RESOURCES AIMED AT THE PREVENTION OF CHILD ABUSE AND NEGLECT - ORAL SUBMISSION TO THE PARLIAMENTARY HEARING ON CHILD SEXUAL ABUSE
MARCH 2002
Prepared by Carol Bower, Executive Director
Presented by Kirsten Francis and Edith Kriel
1 INTRODUCTION
Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN) is a child rights organisation based in Cape Town. Since 1989, RAPCAN has run a range of training courses, and has hosted a Resource Centre. More recently, our work has expanded to include involvement as a member of the South African Young Sex Offenders Programme (SAYStOP) for young sex offenders, a Child Witness Project and an active advocacy role.
In our written submission to this Task Group, we highlighted problems that children experience within the criminal justice system if charges are laid in respect of child abuse. We wish to draw attention to the findings of the Human Rights Commission as it held hearings on this issue in 2001. The problems we have already highlighted in our earlier written submission were evident in the work that the SAHRC did last year. In particular, our claims concerning each of the areas identified below were substantiated with additional information.
With regard to problems encountered by children at the reporting stage, the SAHRC found that the quality of statements taken by SAPS are inadequate and poor. With regard to the withdrawal of cases, the following problems were highlighted by the SAHRC hearings:
Issues such as out -of -court settlements have resulted in cases being withdrawn;
Customary and traditional practice allow that the suspect can offer a cleansing ritual to the victim’s family, thereby avoiding prosecution;
The victim or the family of the victim is threatened by the suspect, in this regard the Discussion Document on Sexual Offences, Procedural Law of the South African Law Commission (DDSOPL) has recommended the creation of a section for vulnerable witnesses in order to alleviate this problem;
It is also noted that the suspect often claims an intimate and or consensual relationship with the victim. The previous sexual history of the complainant should bear no relevance to case at hand.
With regard to problems encountered by children at the investigative stage, the SAHRC findings indicate the following:
A lack of medical evidence resulting from several factors, which include the confusion from the phasing out of district surgeons and the delay in establishing accredited health care professionals, communication problems between the medical professional involved and the victim, and the reluctance of doctors to perform the functions formerly undertaken by district surgeons. It is recommended that training should be afforded to other care practitioners in order to improve efficiency at examination stage.
The shortcomings with the J88 form in relation to charges of sodomy, and also the shortage of the appropriate forms further exacerbate the problem. It must be noted that no mention has been given to these shortcomings in the DDSOPL.
Further more the difficulties experienced in tracing the victims and witnesses’ living in informal settlements also hinders the investigative process.
There are numerous problems encountered by children at the Court Case stage, which frequently result in the case being withdrawn for example:
The cost of travelling to court may be beyond the means of the victim; this problem is further exacerbated if courts do not have adequate facilities resulting in cases being transferred to other courts.
There are often no interpreters available, often meaning that intermediaries have a dual role;
The court lacks in camera facilities, which causes further delays;
Insufficient evidence is lead by prosecutors;
The lack of training and sensitisation of court personnel. Training should be afforded to all staff on all levels of service provision;
There are no separate waiting room facilities for the victim, the victim’s family, and the suspect and his supporters.
In addition, trials are lengthy and made longer by factors that include delays associated with obtaining legal representation, transfer of cases to higher courts, a lack of co-operation between the investigating and prosecuting officers, and the lack of properly trained intermediaries.
2 WHEN ABUSE IS NOT REPORTED
The chief intention of this oral submission is to highlight both the enormously high incidence of rape faced by children in South Africa and some of the reasons why it occurs and is not reported.
2.1 Incidence
South Africa has the highest levels of reported sexual abuse of women and girls in the world. A total of 21,438 charges of rape and attempted rape of children under 18 were reported in 2000. This represents 39% of the total reported rapes and attempted rape incidence for that year. In addition, there were 4,140 reports of indecent assault and incest, where the victim was under 18 years of age.
That rape is very under-reported is well accepted. When this fact is coupled with the current narrow definition of the crime, we feel a conservative estimate of the true situation is probably around 20 times higher. In other words, there are in excess of 400,000 rapes (where rape is more broadly defined) of children in South Africa each year.
2.2 Factors influencing the rate of rape in South Africa
What are some of the reasons for these unacceptably high levels of sexual violence against children? Some of the reasons, we feel, are linked to our very high rates of interpersonal violence, community violence and violence against women. These include:
The deeply patriarchal nature of many of our communities, with religious traditions and cultural practices rooted in a particular view of women and children as property whose status is determined in terms of their relationship to men;
Our appalling human rights record, and the systematic oppression and dehumanisation of huge numbers of our population through several decades of apartheid and the several centuries of colonialism which preceded it;
The ongoing crises of poverty, unemployment and powerlessness experienced by many South Africans.
Other reasons for this unacceptably high level of sexual violence are specific to children, and include that:
It is not widely recognised that persons under the age of eighteen are entitled to the same rights as adults, and that children have additional rights as a result of their special vulnerability;
The sexual and other abuse of children has a very long history, and research indicates that it has been prevalent in all human societies throughout recorded history.
2.3 Factors influencing the reporting rate
There are a number of factors, which mitigate against rape and sexual assault being routinely reported. These have been highlighted also in the Draft Discussion Document on Sexual Offences, Procedural Law of the South African Law Commission. These factors are relevant to other areas of difficulty within the criminal justice system, and have already been noted earlier in the submission. They include:
One of the main problems with regard to the reporting rate is that parents and / or caregivers no longer have faith in the judicial system. In general they would rather not report the case than subject their child to secondary victimisation on entering the criminal justice system.
Parents and / or caregivers fear that police personnel will use their discretion on whether or not the case is prosecutable. It has been noted that police do not have the discretion as to whether or not to proceed with an investigation even when requested not to do so on request of the victim. This problem can unfortunately not be solved by legislation alone, as it is a social problem based on personal perception and moral values.
From an economic perspective parent’s and/ or caregivers find it a financial burden to travel to court as well as continually having to take time off work to attend proceedings. Lack of adequate child friendly facilities and systems mean that court proceedings are either delayed or transferred to another court. These delays in turn cause reported cases to be withdrawn. The DDSOPL is however concerned with expediency and grants are provided on discretionary basis.
With regard to interpreters and intermediaries: Interpreters are not readily available for both complainant and parents who do not understand the language used i.e. Home language. The DDSOPL does allocate a section towards intermediaries but not interpreters. Intermediaries therefore find themselves acting as interpreters as well.
Intermediaries are vital resources due to their expertise. In order for the pool of these experts to increase the expertise fee structure for intermediaries needs to change.
The Lack of training of personnel results in complainants being revictimized during the process of disclosure due to lack of training and sensitisation of court personnel. Interviewing and understanding the process of disclosure for children is a skill. This problem needs to be addressed on all levels as the Paper stresses a multi-disciplinary approach to sexual offences. In general parents and caregivers fear secondary trauma, which occurs due to lack of sensitivity towards the complainant in the reporting stages.
Finally Lack of communication also hinders the process, as complainants have to tell the story several times due to lack of communication between service providers. This also hampers the validity of evidence given by the complainant, as disclosure is a process not an event.
3 SOME PROPOSED COURSES OF ACTION
With regard to the criminal justice system in cases where the sexual abuse of a child is reported and with regard to the reasons for the under-reporting of these crimes, RAPCAN supports the numerous suggestions in the Draft Discussion Papers dealing with substantive and procedural law with regard to sexual offences. These include:
The criminal justice system in its entirety must become more sensitive about, and be trained to deal with, disclosures of abuse so that abused children are more willing to come forward, and so that the trauma that they have already experienced is not increased by the very system which is supposed to protect them.
The blockages, which occur routinely in the system at each phase from reporting to conclusion of the trial, must be eliminated, and the resources to achieve this must be made available.
Considerations relating to the granting of bail and minimum sentencing must be made tighter and more transparent so as to increase public confidence in the criminal justice system and the notion that justice will indeed be done.
With regard to the issues of the high rate of rape in South Africa, it is our contention that a holistic approach should be adopted. This strategy should encompass a greater commitment to:
Educating people of all ages about the rights of children;
Ensuring that the life-skills component of school curricula challenges the development of rigid and defined gender roles for girls and boys, and assists with the development of an understanding of the inappropriateness of sex-role stereotyping;
Cultivating a human rights culture with greater emphasis on the bodily integrity and rights to live without fear of all people;
Development of more accessible, expert therapeutic services to assist children and their families on the journey of healing;
Appropriate rehabilitation for, in particular, juvenile sex offenders (research has indicated that over 60% of adult sex offenders commit their first sexual crime as adolescents);
An improvement in the arrest and conviction rates with regard to sexual assault perpetrated against children, so that the notion that "one can usually get away with it" is challenged;
Ensuring that the sentences handed down in cases of rape are severe and send out strong messages that sexual violence against children will not be tolerated;
The need for the child protection system as a whole to take cognisance of the fact that child abuse is not only an acute trauma. It impacts on these children’s lives forever. We need to take this into account at every level of intervention decision making and healing.
And finally a move for child protection services to be more effectively co-ordinated and integrated. The development of expert multi-disciplinary child abuse centres needs to be given serious thought and action
Cultural and traditional notions of the inferiority of women and children, and that women and children are ‘possessions’ must be actively worked against as previously referred to.
As a country with not only the highest levels of reported sexual abuse in the world, but also with the highest levels of rape homicide and HIV / AIDS transmission on earth (with the most vulnerable group being girls aged 15 to 19), we must recognise that these facts are not isolated or coincidental, and explore the context within which they occur.