Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN)
SUBMISSION ON THE SEXUAL OFFENCES BILL
15 SEPTEMBER 2003
RAPCAN is an acronym for Resources Aimed at the Prevention of Child Abuse and Neglect. Since the organisation was started in 1989 by the University of Cape Town’s Department of Paediatrics and Child Health, it has focussed its attention primarily on child abuse prevention. This focus was (and still is) made tangible by means of training and awareness workshops, and the production and dissemination of resources. In the last few years, with a changed political situation in South Africa, this focus has expanded and incorporated legislative advocacy. Even more recently, RAPCAN has moved into providing support for children entering the criminal justice system.
RAPCANwas registered as a Section 21 Company (i.e. a not-for-gain company in terms of the South African Companies Act) in 1997, and registered as a non-profit organisation (NPO number 010-744). The Board of Directors consists of 9 members, and there are 16 staff members. The office is in Observatory, in Cape Town in the Western Cape, although RAPCAN works nationally and indeed throughout the SADC region.
Our definition of "child" is a person under the age of 18 years. Our definition of child abuse is premised on and informed by the basic children’s rights enshrined in the United Nations Convention on the Rights of the Child (ratified by South Africa in 1995) and the Organisation of African Unity Charter on the Rights and Welfare of the African Child (ratified by South Africa in 2000). Thus it encompasses all aspects of violations of children’s rights.
RAPCAN’sstrategic responses to the enormous problems faced by South African children aim to tackle these from both a preventative and a rehabilitative perspective, and focus on training and awareness-raising interventions. The workshops that we run are aimed at both adults and children, and deal with awareness, personal safety, causes, identification, legal issues, medical issues and criminal justice issues with regard to child abuse and neglect. We also offer self-esteem and child rights workshops to children, and sexuality education workshops to adolescents. For teachers, particularly, we offer workshops on positive discipline.
To expand upon and complement the work that we undertake by training and raising awareness, we run a Resource Centre through which we make available, disseminate and produce resources; we actively engage in advocacy aimed at ensuring an appropriate legislative and policy framework for the protection and promotion of children’s rights; and we are involved in a limited amount of rehabilitation, particularly with regard to the Criminal Justice System.
Our work also includes offering support services to the children at the Sexual Offence’s Courts in Wynberg, Khayeltisha and recently Parow. It is in light of our work in these courts and the impact this Act will have for children that we are making the following submission.
Elements which RAPCAN supports in the version of the Bill dated the 4 August 2003:
RAPCAN supports the aim of the Sexual Offences Bill, to provide the maximum and least traumatising protection to complainants. It is in light of this aim that we support the following sections:
Of particular concern to RAPCAN are issues related to provisions for psycho-social support for child victims, children as vulnerable witnesses, post-exposure prophylaxis for children, and the necessity for a National Policy Framework.
The South African Law Reform Commission (SALRC) Draft Sexual Offences Bill allowed for the appointment of a support person based on the vulnerability of the witness or complainant in a sexual offence case. This was premised on the SALRC’s recognition that current legislation, (the Criminal Procedures Act, 1977) needed to be expanded to include further protection, as it did not allow for a category of vulnerable persons, in particular children. The SALRC felt that there was a need to legislate for support for vulnerable witnesses.RAPCAN supports this as it will ensure that witnesses are provided with support from the time the case is reported and not merely during the hearing of the case.
We support the SALRC recognition that persons involved in sexual offence cases are vulnerable by the very nature of the crime perpetrated against them and would therefore require support. This could involve a number of elements, including the presence of a support person.
The current draft of the Sexual Offences Bill (4 August 2003) has removed section 15 (4)(a) of the SALRC draft "allowing that witness to be accompanied by a support person as provided for in section 17." The SALRC draft section 17 sets out the procedure for the appointment of a support person. Schedule 1 alludes to the need to protect the vulnerability of children at section (h) the vulnerability of children should entitle them speedy and special protection and provision of services by all role-players during all phases of the investigation, the court process and thereafter. However this clause was originally set out in the SALRC draft under the Objectives Section 1(i). Moving the objectives to a schedule at the end of the Bill defeats the aim of ensuring the those with the responsibility of implementation are aware of the intentions of the Bill.
Thus the vulnerability of children and their need for support is undermined by the removal of the objectives from the first chapter of the Bill to the schedule.RAPCAN works in the Sexual Offences courts (Wynberg, Khayelitsha and Parow) where we provide support and preparation to child witnesses. Our direct experience is that the child witness derives emotional and practical support from the presence of a support person which mitigates against secondary trauma, enhances recovery and improves the quality of evidence.
In an account of the criminal justice process, The Second Rape ‘Lydia’s story’ the complainant noted, "Because the preliminary hearing was so upsetting for me, my psychologist came with me for each sentencing after." This is an indication from a victim as to the need for support during the court proceedings.
Psycho-Social Support and Health care:
The SALRC Draft Bill allowed for the provision, at state expense, of appropriate medical care, treatment and counselling as may be required. In the SALRC’s accompanying report it was noted that it was of importance that the general nature of the clause had been so as to not only create an enforceable right, but to allow for the development of protocols and directives necessary for the practical implementation, without restricting the range of treatments as may be necessary.
RAPCANwas very pleased to see this inclusion for provision of treatment, such as counselling for the victim and for the victim’s family. This indicates the recognition that sexual assault is very traumatic and the after affects are not borne by the victim alone but are also experienced by the victim’s family. A survivor of sexual assault needs to be healed more than just physically, and their family also need to be counselled so that they are able to come to terms with their own response to the assault.
This is evident in a case which came toRAPCAN’s attention in December 2002, where a 16 year old girl was raped, once at gunpoint. The perpetrator thereafter acted as her pimp. After the case was reported, the child received no support and consequently broke down during a visit from her absentee father, and caused damage to property. In light of this, she was sent to Pollsmoor Juvenile Section. This child is now in prison because she reacted to the deep trauma of the rape and sexual abuse she suffered. This is just one indication of a victim who is being punished for trying to deal with her mental and emotional turmoil towards the assault, and her ensuing situation.
The SALRC’s draft makes provision at Section 21 Provision of treatment for the provision, immediately after the alleged offence, of "appropriate medical care, treatment and counselling as may be required for such injuries.". If this clause was included, this girl would have received counselling and may never have landed up in the Juvenile section of Pollsmoor prison.
In terms of having a support person for a child to be prepared for and to understand the court process,RAPCAN in it’s work at the courts can offer a further two of many examples as to the need for a support person.
Case One – In August 2003, an eight year old boy was a witness in a case, he was taken into open court withoutRAPCAN’s knowledge. The lawyer started asking him questions and he "freaked out". Proceedings were adjourned and the boy was taken to the RAPCAN office at the court. Where he was calmed down, assessed and prepared for court, it was also recommended that he should have an intermediary with him. When he returned to court he was much calmer, and able to testify. It is felt that the supporters who calmed him down and prepared him are the reason he was able to testify.
Case Two – In August 2003, a sixteen year old girl was a witness in a case of sexual abuse. She had agreed to give testimony from the intermediary room but she did not have a support person or intermediary with her to explain the court and the procedure. The lawyer asked her the same question three times, she got angry saying "I’ve answered that question already I refuse to answer it again I’m leaving". She took off her head set and left the room. Court was adjourned, and she was referred toRAPCAN. She was calmed down, and had the whole procedure and the court explained to her. It was also recommended at the assessment that she go for counselling as she was deeply traumatised. She is currently receiving counselling and is still not ready to testify .
The second case is a clear example of the need for support and counselling to ensure that the victim is able to give evidence and is not unnecessarily traumatised in the process.
The SALRC’s Draft Bill allowed that the victims family should also receive some form of counselling and support. Parents and care-givers with whom we have worked at the Sexual Offences Courts we have commented that they have very little or no access to support for themselves as parents, and that they appreciate the work and the service we are offering. This is a clear indication that there is a need for the support services to be extended to include the family of the victim.
The current draft of the Sexual Offences Bill (4 August 2003) has removed Section 21. The counselling included in Section 21 is only one important aspect of this section. The other important step that the SALRC draft takes is in the provision of appropriate medical care and treatment. Dr Neil McKerrow has reported on the increased vulnerability of pre-pubertal children to HIV transmission due to the immaturity of the genital tract (the mucosa in the pre-pubertal child is only a single cell layer thick) tears and trauma occur more easily, thus increasing the likelihood of infection.
This is indicative of the need to ensure that children in particular are able to receive the necessary medical treatment in time to reduce the chances of infections.
The removal of this section will have an impact for adults but will have a greater impact particularly for children. As implementation is always questioned with regards to sections that require service delivery, the SALRC purposefully left this clause in general terms to ensure that implementation is a process of development of protocols. We would support the re-inclusion of this section on treatment, medical physical and psychological, for the protection and well being of children as whole human beings.
National Policy Framework
The SALRC Draft Bill includes a National Policy Framework (NPF) at Section 28, with it’s contents specified in Section 29 and the required consultative process described in Section 24. The 4 August Draft Bill has a watered down National Policy Framework (Section 24). It does not bind all organs of state, and it does not give direction or guidance as to the contents of the NPF, such as to encourage co-operative governance to ensure that there is cross-functional and multidisciplinary approach to the interpretation and implementation of the act. This could potentially undermine the Act, in that different departments will not be required to engage with other departments and organisations providing services to victims. This could create potential cracks through which victims could fall. This is contrary to the spirit of the act.
Furthermore, the consultative process, required by the SALRC draft for the NPF has been removed. This prevents a free flow of information between departments, spheres of government and the public, which can create confusion as to what is to be achieved, and how it will happen, and who is ultimately responsible for what aspects. RAPCAN supports the re-inclusion of a comprehensive strategy for a NPF.
We acknowledge that there are concerns around the implementation of certain aspects of the Bill, our response to these concerns that they should be addressed, rather than the principle waived.RAPCAN would be available to assist in any way possible.