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The South African court for sexual offencesS.P. Walker, D.A. Louw*Center for Behavioural Studies, University of the Free State, P.O. Box 339, Bloemfontein 9301, South Africa1. IntroductionWhen South African crime statistics are compared to those of the 113 Interpol membercountries, it seems that South Africa has probably the highest incidence of sexual assault inthe world (Van Rensburg, 1999). It is therefore understandable that the South AfricanGovernment views sex crimes as a major threat to both the physical and psychologicalintegrity of South African citizens. Consequently, the Department of Justice and Consti-tutional Development is doing everything within its power to combat this trend.One of the primary strategies employed has been the implementation of courts specificallyaimed at the prosecution of sexual offenders. The first such court was established in Wynberg,Cape in 1993 (Viviers, 1994); Bloemfontein followed suit in February 1999. The Minister ofJustice has expressed the government’s intention to establish a system of specialized courts(De Rubus, 1998). This would seem to be a clear indication that specialty courts, such as thenew Court for Sexual Offences and existing courts, such as the family and tax courts, are tobecome a permanent part of the South African legal landscape. Following visits by itsrepresentatives to the Bloemfontein Court for Sexual Offences in October 1999 and inJanuary 2000, the Canadian Government announced that it was to make a substantialfinancial donation for the expansion of this system to a further 20 jurisdictions.The concept of a specialty court for sexual offences was initially well received byprofessionals working in the field. However, with the subsequent implementation of thisconcept, certain questions concerning the practical functioning of this type of specialized sexcourt arose (Barnes-September, 1998). As a court for sexual offences appears to be a uniquelySouth African concept, a shortage of empirical research on the court, as well as a lack ofadequate literature surrounding the various aspects of the court’s functioning, soon becameapparent./$ – see front matter D 2003 Elsevier Science Inc. All rights reserved.PII: S 0 1 6 0 - 2 5 2 7 ( 0 2 ) 0 0 204-2* Corresponding author. Tel.: +27-51-4012444.E-mail address: louwda@hum.uovs.ac.za (D.A. Louw).International Journal of Law and Psychiatry26 (2003) 73–85
The aim of this review article is threefold: firstly, to provide the rationale underlying theinternational trend toward specialization within legal
secondly, to highlight thecurrent crisis with regard to sex crimes within the South African con finally, toinvestigate the development of specialized sex courts as a reactionary attempt to addressthe spiralling rate of sex crimes in South African society.A lack of adequate literature on specialized sex courts poses specific challenges to theevaluation of these courts. Consequently, much of the literature and research consulted wasbased on the concept of specialized courts as a whole. The wide variety of courts found underthis umbrella made it very difficult to come up with a body of data linked specifically to sexcourts. Furthermore, the divergent focus of the various specialty courts found internationally,e.g., rehabilitati on in the mental health and drug courts, mediation in the family andcommunity courts, and punishment in the various specialized criminal courts, made it verydifficult to establish a generic approach to the philosophy underlying the development andfunctioning of specialty courts. A discussion of local judicial specialization would thus haveto begin with an overview of the international phenomenon.2. Specialization within the judicial system: a more international perspectiveDuring the previous decade specialty courts have proliferated, with various countriesstreamlining and restructuring their judicial systems (see Petrila, this issue). A generaldefinition of a specialty court is a court that focuses on a similar class of offender or on anarrow class of offenses (Powers, 1997). These specialized courts are said to reflect thegeneral trend towards specialization found in almost all walks of life. This trend has beenbrought about, in part, by the increasing complexity of the law and the legal system as awhole. The type of specialization that occurs in a specific judicial system appears to reflectthe problems inherent in that society or, more regularly, the standards and morality the societywishes to uphold or pursue. The forerunner with respect to judicial specialization, specificallywith regard to specialty courts, appears to be the United States of America. Specialization inthe American criminal court system developed as a response to the problem of ever increasingcase loads and the resulting congestion within the judicial system (Florida Senate CriminalJustice Committee, 1999).The primary rationale for these specialty courts seems to be that a degree of specializationis necessary in order to effectively address cases, which are legally and/or factually complex.With this in mind, the following benefits of judicial specialization, as listed by the FloridaSenate Criminal Justice Committee (1999), may be considered.?The development of judicial and legal expertise that is required by or develops in such asystem leads to greater efficiency and a higher quality of service.?The system draws special attention to a class of offence that would otherwise not receivethe same attention in the more generalist courts.?Judicial specialization also helps to transfer problematic classes of cases—either becauseof the expertise needed to effectively try these cases, the complex nature of the cases,S.P. Walker, D.A. Louw / International Journal of Law and Psychiatry 26 (2003) 73–8574
or the sheer volume of cases—that would otherwise bog down the existing generalcourts.?Judicial specialization allows for judicial intervention and supervision of offendersdiverted from the traditional criminal justice system.?A system of specialization fosters innovation, experimentation, and further specialization.?The narrower focus also creates better coordination of social and support services bybringing all the parties involved together by means of a multidisciplinary approach.Powers (1996) justifies the implementation of specialty courts in a judicial system. Firstly,the judges tend to develop a higher level of expertise in substantive and procedural issues.Consequently, decision making is improved. According to Powers, judges presiding overspecialty courts develop two types of expertise. One is that they become more familiar withthe procedures and statutes involved with that specific area of jurisprudence. The other typeof expertise that these judges develop is a degree of extralegal knowledge in the fieldconcerned. Here, the exposure to various expert witnesses or multidisciplinary teams tends tohelp the judge build up wider knowledge of the issues and challenges facing the litigantpopulation of the specific court. Secondly, the specialized case loads, when combined withthe increased expertise of the court’s legal personnel, often leads to increased efficiency andincreased economy of judicial resources. The third contribution of specialty courts to the legalsystem is a greater degree of coherence and consistency.However, the advent of judicial specialization has also been accompanied by a degree ofskepticism. A major reservation expressed with respect to specialty courts is that the pursuitof fairness and justice will be lost in the trend towards ever increasing judicial efficiency.Powers (1996) warns that the generalist’s view, which he considers vital to good decisionmaking, will be lost unless great care is taken in the selection of judges to preside over thesespecialty courts. He suggests that, over time, judges in specialty courts will tend to losecontact with the judicial system as a whole and become somewhat myopic in their judgmentsand sentencing. A further criticism is that the proliferation of specialty courts will lead toexcessive variation and thus undermine the uniformity and, more importantly, the consistencyof the legal system as a whole (Florida Senate Criminal Justice Committee, 1999).Closely related to the decentralization of the courts are an inevitable decrease inadministrative efficiency and a n increase in administration costs. Furthermore, due tologistical considerations, the specialty courts are invariably located in the more centralizedand urbanized areas. This may result in a lack of access for rural communities and create acertain degree of inequality in the legal system. A lesser criticism of a system of specialtycourts is that of diminished prestige. Powers is of the opinion that the effectiveness of a courtis largely determined by its prestige and the resulting respect for its decisions. His reservationis that courts that have a very narrow focus may be seen by certain quarters of the legalprofession to have lesser authority than the more generalized courts. This may result in thespecialty courts having to earn respect for their opinions and decisions through a provenrecord of high-quality work.Finally, there tends to be a perception that the narrow focus of specialty courts may lead toa bias against certain classes of litigants. A specialty court is susceptible to bias in two waysS.P. Walker, D.A. Louw / International Journal of Law and Psychiatry 26 (2003) 73–85 75
(Powers, 1996). The first is that the appointment of specialized personnel may lead to theundesirable narrowness of approach mentioned earlier. The second risk is that the specialtycourt’s expertise may result in its unconscious tendency to become too involved in the tasksand administration of related agencies and services in the field, thus losing sight of its primaryfunction, namely, that of judicial process.It seems clear that judicial specialization is fast becoming a worldwide trend (see Petrila,this issue). This appears to be a reaction to either overloaded court rolls or the complexity ofvarious fields within the legal system, or a combination of the two. There is strong evidenceto suggest that specialty courts have much to offer the judicial system by way of streamliningprocesses, meeting the demands of communities, and administering justice in complex fieldsof law. However, there has also been wide criticism of existing systems of specialty courtsincluding the possible narrowness of their focus, alienation of rural communities, increasedadministration costs, and bias in the administration of justice.This overview of specialty courts, highlighting the way in which their focus is largelydetermined by the needs of the communities they serve, sets the stage for the investigation ofthe most important areas of potential judicial specialization within the South African context.As this article specifically focuses on the specialty court as a reaction to the prevalence of sexcrimes in South Africa, it is necessary to provide an impression of the magnitude of theproblem in this country.3. Sex crimes in South AfricaSouth Africa is considered to be one of the most violent societies in the world (Meintjies-Van der Walt, 1998; Pillay & Sargent, 2000). Consequently, violence has become a part ofmany people’s everyday lives. People living in informal settlements are amongst the worstaffected by the spiralling incidence of violent crimes in South Africa (Nomoyi & Pretorius,1999). Pelser and De Kock (2000) are of the opinion that the causes of violence, as well as thegeneral culture of violence that prevails in South Africa, are deeply rooted in the history ofthe country. The use of violence as both a tool for social transformation, and simultaneouslyas a means of attempting to maintain the political status quo, has served to entrench a cultureof violence in South African society. Unfortunately, a high proportion of the individualsaffected by this violence are woman and children. They almost exclusively comprise thepopulation of individuals who fall victim to sex crimes (Stanton, Lochrenberg, & Mukasa,1997).Table 1 indicates that violent crimes against the person accounted for 28.8% of all crimescommitted in South Africa from January to September 2001. It is interesting to note thataccording to Meintjies-Van der Walt (1998), murder rates decreased or at least stabilized afterthe transition to democracy in 1994. However, reported rapes rose from 69 per 100,000people in 1995 to 83.5 per 100,000 people in 2001. Rasool (2000) notes that South Africarecorded the highest incidence of rape in the world during the latter part of the 1990s. Thesefigures are only indicative of cases that have been reported to the relevant authorities. It iscommon knowledge that many victims of rape do not report the offences or tend to drop outS.P. Walker, D.A. Louw / International Journal of Law and Psychiatry 26 (2003) 73–8576
of litigation at various stages, because of the trauma and embarrassment associated with beingthe victim of a sex crime and/or the ensuing judicial proceedings. The fact that most victimsof sex crimes in South Africa know or often are related to the offender further complicates thesituation by increasing pressure on the victim to drop charges (Crime Information AnalysisCenter, 2001). The aforementioned statistics therefore only represent the proverbial tip of theiceberg with respect to the sex crime problem in South Africa today. It may thus be necessaryto investigate this problem more closely at both national and provincial level.It is evident from Table 2 that the incidence of rape in South Africa has steadily been onthe increase over the past decade. According to Pelser and De Kock (2000), there was a 12%increase in rapes reported between 1984 and 1995. This trend continued into the later half ofthe 1990s with a steady increase in the reported incidence of rape and attempted rape up toand including 1997. One positive trend apparent in this grave situation is that the rapesreported seemed to decline during 1998. This may be due, in part, to improved convictionrates in some localities due to the establishment of specialized courts for sexual offences(Rasool, 2000; Viviers, 1994). However, the possible increase in underreporting of sex crimesmay also have caused these figures to be misleading. Notwithstanding these possible reasonsTable 2Reported cases of rape and attempted rape January to September (1994 –2001)Province 1994 1995 1996 1997 1998 1999 2000 2001Eastern Cape 3913 4176 4493 5218 4689 4741 4941 4776Free State 2446 2731 2754 2781 2509 2436 2422 2608Gauteng 7460 8427 9390 9292 8578 8730 8869 8982KwaZulu-Natal 4893 5657 6220 6381 6053 6249 6818 6460Mpumalanga 1712 2031 2261 2279 2098 2344 2482 2571North West Province 2538 2983 3186 3384 3105 3196 3271 3358Northern Cape 899 1067 1060 1089 1021 1020 1026 976Northern Province 1788 2153 2364 2619 2764 2758 2975 3354Western Cape 3750 3914 4409 4862 4288 4548 4752 4626RSA 29,399 33,139 36,137 37,905 35,105 36,022 37,556 37,711Source: Crime Information Analysis Center, 2001.Table 1Violent crimes to the person in South Africa January to September 2001Crime category Cases reported % of totalcrimes reportedMurder 15,054 0.8Attempted murder 21,207 1.1Robbery with aggravating circumstances 87,610 4.8Rape 37,711 2.0Assault (grievous bodily harm) 188,961 10.2Common assault 182,110 9.9532,653 28.8Source: Crime Information Analysis Center, 2001.S.P. Walker, D.A. Louw / International Journal of Law and Psychiatry 26 (2003) 73–85 77
for the decline in 1998, 1999 sees an increase in the national incidence of rape and attemptedrape, to a point where it appears to stabilize at around 37,500 incidents per annum from thenonwards. Statistics produced by the South African Police Services indicate a 28.3% increasein the national incidence of rape and attempted rape between 1994 and 2001. This serves asdefinite evidence of the worsening situation with regard to sex crimes in South Africa duringthe last few years of the 20th century.The South African Police Service has suggested various hypotheses to explain the highprevalence of reported rape and attempted rape over the past few years (Crime InformationAnalysis Center, 2001).. Greater awareness, and thus increased reporting of rapes and attempted rapes as a resultof the Police Services having become friendlier to the public and more approachable.. Urbanization has created tension between traditional and modern values and norms. Thismay occasionally lead to traditional beliefs and attitudes about sex conflicting with urbannorms, upon which laws tend to be based. However, a counter argument is that the moralfreedoms of a more modern society may be more conducive to sexual offences. This may beparticularly true with regard to the sexual abuse of children.. Increased alcohol and drug use in the country as a whole may also have an effect. Asignificant number of sex crimes are committed while the offender and/or the victim is underthe influence of a substance.. A final hypothesis relates to certain traditional beliefs regarding sexually transmitteddiseases and HIV/AIDS in particular. Perceptions and myths exist among certain sectors ofthe population that an individual can be cured of certain sexually transmitted diseases,specifically HIV/AIDS, by raping a virgin, or an old woman who has survived a specificvenereal disease.All these factors could explain the high incidence of rape and attempted rape in SouthAfrica to a greater or lesser extent. Whatever the reasons for the current situation, it is one thatis generally regarded as unacceptable at all levels of South African society. The need to takesteps to curb the incidence of sex crimes as well as to cater to the needs of victims should beobvious. To this end, it may be prudent to investigate the occurrence of sex crimes at aprovincial level in order to obtain an idea of where interventions would be most useful. Dueto differences in population density in the country, relying purely on the number of reportedcases per province can be misleading. Investigating the ratio of sex crimes per population unitmay yield a more accurate picture.Table 3 highlights definite hot spots within the country as regards rape and attempted rape.On average, the worst hit provinces appear to be the Northern Cape, Gauteng, Western Cape,Free State, and more recently, North West Province. It is also worth noting that, with theexception of the North West Province, these were also the initial areas into which specific sexcourts were introduced to deal with sexual offences. It is, however, interesting that the ratiosof sexual assaults in these provinces seem to stay within a fairly stable range from 1998onwards. This may be an indication of the degree to which the provincial governmentsrealized the need to address the sex crime problems they experienced.The statistical trends reported thus far have dealt with sex crimes involving the totalpopulation. It is, however, vital that the incidence of sexual assault involving childrenS.P. Walker, D.A. Louw / International Journal of Law and Psychiatry 26 (2003) 73–8578
specifically be investigated if a more accurate perception of the problem is to be gained. Thisis especially important as anecdotal evidence suggests that sex crimes involving minors asvictims have probably been the strongest motivation for the modification of judicial systemswith respect to sex crimes, both locally and abroad (Stanton et al., 1997). The statisticspresented regarding sexual offences against children are dated. However, they are the mostup-to-date statistics currently available, as the more recent national statistics tend to presentan overall view of the problem and do not differentiate sex crimes against adults from thoseagainst children.Table 4 indicates that, as with most crimes, sexual offences against minors showed a sharprise after 1994. Rape appears to be the most common sexual crime involving minors asvictims. Indecent assault, which includes molestation, is the next most prevalent sex crimeagainst children.The decline in reported cases of sexual offences found amongst the general populationduring 1998 is also reflected among child victims. However, this is only with regard tononpenetrative sexual assaults. The incidents of reported rapes amongst children more thandoubled during this period. This may be an indication that the underreporting of sex crimesthat is suspected to have taken place amongst adults is largely absent amongst minors. Apossible reason for this may be the fact that society regards the sexual abuse of children in amore serious light than that of adults. Consequently, members of the public are more inclinedTable 4Sex crimes against children under 18 years January 1994 – March 1998Sex crimes againstchildren under 18years of ageJanuary–December1994January–December1995January –December1996January–December1997January–March1998Rape 7559 10,037 13,859 15,336 3857Sodomy 491 660 893 853 183Incest 156 221 253 222 51Indecent assault 3904 4044 4168 4068 905Source: Crime Information Analysis Center, 1999.Table 3Ratios of rape and attempted rape per 100,000 of the population January to September (1994 –2001)Province 1994 1995 1996 1997 1998 1999 2000 2001Eastern Cape 64.9 67.9 71.7 81.6 71.9 71.2 72.6 68.7Free State 97.1 106.3 105.2 104.1 92.1 87.7 85.5 90.2Gauteng 106.6 117.9 128.5 124.5 112.5 111.8 111.0 109.8KwaZulu-Natal 61.0 69.0 74.3 74.7 69.4 70.0 74.7 69.2Mpumalanga 64.7 74.9 81.3 79.9 71.8 78.1 80.5 81.2North West Province 79.4 91.4 95.5 99.3 89.2 89.7 89.7 90.0Northern Cape 110.6 129.3 126.6 128.3 118.6 116.6 115.4 108.3Northern Province 38.7 45.3 48.3 52.0 53.4 51.7 54.1 59.2Western Cape 98.9 101.3 112.0 121.2 104.9 109.0 111.6 106.5RSA 76.1 83.9 89.6 91.9 83.3 83.5 85.1 83.5Source: Crime Information Analysis Center, 2001.S.P. Walker, D.A. Louw / International Journal of Law and Psychiatry 26 (2003) 73–85 79
to report sex crimes against children than sexual offences involving adult victims. Anotherexplanation may be that minors have little say on how their guardians deal with thesesituations and as such, are not able to avoid reporting to the same extent that adults are.Whatever the reasons for the difference in reporting may be, it is obvious from the precedingdata that sex crimes against all classes of South Africans are rife and present a seriousproblem on social, psychological, economic, health, and judicial levels.It should be evident that sexual offences are a widespread and all too commonphenomenon in South Africa. Thus, by implication, a wide sector of South African society,specifically women and children, are victims or are at risk of becoming victims of sexualassault. When one reviews the data on sex crimes in South Africa over the past decade, thenecessity to specifically target sexual offences as an area of judicial specialization becomespainfully obvious.4. The development of the court for sexual offencesAt the opening of the Natal Law Society in 1998, the then Minister of Justice, DullahOmar, outlined his plan to promote the expansion of the system of specialty courts andspecialization for judicial officers (De Rubus, 1998). The Minister highlighted the need fordevelopment of both specialty criminal and civil justice courts. He was of the opinion thatspecialist judicial officers functioning in specialty courts would be able to dispose of casesmore efficiently, expediently, and with more confidence than less-specialized judicial officers.This would obviously have very positive implications for an overburdened judicial systemthat is often perceived by the public as falling short of their expectations.The various advantages of specialty courts were mentioned earlier in this article. Workingfrom the premise that the degree and focus of judicial specialization in a society reflects boththe moral values of that society as well as the challenges it faces, it seems obvious that aspecialty court focusing on sex crimes would eventually come into being in South Africa.The first court for sexual offences was established in Wynberg in the Western CapeProvince during April 1993 (Viviers, 1994). A strong interdisciplinary approach to dealingwith cases of rape and child molestation was emphasized by the court. This specialized courtfor sexual offences was widely welcomed and appeared to make an immediate impact interms of improved efficiency, alleviating the cases loads of the other Magistrate’s courts inWynberg, and improving conviction rates in sexual assault cases (Rasool, 2000). Accordingto Viviers, the improved conviction rates were a fortunate by-product of the court, as its mainfocus was the reduction of secondary victimization experienced by most victims involved incriminal litigation relating to sex crimes. This secondary victimization is also often viewed asbeing chiefly responsible for the underreportin g of offences, as well as the generaldisillusionment with the judicial system experienced by the majority of South Africans(Stanton et al., 1997).It would therefore appear that a shift from a prosecution-driven judicial system to a morevictim-centered approach was made with the establishment of the first court for sexualoffences. There does appear to be a much stronger commitment on the part of theS.P. Walker, D.A. Louw / International Journal of Law and Psychiatry 26 (2003) 73–8580
Government to adhere to this strongly victim-centered approach. In her speech at the openingof the Court for Sexual Offences in Kimberley on the August 25, 2000, the Deputy Ministerof Justice and Constitutional Development, Ms. Cheryl Gillwald (2000), outlined theobjectives of the system of courts for sexual offences as follows:?to improve the conviction rates for sexual ?to ensure that cases are dealt with in an efficient ?to eliminate all secondary victimization of victims of sexual ?to minimize the trauma experienced by the victim during the investigation and prosecutionprocess.It is thus clear that a strong leaning towards what Casey and Rottman (2000, p. 1) refer toas ‘‘therapeutic jurisprudence’’ exists in this specialty court approach to prosecuting sexualoffence cases. The concept of therapeutic jurisprudence rests on the premise that not only theoutcomes of the judicial process, but also the process as a whole, can have a therapeutic effecton one or more parties involved in litigation. Incorporating therapeutic principles into a courtsystem involves three steps. The first is to recognize the role of the particular court system inproducing these therapeutic outcomes. In other words, what therapeutic effect, if any, doesthe litigation process have on the victims or perpetrators of sex crimes? One would expectthese therapeutic outcomes to be realized in terms of the overall experience of the trial, aswell as the verdict and sentencing. The second step involves the implementation oftherapeutic jurisprudence principles. This step implies that the court in question makes aconcerted effort to consider the therapeutic implications of its actions at each stage of thejudicial process.The final step is the evaluation of the implementation of these principles. Once a court orjudicial system has seen itself as an active agent in the therapeutic experiences of victims andoffenders, as well as the family members of these two groups, it regularly needs to evaluatethe type and quality of therapeutic outcomes produced in the course of applying justice. Withregard to the court for sexual offences, the therapeutic goal appears primarily to be thereduction of secondary victimization. The improved efficiency of proceedings and higherconviction rates may also assist the victims’ recovery by providing some type of closure orretribution with respect to the trauma they have been exposed to (Nomoyi & Pretorous,1999). The specific manner in which courts for sexual offences have been able to practicallyimplement these principles is worth investigating.The most accurate perception of the practical implication of specific principles in the courtfor sexual offences will most probably be gained by an examination of the everydayfunctioning of this court. The workings of the original Court for Sexual Offences in Wynbergwill be reported here. This is, however, solely due to the fact that this was the first court to beestablished and consequently the most widely studied court. The workings of the other sexualoffences courts around the country are based on the same principals and are, to an extent,modeled on the Wynberg court. This discussion of the Court’s functioning will focus on thepersonnel employed, the modifications that have been made to standard court procedures, andthe process through which the victim and offender are taken.S.P. Walker, D.A. Louw / International Journal of Law and Psychiatry 26 (2003) 73–85 81
An attempt is made to maintain a degree of continuity with respect to the personnelspecifically appointed to the court. This results in a greater degree of specialization of thepersonnel and makes for a more reassuring experience for members of the public involvedwith the court. Furthermore, this specialization will, in all probability, result in increasedconviction rates as the individuals working in these courts on a full-time basis will develop alevel of proficiency and experience that their colleagues who are only occasionally involvedwith the courts (e.g., defense councils) will not be able to easily match. The permanentpersonnel of the court for sexual offences include two or more prosecutors, a social worker,and the presiding officer (Opperman, personal communication, 2000). An attempt is alsomade to utilize a reasonably stable core of auxiliary personnel such as interpreters,intermediaries, and social workers. However, the latter is largely subject to various logisticalconstraints. The intention remains to provide victims with a degree of security based on thefact that their entire case is handled by the same person from beginning to end. It also allowsthe prosecutor to be thoroughly familiar with the case and thus, by implication, to mount thebest prosecution possible. The idea of having a permanent presiding officer for the court alsoleads to g reater specialization and improved effectiveness with respect to judgments,sentencing, and recommendations (Rasool, 2000). This is an improvement on the traditionalcourt system with generalists as presiding officers and prosecutors appointed on a randombasis. However, as mentioned earlier, a specialty system such as this one opens itself tocriticism with regard to issues of bias and credibility within the wider judicial and legalsystem.The court for sexual offences, as stated previously, views the victim’s welfare as itsprimary concern. Consequently, a concerted effort is made to create a more relaxed and less-imposing atmosphere. This is particularly true of the modifications made for child victimsand witnesses. Here, painted cartoon murals appear on the walls of interview and testimonyrooms. The furniture used and the availability of toys go a long way to make theenvironment less foreboding to children. Victim’s statements and preparation for the casestake place in a less-formal manner than in other courts. Intermediaries are used extensivelyat every stage of the process in an attempt to reduce any misunderstandings and tension thatlanguage problems, differences in levels of development, or cultural differences maypresent.Children’s evidence is often gathered using a variety of informal, child-orientatedtechniques such as play and drawing. Children also have the advantage of giving evidencefrom outside the courtroom. The child usually sits in a room with an intermediary whiletestifying. Both the child and intermediary are visible to the court by way of a closed circuittelevision system. The intermediary wears earphones enabling her/him listen to the courtproceedings. Questions are asked via the intermediary, who is able to rephrase the questionsto facilitate better comprehension on the part of the child, and the child’s responses are thenrelayed in the same manner to parties in the courtroom. This protects the child fromintimidation during cross-examination and helps to make the whole experience of givingevidence less stressful. The child is only required to enter the actual court in order to identifythe perpetrator in a lineup. During this stage in the proceedings, all possible precautions aretaken to protect the child from any form of intimidation or traumatization.S.P. Walker, D.A. Louw / International Journal of Law and Psychiatry 26 (2003) 73–8582
Precautions like these may go a long way towards reducing secondary victimization duringthe litigation process. Attempts are also made to protect the victims, both adults and minors,from intimidation and victimization between court session by the use of interdicts andimprisonment of suspects in extreme cases. The court thus seems to be meeting its objectiveto put the interests of the victim first. However, enthusiasm for this victim-centered approachdoes not appear to be shared by all within the legal system, nor are the auxiliary servicesassociated with these cases at par with the courts as regards victim-friendly innovations andmodifications.According to Viviers (1994), the court’s victim-orientated focus, as well as some of itsmodified approaches to jurisprudence, have drawn strong criticism from legal practitionerswho have defended individuals in these courts. The use of the closed circuit television systemhas been criticized for being impersonal and unfairly hamstringing defense attorneys and theirclients, while favoring prosecutors and victims. Some attorneys have perceived the lack ofpersonal contact during cross-examination as having a detrimental effect on the quality oftheir cross-examinations. They claim that one loses the intuitive ‘‘feel’’ of a line of evidenceunder these conditions. The role of the intermediaries has also come under fire. Theirimpartiality has been brought into dispute by attorneys claiming that the intermediaries appearto have a great deal of insight into the facts of specific cases. The fact that many of theseintermediaries have offices in the court and are involved in the initial interviews with thevictims has drawn criticism of their ability to perform an impartial function in the courtproceedings. There have also been claims that the intermediaries’ prerogative to rephrasequestions in the ir own wo rds for t he chil d enabl es th em to infl uenc e the cour se ofproceedings. However, in spite of their criticism of the Court, most legal practitioners arein favour of the concepts underlying its development and functioning. The attempt to clearbusy court roles of complex sexual abuse cases, attempts to modify the court so as to suit itsparticular function, and increased conviction rates were all positively received by the legalprofession as a whole.The current system of courts for sexual offences also relies on a variety of support services.These include office of the State Physician, Social Welfare, and various therapeutic agenciessuch as Family Welfare and State Psychiatric/Psychological institutions. The medical officersare responsible for the forensic medical examination of alleged victims of sexual abuse. Thisis especially vital when minors are involved, since determining the presence and extent ofsexual interaction between victim and offender, as well as the victim’s identification of theoffender are often all that a case hinges on. However, the long waiting periods and a lack ofsensitivity on the part of physicians during these examinations are thought to account for alarge proportion of the secondary victimization associated with sex crimes. It is also allegedthat inadequate training and experience in this area of medicine often leads to incompleteexaminations or examinations that are not admissible as evidence for various reasons. Itappears that while the courts are attempting to provide a better experience for victims, theirmedical colleagues are still lagging behind (Barnes-September, 1998).One of the original ideas envisioned in the specialty interdisciplinary approach toprosecuting sexual offences was that the victims would have adequate access to social andtherapeutic services both during the trial and following its conclusion. This would have beenS.P. Walker, D.A. Louw / International Journal of Law and Psychiatry 26 (2003) 73–85 83
the domain of social services or social workers in the employ of the courts themselves(Viviers, 1994). However, in the majority of cases, these services do not appear to have beenforthcoming (Barnes-September, 1998). A lack of personnel and finances has seen victimsfall through the cracks following the completion of litigation and the court fail to carry itsvictim-centered approach through to a satisfactory conclusion. The result is that many victimsare left with residual emotional trauma, caused by feeling that once they have helped the stateor court achieve its objective, namely, conviction of the offender, they, the victims, lose theirusefulness, and the court’s interest in them quickly diminishes (Stanton et al., 1997).5. ConclusionIt appears that specialized courts for sexual offences have managed to make great stridestowards modifying traditional structures and processes so as to be more accessible to thegeneral public. However, the manner in which the litigation is conducted in these courts hasled to criticism. The impartiality of the court setup, as well as the credibility of its decisionswithin the boarder legal context, have been brought into question. The increased convictionrate and a reduction in secondary victimization during court proceeding have been positivelyreceived by the legal profession and general public alike. However, the ability of the systemto follow the victim-centered approach through to a satisfactory conclusion appears to beuncertain at best. There appears to be a specific weakness with regard to the supplementarydisciplines involved in the system, as well as the court’s ability, as the major role player, toadequately coordinate and manage the process as a whole.A mixed impression is created by this review of the limited literature available on SouthAfrican courts for sexual offences. On one hand is a judicial system attempting to improvethe lot of the victims of sexual offences and claiming to generally be succeeding inachieving its goal. On the other hand are the critics of the system, who, while acknow-ledging the improvements made to the system, still are of the opinion that the current systemfalls short of its intended objectives. A more comprehensive evaluation of the experiences ofall individuals involved with the sexual offences court system appears to be stronglyindicated.ReferencesBarnes-September, R. L. (1998). The development of a protocol for the management of child abuse and neglect.Unpublished doctoral dissertation, University of the Western Cape.Casey, P., & Rottman, D. (2000). Therapeutic jurisprudence in the courts. http://www.ncsc.dni.us/ICM/distance/therapeutic/2000-08/html.Crime Information Analysis Center (1999). The incidence of serious crime: January to December 1998. Pretoria:South African Police Service Crime Analysis Center.Crime Information Analysis Center (2001). The reported serious crime situation in South Africa for the periodJanuary – September 2001. Pretoria: South African Police Service Crime Analysis Center.De Rubus (1998). Justice Ministry calls for specialization of the courts and the judiciary.S.P. Walker, D.A. Louw / International Journal of Law and Psychiatry 26 (2003) 73–8584
Florida Senate Criminal Justice Committee (1999). An overview of Florida’s Criminal Justice Specialized Courts.http://www.fcs.state.fl.us/foc/reports/courts/ctrec/html#spec .Gillwald, C. (2000). Opening of the Sexual Offences Court in Kimberley. http://www.doj.gov.za/docs/sp/2000/25aug20000.html.Meintjies-Van der Walt, L. (1998). Towards victims’ empowerment strategies in the criminal justice process. SouthAfrican Journal of Criminal Justice, 11(2), 157 – 172.Nomoyi, N. C., & Pretorius, R. (1999). Inaccessible support services: experiences of victims of violent crime. ActaCriminologica, 11(2), 95 – 101.Pelser, A., & De Kock, C. (2000). Violence in South Africa: a note on some trends in the 1990s. Acta Crimi-nologica, 13(1), 80 – 94.Petrila, J. D. (2003). An introduction to specialty courts. International Journal of Law and Psychiatry, 26, 3 – 12.Pillay, A. L., & Sargent, C. (2000). Psycho-legal issues affecting rape survivours with mental retardation. SouthAfrican Journal of Psychology, 30, 9 – 13.Powers, J. (1997). A new specialty court for Texas? http://www.adminlaw.org.atom2.htm.Rasool, S. (2000). Sexual offences courts: do more courts mean better justice? Nedbank ISS Crime Index, 2,11– 14.Stanton, S., Lochrenberg, M., & Mukasa, M. (1997). Improved justice for survivors of sexual violence? Adultsurvivors’ experiences of the Wynberg Sexual Offences Court and associated services. Cape Town: AfricanGender Institute.Van Rensburg, H. C. J. (1999). Crime in South Africa—current state and trends. Paper presented at the Universityof Bahrain (21 November 1999).Viviers, S. (1994, August). Wynberg sexual offences court: impressions after a year in operation. De Rebus,569– 570.S.P. Walker, D.A. Louw / International Journal of Law and Psychiatry 26 (2003) 73–85 85
This is especially significant considering the court in question has won awards for witness facilities, making it an example of best practice. Specialist Sexual Violence Courts could alleviate these difficulties, as evaluations suggest they are effective at adapting court layouts to significantly reduce anxiety among survivors (Walker and Louw, 2003). Payne (2009) has argued that improving witness facilities is not too expensive, but it is important to recognize the context of radical budget cuts (Rock, 2014). ABSTRACT: English and Welsh rape trials have long been recognized as problematic, with research highlighting the prevalence of rape myths, sexual history evidence and manipulative questioning at trial. Despite this extensive literature, little attention has been paid to the more practical elements of rape trials, but the limited evidence that does exist suggests these may significantly impact survivors. This article therefore draws upon 13 months of court observations to examine how seemingly mundane aspects of rape trials can present substantial barriers to participation. It will argue that ‘special measures’ can cause delays, some witness facilities are inadequate and that the public gallery is frequently a site of intimidation. Ultimately, the research highlights simple changes that could increase opportunities
for example ensuring rape survivors use judicial entrances to court.Article · Apr 2017 Globally, the most important narrative is that healthcare professionals play a vital role in ensuring that 'justice is served' (Rowe et al., 2013, p. 437) as they are the initial ears and eyes in the management of VAW cases (Cory et al., 2003). However, it is apparent that problems persist globally with regard to medical evidence forms, which either underreport the violence which the victim endured (Cory et al., 2003, Norfolk & White, 2006, Walker & Louw, 2003) or are not completed adequately or appropriately to serve as admissible and credible evidence in courts (Walker & Louw, 2003). Consensus is possible, provided the criminal justice personnel are prepared to work with health professionals by communicating how the J88 needs to be completed to present the best evidence possible. ABSTRACT: The availability of the J88 form in court is believed to convey the precise clinical description of the woman's injuries as it is seen as prima facie evidence. This article reports how the J88 form is used in prosecution of violence against women (VAW). A four-phased sensory ethnographic design that used courtscapes, participants' observation, document analysis and conversations with prosecutors and court personnel to generate data was employed. In this paper the focus will be on findings from conversations and reviews of relevant documents. The findings indicate that, regardless of J88 being legally endorsed as prima facie and standalone evidence, some trials of VAW cases continue without it. Most importantly, J88 forms presented for evidence are usually 'silent' as they don't have any impact on prosecution of VAW. In some VAW cases, the J88 forms are viewed as recall for a victim's condition. We recommend a synergistic approach that is trans-disciplinary in nature in documentation of J88 forms. Such documentation will advance the legal and health practices. Full-text · Article · Jan 2016 · International Journal of Law and Psychiatryalready overburdened judicial system to deal more effectively and efficiently with the prosecution of the large volume of sex crimes reported to the police on an almost daily basis (see Walker and Louw (2003) for a more detailed discussion on the establishment and functioning of the Bloemfontein Court for Sexual Offences). The specialized courts for sexual offences are said to aim to improve the conviction rate in sexual assault cases. ABSTRACT: This article aims to evaluate the degree to which the Court for Sexual Offences in Bloemfontein, Free State, South Africa and associated auxiliary institutions meet the needs of the families of the victims of sex-crimes. The perceptions of 24 family members of victims were obtained. These individuals generally perceived the functioning of the Court and its auxiliary institutions in a positive light. However, perceptions of the time that cases took to come to trial and the standard of post-trial interaction between the Court and the families was not positive. A need for more effective victim-care at both social and psychological levels was identified. Future psycho-legal research possibilities in this largely neglected field are highlighted. Full-text · Article · Jul 2005 already overburdened judicial system to deal more effectively and efficiently with the prosecution of the large volume of sex crimes reported to the police on an almost daily basis (see Walker and Louw (2003) for a more detailed discussion on the establishment and functioning of the Bloemfontein Court for Sexual Offences). The specialized courts for sexual offences are said to aim to improve the conviction rate in sexual assault cases. ABSTRACT: This article explores the perceptions of sexual offence victims following their interaction with the Court for Sexual Offences in Bloemfontein, Free State, South Africa. The study primarily investigates these individuals' satisfaction with the degree to which the Court succeeds in providing more effective justice for victims and reduces secondary victimization during judicial proceedings. The respondents were generally positive with regard to their experiences with the Court. However, cases were still found to be slow in coming to trial. The treatment of the victims after their participation in the trials was found not to be of the same standard as that received before they testified. These findings point to potential changes to the current system to further enhance the Court's functioning and legitimacy amongst the people who make use of its services. Full-text · Article · May 2005 Specialist sex offence courts have been viewed as a promising way forward. However, research from South African specialist courts by Moult (2000) and Walker and Louw (2003, 2005a, 2005b) suggests that legal requirements continue to trump victims' justice needs. Despite the evidence not only from the South African courts but also specialist courts for child sexual assault cases, many commentators believe that specialisation—of judicial officers, prosecutors, and defence—will lessen the trauma of the legal process for victims.
Full-text · Article · International Journal of Law and PsychiatryABSTRACT: Feminists have analysed the problematic way in which rape law has evolved in the shadow of the mind/body dualism. This paper will extend this analysis to the problems arising when consent to sex is “intoxicated consent”. One central question is the whether consent is a state of mind or a set of actions or behaviours, performed in certain way, to signify consent. Whether one believes consent to be a state of mind or an action, adding intoxication to the mix renders the problem yet more intractable for criminal law. If consent is a state of mind then being in an intoxicated state can make it extremely difficult to come to a settled state of mind about consent since intoxicants clearly affect the cognitive capacities and it is often also of course, difficult for others to ascertain one’s state of mind. However if consent is an action, alcohol/drugs again can impair the physical and verbal abilities to the extent that action is either impossible or, again, difficult to read. Either way intoxication can render consent obscure. This paper offers a feminist critique of the criminal law’s treatment of the parameters of consent when the person giving consent is intoxicated. Full-text · Article · International Journal of Law and Psychiatry Full-text · Article · Oct 2013 +1 more author... Full-text · Article · Mar 2016 Chapter · Jan 2017 · The Journal of forensic odonto-stomatologyData provided are for informational purposes only. Although carefully collected, accuracy cannot be guaranteed. Publisher conditions are provided by RoMEO. Differing provisions from the publisher's actual policy or licence agreement may be applicable.This publication is from a journal that may support self archiving.Last Updated: 25 Jan 17
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