Case note: M v S (A343/2018) [2019] ZAWCHC 101 (14 May 2019)
Providing holistic support to children and bridging the gaps within the criminal justice system
In May 2016, when M was just 11-years old, her father tried to rape her. The doctor who examined her found injuries compatible with recent forced or attempted penetration with a penis or object and her father’s DNA was found on her undergarments. When M was first called to testify in the criminal trial against her father, over a year later, she broke down a few minutes into her testimony and the matter was postponed. However, at the next court date, the defence requested a further postponement, stating that the accused was ill, preventing M from completing her testimony. Over the next year, M attended a total of seven hearings, requiring her to relive her trauma with each appearance as she prepared to testify. However, she was never able to complete her testimony or be cross-examined. As a result, the court could not consider her evidence in making its decision. Overall, there were 21 court dates in total, before M’s father was finally convicted and sentenced in May 2018. Throughout this process, M experienced ongoing secondary trauma and was not provided any therapy or counselling.
M, like so many other children who have experienced sexual violence or other forms of child abuse was failed by the criminal justice system. In this judgement, the appellate court goes to great lengths to advocate for a victim-centred approach and provision of specialised services that places the child’s needs at the forefront to reduce levels of secondary trauma experienced throughout the trial process. The court begins by detailing provisions in the existing legislative framework specifically aimed at providing care to children including provisions in the Constitution, the Children’s Act, and the National Policy Framework on the Management of Sexual Offences. The court goes on to list several interventions that would assist in minimizing secondary trauma including minimizing the number of court appearances that the child is required to attend, assisting with transport, the early involvement of a social worker to assess the child’s circumstances and provide trauma counselling both during and after the trial, and providing support to the child’s non-offending caregiver to be able to better assist the child during this time.
With support from the Canadian Fund for Local Initiatives (CFLI) and the Canadian High Commission, LvA works to ensure that minors who experience sexual violence in Diepsloot are provided with holistic and integrated legal and psychosocial support services designed to minimise secondary trauma and provide meaningful access to justice. In 2019, For example, LvA provided legal and/or psychosocial support to 67 children and adolescents.
When children are complainants in a criminal case, LvA’s legal team provides comprehensive support at every step of the process including the initial report to the police station, following-up with investigating officer, liaising with prosecutor, and attending pre-trial consultations and trial hearings. Through this role, LvA seeks to ensure that state actors such as police, prosecutors, and magistrates fulfil their legal obligations to victims and minimise unnecessary postponements aimed at delaying the criminal justice process. In 2019, LvA’s legal team provided comprehensive support in 46 criminal cases.
In a parallel process, LvA’s therapist provide individual therapy sessions which focus on improving mental health (including symptoms related to trauma) with the aim of increasing coping and resilience and improving attachment with non-offending caregivers. Therapists also seek to educate children/adolescents on their rights with the consequent aim of improving agency and seeking safety from perpetrators known to them as over 80% of LvA’s cases involving children/adolescents involve a known perpetrator (either family member, family friend or a neighbour). These sessions also address any fears or concerns the child feels around the justice system process and prepare a client for testifying. In 2019, LvA therapists provided over 300 hours of therapy to 40 children and adolescents.
Furthermore, as sexual abuse infringes on a child/adolescent’s interpersonal trust and self-esteem, victims may experience disempowerment, interpersonal distrust and stigma causing them to isolate themselves from their family, friends and communities. In response, LvA provides group therapy sessions, placing clients in an appropriate group given their cognitive and developmental stages. These sessions provide clients an opportunity to restore a sense of interpersonal trust and self-esteem, gaining support from peers and normalising symptoms. Group sessions also allow clients to apply coping mechanisms acquired during individual therapy within a group context whilst learning additional skills from group members.
Lastly, recognising the critically important role of the child’s primary caregiver in determining the likelihood of success for the child, LvA works to strengthen the entire family system by empowering not only the child, but also his/her primary caregiver. One way is through psychoeducational workshops for caregivers which aim to explore the psychological and behavioural impacts of trauma on a child and to practice techniques to be used in understanding and supporting their child. In addition, LvA provides individual support sessions to primary caregivers to promote healthy parent/child relationships, develop positive parenting skills and practical supportive strategies and techniques for support of their child.
We are grateful for the support of CFLI and the Canadian High Commission that allows us to provide this critical and holistic support to children and adolescents who experience sexual violence and ensure that the child’s rights remain paramount every step of the way.
Click here to read full decision in M v State.
By Rethabile Mosese, LvA Sr Staff Attorney
