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
1989We 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 2006This includes:
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:
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 disorganized 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 decision. 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
rooms. 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 argument 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 S5131 of 2001, Sarkin AJ
found:
"The 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 No51 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.
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 prostitution.
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 provide them with the maximum and least
traumatising 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
084 522 9646