ChildrenFIRST | Issue 59 | Jan/Feb 2005

More than a year after ChildrenFIRST published the dossier, Stolen Childhood, making recommendations about improving treatment of children in South Africa’s criminal justice system, journalist KRISTIN PALITZA reflects on the state of child protection.

In South Africa, statistics about sexual abuse are highly contested but based on available figures, a child is raped every 24 minutes1 Child rights activists estimate that only one sixth of such crimes are reported to the police2. One reason people stay silent about abuse is that they still do not trust the justice system to protect them.

From April 2003 to March 2004, more than 6,500 cases of child abuse were reported to the police throughout the country. This was a 35.6% increase from the same period the year before, which might indicate both an increase in reporting rates and an increase in incidents.

Although the judiciary and police leadership insist that they are doing all in their power to ensure justice for child victims of sexual abuse, lack of training and resources still hamper investigations and prosecution, with a consequent lack of sensitivity towards child victims and drawn-out proceedings.

In addition to this lack of capacity to process cases, many cases are withdrawn due to the child’s and/or caregivers’ fear of being further abused, beaten or even killed. This is often because the accused is a family member, sometimes the breadwinner or a family friend (almost 90% of child rape survivors know their assailants and most attacks occur in private homes3).

According to the National Prosecuting Authority (NPA), an average of about 700 sexual offences cases were withdrawn each month from April to October 2004. And Childline estimates that only about 15% of child victims report abuse in the first place.

Childline’s own records and work with abuse survivors show that one in three girls and one in five boys are sexually abused before they reach the age of 18 in South Africa. And a national study by LoveLife found that 65% of young South Africans live in fear of their own personal safety – with 62% listing fear of sexual or physical abuse as a serious concern4.

In the face of such widespread abuse, Child Protection Units (CPUs) of the South African Police Service (SAPS) do not have enough training, manpower and resources, and courts are over-stretched on staff and facilities to deal with cases.

Last November it was reported that the three special child-sex courts established at Pretoria Regional Court four years ago are facing a backlog of cases due to a shortage of magistrates. In October, magistrates refused to preside over these courts because they could not listen to ‘soul-destroying and exhausting’ testimonies on an ongoing basis.

There are regulations about the timeframes for hearing cases but Childline KwaZulu-Natal director Linda Dhabicharan argues that the government needs also to set police regulations with timeframes indicating, for example, how quickly officers must respond to a report of sexual abuse.

The South African Law Commission (SALC) found that police investigation procedures were insensitive to children making statements or testifying in court. Statements from children were often taken by inexperienced police officials. Moreover, officers were generally overburdened with cases and had to investigate these under stressful conditions and time pressures.

The police’s understanding of the child as a complainant and witness was limited, the SALC further said. It also found that the police – due to insufficient training – failed to comply with the National Police Guidelines and the Multi-Disciplinary Protocol. Many CPUs still do not have facilities that help to put the child at ease, such as dedicated interview rooms or playrooms.

The whole of South Africa has only 41 Family Violence, Child Protection and Sexual Offences Units (FCSs), 20 CPUs and 52 sexual offences courts. According to the SAPS, more than 1000 detectives work at FCSs and several hundred officers at regular police stations have specialised training in dealing with child abuse.

Apart from general in-service training, CPU officers have to follow a three-week training course on child protection, during which time they receive lectures by experienced SAPS members, academics, educational psychologists, social welfare workers, criminologists, the Family Advocate’s Office, the Department of Justice and community organisations.

In 2004, members of the FCS units – not CPUs – attended an additional once-off fiveday training course on policing procedures for child pornography cases, as well as another five-day training on computer-facilitated crimes against children. Superintendent Ronny Naidoo of the SAPS media relations department in Pretoria said the SAPS planned to provide more such courses next year. “More resources have been allocated to units during the past two to three years,” said Naidoo. “It is a SAPS priority to continuously increase the provision of resources.”

In the meantime, Sonya Nursoo, project manager of the Child Advocacy Centre in Pietermaritzburg, says victims and caregivers receive poor feedback from investigating officers and find cases remanded because officers fail to follow correct investigation procedures or evidence goes missing.

Dhabicharan says that evidence even goes missing between the district surgeon’s office and the police station because forms are handed to children and caregivers to take to the doctor and back to the police station after the medical examination. The problem of perpetrators bribing police officers to ‘misplace’ their files was also ongoing, she said.

According to Dhabicharan, the experience of Childline is that out of every 371 cases of child abuse, about 200 are reported to the police, only 100 get dockets opened, 25 go to court and only one ends in conviction.

The conviction rates as a proportion of prosecutions are much higher – 65% according to the NPA. Both figures suggest one thing: ‘We need more sexual offences courts’, says Dhabicharan. There are 52 sexual offence courts operating in South Africa and budgetary constraints have stopped the NPA establishing more such courts.

The urgency of additional child-sex courts – and more specialised magistrates working in such courts – becomes evident when considering the time it takes until a perpetrator is sentenced. In the double-rape case tracked by ChildrenFIRST, it took four and a half years from 1998 for the children to secure justice. According to child rights activists, an average of two years still go by from the reporting of a child abuse case to the first court hearing, with another year or two until the verdict. “The system is completely overloaded,” said Nursoo.

“Victims will get no closure before a case is terminated,” said Bev Killian, child psychologist of the University of KwaZulu-Natal in Pietermaritzburg, who assists the Child and Family Centre located within the university.

The delays meant that children had to live with or be in constant contact with their alleged perpetrators for extended periods, Killian explained. “There are few mechanisms to protect the child before s/he goes to court,” she added.

The delays also diminish public confidence in the justice system, which in turn impacts on reporting rates. “The child gets the impression that adults do nothing to help,” said Nursoo.

More than 17 000 sexual offences cases were outstanding on the rolls of South Africa’s Magistrates’ and High Courts between April and October 2004, according to NPA spokesperson Makhosini Nkosi. He said the NPA was ‘constantly filling vacant positions for prosecutors’ and operating Saturday courts to address the backlogs but staff shortages and the high turnover of prosecutors was taking its toll.

Once a case does get to court, children still face the prospect of encountering their attacker face-to-face. Most courts still do not have private rooms where the child can wait until the case is called and intermediaries are still only available on request so that children may have to give evidence in open court. “This is a weakness of the justice system,” said Dhabicharan. “Legislation should be changed to make intermediaries obligatory.”

Killian says that where a child has to give evidence in open court, the victim and accused may be instructed to face opposite walls of the courtroom, to avoid face to face confrontation but this was of little comfort to the victim.

Activists say that a high percentage of abuse cases fail because survivors are so traumatised by the criminal justice system that they are not able to testify.

Most of the victim support services to help children through their ordeal are provided by non-profit organisations. One such organisation is Operation Bobbi Bear in Amanzimtoti, on the KwaZulu-Natal South Coast.

The NGO assists child victims from the point of rescue until the court hearing, taking on between 20 and 30 new cases each month. Addressing the link between sexual abuse and HIV/AIDS has become a major focus of their work with young sexual assault survivors. “You cannot shut up anymore. You need to report immediately if you don’t want to die,” is what Operation Bobbi Bear director Jackie Branfield frankly tells children.

Sexual assault survivors need to take post-exposure prophylaxis within 72 hours to reduce the risk of HIV-infection. But to get a prescription for the drugs, a child has to first report the assault, then wait an average of five hours at the police station before someone is available to take a report, then wait on average another seven hours for a medical examination by the district surgeon.

“Both police and district surgeons would like to reduce the waiting time, but a district surgeon, for example, might see 25 children a day,” explained Operation Bobbi Bear legal advisor and administration manager Zina Anastasiou.

The NGO’s child safety officers do their best to secure timely access to medication for children who need it. Their technique for getting accurate reports from children as soon as possible is to hand the children teddy bears to demonstrate what has happened to them.

“We get the child’s side of the story through counselling and demonstration on the bear instead of interrogation,” said Anastasiou. “Some simply take the marker and slam it between the bear’s legs again and again,” Others place band-aids on body parts that have been hurt, while older children tend to write what has been done to them on the bear. Some children stick band-aids over the bear’s mouth to indicate oral sex has taken place.

After the session the bear is taken to the police station as evidence as well as helping to determine as quickly as possible whether the child needs ARVs.

The alternative is for a child to tell a police officer (often male) how they were abused. A lack of biological terminology for body parts and sexual acts often means they would have to indicate the mistreatment on their own body. “This amounts to secondary abuse,” said Anastasiou.

Operation Bobbi Bear may also arrange for children to stay with ‘emergency foster parents’ until the perpetrator has been arrested, if the perpetrator is living in the child’s home. “If the rapist is the breadwinner, the mother is, unfortunately, very likely to ask the child rather than the perpetrator to leave the house,” said Anastasiou.

Court proceedings are often delayed because victims, witnesses and perpetrators do not appear at court hearings. CPUs do not have enough resources and manpower to transport alleged perpetrators and victims, and although victims receive a travel allowance, this sum is in most cases insufficient to cover all costs related to spending a day in court.

Killian adds that it is difficult for CPUs to keep track of the whereabouts of victims, as children were often placed with relatives, or families moved in order to protect the victim from the accused until sentencing.

Missing a court hearing has harsh consequences. If the accused does not attend, the case is postponed. And if the complainant is not present, the magistrate might decide to withdraw the case.

In 2003, the South African government invested R300 million to strengthen the Justice Department in an attempt to protect women and children better. However, organisations working with child victims cite a whole range of measures that still need to be implemented to secure justice for children.

These include:
- Further tightening of bail and minimum sentencing conditions and more transparency;
- More resources for CPUs to ensure that perpetrators abide by bail regulations;
- Provision of appropriate counselling and survivor support services, including for caregivers, through social workers, psychologists, counsellors and lawyers.