18 July 2006

CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT BILL

I would like to comment on the amendment of the above-mentioned bill. I have been registered as a psychologist for fourteen years. My passion and calling is to work with children. Since the beginning of my career, I have combined work in private practice with rendering service to the community who do not have access to assistance owing to deprived circumstances. Subsequently, the SAPS, regional state prosecutors and social workers of NGO's have been requesting my assistance with child victims for approximately ten years. During 2003 I obtained the Certificate in Child Law - an examined course presented by the Centre of Child Law and UP Continuous Education. I am also a member of SAP SAC. I also have experience in managing child sexual abuse psychotherapeutically in the social context, apart from legal work in the field.

GENERAL COMMENTS

1. Many parents are negative about the justice system and would not expose their child to the trauma of a court case. It is my own experience that the cases take very long - e.g. I am involved in a trial that has been going on for at least 12 months while the alleged abuse happened three years ago. Furthermore, from a child's perspective it is hard or sometimes impossible to understand when the perpetrator is not convicted as a result of technicalities in the legal process itself. (A nine-year-old girl felt failed by the law, as the accused, her uncle, walked free seven years ago.) Consequently some caregivers rather opt for the priority to have their child healed emotionally and continue with their lives as soon as possible. It is so that the court process in itself could be "therapeutic", but usually, especially if the child has not been prepared, it is a secondary trauma.

2. There exists a general opinion that the perpetrator has more rights than the (child) victim. At the moment, I have a father of a three-year-old child victim who is very angry - his child was allegedly abducted and violated sexually. It has come to his attention that the alleged perpetrator immediately received assistance from a psychologist. However, a month passed and nobody took a statement from the family or even enquired how his son was doing. He has found therapeutic help for his son on his own in order to manage the trauma symptoms.

3. It is my experience that child victims cope better in the legal process if they receive psychological assistance. I am very much aware of the dangers of contamination of evidence etc., but as we are bound by the Constitution to act continuously in the best interest of the child (Section 28(2», we are obliged to alleviate distress. However, I believe that counselling / psychotherapy actually strengthens the child in two ways - for giving evidence in court as well as with his / her emotional healing. Obviously it is important that the therapist has expertise in this field to be taking this on. A secondary, but also important, advantage to professional involvement is that the parents feel less powerless seeing their child suffer due to the guidance and support they receive during intervention.

4. In literature, as well as in my experience, it is stated that some perpetrators target particular populations due to their lesser ability or more so inability to resist or understand the crime. The vulnerable populations are people with mental retardation and/or disabilities, very young children and people etc., but do they not require "special protection" of their dignity (UN Rights of the Child Art.23 and Constitution Art 10) in the sense that penalties for sexual abuse of these populations should then be harder? I am disturbed by the high incidence of rape of young women with mental retardation in the geographical area that I work. And these women are not strangers to their communities - they have obviously "different" behaviour in comparison to their peers. It is thus not a question of the perpetrator who "didn't know" that she could not say "no", he targeted her solely for that reasonl

PARTICULAR COMMENTS

5. Definition of mental disabled person - I would like to point out respectfully that people with physical (e.g. cerebral palsy) and sensory (blindness and deafness) handicaps may (often) not be mentally disabled. But they may find themselves in situations where (c) and (d) are valid. It is my opinion that the term "mental" is used too broadly and subsequently excludes another vulnerable group.

6. "Sexual violation": object resembling the genital organs - would this description include the use of objects such as a lighter, bottleneck, stick etc.?

7. Section 16 and 23: reporting and failing to report - how could this be enforced if the general public do not know of this; therefore, how is this law going to be disseminated efficiently so that it would have "teeth"?

8. Chapter 4 devoted to mentally disabled persons is much appreciated. See point 4 above.

9. Chapter 6, National Register-

• I was involved in at least two cases where the husband of the employee gained access to the children in his wife's care. By implication then, must the spouse of a convicted person not also disclose such a conviction by law?

• My concern is limiting the register to convicted persons. I had an experience of the modus operandi of some pedophiles. They move when circumstances get uneasy and start a new life somewhere else. Another reason why a perpetrator may also slip the legal system, is because the parents of the child do not lay a criminal charge. If formal reports of abuse, e.g. the current Form 1 to the Department of Social Development, could also be entered in the register, the database could be built for future reference. Furthermore, if an accused stood trial but was not found guilty as a result of a lack of evidence (because the victim was a two-year-old) etc., does this person not need to be monitored?

• Section 50(1): Two children were in therapy because of being molested by a person known to their family. A few months later another sexual abuse victim's mother phoned me to enquire about her daughter taking classes with him - she heard rumours about the instructor and as I was her daughter's therapist, she wanted to know if I could confirm these allegations. If this had happened after passing the bill and he was convicted at some stage, would this section thus have allowed me as the therapist to apply in terms of Section 49 if he was on the register, and disclose this information to the mother?

10. Part 2, National Policy Framework -

• Previously I have already referred to a general perception of victims and their parents that they are left unsupported and unassisted in their plight. I respectfully request that the Victim Charter for example, is practically applied by means of service delivery to all victims, but to the vulnerable populations in particular. It is one thing that the privileged among us could afford psychological assistance to our children if they became victims, but another if the victim and his I her family has limited or no financial means.

• Every child victim should have access to a professional with expertise. In my opinion, victims should have access to the following specialised services, depending on the individual child's need:

Forensic reporting to the SAPS I state prosecutor re. the child as witness: investigation of allegations / evidence, court preparation, application for intermediary Counselling / psychotherapy

Support during trial

Assessment of impact of trauma, pre-sentencing phase

• Furthermore, in the event of private practitioners rendering a service as mentioned above, it is also important to look at payment policies. It needs to be realized that legal work requires expertise. When services are delivered at significantly reduced rates then, and rates are still queried and I or an account stays unpaid for many months after a service was completed, it adds to the stress of working with trauma.

• Perhaps a higher conviction rate could become the result of having better child witnesses on the stand. I am convinced that, giving proper attention to them is in more than one way to their advantage (point 3). In the long run the former might also improve the confidence of the public in the efficacy of the legal system.

I thank you for having the opportunity to have shared my practical experience and subsequent professional opinions with your committee. I really hope that the above is regarded as a positive contribution.

I wish you strength and wisdom in your further discussions.

Yours sincerely