STRIKING A BALANCE BETWEEN TESTING THE EVIDENCE OF ACSA VICTIMS AND MINIMISING THEIR TRAUMATIC EXPERIENCE

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BACKGROUD

sexual abuse (CSA) became a public issue as far back as the period between 1970 and 1980.1 Prior to this period, CSA remained secretive and socially a closed subject, too shameful to be aired in public.2 Despite the greater awareness of CSA in the period subsequent to 1980, the tendency to deny the existence of CSA by acquaintances remained strong. Child sexual offences were almost exclusively regarded as offences committed by strangers.3 This assumption is increasingly being displaced by statistics and studies demonstrating that the major suspects in CSA cases are in fact acquaintances or persons in positions of trust with children.4 The home, previously thought to be a safe haven for children, is increasingly becoming unsafe in light of the overwhelming number of child sexual offences committed by adults within homes.
Currently, CSA committed by acquaintances is one of the most prevalent forms of abuse against children.6 The consequences of CSA have indeed been appalling, to the extent that some children have lost their lives in the process,7 thus emphasising the urgency of successful criminal prosecution of suspects. While criminal-justice systems have shown that they are more than willing to rise to the challenge to increase the conviction rate in CSA cases, many justice systems are tripped up by the difficulties of holding acquaintance child sexual abuse (ACSA) suspects to account.8 Reforms concerning the prosecution of child sexual offences have continued apace in most justice systems, in token of which ACSA cases are being increasingly reported to law enforcement authorities, but without significant impact on the conviction rate. It is the stubborn gap, the virtually immovable discrepancy between reports and convictions that has become known Child sexual offences tend to be hard to prosecute.9 When the prosecution is confronted with CSA cases, it has to grapple with challenges including lack of medical evidence, absence of eye witnesses and limitations arising from the child victim’s tender age.10 Chances of securing a conviction become increasingly elusive when the sexual offence is perpetrated by an acquaintance because, the prosecution then has to contend with the child victim’s unusual behaviour as a result of the added trauma of the breach of trust eventuating from the violation perpetrated by a known person or persons (e.g. primary caregiver(s)),11 which often undermines the ACSA victim’s credibility if the case is prosecuted. Thus the prosecution has to contend with both the radical nature of Such commission especially complicates prosecution because it is difficult for the prosecuting authority to strike a proper balance between holding the accused to account and ensuring that the welfare of the ACSA victim is not compromised.13 These challenges are met by an interpretation of the rules of evidence and procedure which sometimes fails to take account of the distinctiveness of ACSA.14 Confronted by so many challenges, it is a common occurrence for accused persons in ACSA cases to be unjustifiably acquitted.

The problem of ACSA in Uganda

CSA in Uganda has spiked in recent years and is currently the most prevalent form of child abuse in that country.15 The African Network for Prevention and Protection Against Child Abuse and Neglect (ANPPCAN), an organisation that seeks to distribute data on the status of child abuse and neglect, reports that sexual offences are reported virtually on a daily basis in Uganda.16 Between January and March 2013 ANPPCAN reported 67 cases distributed over ten districts,17 742 cases over the previous year (i.e. effectively 2 each day)18 and 22 614 cases from 2009 to 2011,19 which amounts to at least 628 children per month, or 145 per week or at least 21 per day.20 Moreover, the latest police records indicate that CSA cases continue to rise.21 Raising Voices, another children’s rights organisation in Uganda reports that over 75% of children in Uganda have experienced trust

TABLE OF CONTENTS
CHAPTER ONE: INTRODUCTION AND PROBLEM STATEMENT
1 Background
2 The problem of ACSA in Uganda
3 The problem of ACSA in South Africa
4 Potential of behavioural science evidence (BSE), protective measures and restorative justice
5 Thesis statement
6 Research questions
7 Limitations and scope of the study
8 Conceptualisation
8.1 Child sexual abuse
8.2 Behavioural science evidence
8.3 Protective measures
8.4 Restorative justice
9 Methodology
10 Significance of the study
11 Overview of chapters
CHAPTER TWO: THE CONSTITUTIONAL FOUNDATION OF BRIDGING THE JUSTICE GAP IN ACQUAINTANCE CHILD SEXUAL ABUSE (ACSA) PROSECUTIONS AND THE DYNAMICS OF ACSA
1 Introduction
2 Positioning the critical need to narrow the justice gap within the broader constitutional framework of Uganda and South Africa
3 Understanding the dynamics of Acquaintance Child Sexual Abuse (ACSA) with a view to informing responsive mechanisms
3.1 The authoritative position of the suspect60
3.2 The powerless position of the child victim 62
3.3 The ambivalent position of non-offending adults
3.4 General dearth of medical evidence
4 Prerequisites for successful prosecution of ACSA cases in light of the distinctive dynamics of ACSA
4.1 Evidence to prove ACSA beyond reasonable doubt
4.2 Measures to strike a balance between the need to produce quality child-victim testimony without aggravating the trauma of ACSA
4.3 Sentencing mechanisms cognisant of costs of criminal prosecution
5 Conclusion
CHAPTER THREE: ASSESSING THE ROLE OF BEHAVIOURAL SCIENCE IN ACSA PROSECUTIONS IN SOUTH AFRICA AND ITS POTENTIAL IN UGANDA
1 Introduction
2 Relevance of behavioural science evidence in determining whether child sexual abuse has occurred (diagnostic evidence)
3 Relevance of BSE as background evidence in providing a context within which to evaluate the evidence of ACSA victims (rehabilitative evidence)
4 Behavioural science evidence in CSA prosecutions: The position of South Africa and the United States of America (USA)
4.1 The position in South Africa with reference to selected recent case law
5 Admissibility and weight attached to behavioural science evidence in USA and South Africa: Similar in principle and doctrine yet slightly different in application
6 The need for the prosecution in Uganda to start advancing behavioural science evidence
7. Unravelling the underlying factors that could hinder the advancement of behavioural science evidence in ACSA prosecutions in Uganda
8 The role of behavioural science evidence in substantiating on false child sexual abuse allegations
9 False CSA allegations in selected criminal case law
10 The critical need for BSE in furthering greater objectivity in CSA prosecutions
11 Conclusion
CHAPTER FOUR: DIAGNOSTIC STANDARDS, SYNDROMES AND INTERVIEW PROTOCOLS IN ADVANCING BEHAVIOURAL SCIENCE EVIDENCE IN ACSA PROSECUTIONS
1 Introduction
2 The Diagnostic and Statistical Manual of Mental Disorders (DSM)
3 Post-traumatic stress disorder (PTSD) under the DSM and its implications for ACSA prosecutions
3.1 Evidence of PTSD among CSA victims
3.2 Gap in the DSM IV TR on PTSD in children
4 The Child Sexual Abuse Accommodation Syndrome (CSAAS): Implications for the criminal-justice system in ACSA prosecutions
5 The National Institute of Child Health and Development Protocol interview guide (NICHD Protocol): Implication for accurate and objective findings
6 Conclusion
CHAPTER FIVE: THE EXACT PLACE OF SELECTED RULES OF EVIDENCE IN ADVANCING BEHAVIOURAL SCIENCE EVIDENCE IN ACSA PROSECUTIONS
1 Introduction
2 The principle of relevance and behavioural science evidence
3 The basis rule and behavioural science evidence
4 The ultimate issue rule and behavioural science evidence
5 The expertise rule and behavioural science evidence
6 Uncertainty affecting courts’ decision to apply rules of evidence soundly and flexibly: The case for codification
7 The cautionary rule on children’s evidence171
8 Conclusion
CHAPTER SIX: STRIKING A BALANCE BETWEEN TESTING THE EVIDENCE OF ACSA VICTIMS AND MINIMISING THEIR TRAUMATIC EXPERIENCE
1 Introduction
2 Available studies on the impact of inappropriate cross-examination techniques on children’s emotional stability and accuracy
3 The effectiveness of protective measures in addressing the problems arising from inappropriate cross-examination
3.1 Enlisting the services of intermediaries to remediate inappropriate crossexamination in South Africa
4 Cross-examination in essence and why it is indispensable in ACSA cases
5 The option of a more inquisitorial approach to testing the evidence of ACSA victims
6 The process of testing the evidence of child witnesses in inquisitorial systems in Germany, Austria, Norway and Italy
7 The constitutional foundation of tightly regulating the cross-examination of ACSA victims by lawyers in adversarial systems
8 Conclusion
CHAPTER SEVEN: ASSESSING THE ROLE OF RESTORATIVE JUSTICE IN HOLISTICALLY RESPONDING TO ACSA
1 Introduction
2 Meaning of restorative justice and its potential to respond to cases of serious offending
3 Accommodation of restorative justice as evident in selected South African case law
4 The Thabethe case
5 Divergence in the decisions of the High Court and the Supreme Court of Appeal respectively, and the future of restorative justice
BIBLIOGRAPHY