Somewhere in Soweto outside Johannesburg this week a mother spoke of her anguish at the rape of her three-year-old daughter and her shock and disbelief when the alleged rapist walked out of court a free man because the child could not utter a word against him.
The mother was visiting relatives in the Hammanskraal area north of Pretoria in January this year when her daughter went to a shop with a family friend to buy sweets. When they returned, the little girl was tearful and complained of pain in her vagina. She was taken to a local hospital and it was established that she had been raped.
A charge was laid at the local police, the family friend was arrested and the wheels of justice started turning — only to grind to an unexpected halt in May at the alleged rapist’s trial in the Temba Magistrate’s Court. He was acquitted because the little girl could not testify against him. She was forced to face her alleged rapist in court, because of a lack of facilities to make testifying less traumatic for her.
Investigations have been called for, and answers are being sought — how could it happen, in an era of human rights and especially children’s right, that a toddler is forced to face her alleged rapist in court?
Criminologist Dr Irma Labuschagne said there were many problems associated with child witnesses.
”A three-year-old child will under the best of circumstances be a difficult witness,” she said.
A child that young has no real grasp of what happens to her and will not be able to verbalise this. Especially when she was raped. Sexuality would have no meaning to her and she would therefore be unable to describe exactly what had been done to her.
Labuschagne said one of the main problems in the Temba case was the lack of medical evidence. She said that in a rape case, a child should be taken to a doctor as soon as possible after the incident and forensic evidence should be collected.
This included hair and semen from which DNA profiling could be done, and which could be used to link an alleged perpetrator to the crime.
If the child was to testify, it should take place in a separate room equipped with closed circuit television. Labuschagne said one of the problems that plagued South African courts was that the image quality of current closed circuit television was not very good.
”You have to be able to see the child clearly to be able to monitor facial expressions and other reactions when she talks about the incident.”
The intermediary, who ”translates” the court’s questions to the child, must be very well trained and must know how to get the child to talk about the rape, Labuschagne said.
Children were often raped by someone known to them, and therefore it would not cause them more stress if they saw their attackers again.
However, in cases where rape occurred repeatedly the child might have been intimidated to such an extent that it would cause serious trauma seeing the person again. Children as young as three freeze when they are confronted with circumstances and people alien to them.
Labuschagne said sometimes a child would become withdrawn and uncommunicative with an intermediary she did not know. A further problem was that often too much time elapsed between the incident and the subsequent court case.
A young child did not have the same capacity for recall as an adult. That was another reason why the child should not be the only witness in such a case.
Labuschagne added that South African courts were better equipped than in the past, but a lot still remained to be done to make them more child friendly — especially at courts in rural areas.
”In some courts the conditions are very good, in others very bad.”
The training of dedicated staff to deal with child cases was another contentious issue. She said court officials who had not been trained in handling a case involving children, should not be allowed ”anywhere near a child who has been raped”.
The way in which statements were taken from children by the police also had to be reviewed. Because children cannot verbalise exactly what happened to them, the investigating officer had a hard time taking down a statement.
The whole interview should be videotaped and allowed in court as evidence, Labuschagne said.
”Then the court knows the background of the questions asked to that child.”
Shaheda Omar, who is a councillor at the Teddy Bear Clinic in Johannesburg, said the aim of preparing children to testify in court was not to teach them what to say.
It is to prepare them for the environment in the courtroom, as well as for the court officials. This helps to alleviate fear and anxiety they may experience and should enable them to tell the story as it happened.
The Teddy Bear Clinic helps to prepare children for testifying in court and also has councillors that act as intermediaries. Omar said there was a mock court at the clinic where children were familiarised with court and court officials. This was done
through role play and also through child-oriented activities.
The children draw and colour in pictures of the court and the officials. They also get to wear the clothes worn by court officials.
All this happens over a period of time on a one-on-one basis and also in groups. Having the children in groups helps to normalise the situation by showing them that there are other people, especially children, who are in the same circumstances. – Sapa