SPECIAL FEATURE

The way in which children give evidence in criminal proceedings was improved ten years ago by new legislation in South Africa. H Combrink and Elzabé Durr-Fitchen discuss these developments in a 1994 article..

The Child Witness

On 10 June 1992 a rape trial took place at a certain Regional Court. The complainant in the matter was Lee-Ann (not her real name), aged seven years; the accused was her uncle (known as "Uncle Boy"), and the allegation was that he had raped her on a number of occasions over a period of three months.

The following is a narrative of the events, from Lee-Ann’s perspective:
 

On the trial date Lee-Ann arrived at court accompanied by her mother and younger sister. Because they were late and had to hurry to catch a taxi there was no time for Lee-Ann to have breakfast. She also had an attack of car-sickness on her way to court due to her anxiety about the court proceedings.

When they arrived at the Court, a policeman in uniform stood outside and asked them crossly why they were late. He told them to wait until their names were called. Lee-Ann, her mother and her sister waited in the corridor, together with Uncle Boy, who was sitting across from her and who occasionally shook his head disapprovingly at her whenever her mother wasn’t looking. There were also a lot of policemen and "gangsters" in the corridor, as well as people wearing long black coats. It was very cold. There was nothing for them to do except sit and wait. Every now and then Lee-Ann’s sister started to cry, because she was afraid. Lee-Ann’s mother scolded her for not keeping her sister quiet. After they had waited for a very long time, Lee-Ann’s name was called. The policeman took her into a big room, with a very high ceiling. Uncle Boy was already inside, together with some of the people in the black coats. The policeman took her to a little box, where she had to stand. This box was very close to where Uncle Boy was standing — it was so close that he could have touched her if he put out his hand. There were also a lot of funny wires and other things that she did not understand.

There was an ‘uncle’ sitting high up who looked very cross and who asked her whether she knew what it meant "to take the oath". She was scared of him, and therefore she simply said yes, although she didn’t understand. He became even more cross and told her that if she didn’t tell the truth, she would be punished. One of the people wearing a black coat started asking her questions about what uncle Boy had done. Lee-Ann did not understand what was happening, and she was also afraid of Uncle Boy standing so near her. She started crying. The man in the black coat sat down, and another man stood up and started asking her questions. He asked a lot of questions, and this went on for a long time. He was also cross with her, and said that she was lying. Lee-Ann felt very embarrassed to be discussing these things in front of strange people, and she also didn’t understand what this man was saying, because he used big words. He kept saying that little girls who tell lies will be punished, and that she must stop wasting their time.

In the end she agreed with everything he said, because she thought that if she admitted that she had been lying, they would punish her and get it over with and she would be able to go home. She was also very thirsty and tired from standing up straight the whole time. After a very, very long time, they told her to go home. Uncle Boy also came home later on.

The Court held that because of the inconsistencies and contradictions in the evidence of the complainant, the State had failed to prove its case beyond reasonable doubt. The accused was acquitted.

 

Introduction
The above scenario may be very familiar to those who dealt in the past with children testifying in criminal proceedings. The child witness was seldom in a favourable position, especially in "sexual offence" trials. Fortunately the situation has been greatly improved by the introduction of South Africa’s Criminal Law Amendment Act 135 of 1991, which came into effect on 1 August 1993. The two most important features of the amendments brought about by this Act are that —
a) the child can testify in a room separate from the court without being in the presence of the accused (or any other people who might otherwise scare or confuse the child);
b) an intermediary, through whom questions are directed, can be appointed to assist the child.

The Effect of the 1991 Amendment Act
There are three sections which are especially relevant to the evidence of the child witness:

  • Section 161 This section has been amended to include "demonstrations, gestures or any form of non-verbal expression" in the definition of viva voce (verbal) evidence. This only applies to the evidence of a witness under the age of eighteen years. The importance of this is that demonstrations with anatomically correct dolls can be regarded as evidence, without any verbal description accompanying it.
     
  • Section 165 This section has been amended in order to allow an intermediary to administer the oath, affirmation or admonition. (This would normally have been done by the presiding officer.) In practice this could also entail that the intermediary could be requested by the court to assist in ascertaining whether the witness is competent to testify.
     
  • Section 170A This is a new section, and it introduces the possibility of evidence through intermediaries for the first time. It can briefly be summarised as follows: When it appears to a court that a witness under the age of eighteen years would be exposed to undue mental stress or suffering if s/he testifies at such proceedings, the court may appoint a competent person as an intermediary in order to enable the witness to give his evidence through that intermediary.
  • Appointment of intermediary In practice, the implication of this section is that the State has to apply for an intermediary to be appointed. The State has to indicate in the first place that the witness is under the age of eighteen years, and in the second place that s/he would be exposed to undue mental stress if s/he testifies "at such proceedings" (i.e., in the courtroom itself). The court is not obliged to appoint an intermediary — it can exercise its discretion to either allow or disallow it.
  • "A competent person" When the court decides to appoint an intermediary, the next question is who a "competent person" will be. Certain categories of persons who are competent to be appointed as intermediaries have been determined; these categories include psychiatrists, paediatricians, certain classes of teachers, and child care workers and social workers. It is noteworthy that a certain degree of expertise is required: in the case of social worker, the requirement is that s/he must be a registered social worker with more than two years’ experience. A child care worker must have completed a two year-course and must also have at least four years’ experience. The Act sets no further requirements; the question of whether any other (personal) prerequisites are required to function as an intermediary will be dealt with elsewhere.
  • Evidence in informal setting. Section 170A further provides that if a court appoints an intermediary, the court may direct that the witness can give his 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 the witness is outside the sight and hearing of the witness, and which enables the court to see and hear, either directly or through electronic and other devices, the intermediary as well as the witness.
    This means that "one way mirror" screens as well as closed circuit television systems can not be used. (In practice such screens had been used for some time buit this was, strictly speaking, not authorised in terms of the Criminal Procedure Act.)
  • Intermediary may convey general purpose of question. In terms of this section the intermediary does not have to convey questions verbatim, but can convey the general purport of the question. This has two distinct advantages:
    1. The intermediary can "tone down" questions that might be put in an aggressive or threatening way when put directly to the witness; and
    2. The intermediary can communicate questions in language which is familiar to the child.
    This will eliminate the possibility of an intimidated witness being exposed to an aggressive attorney questioning him/her in language incomprehensible to a child of that age.

A "Competent Person" in terms of Section 170A
As mentioned before certain persons who are competent to be appointed as intermediaries in terms of the categories determined by law, will not necessarily be suitable as intermediaries. Based on discussion sessions between members of the legal, social work and psychology professions held at the Wynberg Sexual Offences court, and an analysis of the intermediary functioning which has taken place thus far, it would appear that certain personal requirements have to be complied with. The most basic prerequisites for a suitable intermediary would inter alia include the following:

a) A proven ability to relate to children, and an ability to develop rapport within a short time. Often, for practical reasons, the intermediary may have a very limited opportunity to spend time with the child before the court case; within this time the intermediary has to ensure that the child will be comfortable in his/her presence.

b) The Act does not specify the gender of intermediaries. It is not the gender of the intermediary which determines suitability, but rather skills and attitudes. Within the context of therapeutic work, a male therapist often provides a recovered trust in males. It is debatable whether the intermediary experience will lend itself to this secondary gain. It has to be kept in mind that children (of both sexes) are usually molested by males, and the question arises whether the intermediary situation could not be conducive to transference, which might impede the tasks.

c) Communication skills: the intermediary has to be fluent in the child’s language, and must be able to translate a question into "children’s language" without changing its meaning. In cases where the child uses an African language, an interpreter will also be needed (who stays in court and interprets the child’s response to court).

d) Interviewing techniques: the intermediary should be an efficient interviewer with good observation skills. This includes the ability to convey warmth, empathy and support to the child while still remaining impartial and objective.

e) A solid working knowledge of —

  • legal aspects such as rules of evidence, leading questions, the position of the child witness in the context of South African law, and court procedures.
  • the dynamics of sexual abuse including the Child Sexual Abuse Accommodation Syndrome, symptoms and long-term effects of abuse, paedophilia, etc.
  • developmental stages including the development of intellectual and verbal abilities, memory and attention span.

f) A comfortable awareness of one’s own sexuality.

g) Therapist vs ‘neutral’ person: from a legal point of view, it would appear to be preferable that a person who is not therapeutically involved with the child be used as an intermediary. The possibility of bias increases the risks on appeal. This is not a hard and fast rule, and there might be cases where the advantages of the therapist’s existing relationship of trust with the child should be used. It is regarded as important that those persons who qualify for appointment as intermediaries, undergo basic orientation and training before acting as such. It is also important that such training should involve members of both the legal and the helping professions (such as social workers, psychologists or child care workers) who have previous experience in intermediary functioning.

Conclusion
Although these amendments have gone a long way towards improving the position of the child witness, the situation is still far from perfect. It is, for instance, unfortunate that the Act only provides for the use of intermediaries for witnesses up to the age of eighteen years. What happens to the nineteen-year-old victim of a vicious gang rape who is terrified of the accused and simply cannot testify in his or her presence? What is the position of a twenty-four-year-old woman who is mentally retarded and has the mental age of a six year old child? (Some magistrates have indicated a willingness to interpret the Act to include the latter situation; the question remains what the attitude of the Appellate Division will be.) It is also unfortunate that the Act does not describe "undue mental stress or suffering"; this is left open to interpretation which could in practice have widely differing results. In practice the screens and television systems offer only a partial solution, since the witness will still have to face the accused at some stage in cases where identification is in dispute. Luckily, this is true in only a minority of sexual offence cases.

In spite of these points of criticism, it must be conceded (especially by those who dealt with the system as it was before) that these "small steps" do in fact constitute a giant leap forward. The new role of intermediaries will address many of the problems which have long been the concern of those working in the field of child and family welfare. This service will also depend on suitable intermediaries being available to the courts, rendering a professional service of a consistently satisfactory standard.


The Child Care Worker, Volume 12 No.2 February 1994