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• Issues For Reform Of The Process And The Procedural Law
• 5.1 Introduction
• 5.2 Disclosure
• 5.3 Reporting And Registration
• 5.4 Investigation
• ° The Police Investigation
• ° Medical Examination Of The Child
• ° Protection Of Victims
• 5.5 The Court Process
• ° Accusatorial Versus Inquisitorial Types Of Criminal Procedure
• ° The Territorial Operation Of Our Laws
• 5.6 Children Giving Evidence
• ° Competency To Testify
• 5.7 Making It Easier For Children To Give Evidence In Court
• ° Excluding The Public From The Trial
• ° Use Of Closed-Circuit Television And Or Screens
• ° The Use Of Anatomical Dolls
• ° Presenting Evidence Without The Child’s Participation At The Trial
• (A) Surrogate Witness
• (B) Intermediary
• (C) Video Recordings
• ° Particulars Of The Offence
• 5.8 The Cautionary Rules
• ° The Single Witness
• ° Sexual Cases
• ° Children As Witnesses196
• 5.9 Treatment Of Offenders
• 5.10 Treatment Of Victims
• 5.11 Diversion Systems And Sentencing Options
• ° Pre-Trial Diversion Programmes
• ° Delayed Prosecution Programmes
• ° Sentencing
• 5.12 Sentencing The Sexual Offender
• 5.13 Conclusion

CHAPTER 5

ISSUES FOR REFORM OF THE PROCESS AND THE PROCEDURAL LAW

5.1 Introduction

5.1.1 This chapter deals with the process of managing sexual offences against children. It includes a discussion of the procedures for disclosure, reporting, registration, investigation, the court hearing, the sentencing of the sexual offender, and post trauma victim and offender rehabilitation. However, not all cases of child sexual abuse follow these steps or necessarily in this sequence. What is clear is that the process involves a number of disciplines, professions and structures. Consultation, co-ordination, and an explicit inter-disciplinary code of conduct are therefore essential. Selection, screening, specialised training, and debriefing of all role players involved in child sexual abuse cases are equally important.

5.2 Disclosure

5.2.1 Sexuality in general and sexual abuse specifically are topics that are difficult to discuss openly and honestly in any culture. This is even more true in cases of sexual abuse of children. Firstly, it should be recognised that a child often discloses his or her sexual abuse in a fragmented fashion. Disclosure for a child is a process and the full extent of the abuse will not be revealed when the child makes the first report. This opens up the child witness to attack in criminal trials^[149] in that the child is often accused of fabrication^[150] or susceptibility when giving evidence. Secondly, it should be realised that by the time the child formally lays a complaint with the police, it is likely that the child has been made to tell his or her story to various other people. In repeating the story to different people at different times it is inevitable that details are sometimes left out or that inconsistencies will creep in. The inconsistencies in the various reports are then used to discredit the child in the witness stand and this increases the secondary trauma suffered by the child. Thirdly, cases of child sexual abuse can be disclosed to any person. It often happens that the person to whom the report is made, determines the outcome and success of the investigation. No consistent intervention procedure is prescribed.

5.3 Reporting and registration

5.3.1 It is a well-known fact that only a very small percentage of crimes against children are reported. Under-reporting and the lack of systematic research, co-ordinated record-keeping and a centralised register all contribute thereto that the true extent of child abuse and neglect remain unknown.

5.3.2 In order to encourage the reporting of child abuse, many jurisdictions have enacted one or both of the following provisions:

• A law to encourage “voluntary” reporting, by protecting a person who reports in good faith from being sued for defamation, and from professional disciplinary action for disclosure in breach of ethics. In Victoria, this is provided by section 31(3) of the Community Welfare Services Act, 1970.

• A “mandatory” reporting law, requiring people in specified groups, or generally, to report if they suspect a child is being maltreated.

5.3.3 In South Africa, section 42 of the Child Care Act, 1983 obliges a range of health care workers and others^[151] to report circumstances giving rise to the suspicion that a child has been ill-treated, or suffers from any injury, the cause of which probably might have been deliberate, or suffers from a nutritional deficiency disease.^[152] Persons obliged to notify the Director-General are indemnified from legal proceedings in respect of any notification given in good faith.^[153] Section 4 of the Prevention of Family Violence Act, 1993 contains a similar provision.

5.3.4 Not all persons obliged to report circumstances giving rise to the suspicion that a child has been sexually abused, receive or undergo the necessary training to deal with the child when reports of this nature are made.^[154] The secondary trauma suffered by the child victim is further exacerbated by the lack of any consistent management protocol prescribing what should be done once a report is made.

5.3.5 If there is an obligation to report cases of sexual abuse and neglect of children then something should be done with the information. Besides using the information for research the idea has been mooted that a register be kept of all incidences of child sexual abuse.^[155] Some go even further and suggest that a register be kept of all alleged sexual offenders.^[156] The issue of the need and purpose of a register of sexual offenders need to be debated.

5.3.6 The idea has also been mooted that a register be established for victims of sexual abuse. The same questions as those listed in the box above then apply.

5.4 Investigation

5.4.1 Service providers^[157] are often reluctant to involve the police in the early stages of the investigation of alleged child sexual abuse. The motives are understandable. In many cases the evidence is simply insufficient to warrant police involvement. In other cases, there may be a fear that parental consent to further examination of, or interview with, the child will not be forthcoming, or will be withdrawn if the parents know that the police are involved. There may be concern about the secondary traumatisation suffered by the child victim because of poor police management. There is also the prevailing ethos within the professions that the welfare of the patient / child should be the primary concern.

5.4.2 One caveat remains. During the investigation stage (and all subsequent stages) the psychological needs of the child victim and his or her family should not be neglected and the child needs to be prepared for each subsequent step in the process as well as the likely outcomes of such process.

° The police investigation

5.4.3 One of the consequences of excluding the police from the early stages of the investigation is that it may ultimately make it more difficult to mount a successful prosecution against the alleged offender. If disclosure by the child is first made in the context of a purely therapeutic interview without police involvement, there is a danger that any subsequent formal statement made by the child to the police may be attacked in court as tainted by the earlier interview(s). Another disadvantage of not involving the police at an early stage is that the number of interviews which the child may have to undergo is increased. In addition, those charged with the responsibility of caring for children fear the loss of control which comes from the institution of criminal proceedings. The criminal justice process, once triggered, frequently causes secondary trauma to the child victim in its pursuit of justice and this contributes to a reluctance on the part of service providers to report cases of child sexual abuse which have come to their notice.

5.4.4 The answer to the above problems seems to lie in effective service co-ordination. Joint intervention by the police, the social services, the health services, the education authorities, the judiciary, and correctional services is needed. Difficulties in joint investigations can be minimised by the selection of specialised staff who undergo specialised training and the establishment of protocols for joint investigation. All parties need to understand their responsibilities, the powers available to them and the different standards of proof that exist in relation to criminal and civil proceedings. Child Protection Units find that social workers are often not available after normal working hours to provide a service to children where this is needed.

5.4.5 As we have seen, the police may only become involve long after the sexual abuse has been disclosed. The problems associated herewith and the need for joint investigations with other service providers have been stressed above. We repeat that it is necessary for all members of the police to be adequately trained before they are assigned child sexual abuse cases. Obviously proper case management is necessary.

5.4.6 It might be necessary for the police to hold an identification parade as part of their investigation. In terms of section 37(1)(b) of the Criminal Procedure Act, 1977, the police are allowed considerable latitude in arranging such an identification parade. The rules of police practice as regards identification parades are found in internal departmental orders and requires the identifying witness to make his or her identification by touching the shoulder of the suspect.^[158]

° Medical examination of the child

5.4.7 Prompt medical examination of a child who has been sexually abused may be important for the discovery of forensic evidence. The general rule is that a doctor cannot examine a person without that person’s consent. While a child has a right to give or withhold consent, it is unclear at what age this right can be exercised and how it relates to the rights of a parent or guardian.^[159]

5.4.8 It has come to our attention that some district surgeons refuse to treat victims of sexual abuse unless the case has been reported to the police. In some communities, however, cases are for various reasons not reported to the police. The Commission believes the victim should never be refused medical attention on account of the matter not being reported to the police.

5.4.9 A child’s legal capacity to consent to medical treatment, without parental consent, is determined not by age but by assessing whether the child is capable of forming a sound and reasoned judgment in the matter involved in the consent. However, doctors do not generally conduct an examination of a child without the consent of a parent.^[160]

5.4.10 A parent’s refusal to give consent may be circumvented by relying on the provisions of section 39 of the Child Care Act, 1983. Section 39(4)(b) of the Child Care Act, 1983, for example, provides that any person over the age of 14 years shall be competent to consent, without the assistance of his or her parent or guardian, to the performance of any medical treatment.

5.4.11 Children often experience the required medico-forensic examination as a repeat of the sexual abuse already suffered. Furthermore, the fact that no medical evidence of sexual abuse is found,^[161] does not mean that the child cannot be severely traumatised by the sexual abuse or the medical examination.

° Protection of victims

5.4.12 Intimidation of victims and their families is a major concern in many areas.

5.4.13 It is important to ensure that a child who has allegedly been sexually abused is protected from possible further abuse and intimidation by the offender. This can be done by court order involving the alleged offender, the child victim, or both.

5.4.14 There are two main means by which a court can act against an alleged offender:

(a) Custody and bail conditions. If the alleged offender has been charged, a court may order that he or she be kept in custody until the matter has been tried, or may release him or her on bail subject to conditions. The accused has a fundamental right to be released from detention if the interests of justice permit, subject to reasonable conditions.^[162] Bail is usually granted unless, for example, the court is satisfied that there is an unacceptable risk that the accused will commit new offences or interfere with witnesses. The problem is that this risk assessment is not always done properly.

5.4.15 The purpose of bail is to strike a balance between the interests of society (the accused should stand his or her trial and there should be no interference with the administration of justice) and the liberty of the accused (who, pending the outcome of his or her trial, is presumed to be innocent).

5.4.16 It has been suggested that the victim and his or her family should be notified of the impending release from custody or on bail of the alleged offender.^[163] Similar considerations whould obviously apply to the convicted offender.

5.4.17 In ordinary bail applications the onus is on the state to prove that it will not be in the interests of the justice to release an accused on bail. However, where the accused is charged with a Schedule 5 offence^[164] or a Schedule 1 offence,^[165] the latter which was allegedly committed whilst the accused was on bail, the court must order that the accused be detained in custody unless the accused can satisfy the court that it is in the interests of justice that he or she be released on bail. Simply put it means that in very serious cases the onus is placed on the accused to shown the court that it is in the interests of justice that he or she be released on bail. If sexual offences against children were to be classified as Schedule 5 offences, the onus would be on the sexual offender to satisfy the court that he or she would be entitled to be released on bail.

(b) Interdict with regard to family violence. Under the Prevention of Family Violence Act, 1993, a judge or magistrate in chambers may grant an interdict in respect of a person alleged to have assaulted or threatened a family member.^[166] The interdict may impose any restriction on the alleged offender that the court believes are necessary or desirable, including an order prohibiting him or her from remaining in the aggrieved family member’s house.

5.4.18 A court may act to protect a child by making a protection order under the Child Care Act, 1983.^[167] This places a child who has been maltreated, or is in danger of maltreatment, into the care of the Department of Welfare. A child found by a court to be in need of care and protection may be ordered to be removed from any place to a place of safety.

5.4.19 There is considerable community concern that taking an abused child into care may effectively mean punishing the victim rather than the offender.

5.5 The court process

5.5.1 If an accused is in custody proceedings in a lower court summary trial commence with the lodging of a charge sheet with the clerk of the court. Where the attendance of the accused is secured by means of a summons the prosecution is initiated and proceedings commence upon the issue of the summons.^[168] In contrast to the situation in lower courts proceedings in a superior court commence with the service of the indictment on the accused and its being lodged with the registrar of the High Court.^[169] This may not necessarily coincide with the first time the accused or the victim appears in court in that matter.

5.5.2 What may be needed is a procedure which allows service providers some degree of influence on the decision whether to institute criminal proceedings or not. Full co-operation with and involvement of the police in the early stages of the investigation is unlikely to come about unless service providers are convinced that prosecutions will not proceed without regard to the well-being of the child victim and his or her family. It may be a solution to develop a protocol which establishes the principles of joint decision making, multi-disciplinary partnerships, clarity of roles and boundaries, and victim and offender management.^[170]

° Accusatorial versus inquisitorial types of criminal procedure

5.5.3 Legal systems adopt either the accusatorial or inquisitorial type of criminal procedure. The accusatorial system takes the form of an open and public confrontation between the accuser and the accused with the judge reduced to the role of a mere umpire who ensures that the rules of the trial are observed and who pronounces a verdict in accordance with the evidence presented. It comes first in the legal history of most systems as it symbolises and regularises the primitive duel. The accusatorial system usually gives way to the inquisitorial system, in which a secret inquiry replaces the open confrontation and the judge himself or herself actively conducts an investigation into the guilt of the accused. Neither of these systems is without its defects, with the result that modern systems of criminal procedure generally contains elements of both but are labelled as accusatorial or inquisitorial depending on whether they incline more towards the one or the other system.

° The territorial operation of our laws

5.5.4 A matter related to the system of criminal procedure concerns the operation of our national laws. In terms of the doctrine of national sovereignty, persons committing crimes in South Africa are to be prosecuted in South Africa in terms of the relevant South African law. Likewise, South Africans who commit crimes in a foreign country are to be tried according to the laws of that foreign country. Increasingly foreign countries give their laws on sexual offences extra-territorial application.

5.5.5 In Australia, England, Wales and Scotland, for instance, it is an offence to conspire or incite anybody to commit sexual acts outside the home country.^[171] In Germany, for instance, two German men were sentenced to jail in 1996 for producing pornographic films with young boys in Thailand and selling the films in Germany under a German law permitting the law enforcement agencies to pursue Germans who commit sex offences abroad.^[172]

5.6 Children giving evidence

5.6.1 The major focus of debate and reform in relation to the prosecution of child sexual offences has been on the laws relating to the giving of evidence in court.^[173] The key issues include the acceptability of children as witnesses; the weight to be given to their evidence; whether out of court statements should be admitted; and whether there should be special procedures to ease the stress of giving evidence in court.

° Competency to testify

5.6.2 There is no minimum age in our law below which a child is declared incompetent to testify.^[174] Young children are competent witnesses if the presiding officer considers that they are old enough to know what it means to tell the truth and has sufficient intelligence to testify,^[175] but it has frequently been emphasised that their evidence should be scrutinised with great care.^[176] It has been assumed that children are highly imaginative and that their story may be the product of suggestion by others. Where the child is a single witness, or the complaint is of a sexual nature, the danger is, of course, even greater.^[177]

5.6.3 A child’s unsworn evidence is not necessarily any less trustworthy than if it had been sworn, as Schreiner JA has observed:^[178]

A child may not understand the nature or recognise the obligation of an oath or affirmation and yet may appear to the court to be more than ordinarily intelligent, observant and honest.

5.6.4 Section 164 of the Criminal Procedure Act, 1977 allows young persons to give evidence in criminal proceedings without taking the oath or affirmation after being admonished to speak the truth, the whole truth and nothing but the truth.

5.7 Making it easier for children to give evidence in court

5.7.1 There is universal agreement that it is traumatic for children to give evidence of sexual abuse and that it is particularly disturbing when they have been victims of parental abuse and are required to confront the abusing parent in court. This leads, understandably, to a desire to shield them from this experience and to a failure to report and or prosecute the crime. This in turn encourages further abuse.^[179]

5.7.2 These considerations have led to a variety of changes in many jurisdictions in the relevant practices and procedures that are designed to make it easier for children to give evidence. Some measures, such as acquainting child witnesses before a trial with how a court looks and how a trial is conducted, and using furniture of appropriate size for child witnesses, do not require legislation and raise no issues of principle. Other measures are more controversial and would require legislation if they are to be adopted.

° Excluding the public from the trial

5.7.3 A complainant in a sexual case may find it extremely embarrassing to testify in open court. However, the obvious remedy - excluding the public - conflicts with the basic principle that the judicial process should be conducted as openly as possible.^[180]

5.7.4 Section 153 of the Criminal Procedure Act, 1977, however, provides for the circumstances in which criminal proceedings shall not take place in open court. More particularly, section 153(3) of the Act reads as follows:

(3) In criminal proceedings relating to a charge that the accused committed or attempted to commit-

(a) any indecent act towards or in connection with any other person;

(b) any act for the purpose of procuring or furthering the commission of an indecent act towards or in connection with any other person; or

(c) extortion or any statutory offence of demanding from any other person some advantage which was not due and, by inspiring fear in the mind of such other person, compelling him to render such advantage,

the court before which such proceedings are pending may, at the request of such other person or, if he is a minor, at the request of his parent or guardian, direct that any person whose presence is not necessary at the proceedings or any person or class of persons mentioned in the request, shall not be present at the proceedings: Provided that judgment shall be delivered and sentence shall be passed in open court if the court is of the opinion that the identity of the other person concerned would not be revealed thereby.

5.7.5 Where a witness at criminal proceedings before any court is under the age of eighteen years, the court may direct that no person, other than such witness and his or her parent or guardian or a person in loco parentis, shall be present at such proceedings, unless such person's presence is necessary in connection with such proceedings or is authorized by the court.^[181]

5.7.6 No person shall publish any information which might reveal the identity of any complainant where the court has made an order in terms of section 153(3) of the Criminal Procedure Act, 1977.^[182] Nor shall any person at any stage before the appearance of an accused in a court on a charge referred to in section 153(3) of the Criminal Procedure Act, 1977 or at any stage after such appearance but before the accused has pleaded to the charge, publish any information relating to the charge in question.^[183]

° Use of closed-circuit television and or screens

5.7.7 The courtroom environment is generally regarded as extremely intimidating for witnesses of any age, and particularly for children. One proposal is the use of closed-circuit television or screen, so that a child can give evidence in a separate room, but be seen and heard by everyone in the courtroom.^[184] One of the main advantages claimed for closed-circuit television or screens is that it allows the child to give evidence without directly confronting the accused person. There are also disadvantages and there is debate among experts whether closed-circuit television or screens will in fact greatly assist children.^[185]

5.7.8 The use of electronic or other devices in South African courts at present is dependent on the appointment of an intermediary. Section 170A(3) of the Criminal Procedure Act, 1977 provides that court may direct that a witness gives his or her evidence at any place which is informally arranged to set the witness at ease; which is so situated that any person whose presence may upset that witness, is outside the sight and hearing of that witness; and which enables the court and any person whose presence is necessary at the relevant proceedings to see and hear, either directly or through the medium of any electronic or other devices, that intermediary as well as that witness during his testimony but only if the court appoints an intermediary. If the court decides not to appoint an intermediary it would appear as if the child witness will have to confront the accused in open court.

° The use of anatomical dolls

5.7.9 Many foreign jurisdictions and our own allow the use of anatomical dolls to assist children in relating to their allegations of abuse. An anatomically correct doll is one equipped with parts resembling genitalia. One normally finds a set of dolls consisting of adult dolls of each gender and child dolls also of each gender. The child may demonstrate activity by using the dolls when the verbal skills are limited. Research findings on the use of anatomical dolls are controversial.^[186]

° Presenting evidence without the child’s participation at the trial

5.7.10 There are two ways in which a child’s evidence might be given without a requirement to appear at the trial. One is by using an intermediary or “surrogate witness”. That is, someone who presents the child’s evidence on the child’s behalf. The second is by presenting the child’s evidence in the form of a recording, such as a videotape.

(a) Surrogate witness

5.7.11 The best known example of the “surrogate witness” approach is that introduced in Israel in 1955.^[187] Its main features are:

1. A child victim of a sexual offence is interviewed at an early stage by a “youth interrogator”
2. The child is not required to give evidence in court unless the interrogator gives permission. If the child does testify, the court may excuse the child if the interrogator considers continuation may cause emotional harm.
3. If the child does not testify, the interrogator presents the evidence and may be cross-examined; an accused cannot be convicted on the evidence of the interrogator unless it is corroborated by additional evidence that the crime was committed and that the accused was guilty of it.

5.7.12 The major advantage of this approach is that it greatly restricts the exposure of the child to proceedings which may be harmful. The major disadvantage of the system is that the courts do not directly supervise the examination of the child, and have to relay upon the interrogator for interpretation and assessment of the evidence.

(b) Intermediary

5.7.13 The intermediary system was introduced in South Africa in 1991 as section 170A of the Criminal Procedure Act, 1977. It reads as follows:

(1) Whenever criminal proceedings are pending before any court and it appears to such court that it would expose any witness under the age of eighteen years to undue mental stress or suffering if he testifies at such proceedings, the court may, subject to subsection (4), appoint a competent person as an intermediary in order to enable such witness to give his evidence through that intermediary.

(2) (a) No examination, cross-examination or re-examination of any witness in respect of whom a court has appointed an intermediary under subsection (1), except examination by the court, shall take place in any manner other than through that intermediary.

(b) The said intermediary may, unless the court directs otherwise, convey the general purport of any question to the relevant witness.

....

5.7.14 The success of the intermediary system in South Africa has not been evaluated authoritatively. What appears necessary is that intermediaries should be experienced in interviewing children and specially trained in child language, psychology and the relevant law with particular emphasis on the law of evidence, which is not always the case. The supporting technological aids (video cameras, etc) are also not readily available at all sentra.

(c) Video recordings

5.7.15 A number of American States have legislated to permit videotaped depositions to be used at trial instead of the witness giving testimony. In most of these States, the procedure is restricted to child victims. In Florida, for instance, the videotaped deposition may be used only if the trial court finds there is a substantial likelihood that the witness would suffer at least moderate emotional or mental harm if required to testify in open court.

5.7.16 More general admission of recorded interviews with child complainants has also been adopted in a few jurisdictions. It has been widely canvassed in the United Kingdom^[189] and Australia. There are two models for laws of this type. The first permits a recording to replace or supplement the child’s testimony, but requires the child to be available for cross-examination. The second allows the recording as a substitute for the child’s participation in the trial.

° Particulars of the offence

5.7.17 The prosecution must specify an offence, the conduct constituting the offence and the date on which it was committed. If the complainant cannot specify an exact date, the prosecution can allege that the offence was committed on an unknown day between stated dates. The dates might be determined by reference to certain events, such as a holiday, or where a child lived for a time.

5.7.18 The requirement that a charge be precise is vital to the accused’s capacity to bring a proper defence. The rules create no problems where there has been a single offence which is reported fairly promptly. In the case of sexual abuse, particularly within the family, it is common for a large number of incidents to occur over a lengthy period, with no reporting until some time after the conduct has ceased or come to light. Understandably, a young victim may have considerable difficulty recalling the number of incidents and when they occurred. That can create significant problems for the prosecution. It cannot allege a number of offences of unknown dates unless it can specify an approximate date or identifiable period when each occurred, or otherwise identify a specific incident.^[190] Otherwise there would be lack of certainty about which conduct relate to which offence.

5.7.19 One solution is to identify a particular incident and charge the accused only with that offence, even though others took place. This is unsatisfactory from the point of view of presenting a picture of the alleged offender’s entire conduct in order to secure an appropriate sentence on conviction.

5.8 The cautionary rules

5.8.1 The cautionary rules in the law of evidence assist the court in deciding whether or not guilt has been proved beyond reasonable doubt.

° The single witness

5.8.2 Our courts have often said that the trier of fact should in general not be too ready to rely on the evidence of a single witness as there is some danger of relying exclusively on the sincerity and perceptive powers of such a person.^[191] Section 208 of the Criminal Procedure Act, 1977 provides, however, that an accused may be convicted of any offence on the single evidence of any competent witness.

° Sexual cases

5.8.3 In sexual cases there exists a cautionary rule that the uncorroborated evidence of a complainant cannot be relied upon unless there is some other factor reducing the risk of a wrong conviction in cases which involve a sexual element.^[192]

5.8.4 There is a widespread perception that the combination of the oath test and the corroboration requirement present a significant barrier to the prosecution of sexual offences against children.^[193] That perception is supported by research undertaken.^[194]

5.8.5 In Canada, the 1988-amendments to the Criminal Code and to the Canada Evidence Act eliminated the need for corroboration with respect to children’s unsworn evidence in child sexual assault cases.^[195]

° Children as witnesses^19[6]

5.8.6 Young children are competent witnesses if the magistrate considers that they are old enough to know what it means to tell the truth, but it has frequently been emphasised that their evidence should be scrutinised with great care.

5.8.7 The cautionary rule for children’s evidence is similar to that for accomplices and sexual cases. The danger of acting upon such evidence must be borne in mind by the trier of fact. It makes no difference whether the child’s evidence has been sworn or unsworn. The court is entitled to take into account the falsity or absence of evidence by the accused or any other features which show that the child’s evidence is unquestionably true and the defence story false, but it should not ordinarily convict unless the evidence of the child has been treated with due caution. There is no requirement of law or practice that requires that the child has to be corroborated.^[197]

5.8.8 There is no particular age below which the cautionary rule applies; this is obviously a matter of common sense to be applied in each particular case and the degree of corroboration or other factors required to reduce the danger of reliance on the child’s evidence will vary with his or her age and the other circumstances of the case, but the courts have usually required substantial confirmation when very young children were concerned.^[198] When the child is the only witness implicating the accused the dangers are even greater - particularly in a sexual case.^[199]

5.9 Treatment of offenders

5.9.1 A variety of psychiatric, psychological and other means have been developed to “treat” sexual offenders generally, and sexual offenders against children in particular. At present there are various ways a child sexual offender may be given treatment. Two are outside the criminal justice system:

• Voluntary submission for treatment - there are a very small number of therapists active in this field and an even smaller number of sexual offender programmes. Of course, an offender who obtains treatment voluntarily cannot be compelled to remain in treatment as long as the therapist might believe it is required.
• Treatment under an “intervention order” - in Victoria, section 5(1)(g) of the Crimes (Family Violence) Act 1987 provides that a court may make an order which includes directing a defendant to participate in prescribed counselling. An order may be imposed for a maximum period of 12 months. We do not have a similar provision on our statute book.

5.9.2 There are several other ways, each related to the criminal justice system, in which treatment may be offered to a sexual offender:

• While in prison, an offender may be treated by staff from the Department of Correctional Services. To our knowledge, there is no formal (national) treatment programme for sexual offenders at present, and most offenders spend their whole prison sentence receiving no therapy.
• Where a court convicts a person, the court may postpone for a period not exceeding 5 years the passing of sentence and release on condition that the person perform community service, submit to correctional supervision or instruction or treatment, etc.^[200]
• Where a court convicts a person, it may pass sentence but order the operation of the whole or any part of the sentence to be suspended for a period not exceeding 5 years and on condition that the person perform community service, submit to correctional supervision or instruction or treatment, etc.^[201]
• In the community, an offender may be required to enter a treatment programme as a condition of a correctional supervision.^[202] In S v Ndaba,^[203] Kriegler AJA, as he then was, decided that a 28 year old school teacher had sexually molested a 9 year old girl and where the accused suffered from a regressive form of paedophilia, long-term treatment was needed to control the deviation and that, accordingly, the sentence of correctional supervision was appropriate in the circumstances.
• In the community, an offender may be required to enter a treatment programme as a condition of parole following a period of imprisonment.^[204]
• Section 290(1) of the Criminal Procedure Act, 1977 provides that the court may order that the juvenile offender be placed under the supervision of a probation officer or a suitable person.

5.9.3 None of these interventions can guarantee that the offender will not re-offend.

5.10 Treatment of victims

5.10.1 The demands made by victims and their families may be divided into two broad categories: claims for services and claims for procedural rights. Services include counselling, support and treatment facilities, compensation from the offender or the State, information on the process of legal proceedings and the provision of facilities for complainants, victims, and their families, who are required to participate in legal proceedings or wish to observe them.^[205] Such demands are, for the most part, unanswerable.

5.10.2 Certain procedural claims, on the other hand, are more problematic. Some victims believe that they should have a say in matters such as the decision to prosecute, the sentence to be imposed and, if a custodial sentence is imposed on a convicted offender, to grant early release. This factor must be acknowledged, and strategies developed to ensure that victims do not suffer unduly from a sense of exclusion or alienation from the criminal process. The more difficult question, however, is whether complainants and victims should be allowed to influence the key decisions mentioned.

5.10.3 Here, however, an important distinction must be made between taking victim’s views into account and granting victims an actual role in decision-making. Taking views and opinions into account almost invariably means affording some weight to those views when it comes to making the relevant decisions. To many victims and their support groups such developments seem entirely natural and acceptable. On the other hand, the accused person’s constitutional right to a fair trial calls for absolute fairness and objectivity in the guilt-finding and sentencing processes.^[206] The superimposition of victim’s views would introduce an element of subjectivity which would not necessarily be compatible with these constitutional imperatives.

5.10.4 In Ireland, section 5 of the Criminal Justice Act, 1993 requires judges when imposing sentence for a violent or sexual offence to take the impact of the offence on the victim into account. This provision clearly envisages that a sentence may be increased if the offence had a particular adverse impact on the victim.^[207]

5.10.5 Section 274 of our Criminal Procedure Act, 1977 provides that the court may, before passing sentence, hear such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed. The section further provides that the accused and the prosecution may address the court on any evidence adduced, as well as on the matter of the sentence. No specific provision is made to afford the victim the opportunity to address the court on sentencing.

5.11 Diversion systems and sentencing options

5.11.1 The conventional criminal justice system is widely regarded as having severe limitations in dealing with sexual offenders. Some of the major limitations, a number of which have been described elsewhere in this paper, are:^[208]

• Offences are difficult to prosecute successfully because of the complexities involved when children give evidence.
• The criminal justice process is not child-friendly and does not encourage the reporting or prosecution of child sexual abuse cases.
• Imprisonment and other conventional forms of punishment are ineffective means of rehabilitating offenders.
• The impact of the trial and punishment of an offender may irreparably damage a family that might otherwise be rehabilitated.
• The prospect of a harsh sentence for the offender makes families reluctant to report intra-familial sexual abuse, and offenders reluctant to plead guilty.

5.11.2 The extent of concern about the shortcomings of the conventional system has led to the development of new approaches, particularly in the United States of America.^[209] Essentially, they comprise of programmes which offer psychiatric or counselling “treatment”^[210] to eligible offenders within the criminal justice framework, that is, by court order. The treatment programs differ in the type of offender they accept, the form of treatment they offer, in the stage in the criminal justice system at which they operate, and the formal consequences they impose on the offender. Some programs also assist offenders outside the criminal justice system, that is, without a charge being laid and prosecuted, and on a voluntary basis.

5.11.3 The majority of programmes formally linked to the criminal justice system appear to be concerned solely, or mainly, with offenders who sexually abuse a child within their own household. Because of their family focus a number of programmes offer services to all members of the family, as well as treating the offender. Other programmes, both those dealing with intra-familial and other offenders, offer treatment services only for offenders. Assistance for victims and their families may be available through independently provided services.

5.11.4 The forms of treatment of offenders vary, and can be described as of three main types - behavioural (re-training deviant sexual arousal), psychotherapeutic, and family therapy (aims to change behaviour of different family members, not only the offender). There is a considerable body of literature on the different forms of treatment and their outcomes, the detail of which is not directly pertinent to this paper.^[211] Of greater significance is the question of at what stage in the criminal process diversion programmes should be available to the sexual offender.

5.11.5 A key variation between programmes is the stage at which offenders can participate in them. There are three major approaches: after a charge has been laid but before the trial (pre-trial); after the trial has begun but before judgment (delayed prosecution); after the trial and a verdict of guilty (sentencing). The different stages have significantly different formal consequences.^[212] A brief outline of the three types of approach follows.

° Pre-trial diversion programmes

5.11.6 Under this approach, a person charged with an offence who meets specified criteria^[213] is offered a programme of treatment, counselling, and mediation before the trial is held. To be accepted, accused persons have to formally admit that they have committed the offence. If the offender completes the programme the charge is withdrawn.^[214]

5.11.7 The advantages of a pre-trial diversion programme are said to be:^[215]

1. It encourages increased reporting of offences because it does not carry the stigma associated with criminal prosecution.
2. By being offered the possibility of complete avoidance of prosecution, offenders have a strong incentive to accept treatment.
3. Children do not have to appear in court - even if the offender does not complete the treatment programme and is prosecuted, the admission of the offence can obviate the requirement for the victim to give evidence.
4. Because it is a criteria for admission to the programme that the offender acknowledges his or her guilt, the credibility of the child victim is validated.

5.11.8 Disadvantages of a pre-trial diversion programme are said to be:^[216]

1. It may coerce admissions of guilt from innocent accused persons.
2. Offenders may enter the programme to avoid trial and imprisonment rather than because they are committed to being treated, making it difficult to assess whether treatment has been effective.
3. It denies the needs of victims - and perhaps of offenders, too - to feel that adequate punishment has occurred.

° Delayed prosecution programmes

5.11.9 Under the delayed prosecution programme, the trial of an eligible accused who admits guilt is adjourned while the person participates in a programme. If the programme is successfully completed, the accused is convicted of a less serious offence and sentenced accordingly. If the programme is not completed, the trial is resumed and the accused is tried to the original charge. Compared with the pre-trial diversion programme, a delayed prosecution programme might offer less incentive to participate because the accused is convicted of a criminal offence, albeit a less serious one than the original charge. It does, however, provide the element of punishment not present in pre-trial diversion, and the admission of guilt which eliminates the involvement of the child at trial.

° Sentencing

5.11.10 In sentencing the sexual offender the safety of children should be the paramount consideration. Sentencing should furthermore be based upon a careful risk assessment of the sexual offender.

5.11.11 The sentencing approach involves the accused being charged and tried in the conventional manner. If the accused pleads guilty and is willing to participate in a programme, the court imposes an alternative sentence. If the sentence includes imprisonment, this is usually suspended or postponed while the offender participates in the programme, and may not be imposed at all if treatment is seen as successful. The sentence may also include the option of a fine, reparation, community service, etc. coupled with various conditions.^[217]

5.11.12 A major advantage of this type of system is said to be the maintenance of a system of clearly defined responsibility by the offender for the act. This is also seen by some as its major disadvantage, because the fact that a criminal conviction and sentence are involved may reduce an offender’s incentive to plead guilty or to participate in a programme.^[218]

5.12 Sentencing the sexual offender

5.12.1 In R v Noyes,^[219] Paris J set out what have been regarded as the fundamental sentencing principles when dealing with “non-violent” incest offenders and paedophiles. They are:

• protection of the public;
• rehabilitation; and
• innovative sentencing.

5.12.2 Protecting the public and especially children is possibly the most important factor in sentencing sexual offenders. The greater the harm resulting from the commission of an offence, the more important it becomes to protect the public from any further predatory acts by the offender. Expert evidence should be called to establish the extent of the harm done to the victim as it is not safe to assume that the harm is the greatest where the sexual act is particularly forceful or deviant.

5.12.3 The law has long allowed that where an offender abuses a position of trust in the commission of an offence, the courts will consider this an aggravating feature requiring judicial denunciation.

5.12.4 In sentencing an offender for particularly serious and predatory offences, rehabilitation of the offender becomes secondary to the protection of the public and the need for deterrence. Rehabilitation is nonetheless desirable and is a focus of concern for the courts and, in due course, for Correctional Services and the parole boards. This can be attempted in various ways.

5.12.5 In Canada, for instance, the court and the parole board could impose a treatment component to the release of the offender part of which may be a condition of release that the offender enter drug treatment to decrease sexual drive (chemical castration). Of course, the problem then is one of monitoring an offender who is free within the community.^[220] It was also a criminal offence in Canada for convicted sexual offenders to loiter “in or near a school ground, public park or bathing area”.^[221] In some countries, there is duty to inform the community into which a sexual offender is to be released of that offender’s impending release.

5.12.6 Where the complainant does not feel vindicated by the criminal process, he or she may seek satisfaction in the civil forum.

5.13 Conclusion

5.13.1 The process of managing sexual offences against children is complex and involves a multitude of disciplines, professions and structures. We reiterate that consultation, co-ordination, and an inter-disciplinary code of conduct are essential. Selection, screening, specialised training, and regular debriefings of persons involved in this field are also extremely important.

[149] The question is often asked by defence attorneys why the child did not make full disclosure at the first available opportunity. This is often followed with a question why the report was not made to the police or somebody in an authoritative position.

[150] A witness may not be asked in evidence in chief whether he or she has made some previous statement which tends to confirm his or her testimony. To this general rule, there is an exception in complaints of a sexual nature. See the discussion at paragraph 5.8 below.

[151] Dentists, medical practitioners, nurses, social workers or teachers, or any person employed by or managing a children’s home, place of care or shelter.

[152] Section 42(1) of the Child Care Act, 1983.

[153] Section 42(6) of the Child Care Act, 1983.

[154] For instance, not even all the members of the Child Protection Units have undergone the specialized training courses.

[155] Resolution B2 of the conference “Sexual Offences against Children”, 6 - 8 July 1994.

[156] The Australian Paedophile and Sex Offender Index, for instance, names hundreds of Australian men, and some women, convicted of sex crimes against children in the past five years. The police keeps records of all convicted persons, including sexual offenders.

[157] Such as health care workers, educationalists, social workers, street committees, family group conferences, etc.

[158] See paragraph 17 of form SAP 329, the so-called “Identification Parade Form”. See also Du Toit et al Commentary on the Criminal Procedure Act 3-5 - 3-14.

[159] A child below the age of 7 years has absolutely no capacity to act, nor is such child criminally or delictually liable for his or her acts. Between the ages of 7 and 14 years the child has limited capacity to act which means that he or she can, for instance, enter into a contract with the due assistance of his or her parent or guardian. Children above the age of 10 years must consent to their adoption. See also section 5(3) of the Choice on Termination of Pregnancy Act, 1996 on the right of a pregnant minor to consent to an abortion. See further Barnard, Cronje and Olivier The South African Law of Persons and Family Law 59.

[160] See also Strauss Doctor, patient and the law (third edition) 5 - 8.

[161] Such as semen in the vagina or a ruptured hymen.

[162] Section 35(1)(f) of the Constitution, 1996; section 60 of the Criminal Procedure Act, 1977. See also Du Toit et al Commentary on the Criminal Procedure Act 9-13 et seq.

[163] Resolution B9 of the Conference “Sexual Offences against Children”, 6 - 8 June 1994.

[164] Schedule 5 lists the following offences: Treason; murder, involving the use of a dangerous weapon or firearm; rape; robeery with aggravating circumstances and robbery of a motor vehicle; drug trafficking; any statutory offence relating to the traffiking of, dealing in or smuggling of firearms, explosives or armament, or the possession of an automatic or semi-automatic firearm, explosives or armament; and any offence relating to exchange control, corruption, fraud, forgery, uttering or theft involving amounts in excess of R500 000.

[165] Schedule 1 lists the following offences: Treason; sedition; public violence; murder; culpable homicide; rape; indecent assault; sodomy; bestiality; robbery; kidnapping; childstealing; assault, when a dangerous wound is inflicted; arson; malicious injury to property; breaking or entering any premises, whether under the common law or a statutory provision, with intent to commit an offence; theft, whether under the common law or a statutory provision; receiving stolen property knowing it to have been stolen; fraud; forgery or uttering a forged document knowing it to have been forged; etc.

[166] Section 2 of the Prevention of Family Violence Act, 1993.

[167] Section 15 of the Child Care Act, 1983.

[168] R v Magcayi 1951 4 SA 356 (E); R v Friedman 1948 2 SA 1034 (C).

[169] Section 76(1) of the Criminal Procedure Act, 1977.

[170] See also Plotnikoff and Woolfson Prosecuting Child Abuse: An evaluation of the Government Speedy Progress Policy 52; J A Robinson “An overview of child protection measures in New Zealand with specific reference to the family group conference” 1996 (7) Stellenbosch Law Review 313.

[171] In terms of the Sexual Offences (Conspiracy and Incitement) Act 1996.

[172] Pretoria News, 28 November 1996, p. 16.

[173] See in general Zieff “The child victim as witness in sexual abuse cases - A comparative analysis of the law of evidence and procedure” 1991 (4) SACJ 21; Schwikkard “The child witness: Assessment of a practical proposal” 1991 (4) SACJ 44; Australian Family Law Council Child Sexual Abuse (Report) 47 et seq; Bottoms and Goodman (eds) International Perspectives on Child Abuse and Children’s Testimony 114, 132, 145, 182, 201, 221, 266.

[174] Ex parte Minister of Justice: In re R v Demingo 1951 1 SA 36 (A) at 43 per Centlivres CJ.

[175] It has been said that magistrates often lack any expertise in assessing the competency of children to testify. See, e.g. S v F 1989 1 SA 460 (ZH) where a 10 year old boy was charged with the indecent assault of a four year girl.

[176] Hoffmann and Zeffertt South African Law of Evidence (fourth edition) 581; Du Toit et al Commentary on the Criminal Procedure Act 24 - 6.

[177] R v W 1949 3 SA 772 (A) at 780.

[178] In R v Manda 1951 3 SA 158 (A) at 163.

[179] Ireland Law Reform Commission Report on Child Sexual Abuse 67.

[180] Section 152 of the Criminal Procedure Act, 1977. See also Kriegler Hiemstra Suid-Afrikaanse Strafproses (fifth edition) 383 - 385.

[181] Section 153(5) of the Criminal Procedure Act, 1977.

[182] Section 154(2)(a) of the Criminal Procedure Act, 1977.

[183] Section 154(2)(b) of the Criminal Procedure Act, 1977. See also section 335A of the Criminal Procedure Act, 1977.

[184] Australian Law Reform Commission Research Paper 1: The use of closed-circuit television for child witnesses in the ACT 1.

[185] For a discussion of the arguments, see Law Reform Commission of Victoria Report No. 18: Sexual Offences against Children 103 - 105.

[186] Harvey and Dauns Sexual Offences against Children and the Criminal Process 156.

[187] For a discussion of this system, see E Harnon “Examination of children in sexual offences - the Israeli law and practice” 1988 Criminal Law Review 263.