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Sexual offences courts still wouldn’t bring rape justice

Phillip De Wet

Reopening courts that deal specifically with sexual offences is proof that there is hope for the criminal justice system, activists say.

Reopening courts that deal specifically with sexual offences is proof that there is hope for the criminal justice system, activists say. (Flickr)

The criminal justice system remains badly broken when it comes to rape and child abuse. After a case against an allegedly abused child was withdrawn, says Childline’s Joan van Niekerk, "she [the child] basically told me bluntly not to expect her to expose future abuse to us, because she had lost all faith in the system".

That is not an uncommon occurrence, and represents just one of the myriad of problems when the criminal justice system is applied to rape and the sexual abuse of especially children. Problems that the reinstatement of specialist sexual-crimes courts will do nothing to address.

In the light of outrage over the rape and murder of Bredasdorp teenager Anene Booysen, the justice ministry said this week it was worth pointing out that the process leading up to the reopening of such courts was well underway. In Gauteng and the Western Cape in particular, police sought to point out that specialised detectives deal with rape, despite the confusion that arose when the South African Police Service (SAPS) child protection unit was closed half a decade ago.

Yet the criminal justice system, it seems, will remain virtually incapable of coping with more than a fraction of the sexual assaults that happen in South Africa – and will continue to fail victims. Even specialist sexual offences courts with high conviction rates leave many of those who step forward to report abuse more vulnerable than they were to begin with, Van Niekerk says.

"The high conviction rates [such courts] report is because prosecutors are selecting which cases go for trial. Hundreds of cases are withdrawn. That is the end of justice for those children. We’ve seen cases where the abuser lives with the child, and when the case is withdrawn, the abuser goes home and abuses the child again, and punishes the child for speaking out."

That is for cases that even make it as far as a prosecutor in the first place. Cases of rape or child abuse must be reported to the front desk of a police station, even in areas where specialist sexual offences units operate. If a raped child is too young to make a formal complaint, parents are too often sent home. If the alleged attacker is too young, police have also been known to turn cases away.

Survivors in fear
In cases where a complaint is investigated, either the police or prosecutors fail to oppose bail, and in an environment where more than half of sexual attackers are known to their victims, that leaves survivors and witnesses in fear – too often with plenty of reason.

Even where everything does go right, the system can fail when it comes to presenting evidence, says Luke Lamprecht, an executive of the Teddy Bear Clinic intimately involved in projects on the prosecution of shaken babies and battered children.

"In some of these cases you are dealing with a person from a creche or a parent, and there is no witnesses and no crime scene to investigate,” says Lamprecht.

“That leaves you with engineers presenting to the court directional-force calculations to say ‘this is what you need to do to cause that kind of injury’. It’s very technical, and you need good assessors or expert witnesses to help a magistrate understand it, and we don’t have a lot of those, and paying them is hugely problematic.”

Lamprecht is also concerned about focussing on specialist courts for sexual offences, which would do little to improve matters in outlaying areas. Such highly-resourced centres in urban areas tend to be “policy tourism sites”, he says, buildings that can be pointed to as functional units in the justice system. “Then, 100 kilometres away, there is nothing.”

What Lamprecht and Van Niekerk and their colleagues involved in dealing with rape and child abuse believe necessary is a mixture of specialist courts and prosecutors and police, on top of regular training for ordinary magistrates, police and prosecutors. They would like to see greater integration between social workers and prosecutors; an improvement in forensic social services; threat assessments when accused go home on either bail or because cases are withdrawn; and a simplification of the seemingly bottomless pile of directives, orders, policies and regulations within the justice system for dealing with sexual attacks.

Impact
Even if all of that could be achieved, however, it would take some time to have an impact on the high level of rape and abuse. And initially, it would seem to be making the problem worse. "You have to accept that in the first couple of years of really effective policing [of sexual crimes], there would be increase in confidence in the ability of the police and courts to deal with complaints,” says Van Niekerk. “That give you a higher level of reporting of such crimes.”

With an estimated one in four cases of sexual assault and abuse currently reported, that uptick in the statistics could be anywhere between barely significant and huge, as could the political implications.

But, for once, a numerical increase in known rapes could be a good thing.


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