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