/ 14 August 2008

Forced to face up

A 15-year-old girl burst into tears in the Khayelitsha Magistrate’s Court last month when she was forced to come face to face with her two alleged rapists who were standing in the dock.

Even though she was encouraged not to look at the accused, her trauma was so great that she could not even answer the first question before covering her face with her hands and crying.

The case was postponed for six weeks after magistrate Robert Matshikwe discovered that the girl had had only three counselling sessions to prepare her for facing her alleged attackers –not to mention the hours of cross-examination she would have to endure.

This is not an isolated case of a child’s constitutional rights not being protected. It is a common occurrence in courts. The issue of the rights of child witnesses is to go to the Constitutional Court following a Pretoria High Court judgement in May.

Judge Eberhardt Bertelsmann said: ‘The constitutional compatibility of applying this procedure to child witnesses and victims of violent crimes, especially sexual offences, is questionable and may not be in the best interests of the child.”

Bertelsmann found constitutional issues arose in two rape cases he heard, both involving minor children. In both cases the children, aged 11 and 13, were called to the witness stand in the presence of the accused, without explanation from the magistrates.

Bertelsmann said that in the case involving the 13-year-old girl ‘there was no suggestion that any consideration had been, or was given at any stage, to the question [of] whether she should be allowed to testify through an intermediary. The impression is created that there was no intermediary available at the Pretoria North Regional Court, so the court, the prosecution and the defence regarded it as useless to investigate whether a 13-year-old might be in need of such assistance.”

But Resources Aimed at the Prevention of Child Abuse and Neglect (Rapcan) advocacy manager Sam Waterhouse said it was not uncommon for rape victims, even minors, to have to face their attackers in court.

‘It’s very much the procedure for 15-year-old girls to appear before the accused,” said Waterhouse. She said despite the fact that the law allows for all victims, especially child victims, to give evidence outside of the court room, officials often required ‘children from the age of 12” to be in the same court room as the accused.

National Childline coordinator Joan van Niekerk said that older children often carried an ‘intense shame” because they had a greater awareness of the concept of rape.

‘I have worked with these 15-year-olds and I know their trauma. The ignorance of the court personnel —makes me furious,” said Waterhouse.

The Criminal Procedures Act makes provision for courts to appoint an intermediary through whom children under the age of 18 may give evidence in circumstances where ‘undue mental stress or suffering” would be caused if the child appeared in court.

It also says that a child may give evidence from outside court ‘so situated that any person whose presence may upset that witness is outside the sight and hearing of that witness”. In addition any person may apply to give witness in camera if they would suffer harm from being in the presence of the accused.

But in reality courts ‘just won’t let you”, said Waterhouse.

Waterhouse and Van Niekerk said the problem is largely caused by the discretion courts have on how to use these protective provisions. As a result court officials do not prioritise the intermediary system.

Children and counsellors have to rely on the prosecutor to request an intermediary and for permission to be granted by the magistrate.

‘People tend to try to do their best with children, but they often lack the training,” said Van Niekerk. ‘The provision in law is weak, the training of the magistrates and prosecutors is patchy” and the reinforcement of the protective legislation in the workplace is consequently rare. — West Cape News