Law body acting with caution
2003-01-24 09:50
Christi van der Westhuizen
Cape Town - The removal of the "caution rule" in the new draft legislation on sexual offences will make it easier to convict criminals who sexually abuse women and children.
With this important change to legal procedure, the rule is scrapped which states that magistrates and judges should handle with caution the testimony of children and adults, the plaintiffs in sexual offence cases.
The Law Commission's report on sexual offences states that until now it was accepted the testimony of someone who was raped or the testimony of a child was "inherently potentially untrustworthy".
Under the rule, judges and magistrates had to be "especially cautious" in the way they judged the testimony of women and children in cases dealing with sexual offences.
Although the High Court of Appeal removed the compulsory application of the caution rule in 1998, it still was applied with discretion.
The Law Commission has decided the rule should be scrapped in its entirety, except in the case of single witnesses.
Archaic ideas about children, trust
Joan can Niekerk, project leader for the draft legislation, said: "It is nonsense that someone would rather lie about a sexual offence than about other offences," .
The Law Commission felt the caution rule as applied to children was founded on "archaic ideas about children's cognitive abilities and trustworthiness".
Research showed the testimony of children often was more trustworthy than that of adults because they had less motivation to lie, Van Niekerk said.
Several submissions to the commission by, among others, the Women's Rights Centre and the Children's Rights Project of the University of the Western Cape, suggested that the caution rule in the case of single witnesses remained valid.
The organisations believed the rule in this case was reasonable and fair under the constitution.
The Law Commission says that, although testimony in a particular case could warrant caution, the rule may not be applied based only on the nature of the offence.
The application of the caution rule should be guided by evidence that a witness may be untrustworthy.
The draft legislation was forwarded to the ministry of justice and constitutional development. It will then be tabled in parliament.
The draft legislation and the Law Commission's report can be found here