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8-yr-old rape victim 'let down'
17/11/2007 07:02 - (SA)
Pretoria - The justice system had not only let down an eight-year-old rape victim, but also the innocent man she falsely accused to protect the real rapist, a Pretoria high court judge said on Friday.
"The lofty ideals that SA has subscribed to by adopting the Convention on the Rights of the Child come to nought if the functionaries in the criminal justice system allow a child victim to be treated and to be neglected in the way this child (only identified as "Z") was abused and abandoned," Judge Eberhard Bertelsmann said.
The judge presided in a rape case that was referred by a lower court to the high court for sentencing, but was forced to re-hear the matter and to let the victim testify again because the original conviction appeared incorrect.
In the process, the child was forced to relive the trauma and face a hostile atmosphere of a trial in the high court.
The man she falsely accused was at last acquitted, but only after spending three years in jail, being branded as a child rapist and being subjected to the terror of facing a potential life sentence.
Bertelsmann said justice had failed by forcing the victim to testify again as a result of legislation that was drafted "with little or no regard to the interests of the child victims and child witnesses".
It was doubtful if the relevant section of the Criminal Law Amendment Bill of 1997 was constitutionally justifiable in respect of child victims and child witnesses in cases of this nature, he added.
"It is painfully clear that the victim had not only been raped, but had been subjected to the further trauma and injustice of being forced by the real perpetrator and, presumably, other members of the family to lie in order to protect the rapist, and to tell a different lie in the high court.
"In all the time that elapsed from about February 2004 to 31 July 2007, the victim was not given any assistance, received no therapy or support and was left in the very circumstances in which she was violated in the first instance," the judge said.
"... Justice failed the accused. Justice failed society by allowing a child rapist to go free, untouched and now untouchable.
"Justice failed because the courts and their functionaries did not come to the speedy assistance of the child and because there were no social services to treat and protect the child from those who did violence to her," he said.
The judge said the rights of child victims of sexual assaults could only be accorded their rightful importance if all parties involved co-operated to ensure that the trial was finalised as soon as possible.
"Trials in which children are to testify either as victims or as eyewitnesses must be given priority in all courts and at all times.
"Children who are as obviously at risk as complainants should be provided with the care and protection of appropriate socials services," he said.
Bertelsmann referred his ruling to the director-general of the Mpumalanga department of social welfare, the commissioner of the SA police and the director of public prosecutions to ensure that appropriate assistance was given to the child "and to prevent another failure of justice of this nature in future".
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