RESOURCES
AIMED AT PREVENTION OF CHILD ABUSE AND NEGLECT (RAPCAN)
.
SUBMISSION TO THE PARLIAMENTARY PORTFOLIO COMMITTEE ON JUSTICE AND
CONSTITUTIONAL DEVELOPMENT ON THE CRIMINAL LAW (SEXUAL OFFENCES AND RELATED
MATTERS) AMENDMENT BILL
20 JUNE 2006
INTRODUCTION
Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN) is a
non-governmental and non-profit organisation that has been in existence since 1989. We are devoted to promoting children's
rights, especially those involving child abuse and neglect. Among our other
activities RAPCAN runs a child witness support
project at 6 sexual offence courts in the Western Cape (Khayelitsha, Wynberg,
Atlantis, Cape Town, Paarl & Parrow/Goodwood). Through this project we are
daily in contact with all of the child complainants in sexual offence matters
at these courts in 2005 we prepared over 2 500 child witnesses for court.
RAPCAN welcomes many of the provisions in the Criminal
Law (Sexual Offences and Related Matters) Amendment Bill 2006. This includes:
. The objects of the bill
. The gender neutral definition
of Rape
. The broader range of acts
defined as Rape
. The acts described in the crime
of Sexual Assault
. The manner in which consensual
sexual acts with children between the ages of 12 and 16 are dealt with.
. The offences relating to sexual
exploitation of children
. Developments regarding evidence
of previous consistent statements and a delay in reporting sexual offence
matters~
. The creation of a national
policy framework -
. Provisions relating to policy
directives and national instructions for state departments
in these matters.
. The amendments to existing
criminal procedure regarding questioning complainants on their previous sexual
history.
We are concerned, however, that this bill is missing an opportunity to provide
complainants with the "maximum and least traumatising protection that
the law can provide" - section (2) Objects
We refer further to the preamble of the bill which
recognises that "The South African common law and statutory law do not
deal adequately, effectively and in a non-discriminatory manner with
many aspects relating to ... the commission of sexual offences"
We submit that it is necessary to go further than the
Bill currently does in amending provisions within the Criminal Procedure Act
that are currently implemented in an unequal and discriminatory manner in
sexual offence trials. ·
Current provisions within the Criminal Procedure Act 51
of 1977 are supposed to provide protection to complainants and to ensure that
the evidence placed before the court is of the optimum standard. However our
courts have taken an extremely conservative approach in implementing these
provisions thus undermining their intent.
These measures provide complainants with protection from the negative impact of
testifying about the traumatic experience of sexual violence in the presence of
the accused person in the court environment. These measures include:
- Section 153(3A) In Camera Evidence says that the
public can be ordered to leave the courtroom while the complainant is
testifying. The survivor is expected to speak in front of the accused and the
other court role-players.
- Section 154 prevents the media from publishing any details that would
identify the survivor/victim.
- Section 158 says that a Closed Circuit Television (CCTV) system can be set up
for a complainant, regardless of age,
where she can give evidence in a separate room linked to the court via the CCTV
system.
- Section 170(A) says that for complainants under the age of 18, an "intermediary
system" can be used whereby the child is in a separate room with a court
intermediary and they are linked to the court via the CCTV system. The child is
questioned by the intermediary and does not hear the court proceedings
directly.
While some of the measures such as the application of
section 153(3A) and 154 of the Criminal Procedure Act 51 of 1977 can be
improved through the development of policy directives for prosecutors, others
cannot. Section 158 and 170(A) are undermined by the decision of the
magistrate, a policy directive requiring a State Prosecutor to inform a
complainant of these provisions or even to request them in court, will not
substantially improve the decision of presiding officers to utilise them.
Children who have been sexually violated must deal with
the personal impact of the traumatic experience, family and social pressures
and responses to the experience and the pressures of the criminal justice
system including the trial process. These pressures affect the emotional and
psychological well-being of the child (during and after the trial), the quality
and accuracy of the child's evidence and the way that the court interprets the
child's evidence and manner.
Anxiety is the most prevalent response to an upcoming trial extreme anxiety is
associated with not knowing and what to expect and with facing the accused at
court. Research shows that anxiety reduces motivation and effort to remember
details; it results in disorganised recall, adds to confusion about events and
thus seriously impacts on the credibility of a witness. It also affects the
child's ability to eat and sleep in the days preceding the trial thus affecting
the child's physiological ability to concentrate.
INTERMEDIARY SYSTEM
The majority of child complainants report extreme fear
and anxiety at the prospect of facing the accused in court. Because a sexual
offence involves a psychological violation as well as a physical violation the
child is not emotionally safe in the presence of the perpetrator in court. It only
takes an intimidating look from the accused to powerfully impact on the child
in the court room, this creates great stress in the child. It is shown that
high levels of stress have a negative impact on a person's ability to recall
information. The child may, as a result of the stress, withhold important
information or close down completely in order to protect themselves.
The court environment is alienating to the child. In this environment children
quickly become bored and distressed, due to this they are less able to provide
the court with the level of detail regarding the event that is necessary for
the court to make an informed decision2. When testifying children may also be
silenced by speaking in public about a traumatic event that the child often feels
deeply ashamed of and is made to feel responsible for.
Research indicates that children give more detail and accurate information when
testifying a familiar and comfortable environment than in a court room. They
remember more elements of the experience freely, they give fewer "I don't
know" answers and less "no responses", there are fewer errors in
the recollection and they are less likely to become confused by misleading
questions.
Section 170(A) of the Act provides for
witnesses under the age of 18 to testify outside of the court environment
(usually though the CCTV system) through a person who acts as an
intermediary. Section 170(A) (1) states that:
"whenever criminal proceedings are pending before
any court and it appears to such court that it would
expose any witness under the age of eighteen years to undue
mental stress or suffering if he testifies at such proceedings, the court
may, subject to subsection (4), appoint a competent person as an
intermediary in order to enable such witness to give his evidence through that
intermediary",
However this provision is inconsistently applied by
courts. In general courts are not utilizing this protective measure for
children older than 12 and children as young as eight are
still subjected to testifying in the court room. The question of whether undue
mental stress or suffering will result means that in order to access the
intermediary system the court must hold a "trial within a trial". Few
prosecutors lead expert evidence on the question of undue mental stress and
suffering to the complainant and many magistrates when faced with this
information believe that stress and suffering is inevitable in the trial
process and therefore not "undue", this interpretation is highly
concerning. Presiding officers also routinely accept the argumeent of the
defence that use of this provision unfairly limits the accused's right to a
fair trial. The constitutionality of this provision has been well tested and it
is established that the accused's rights to see, question and cross examine
his/her accuser are not unfairly undermined by utilization of this provision.
In the
S v Staggie and Bosch in the Cape High Court SS131 of 2001, Sarkin AJ found:
liThe ability of the accused to have a fair trial must be protected at
all times. The ability of the accused to adequately cross-examine the witness
must also be protected. This can be achieved in these circumstances "
He notes further that
the defence is able to view the witness, her demeanour and her responses through the CCTV
system.
In Klink v Regional Court Magistrate NO and Others 1996 (3) BCLR 402 (SE) at 448C-D it is noted that:
"the accused's right to a public trial is not violated merely
because the complainant gives evidence in a separate room. Nor does this
provision result in the infringement of any other constitutional right of an accused person to a fair
trial".
and
In Klink the court found at 447C-D that the:
"enshrinement of the right to a public trial ensures that secret
trials employed by totalitarian states
will not be tolerated under the Constitution: but it does not guarantee the
right of the accused and the witness to be
physically present in the same room."
The State has a duty to respect, protect, promote and
fulfill the rights of the complainant to equality, dignity, not to be treated
or punished in a cruel, inhuman or degrading way as well as to psychological
integrity. These rights are undermined for the majority of child complainants
who testify in court in the presence of the accused are seldom given weight in
the decision of a court to utilise the intermediary system.
The harm caused to the majority of complainants by testifying in court in the
presence of the accused will be mitigated and that the quality of evidence
placed before the court by will be improved by the use of this measure. As
noted earlier addressing this issue in policy directives alone is inadequate
and will not substantially affect the way in which courts interpret the
provision in the Criminal Procedure Act.
We submit that it is necessary to amend section 170(A) of the Criminal Procedure Act 51 of
1977 to ensure that this provision is available to all complainants under the
age of 18.
We note that the
South African Law Reform
Commission recommended under its section on "Vulnerable witnesses"
that once a person was declared a 'vulnerable witness' that the court must
direct that the witness be protected by one or more of the following measures
including: "Directing that the witness must give evidence through an
intermediary as provided for in section 170A of the criminal Procedure Act,
1977 (Act No. 51 of 1977), irrespective of any additional qualifying criteria
prescribed by that section. "
Due to developments in the Department of Justice and
Constitutional Development over the past five years, the CCTV equipment is
available at a large proportion of regional courts nationally, to ensure
that these systems are available at all regional courts that hear evidence from
child complainants should not at this time result in prohibitive cost.
We strongly support the amendment made in Schedule 1 of this Bill to section
170A of the Criminal Procedure Act which makes this provision available to
complainants with intellectual disabilities who are chronologically above 18
years of age but who have an equivalent mentally age of a person less than 18
years.
CROSS EXAMINATION BY THE ACCUSED
Cross examination is experienced as an attack and
harassment from a respected adult, the fact that the other adults present don't
protect the child means that the child is helpless and this is often
interpreted by children to mean that they are at fault, thus exacerbating the
trauma experienced as well as the long term negative impact of the trial. Cross
examination is embarrassing, distressing and traumatic to any complainant and
more so to a child.
The style and method of questioning during cross examination are often
inappropriate to the cognitive development of a child complainant. For example
complainants, especially children become confused by multifaceted questions,
children younger than ten are not able to understand hypothetical questions and
multiple choice questions are easily confusing to children - especially where the choices do not include the
correct version. These well tested methods effectively mean that the truth is
hidden from the court by the semantics and linguistic agility of the adult
questioners.
Policy Directives for prosecutors must address objection to cross
examination by the defence that is intended to vilify, insult, annoy,
intimidate or offend the witness
Currently, an unrepresented accused can directly cross examine a child
complainant; this severely undermines a child's evidence
We submit that section 166 of the Criminal Procedure Act 51 of 1977 be
amended to prevent unrepresented accused from questioning a witness directly.
COMPULSORY HIV TESTING OF ACCUSED
We support the intention of the clause to provide
complainants with peace of mind and information regarding the HIV status of the
accused. However due to a number of practical considerations we question the
ability of this provision to achieve this and we are concerned that this clause
will do more harm to complainants than good in its application.
- A complainant must start taking the Anti Retroviral Treatment (ART) as soon
as possible after exposure (preferably within 6 hours but up to 72 hours later)
- If the accused tests HIV negative, he may be in the window period and thus
the complainant will need to continue with the HIV ART until the accused is
tested a second and a third time. However, many victims/survivors of sexual
violence struggle to comply with the ART because of the side effects, confusion
regarding when and how to take medication and the constant reminder of the
sexual assault at a time when s/he is trying to forget. A negative test result
in an accused will add to the reasons for some complainants to discontinue the
treatment.
- If an accused tests HIV positive, it does not necessarily mean that the
complainant will contract the virus. However instead of providing peace of
mind, this result will expose the already traumatized victim/survivor to the
further unnecessary distress and trauma.
- Section (41) of the Bill provides that persons who request HIV testing of an
accused with “malicious intent” will be guilty of a criminal offence. While
this makes sense in and of itself, when read in the contact of the current
situation for sexual assault victims it is extremely concerning. Research
indicates that only 5% of cases of child rape result in conviction, this figure
is slightly higher for adults at 9%. It is extremely likely that many accused
persons who have been required to undergo HIV testing at the request of the
complainant and whose cases are not prosecuted or result in an acquittal will
seek to ensure that the complainant is prosecuted under this section. The
effort to protect a few innocent people who may be maliciously sent for testing
will result in the victimization of a large proportion of victims who have been
subjected to a sexual offence.
For these reasons we recommend that the provisions for compulsory HIV
testing of accused be removed.
OTHER CONCERNS REGARDING THE BILL
Preamble
The preamble to the bill states that "women and
children, being particularly vulnerable, are more likely to become victims of
sexual offences, including adult prostitution and sexual exploitation of a
child".
Adult prostitution is not a significant issue for victims of sexual offences
and seems an obscure reference in this bill, which doesn’t deal with the issue
of adult prosecution.
We recommend the removal of the clause “including adult prostitution”
Sexual Violation in the definitions section
We support the acts covered by this clause, however we are concerned with
the use of the term "sexual violation" to describe acts that are
committed under consenting circumstances, the term sexual contact is more
appropriate. Sexual contact becomes a violation or an assault only under
coercive circumstances.
Likewise acts of sexual penetration only become a form of violation, namely
rape, when committed without consent.
We submit that the term "sexual violation" be changed to
"sexual contact"
National Policy Framework and National Instructions and Policy
Currently the Department of Health and the South African Police Service
have relatively good policy in place regarding the management of sexual
offences. However implementation of these policies is undermined due to a
number of factors, ranging from lack of knowledge of the policy, inadequate
training on the procedures, poor selection of officials to work with sexual
offence complainants and a lack of effective accountability mechanism. It is
clear that without built in accountability mechanisms and consequences these
excellent policies fail to deliver.
It is unacceptable that people with no aptitude, maturity, training and skills
are routinely allowed to interview and examine traumatised children. It is
clear that the result of this results in numerous cases of miscarriage of
justice because of victim blaming, lack of confidentiality, poor quality of
evidence collection, counselling of victims to forgive (seemingly contrite)
accused and misinterpretation of responses to the trauma and stress of the
experience leading to erroneous conclusions about the case.
The current provisions sections (57) to (61) of this bill address many of the
gaps in existing procedure and we support their inclusion here.
We recommend the addition of provisions that state that SAPS national
instructions, the Department of Health and National Prosecuting Authority Directives
must include criteria for selection of persons designated to work with victims
of sexual offences and accountability mechanisms for non-compliance by civil
servants to their instruction! directive.
National Register for Sex Offenders
The provisions relating to the creation of a sex offender register
duplicate those contained within the Children's Bill. This Bill only deals with
persons convicted of offences against children and those people applying for
employment that puts them in contact with children. It does not address persons
convicted for sexual offences committed against adults nor people applying for
work with other vulnerable groups such a people with physical and intellectual
disabilities. These issues and the system developed in this Bill of applying
for and producing certificates should be referred to the Children's Bill so
that the two bills do not duplicate provisions.
IN CONCLUSION
In developing the definitions of sexual offences and in the development of the
national policy framework and policy directives this bill makes great strides
forward from the current situation of sexual offences in South Africa. However
it currently fails to address the procedural and evidentiary rules used in
trial that contribute significantly to acquittal of guilty accused.
Court practice and rules have been developed for adults, not with children’s
needs in mind. The result is that children face added obstacles to justice in
these matters. It is necessary to address these issues too in order to fulfil
their constitutional rights and rpvoide them with the maximum and least
traumatizing protection that the law can provide.
We thank the committee for the opportunity to make this submission, for further
information contact:
Samantha Waterhouse
Advocacy Manager
RAPCAN