Justice FAQ
“Justice at its best is love correcting
everything that stands against love.”
(Martin Luther King)
What lies behind the search for justice?
The age-old symbol of justice is a pair of scales. True justice is about restoring balance between good and evil. Justice restores the psychic balance of a community in which a crime has taken place, the psychic balance of the survivors of crime, hopefully, the psychic balance of the offender. Justice is a crucially important component in the healing of survivors and of the community and in the protection of the community from further harm by the offender.
We have used the word 'survivor' for good reason. (See Survival & Healing)
Crimes against the State
Rape, child sex abuse, sexual assault, are serious criminal offences, against individuals and against the State. The individual lays charges but the State prosecutes the alleged offender/s. Once the court case is under way, the survivor becomes a ‘witness’. Many religions have internal processes for dealing with clergy sex abuse cases. Their purpose in handling criminal cases of abuse by clergy is frequently highly questionable. They are NOT an alternative to the criminal justice process. By their very nature such internal processes violate fundamental principles of justice. They may well defeat the ends of justice. Experience has also shown that these processes often constitute a secondary abuse of survivors.
The need for courage in seeking justice
The management of sexual abuse by religious leaders may display many dynamics similar to those of incestuous families. The ‘family’ tries to protect the perpetrator, to close ranks against outside intervention and to ‘punish’ the survivor for speaking out. (see Community Response) The survivor’s needs for healing and justice are not met, and the evil continues.
The following information is intended only to provide general guidelines about reporting sexual abuse or laying charges. You are strongly advised to seek further information and advice from non-governmental organizations specializing in working with survivors, or from a lawyer. ( see Links to Support)
In South Africa child abuse is a serious criminal offence. The state requires such crimes to be reported to the police or to mandated child welfare agencies. The Childrens Act makes it compulsory for religious authorities to report all cases of child sex abuse to the police or a designated child protection agency such as Childline or Child Welfare. (Legal Acts)
The following answers to commonly asked questions have been provided by Joan van Niekerk, National Coordinator of Childine in South Africa. Questions asked were:
Q. What are the signs that indicate that a child might have been sexually abused?
Q. Is it only parents who have to report child sex abuse?
Q. What should I do if I was sexually abused as a child a long time ago? Can I lay charges?
Q. In what circumstances would such coercive sex be classed as rape or sexual assault?
Q. What are the signs that indicate that a child might have been sexually abused?
A. There are clear physical indicators and
behavioural indicators.
They should be used as a guide. Many, especially the behavioural
indicators, could be symptomatic of other problems, especially during
adolescence
Physical indicators:
- Injuries to the genital and anal areas
- Bite marks on the genitals, breasts
- "Hickeys" /suction marks usually if present, seen on the breasts, neck and pubis
- Pregnancy in the pubertal child
- Discharge from the vagina, penis
- Presence of sexually transmitted infections such as HIV/AIDS, Syphilis, gonorrhea, genital warts, etc
- Repeated bladder infections in girl children
Behavioural indicators:
- Knowledge of sexual behaviour and issues that is inappropriate for the child's age
- Preoccupation with sexual issues and talk
- Excessive (sometimes difficult to define) self touching
- The persistent engagement of other children in sexual touching
- Poor self esteem and lack of confidence
- Self mutilating behaviour
- Depression
- Detachment from the physical self
- "Promiscuous" sexual behaviour
- Regression, for example a return to wetting and soiling
- Anorexia and bulimia
Q. Is it only parents who have to report child sex abuse?
A. Under the present law, everyone who has a reasonable suspicion of abuse is obligated to report to a social worker, a police official or the clerk of the Children's Court (Domestic Violence Act) In the new Children's Act Amendment Bill it is proposed that all professionals and workers who act in a position of contact with children, that is, anyone who works with children in any capacity whatsoever, will have an obligation to report. This includes religious leaders. Reporting by the general public will become voluntary once the Children’s Act Amendment Bill is implemented.
Q. What do I do if I come across all or some of these signs in a child’s behaviour? To whom should I report it?
A. Reporting should be to a police official, or to a clerk of the children’s court, or to a designated child protection agency, There is a network of NGO's across the country that work with children that qualify, but they do not extend into every area in the country. Local Departments offices of Social Development qualify but provide a poor service generally. The SAPS also provide a very variable service across the country. However it must be noted that the specialized child protection units have now been disbanded or decentralized. Reports can be made to Childline - who do follow up to ensure that the child is assisted and also generally know which referral point is applicable in a given geographical area.
Q. What if I’m not sure, or if I have only a suspicion but no concrete proof? After all, it’s a very serious matter to accuse someone of child sex abuse.
A. Reporting sexual abuse that is not substantiated can be a very destructive thing so one needs to discuss one's suspicions and "walk through" some plan of action that will not damage the child and his or her family, or anyone else.
Q. Should I let Church officials or Church protocol committees get involved in investigating the case and questioning the child?
A. Definitely not! The investigation of allegations of child abuse should be done by qualified and experienced professionals who also have no investment in either side of the allegation. Children may be damaged by insensitive and unqualified investigators - this we call "secondary victimization" - no matter how well intentioned the person is. Unqualified investigations often silence a child when handled poorly, and frequently compromise the criminal justice process.
Q. There are rumours going around in my church about our pastor behaving inappropriately with youngsters. The gossip is worrying. Should I just dismiss it as rumour or should I report the rumours to someone?
A. These need to be carefully documented, people need to be asked to discuss the source of the information and then one needs to have some person/committee in the church who look at the rumours objectively and assess a need for action. Where this is not followed through one can telephone Childline and/or a welfare society, discuss the rumours and decide on a course of action.
Tollfree number for Childline - 08000 55555
Childline SA website - www.childlinesouthafrica.org.za
OR (Links to other Organisations)
It is also important to note that any internal investigation conducted by a church or other institution BEFORE expert investigation by child protection professionals has been completed runs a serious risk of evidence being tainted, witnesses being intimidated or the criminal justice process being compromised in various other ways.
Q. What should I do if I was sexually abused as a child a long time ago? Can I lay charges?
A. If the sexual crime was a rape (the old definition – male and female with penis into vagina penetration) then you can report no matter how long ago this was. However the longer the time gap the more difficult it is to lay charges as there is often little in the way of corroborating evidence. However if you told someone after the rape and they remember this their evidence could be sued in the court case.
If the crime was not one of rape but of any other sexual crime, then there is a 20 year period before the crime “prescribes” – in other words before you are unable to take charges forward. Again the longer the time period, the more difficult a successful prosecution, unless there is corroborating evidence of the crime.
It is best to try to lay charges and if the police are reluctant to open a docket, seek legal advice, and phone an organization that deals with child abuse or sexual crimes.
In a groundbreaking judgment in the civil case of Esme van Zijl versus her uncle who raped her as a child, nearly forty years previously, the Supreme Court of Appeal ruled that you may bring a civil claim against a perpetrator within 3 years of understanding the criminal nature of what happened to you. [Van Zijl v Hoogenhout. 2005(2). SA93(SCA)]
Q. What if I was manipulated or co-erced as an adult into having sex with religious leader acting in a ministerial capacity? What kind of action can I bring against him or her? How long after it took place can I lay charges?
A: I can lay charges. The same time periods as above apply.
Q. In what circumstances would such coercive sex be classed as rape or sexual assault?
A. Any situation in which you do not have free choice – so where there is an abuse if power, physical or psychological one could lay charges. However many courts do have problems in understanding the concept of psychological, economic and social coercion.