting cases involving children under the age of 13,and in practice such cases are usually withdrawn on the grounds of age on the grounds of the young age of the child. However, the matter of children under 13 committing sexual offences in South Africa is an area for urgent research and analysis.
Although there is a the lack of clear research evidence on the extent of and issues around children committing sexual offences in South Africa, one cannot ignore the fact that there is an increase in the number of reported cases of a range of sexual crimes committed on children by other children, as organizations such as Childline are finding through their crisis line. However if one looks at the overall sex offending population that includes children and adults – both waiting trial and sentenced, it is evident that children still constitute a very small percentage of the sex offending population. This provides us with a window of opportunity to intervene effectively with children. For example statistics from the Department of Correctional Services for the month of October 2001 indicate that there were 292 children between 13 and 17 years awaiting trial for sexual offences. In the same category there were 7447 adults. During the same month there were 233 children sentenced for sexual offences as compared to 14303 adults during the same month.
When it comes to understanding sex offending as it pertains to children, it is important to note that although children may know that hurting other children is wrong, they do not always understand the implications of sexual acts since sexuality is part of the adult world. Often children do not get adult guidance on sexual behaviour, what is appropriate and problematic sexual conduct. When children commit sexual acts on other children, they might be acting out things they have observed in their homes, in their communities, on TV. At times children commit sexual acts as a way of acting out things done to them by adults or older children. Studies attest to the fact that when younger children are subjected to early sexual victimization it increases their probability of engaging in sexually inappropriate behaviour. In such cases there is a thin line between a victim and a perpetrator of a sexual act. Childhood sexual victimization has a devastating impact, which includes internalisation of inappropriate behaviours and acting –out disorders, and there should be recognition that effective prevention and early intervention and treatment can end the cycle of both victimization and perpetration.
3. Criminalizing child sex offenders
The criminalisation of child sex offenders has potential of driving such behaviour underground due to the shame, guilt and stigma associated with sex offenders. Diversion for many of these children into appropriate programmes would be an appropriate way to deal with them. This however, does not mean that children who commit sexual offences should never be taken through the criminal justice system. Under the current law this is possible and in the proposed child justice system it will continue, but we need to be careful when assessing children who have committed sexual offences – to be alert to the child’s developmental capacity, the age difference between the children as well as looking at whether children’s therapeutic needs have been met if they have been victims of sexual abuse.
Age is also another factor to consider when dealing with child sex offenders. Children who commit sexual offences may be developmentally delayed, e.g. a child whose chronological age is 16 but who is developmentally functioning as a 12 year old. This phenomenon is common especially among child offenders. In such cases it is important that professionals who deal with these children are especially trained in assessments and when making decisions about child sex offenders the distinction between a child’s chronological and developmental age is quite important. The Child Justice Bill address age and criminal capacity by proposing that:
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A child who at the time of the alleged offence is below the age of 10 years cannot be prosecuted.
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A child, who at the time of the alleged offence is between 10 and 14 years of age, is presumed not to have had the capacity to appreciate the consequences of his/her actions, unless it is proven beyond reasonable doubt that at the time of the alleged offence the child had such capacity. This allows child sex offenders between these ages to be treated cautiously and to be directed to appropriate treatment programmes instead of being criminalized.
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Between the ages 14 and 18 there is assumption of criminal capacity but several factors should be taken into consideration when making decisions for the criminal justice system, such as the age difference between the offender and the victim, developmental age, past relationship between children, etc. In such cases the discretion of the professionals who do assessments and those who make decisions is very important.
When an assessment is done there should be a distinction between a "calculated sexual act" and childhood/youthful exploration, which is part of the child’s development. For the sake of the victims and other potential victims we need to change this pattern of behaviour through treatment. Early intervention and treatment can be more effective for many child offenders because children are not yet set in their patterns of sexual behaviour, it is therefore easier to work with them to change their behaviour patterns than it is to change adult patterns and formed habits. Therefore providing the right treatment services early enough to children who commit sexual offences becomes a major component of a strategy to prevent child sexual abuse.
4. The Child Justice Bill
The Child Justice Bill that deals with children accused of crimes has been approved by cabinet and is due for parliamentary debates this year, 2002. The Bill allows for children who commit crimes to be dealt with in an individualized way. It also allows for a balanced and flexible approach to dealing with children in that based on the individual assessment of circumstances surrounding the child and the crime, children could be afforded opportunities to learn appropriate behaviours through programmes but also allows children who have committed serious crimes to be dealt with firmly by the criminal justice system. The Bill also promotes the rights of the victims of crimes by children through the use of restorative justice processes.
The Bill places emphasis on the use of programmes for diversion and alternative sentencing. Diversion refers to the channelling of cases away from the criminal justice system into programmes that make children accountable for their actions.
The Bill further sets out a range of diversion options by proposing three levels of diversion for children aged 10 years and older. Level one diversion includes less intense interventions that can be implemented through a range of orders issued at the preliminary inquiry. Level two diversions include any options under level one. In this case the maximum period of diversion should not exceed six months. The diversion options at this level are more intense than those at level one.
Level three diversions are more intense and they can only be applied in cases of children of 14 years or older if the court believes that upon conviction of the child would impose a sentence involving detention of the child for a period not exceeding six months. Options at this level include referral to counselling or therapeutic intervention for treatment of problematic behaviour patterns.
Seen in this way, diversion offers an opportunity to children who have committed sexual offences as they can be diverted to therapeutic programmes as level three options. Again any level can be an appropriate option depending on the nature and the circumstances around the child and the offence.
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Alternative sentencingapplies to those children do not get diverted, so they stand trial. The Bill allows for programmes to be used as alternative sentencing options.
As proposed in the Bill, child sex offenders could be sentenced to a community-based programme to receive specialized therapeutic and treatment intervention in conjunction with any other option. Also a sentence involving correctional supervision for some child sex offenders could be imposed, as is the case in the current system.
5. Current use of programmes to deal with child sex offenders
The Child Justice Project is conducting an audit of programmes for diversion and alternative sentencing. The audit has identified that there is a gap in the availability of specialized programmes for child sex offenders. Two examples of programmes that are currently used as diversion and sentencing of child sex offenders are Childline in Durban, KwaZulu Natal and SAYStOP in the Western Cape.
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Childline
The majority of child offenders in the childline programme are referred by the criminal justice system. The programme is used as a diversion option as well as a community based sentence involving correctional supervision. The programme works through contractual arrangements between the child and the courts and there are two main forms of contracts:
a) Diversion contracts (prior trial) where the child offender is offered an opportunity of having the charges withdrawn subject to strict conditions.
b) Probation or Correctional Supervision contracts when a child has gone through a trial and has been sentenced to Correctional Supervision and/or attendance at a treatment programme as a condition of a suspended sentence. Sometimes children go through trial and receive a custodial sentence and are referred to the Childline programme on parole.
Childline has qualified counsellors and therapists who work with children individually, through group therapy and also with the caretakers and families of the children. Working with the families is a critical component for reintegration. They also interact with a number of sectors such as Justice, Police and Correctional Services. Childline practitioners have recognized that the individual needs of the child determine the duration of the intervention. Assessment alone is a lengthy process, let alone the therapeutic intervention.
SAYStOP
The SAYStOP programme focuses on child sex offenders who are under the age of 18. There are stringent entry requirements into the programme – children should be first time offenders, no violence should have been used when the offence was committed, to mention just a few. Children go through a programme consisting of 10 sessions covering aspects such as crime awareness, sexuality, understanding your body, socialization, gender and sexual myths, etc. SAYStOP has also done an evaluation of their model and found that although it works for many children, there are children who do not fully benefit from it, attending the sessions serves as an assessment and an intensive therapeutic intervention could be required to address the needs of the child. This is a component that is lacking for this programme.
There are a few other programmes that deal with child sex offenders such as that offered by the Johannesburg Child Welfare Society. What should be noted is that existing programmes are located in a few big cities, and not accessible to many children who could benefit from them. Many provinces do not have such programmes that could respond to the treatment needs of child sex offenders. Specialized programmes of this nature also require a healthy injection of funding as well as trained and committed staff. Working with child sex offenders is a relatively new and young field in this country but it is essential if child sexual abuse is to be curbed in the long run.
The Child Justice Project recognizes the need to develop this field and as a result is organizing an exploratory workshop with service providers to look at amongst other things, research and information gaps, programmatic as well as geographic gaps, to develop a coordinated strategy for replication and expansion of effective models, to look at funding issues and other issues pertaining to working with child sex offenders such as training and support for service providers. The outcomes of the workshop include getting an understanding of the extent of the problem and issues pertaining to young sex offenders; developing a coordinated plan for bridging the programmatic and service gaps in the sector; developing a coordinated plan for addressing research gaps so that the development of programmes could be data-driven and relevant as well strengthening partnerships between government, civil society and donors and integration of plans into government strategy, to mention just a few.
Conclusion
To conclude, this submission is pleading for an approach that looks at child sex offenders as a unique population, with special needs that can be addressed through early intervention treatment efforts. Adopting such an approach will have benefit for the offenders themselves, potential victims and society a whole. The systemic approach to preventing child sexual abuse should be adopted and this involves not just children who commit these crimes, but their families and other systems they interact with, schools, their peers and the media. Although this is a relatively young and new approach in this country, there is evidence to suggest that treatment and prevention will prevent child sex offenders from becoming adult career sex offenders, which will put more children at risk of being abused in the future. This approach does not allow children to "get away with their actions" as they will be appropriately dealt with through avenues provided for in the legislation. Indeed some children may need to be prosecuted and serve custodial sentences but even then there is a need to ensure that whilst in custody they receive the necessary treatment that prepares them for their integration back into their families and communities as responsible, caring and non-abusive citizens. What is required is a balanced and careful approach that will ensure the protection and safety of children in the future.
ANNEXURE 1
PROPOSALS OF THE CHILD JUSTICE BILL REGARDING DIVERSION AND ALTERNATIVE SENTENCING The Bill places emphasis on the use of programmes for diversion and alternative sentencing. The purposes of diversion include:
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Encouraging the child to be accountable for the harm caused;
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Meeting the particular needs of the individual child;
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Promote the reintegration of the child into family, community and society;
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Provide an opportunity of those affected by the crime to express their views on the impact of the crime on them
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Prevent stigmatising the child and prevent adverse consequences flowing from being subject to the criminal justice system and preventing a child from having a criminal record.
The Bill further sets out a range of diversion options by proposing three levels of diversion for children aged 10 years and older. Level one diversion includes less intense interventions that can be implemented through a range of orders issued at the preliminary inquiry. Examples of orders include compulsory school attendance orders, family time orders, placement under guidance or supervision and a compulsory school attendance order. These orders are meant to encourage positive behaviour in children and are meant amongst other things to support parents in their parenting and guidance functions. Even though these orders may look uncomplicated, they are serious and serve a serious function. There has to be an individual in the community or a community-based organization or a community leader to supervise the implementation of these orders.
Level two diversions include any options under level one. In this case the maximum period of diversion should not exceed six months. The diversion options at this level are more intense than those at level one. They include, for instance, compulsory attendance at a specified centre or place for specified vocational training, performance of duties without remuneration for the benefit of the community under the supervision of an individual or an institution. Referral to a Family Group Conference or a Victim Offender Mediation programme is also an option at this level
Level three diversions are more intense and they can only be applied in cases of children of 14 years or older if the court believes that upon conviction of the child would impose a sentence involving detention of the child for a period not exceeding six months. At this level, diversion options include referral to a programme with a residential component, performance of duties without remuneration and referral to counselling or therapeutic intervention for treatment of problematic behaviour patterns. Seen in this way, diversion offers an opportunity to children who have committed sexual offences as they can be diverted to therapeutic programmes as level three options. Again any level can be an appropriate option depending on the nature and the circumstances around the child and the offence.
Alternative sentencing applies to some children do not get diverted, so they stand trial. The Bill allows for programmes to be used as alternative sentencing options. In the proposed system sentencing has the following purposes:
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Encouraging the child to understand the implications of and be accountable for the harm caused;
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Promote an individualized response that is appropriate to the child’s circumstances and proportionate to the circumstances surrounding the harm caused by the offence;
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Promote the reintegration of the child into the family and the community;
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Ensure that any necessary supervision, guidance, treatment or services, which form part of the sentence, can assist the child in the process of reintegration. When viewing sentencing in this way, child sex offenders could be sentenced to a community-based programme to receive specialized therapeutic and treatment intervention in conjunction with any other option. Also a sentence involving correctional supervision for some child sex offenders could be imposed, as is the case in the current system.