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...