DEPARTMENT OF JUSTICE
The present arbitrary/haphazard approach to victims of sexual assault has proved to be ineffective and in most cases leaves the victim with a sense of betrayal by the courts (often referred to as "secondary victimization").
Victims of sexual assaults (especially women) are being perceived as revengeful, deceitful or dishonest and are often not treated with the necessary respect: thus the need for a protocol for the treatment and protection of victims and witnesses in the criminal process.
Victims and witnesses often do not feel part of the criminal process and yet they fulfill a valuable and important role: thus the need for making their roles more meaningful and to obtain the optimal cooperation from them.
With our newfound constitutionalism, there is a need for an approach which is underscored by the constitutional value of equality, comprising the equal protection and treatment of victims in the area of criminal justice.
A specialist prosecutor is the ideal person for this type of case. In offices where there is only one prosecutor, the burden will obviously fall on this person. However, in big offices prosecutors must be selected or should be identified to handle these matters. These prosecutors are expected to exhibit the necessary interest and sympathetic attitude which such cases require.
The prosecutor must consult thoroughly with the victim before the trial commences. The prosecutor must ascertain what fears the victim has and attempt to allay these fears. It is often useful to familiarise the victim beforehand with the court room itself and the interpreter, if applicable. All the court proceedings must be explained to the victims so that they can fully understand. The victims need to be treated with the utmost empathy and respect at all times.
The prosecutor must also consult thoroughly with the accredited health care practitioner (AHCP) whenever medical evidence is available. The prosecutor must also ensure that she/he is familiar with all the medical terminology as well as the implication of the findings of the district surgeon, so that they can properly lead the evidence of the district surgeon in a coherent manner.
Where possible the prosecutor must consult with the police who investigated the case, particularly those likely to be called as witnesses. Discussion to ensure that all necessary documents and exhibits are available will assist the smooth running of the case.
All witnesses in sexual offence cases, as well as AHCPs, should be assisted without undue delay. The prosecutor must make all efforts to ensure an expeditious and fair procedure and avoid unnecessary delays. However, should it be unavoidable that a case cannot be finalised on a particular day, these witnesses must be informed timeously so that a new date and time can be arranged. These cases should be finalised as soon as possible.
The prosecutor must also inform the victim of section 153 of the Criminal Procedure Act (No 51 of 1977) and the importance thereof. Proceedings held in camera may reduce the trauma for the victim. However, the choice should lie with the complainant.
The evidence of the AHCP can also be held in camera when requested.
When children testify, the prosecutor should generally apply to the court for permission to make use of the closed circuit camera system to protect the child from direct confrontation.
The decision is, however, one for the child and the prosecutor should assist the child to make an informed decision.
In terms of section 170A of the Criminal Procedure Act evidence through intermediaries may be accepted. This provision is only in respect of children under 18 years of age. If the court does not have this facility, there are mobile closed circuit camera units which can then be made available. The ideal would be for each and every court to be equipped with a closed circuit camera system.
This order is not automatically granted by the court, as the final decision will be left in the discretion of the magistrate.
The general approach should be that applications for bail must be opposed. If bail is, however, granted, the prosecutor must request special conditions, eg., if the victim is related to the offender, a condition forbidding contact should be requested. If the offender resides with the victim, the prosecutor must insist on a condition that the offender resides at some other place.
The prosecutor can also request special conditions, for instance that the offender is not allowed to contact or come into contact with the victim; that the offender is not allowed within a certain kilometre radius of the victim's house, etc. In suitable cases, prosecutors may invoke section 50(6) the Criminal Procedure Act and request a postponement of the bail application.
It is vital to inform the victim of the result of any bail application.
The prosecutor must oppose any unnecessary delaying tactics or adjournments at the request of the defence. Trials which are finalised after many months or years are greatly detrimental to the victim.
Prosecutors should place before the court evidence relating to the impact (physical, emotional or financial) the crime has had on the victim's life.
Should the prosecutor be of the opinion that the sentence imposed is not appropriate, she/he must immediately contact the office of the Attorney-General to consider a possible appeal against the sentence in terms of section 310A of the Criminal Procedure Act. The prospects of a successful appeal on sentence will be enhanced where all the relevant evidence has been placed on record by the prosecutor.