Child Abuse: Victim Rights & the Role of Legal Representative

Essay 2 : Child Abuse :
Victim rights and the role of legal representative
Sexual abuse cases are incredibly sensitive subjects. The way they are handled is of paramount importance because of their complex nature. This is where the magnitude of the role of the child 's representative comes into play; consequently the rights of the child must be enforced with great care. Investigation of the allegations depends on dependable information from the victim (a child in this case) and confirming physical evidence which pertains to the accused, amongst other things. Together, all of this is rare to find. Yuille, Hunter, Joffe and Zaparniuk (1993, p. 95) point out that "typically, there are two witnesses to abuse: victim and offender, and because the abuser usually denies the abuse, knowledge of what happened depends on information the child provides during victim interview", this process is, therefore, the crux of the abuse case.

The Bill of Rights is a crucial dimension in the democracy of South Africa. One of the greatest achievements of the newly formed democracy in 1994 was the chapter 29 in the Bill of Rights which entrenched the rights of children (under the age of 18). In addition, South Africa has ratified the United Nation Convention on the Rights of the Child (which has significantly enlarged public awareness of children 's rights), and African Convention on the Rights of the Child. These basic rights, relevant to this essay, include a child 's right to be protected from maltreatment, neglect, abuse or degradation and the fact that the child 's best interests are of paramount importance in every matter concerning the child. Scheepers (2006, in Spies) establishes these factors as being in the child 's best interest: ascertain during trial whether there has been abuse, determine whether the child has been coached and influenced in order to incriminate the accused, and to establish who actually abused the child.

Freeman (1999, in Spies, 2006) has pointed out that although there have been great improvements in the awareness of children 's rights around the world; there has been a lack in the acknowledgement that children should play a more active role. This may be because, as Freeman puts it, adults have an inherent need to look after children and by doing this, not allowing children to play a more active role, the adult is doing what is in the child 's best interest. The United Nations Convention on the Rights of the Child enforce a broad range of rights, the rights have been categorised into three groups which include provision (basic rights), protection, and participation (includes rights in the courtroom) (Franklin, 2002, and Colton et al., 2001, in Spies, 2006). Franklin (2002) carries on to say that children 's rights, in general, fit into two categories; legal and moral rights and welfare and liberty rights. Welfare rights ensure children are protected and have education, shelter and health. A liberty right concentrates on children 's rights to self-determinism, indicating that a child should play an active role in decisions pertaining to themselves. Section 16 of the Bill of Rights is the right to freedom of expression which includes freedom to receive or impart information or ideas.

Section 33 in the Bill of Rights includes the right to information. This information, which could be used to make important information in the child 's life, should be taken into serious consideration. Confidentiality and trust, however, must be taken into account. Children need information on what is going on with them in order for them to express their views and wishes on the matter. One cannot make a decision when not informed. In giving children this information, though, it is important that they are guided in this process.

It is necessary for the lawyer to proceed with great care when cross-examining the child. The child must be approached with respect. It is important that the child is told that what is done is for his or her best interests in a way that they will understand. It will be established whether or not they have been interviewed and influenced (with special attention as to whether it was the alleged abuser) into giving false statements and recall false memories. Ceci and Bruck (1993, in Spies, 2006) assert that "if a child 's disclosure has been made in a non-threatening, non-suggestible atmosphere; if the disclosure was not made after repeated interviews; if the adults who had access to the child prior to his or her testimony are not motivated to distort the child 's recollections through the relentless and patient suggestions and outright coaching; if the child 's original report remains highly consistent over a period of time" then the child must be trusted in giving information and testimony which is useful for the case. If these domains are lacking, then caution should be taken in believing all that the child says, but not dismissing all claims.

Children also have the right to lay a charge against the person who allegedly abused them, to be heard, to be represented legally (with help from the state if necessary), to privacy and to human dignity (a child is a person after all). Also, in section 9 of the Bill of Rights it is stated that unfair discrimination (including age) is not acceptable. In order for professionals to help the child, it is necessary that they have knowledge about children and their needs in terms of development (discussed in detail below) and that they acknowledge enforce the rights of the child.
The Child Care Act (1983) is designed to look after the interests of children and protect them if their parents abuse or neglect them. The Act says police or Child Welfare officials can take abused or neglected children away from their homes, to a 'place of safety '.
There are also bills in the making, or draft bills. The one 's that will be included in this essay are the Children 's Bill and the Sexual Offences Bill. This bill was developed as a comprehensive piece of legislation that would holistically address the needs of South Africa 's children looking at both the prevention of abuse and neglect as well as care of children in need of protection. The bill was drafted after several years of consultation with representatives from all sectors involved in the care and protection of children. The bill aimed at providing comprehensive social security to children in need, making the courts more accessible to children and families who require some legal intervention, as well setting up inter-sectoral structures including representatives from all government departments and the NGO sector who have some involvement with child care and protection to ensure that the needs of the children are comprehensively met and that all role-players coordinate their activities. The bill also provided for the adequate resourcing of welfare organisations that provide protective welfare services for children. This included the Child Welfare Societies. This bill has also been considerable delayed as well as redrafted, without adequate consultation, to exclude a number of provisions that would have protected children, such as the inter-sectoral structures, the comprehensive social security chapter etc. It has also dispensed with the clauses that dealt with ensuring the purchase of services from the private welfare sector. Sadly many of the redrafted changes to this Bill have been motivated by financial considerations. The Sexual offences bill deals with sexual offences against adults and children and provides for special protections for the child victim of sexual offences. The Sexual Offences Bill redefined sexual crimes against adults and children and also reforms procedures for the management.
It is incredibly important that children understand what is happening to them is not right. Sadly, many think it is because their parents are the perpetrators and they are told and believe that it is okay. Childline South Africa has developed an easy-to-understand website for children to access. They define sexual abuse as "when children are forced or persuaded into sexual acts or situations by others. Children might be encouraged to look at pornography, be harassed by sexual suggestions or comments, be touched sexually or forced to have sex" (http://www.childline.org.za/help/abuse/ abuse.htm). The role of the legal representative in sexual abuse cases is set out in the chapter of the same name by Scheepers in the book by Spies (2006). This will be the main resource of information for what this part of the essay is based on. Firstly, it is very important that the child 's representation understands children and what they are going through in this type of situation. This is because lawyers are not trained in the field of social science and it is vital that the child 's representative appreciates that the child does not have the same cognitive, and other, abilities as adults. It is necessary, therefore, for the lawyer to have consultation with experts in the fields of psychology. The experts can assist with any evidence which has been bought to the case and in aspects such as the effects (long- and short-term) of the abuse on the child and the behavioural characteristics of the child should be investigated. There is such debate over whether certain behavioural characteristics are common in sexually abused children and experts will, in criminal cases, testify in this regard. The problem with this as displaying some of these frequent characteristics does not necessarily mean that the child has been sexually abused. Precedent is a very important part of the law; it governs future cases and is based on past judgements. In the case of Van Zijl v Hoogenhout, evidence was accepted on the behavioural characteristics of the sexually abused child which were written by Finkelhor and Browne (1985) in terms of four trauma-causing factors. These include traumatic sexualisation, stigmatisation, betrayal and powerlessness. It is, therefore, important for the child 's representative to understand these aspects.

The representative also needs to take into account that children may show false positive feelings, especially when they have been surrounded in a maltreated environment, and that these contradictory feelings must be shown in a normal light to the child. Also, children find it difficult to portray their feelings when coming out of a family where this has been discouraged. The professional role-player must help the child in this respect. The representative must also aid the child in explaining legal terms ad consequences to better help the child in decision-making.

In order to understand the child correctly and to be able to treat them in the accurate manner, the representative should understand how the child develops and at what stage in the development process the child is in. This includes the child 's physical, emotional, intellectual and social development. Factors such as a child 's disability must have special attention. As the professional learns this, they will begin to understand that the child does have a "comprehensive point of view, even though it is immature compared to the adult perspective" (Garbarino and Stott, 1989, in Spies, 2006). In this way, the representative can help make this understanding available to others, especially in the court case hearing. Understanding the child 's development process will also aid the child to mentally heal after such an ordeal. Kruger and Spies (2006, in Spies) utilize Urie Bronfenbrenner 's (1979) theory of social ecology. The root of this theory is the link between the individual and the environment which they are in. Bronfenbrenner acknowledges that it is not only the environment that influences the individual, but also that the individual influences the environment. There is the microsystem (immediate contact with the individual), the mesosystem (which connects the individual and the microsystem to the other systems), the exosystem (which includes things that influence the individuals immediate environment) and the macrosystem (this includes intangible factors such as laws and cultural beliefs). This theory encourages the professional to take into consideration all the external influences that affected the child. The macrosystem will clearly be a huge influence in the case that the child goes to court. Also, in terms of development, some children have not reached the cognitive level when hypothetical situations can be made. The professional role-player, with help from an expert, can assist in this respect.

There are a few important considerations that need to be taken into account when dealing with a child witness. Underwager and Wakefield (1995) stress that memory reconstruction is a possibility in such cases. Also, it is very important to know how children have been interviewed before court proceedings and by whom as this can influence what will be told by them and may result in false details and accusations. The child 's original report of the abuse should be looked at in comparison to the child 's current views, at the time of trial. The child 's representative must encourage the child to tell the story in their own words and should ask open-ended questions in order not to lead the child. The child should also be discouraged from answering questions which are not known and repeated questions should be avoided, as this may indicate to the child that their previous statement was incorrect. The use of anatomically-detailed dolls (used to let the child explain what happened to them by play) has been widely questioned; there is a disagreement as to whether these should be utilized. Furthermore, the Frye principle is not met in the use of anatomically-detailed dolls as the technique does not fit into a generally accepted rule of the scientific community.

Sachsenmaier (1998) has acknowledged that the possibility of untruthful information from child witnesses, but shows that instead of deciding whether it is true or not maybe a better option is to eliminate any chance of this by rather improving interviewing techniques. The importance of the training and methods used in conjunction with the interviewer are recognised by Yuille et al. (1993, p. 96). They say this as it has been estimated that a very large amount of allegations, which are actually true, have been classified as "unfounded", this is because inadequate information is attained to bring about due action. This point is reinforced by Spencer and Flin (1990) as they say that the lawyer must ensure that evidence is related to the "test of relevance" and that it must be lawfully admissible (p. 38). They carry on to say that the skills the interviewer must be trained in will aid in eliciting "a coherent account from the child" (p. 37). Finkelhor and Browne (1985) add that the representative can make assessment "based on traumagenic dynamics would also be useful for formulating intervention strategies".

In conclusion, the rights of the sexually abused child and the role of his/her legal representation go hand in hand. They work together mutually and need to be enforced, with care, with all who are involved in sexual abuse cases. It is an unfortunate fact that these cases are on the increase in South Africa, but this is surely a reason to guarantee that this process is carried out efficiently with the utmost amount of caution.

REFERENCES:
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Family law and violence against women: Child abuse and neglect. [Online].
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Finkelhor, D. & Browne, A. (1985). The traumatic impact of child sexual abuse: A conceptualisation. American Journal of Orthopsychiatry, 55, 530-541.
Kruger, M.E & Spies, G.M. (2006). The rights of the sexually abused child. In G.M. Spies (Ed.), Sexual abuse: Dynamics, assessment and healing
(pp. 157-184). Pretoria: JL van Shaik Academic.
Sachsenmaier, S. J. (1998). Investigating child sexual abuse allegations: Do experts Agree on anything? [Online]. Retrieved April 5, 2007, from http://www. aaets.org/article50.htm
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Underwager, R.G. & Wakefield, H. (1995). Special problems with sexual abuse cases. [Online]. Retrieved April 5, 2007, from http://www.tc.umn.edu/~under0006/ Library/SpecialProblems.html
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What 's new children rights: The future of our children. [Online]. Retrieved April 5, 2007, from http://www.childlinesa.org.za/ChildrensRights.htm
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References: Children 's rights in a violent society. [Online]. Retrieved April 5, 2007, from http://www.childrensrightscentre.co.za/ Retrieved April 5, 2007, from http://www.paralegaladvice.org.za/docs/chap07/ 07.html Finkelhor, D. & Browne, A. (1985). The traumatic impact of child sexual abuse: A conceptualisation Kruger, M.E & Spies, G.M. (2006). The rights of the sexually abused child. In G.M Sachsenmaier, S. J. (1998). Investigating child sexual abuse allegations: Do experts Agree on anything? [Online] South African Government Information: Bill of Rights. [Online]. Retrieved April 5, 2007,from http://www.info.gov.za/documents/constitution/1996/96cons2. Underwager, R.G. & Wakefield, H. (1995). Special problems with sexual abuse cases. [Online]. Retrieved April 5, 2007, from http://www.tc.umn.edu/~under0006/ Library/SpecialProblems.html What is child abuse? [Online]. Retrieved April 5, 2007, from http://www.childline.