OVERVIEW ON CHILD ABUSE
Abuse of Women, Children and the Elderly
The abuse of women, children, and the elderly is a universal problem that occurs across all economic, ethnic, religious, gender, and cultural groups. It is however an unfortunate reality that in this country, as in some other countries, the physical and sexual abuse of women, children, and the elderly has an extremely low investigative, prosecution, and conviction rate as compared to other criminal offences. This is by and large due to the fact that physical and sexual abuse in children and the elderly can be easily misdiagnosed or not detected at all and that in some cases, the role players to which reports of violence are made – be it violence within or outside of the home, against women, children or the elderly or, of a physical or sexual nature – do not always have the necessary expertise to handle the matter and may sometimes discourage the victim or the victim’s family from taking the matter further. Applicable pieces of legislation dealing with abuse of children include the Children’s Act and the Sexual Offences Act to name but a few.
It is also a well-known fact that the involvement of the Criminal Justice System can become an extremely traumatic experience for the victim, especially if the relevant role players have failed in their duty to take proper and concise statements concerning the occurrence of the offence, have not kept the victim and/or the victim’s family informed of developments in the case, have failed to collect the necessary evidence and have overlooked the need for proper preparation of the victim prior to the trial into the matter.
The aim of this article is accordingly to set out the steps to be followed in cases where a sexual offence has been committed, irrespective of whether the victim of such offence is a child or an adult, male or female. Advice is also given on what one can and should do to overcome problems within the system.
1. REPORTING THE MATTER TO THE POLICE
The mandatory report of the offence should be made at a police station as soon as possible after the occurrence of the offence or, as soon as possible after the disclosure of the offence. The report can be made at any police station. It is not necessary to make the report at the police station having jurisdiction over the area where the offence took place. Any police officer who insists, on the contrary, must be immediately reported to his or her Station Commander. Where the victim can not get to a police station due to transport difficulties, geographical problems, or, where there is a concern as to the neutrality of the police working at the police station on grounds of the perpetrator or a relative/friend being a police officer employed at that particular police station, the victim should report the crime to Crime-Stop on 0860 10111.
It is not necessary to give a detailed statement when first reporting the crime. A police docket can be opened with only a cursory or skeleton statement. Crimes of a sexual nature are traumatic and disclosure of the details of the crime can be very embarrassing for a victim. It is accordingly perfectly in order to insist that the victim’s detailed statement be taken when the victim is more composed and able to recall the salient details of the offence.
Statements should ideally not be taken in the charge office. It is also highly recommended that a support person accompany the victim to the police station and that such a person also sits in when the statement is taken from the victim. From a legal technicality perspective, the support person may not be present when the statement is taken, if such person is also required to give a statement for court purposes.
A police officer is not entitled to subject the victim to cross-examination on taking the statement. Neither may a police officer exercise his or her discretion in determining whether or not to investigate the matter further. Concerns regarding the conduct of the police officer must be reported to the Station Commander.
The victim’s statement of the offence comprises the backbone upon which the court case will rest. It is accordingly imperative that the recorded details are correct. No signature must be appended to the statement until such time as the victim is satisfied that the statement is a correct reflection of what took place. This principle is also applicable insofar as the witnesses’ statements are concerned.
All relevant evidence pertaining to the offence must be handed over to the police officer who will then arrange for the forensic examination of the evidence. It is imperative that the victim does not bath prior to the medical examination being conducted. Underwear and clothing should be stored in a paper packet or, rolled in paper and given to the police officer. The clothing must not be stored in plastic packets. Where applicable, toilet paper, tissues, and/or sanitary protection must also be stored in paper and handed to the police officer.
Once the cursory statement has been taken, the police officer will arrange for the victim to be seen by the district medical officer/district surgeon. Where applicable, the police officer will attend to the cordoning off of the crime scene, the collection of evidence and the immediate arrest of the perpetrator The police officer will, in the event that the offence took place within another police jurisdiction, start making arrangements for the docket to be transferred to the relevant police station. An Investigating Officer will also be assigned to the case.
It is essential that a record is kept of the name and rank of the police officer taking the first statement, the incident number or case number assigned to the matter, and the name and contact details of the Investigating Officer assigned to the matter. The relationship with the Investigating Officer is an on-going one. The Investigating Officer or IO as he or she is commonly known is required inter alia to keep the victim and/or the victim’s family updated on the progress of the investigation, they are required to advise on the legal process, to notify the victim or the family on any envisaged bail application made by the perpetrator as well as to provide information on the dates for court hearings and whether or not the victim is required to attend court on these dates. Concerns regarding the police investigation into the matter can be directed to the Station Commander, alternatively, to the Independent Complaints Directorate on 012 392 0400.
2. THE MEDICAL EXAMINATION
The importance of the medical examination cannot be overstated. Crimes of a sexual nature are generally perpetrated in the absence of outsider knowledge. The medical evidence of the assault may accordingly be the only evidence, alongside that of the victim’s allegation, pointing to the occurrence of the crime.
The medical examination should optimally be conducted within 72 hours of the commission of the offence. It is recommended that as far as possible the medical examination of the victim takes place only after the report of the crime has been made to the police. The police are responsible for ensuring that the relevant medico-forensic examination of the victim takes place and that the forensic evidence obtained thereby is forwarded to the police laboratories for further analysis. More importantly, they are also responsible for ensuring that the medical practitioner conducting the examination is furnished with the relevant medical form – the J88 – as well as a crime kit. (Not all medical practitioners are in possession of the J88 forms and crime kits). Examinations conducted in the absence of the afore-going may necessitate the victim having to undergo a further medical examination, which by its very nature is invasive and often quite traumatic for the victim. All specimens obtained from the examination must be clearly labeled and handed directly to the police for onward transmission to the state laboratories. Evidence falling in the hands of persons other than the police will be deemed to have been contaminated and the findings therefrom will not be admissible in a court of law. In addition to the internal medical examination, the doctor will search for any other evidence on the victim which could possibly link the perpetrator via his DNA to the crime. Samples of the perpetrator’s hair and skin will also be sent to the laboratory for analysis.
While the police play an important role in the collection of forensic evidence it is not necessary that they are present while the examination is being conducted. The victim may however require that another support person be present during the examination. Any medical doctor may perform a forensic examination. Not all doctors have however the necessary expertise to conduct such examinations and regard should accordingly be had to the medical doctor’s experience prior to the examination being undertaken. An absence of expertise or skill in this regard could result in a negative finding of abuse, incomplete or inconsistent findings of abuse and trauma to the victim who may be required to undergo a further examination.
In practice, the police will depending on the age of the victim, refer the victim to either the district surgeon or to the paediatric outpatients of the local hospital. Generally, the policy for urban areas is that victims under 14 years of age will be examined by a specialist paediatrician or medical officer at the provincial hospital. Victims over 14 years of age will be examined by the district surgeons. It is important to note that the district surgeon is not required to treat the patient but merely to conduct the forensic examination upon him or her. Accordingly, it may become necessary for the victim to consult with a doctor in private practice, alternatively, a doctor at a state hospital for purposes of obtaining the necessary treatment to any wound or condition arising out of the attack. The same advice is relevant insofar as treatment for a sexually transmissible disease or the prevention of HIV is concerned.
3. THE COURT PROCESS
As soon as the police have completed their investigation, alternatively, as soon as they have arrested the perpetrator, the docket will be forwarded to the relevant prosecuting authorities who will then take the matter further, oppose any application for bail, decide on the advisability of prosecuting the offender, and provide directive to the police for further investigation or action on the matter by the police. It is the function of the prosecuting authorities and not the police to decide on whether or not to prosecute the perpetrator. Decisions as to prosecution are made on the adequacy of the available evidence and the likelihood of the conviction of the perpetrator.
There is no uniform policy regarding pre-trial consultations between the prosecutor and the victim. However, generally after reviewing the docket, the prosecutor assigned to the matter will arrange for a consultation with the victim wherein a supplementary statement may be taken from the victim. The victim will also be prepared for trial and there may be a referral of the victim for counseling. The pre-trial consultation with the prosecutor should however cover the following areas :
a. The court process ;
b. Familiarization with the courtroom set-up ;
c. Familiarization with the intermediary room set-up (child-victims only) ;
d. Familiarization with the roles played by the different court personnel, and
e. Dealing with an examination in chief and cross-examination.
The law makes provision for a child under 18 years of age to give his or her evidence by way of an intermediary in a room adjourning the courtroom but linked to it via closed-circuit television. The criteria for this being that the court must be satisfied that the child would suffer undue mental stress and suffering if forced to be in the same room as the perpetrator and also on the availability of such facilities at the relevant court. In certain instances, adult victims may also be given the opportunity to give their evidence by means of closed-circuit television.
The perpetrator may make several preliminary appearances in court before the actual trial is heard. It is the responsibility of the police to notify the victim as to whether or not he or she needs to attend court on these days, the court in which the matter will be heard, and the outcome of each appearance.
It is imperative that the victim:-
a. Arrives early at court on the specified day ;
b. Notifies the prosecutor as soon as he or she arrives at the court ;
c. Remains in the waiting area specified by the prosecutor until such time as the case is called, alternatively, remains outside the court in which the matter is to be heard ;
d. Is offered the necessary emotional support through the presence of a support person before, during, and after completion of the trial, such person being either the victim’s counselor/therapist, or a trusted friend or relative. The support person should ideally not be someone who is required to give evidence at the trial ;
e. As the victim may be required to wait for a long time while other matters are being dealt with, it is suggested that food, cold drinks, magazines, books, and toys are taken to court. Courts can also be extremely cold places and it is accordingly suggested that a spare set of warming clothes be taken along as well.
Normally, the public prosecutor prepares the victim for the hearing prior to the hearing taking place. The victim must provide the court with a full account of the events of the offence. As cross-examination can be an extremely traumatic experience for a victim and it is imperative that the victim does not venture an answer to a question that he or she is uncertain of. In such instances, it would be better for the victim to advise the court that he or she is uncertain of the fact on which he/she is being questioned. Further, should the victim not hear the question being asked the victim should ask for the question to be repeated – ad nauseam if necessary. Should the victim at any stage feel overwhelmed with the process and need time to compose him or herself, the victim need simply ask the court for a short recess for this purpose.
4. GENERAL ADVICE ON CHILD ABUSE
All children are at risk of sexual abuse, whether male or female, rich or poor, supervised or unsupervised. It is accordingly imperative that children be taught about good touches/bad touches, good secrets/bad secrets, and that every attempt is made to create opportunities conducive to open and frank communication between the child and his/her caretaker.
Very often the perpetrator of the abuse is known to the child. The perpetrator may be a neighbour, friend, relative, or even someone living within the child’s home environment. Perpetrators come in all guises and from all walks of life, they may be employed or unemployed, they may be a politician, minister of religion, doctor, lawyer, businessman, school teacher, or sports coach. A frightening reality of child sexual abuse is that it often takes place in secret and that it is accompanied by threats and coercion which in itself creates an environment conducive to long term abuse. It is imperative that persons to whom disclosure is made remain calm and controlled on disclosure, that they convey to the child in no uncertain terms that they believe the child, and that the child’s fear of the threats of harm becoming a reality are dealt with in a sensitive manner.
Any act of sexual abuse, irrespective of the type of sexual abuse constitutes a violation of a child’s psychological and bodily integrity. Recovery from abuse may take many years. It is recommended that the victim receives some form of counseling to assist him or her in dealing with this experience. The local welfare office can be contacted with the names and details of people and organizations which assist in this regard.