In an inspiring and thought-provoking presentation delivered at the first judicial conference held by the Judiciary at a local hotel this month, Professor Karen Müller, the director of the Institute for Child Witness Research and Training in South Africa, spoke about the difficulties children have when testifying in open court.
According to Prof Müller, there has been a growing concern and evidence about the effects on children of giving evidence in an adversarial environment and that child victims and witnesses often struggle with a number of difficulties in their interaction with the criminal justice system. This this has been attributed partly to their lack of maturity and developmental shortcomings.
She said many attorneys, mental health professionals and legal commentators claim that court involvement traumatises a child victim.
“Psychiatrists believe that psychological damage is caused, not only by the abuse the child has experienced, but also by being forced to
testify in an open court in the presence of the accused,” she explained. Müller further said not only does confrontation with the accused cause trauma for the child witness, it also interferes with the accuracy of the evidence.
“Empirical research has shown that physical confrontation with the accused damages the reliability, quality and often the very existence of the child’s evidence,” she noted.
In her view, criminal trials are by their nature “combative and aggressive,” and cross-examination is integral to this battle, being the
opportunity which the accused has to attack the credibility of the witness.
“Cross-examination is not only traumatic for children, but also results in inaccurate evidence,” she said and added that this is often the case because the child is questioned in a hostile environment, often about intimate and emotionally laden events.
She said in order for cases involving children to be evaluated properly, it is essential that judges and magistrates are aware of the dynamics of sexual abuse.
She said, for instance, children do not disclose sexual abuse immediately and often follow a process in terms of which they make tentative disclosures, sometimes recanting before finally disclosing fully.
According to Müller it is rare for children to disclose sexual abuse immediately, which may lead courts to view the late disclosure as “suspicious.” Müller is of the opinion that child witnesses should be prepared before being exposed to the court environment
so as to improve the credibility of the child’s testimony, as well as to enable the child to be an effective witness.
She said it is imperative for prosecutors to have an understanding of children and for this specialised prosecutors are needed to prosecute cases involving child victims of sexual violence.
“Children occupy a special role within human rights protection since they are perceived to require special protection, because of their fragile state of development and the fact that they are very susceptible to abuse and neglect and are not in a position to defend themselves,” Müller stressed. She stated that in its Convention on the Rights of the Child, the United Nations stipulates that children need special safeguards and care by reason of their physical and mental immaturity.
This, she said, is particularly applicable to children who are victims of sexual violence and whose testimony is heard in open court.