Dissertations / Theses on the topic 'Sexual abuse victims Legal status'

Thesis (LLM)--Stellenbosch University, 2005.
ENGLISH ABSTRACT: In 2002 the South African Law Commission published a report in which amendments to the existing rules of criminal procedure and evidence were proposed. A number of these recommendations have since been included in a Bill that was tabled before Parliament in 2003. The proposed amendments largely reflect values which underlie the "Victims' Rights" movement. The aim of this thesis is to consider the possible influence of these amendments on the constitutionally guaranteed fair trial rights of the accused. The study focuses on those amendments that play a role in the prosecution of alleged sexual offences against children, and shows that although the recognition of victims' rights is important, it should not be done at the expense of a fair trial. Dangers inherent to the proposed amendments are therefore highlighted. The rights of the accused are used to test the desirability or not of the proposed amendments. Foreign authority is used to support the argument made in the thesis.
AFRIKAANSE OPSOMMING: In 2002 het die Suid-Afrikaanse Regskommissie 'n verslag gepubliseer waann veranderings aan die huidige strafprosesreg- en bewysregreëls voorgestel word. 'n Aantal van hierdie voorgestelde wysigings is intussen opgeneem in 'n Wetsontwerp wat in Augustus 2003 voor die Parlement gedien het. Die voorgestelde wysigings reflekteer tot 'n groot mate waardes wat die "Victims' rights" beweging onderlê. Die doel van hierdie tesis is om die moontlike invloed van hierdie wysigings op die grondwetlik verskanste billike verhoor regte van die beskuldigde te ondersoek. Die ondersoek fokus op daardie veranderinge wat 'n rol speel in die vervolging van beweerde geslagsmisdade teen kinders. Daar word aangetoon dat alhoewel die erkenning van regte vir slagoffers belangrik is, dit nie ten koste van 'n regverdige verhoor gedoen kan word nie. Gevare verbonde aan die voorgestelde wysigings word dus uitgewys. Die regte van die beskuldigde word deurgaans gebruik om die wenslikheid al dan nie van die voorgestelde wysigings aan te toon. Buitelandse gesag word aangewend om die betoog te ondersteun.

The research investigated the impact of sexual harassment on withdrawal behaviors and attitudes toward harassment by examining the gender composition of the harassment dyad and the organizational status of the perpetrator in relation to the victim. Archival data from the Inter-University Consortium for Political and Social Research at the University of Michigan was used to obtain surveys in which participants rated their attitudes and experiences related to sexual harassment. Only individuals who reported experiencing sexual harassment within the 24 months prior to data collection are included in the current research. A MANOVA was conducted to determine if withdrawal behaviors and attitudes of victims varied by the gender dyad and/or the organizational status of the perpetrator. Results indicated that individuals harassed by people with higher organizational status displayed more withdrawal behaviors in the form of decreased productivity and increased use of sick, annual, and unpaid leave. Individuals harassed by a member of the same gender also used more unpaid leave. Interestingly, individuals harassed by members of the opposite gender, tended to disagree more strongly with the attitude index measuring cautious awareness of sexual harassment.

This dissertation examined the relationship between support services for adult survivors of sexual assault and judicial outcomes. Specifically, this study explored survivors' willingness to participate in the judicial process. Although "victim unwilling to participate" is the primary reason given by the police for cases not progressing to prosecution, we know little about most aspects of survivors' willingness to participate in the judicial process, especially beyond initial reporting of the assault. The steps to prosecution are dependent on one another yet a survivor's willingness to participate in these steps is a fluid process. The primary research question explored was Are there clusters of survivors according to their responses to specific items on a Willingness to Participate scale? Additional research questions focused on differences among possible clusters of survivors. A semi-structured interview protocol was completed with 46 survivors of adult sexual assault. Cluster analysis was conducted and three clusters emerged. Findings suggest that support services were helpful to those who were highly willing to participate but that willingness was insufficient to influence judicial outcomes. Future research concerning judicial outcomes in sexual assault cases should focus on strategies to dispel myths about rape among survivors, within the judicial system, and with potential jurors as a means of improving both survivor participation and judicial outcomes.

The South African Constitution is considered as supreme law. This piece of legislation overrides all others and states in section 28(2): “A child’s best interests are of paramount importance in every matter concerning the child”. This emphasises the significance of the right of the child in South African law, by stating that children are to be protected at all cost. This section of the constitution forms the basis of this thesis with regards to the child and the protections that are to be afforded to them in instances of sexual abuse by educators. In the last several years there has been an increase in the number of cases reported on the sexual abuse, rape, violence and harassment of learners by members of the schooling community. The statistics prove that sexual violence in the schooling system in South Africa is rampant and furthermore indicate that young girls and boys are not as safe as they deserve to be. A teacher or educator is a professional, who is to act in a professional manner at all times – in the course and scope of their employment as educators. When a parent leaves its child at school for the day the educators are acting in loco parentis – in place of parent – thus these children are to be protected, nurtured and cared for in the correct manner. Sexual abuse of a learner by an educator is a gross contravention of South African legislation, the South African Council of Educators (SACE) code of conduct as well as international codes by the International Labour Organisation (ILO), the United Nations (UN) and other conventions. It is therefore fitting that any perpetrator of such violence, disrespect and transgression is to be punished quickly and harshly. Educators who abuse children are to immediately be removed from the school system through dismissal and also be tried criminally. These offenders should also be added to the SACE sexual offenders’ database which needs to be open to the Department of Education (DOE) and more importantly the general public – allowing parents to make the best possible decisions when putting their children in schools, thus ensuring their safety. However, throughout this process the rights of the child are to be protected and regarded with prevailing sensitivity, and their innocence is to be sheltered from any further psychological and emotional harm caused due to the abuse. The South African Professional Society on the Abuse of Children (SAPSAC) argues that a constitutional injunction is powerless to protect a child from being victimised and traumatised by criminal activity.1 All the more should it be incumbent upon the criminal law and criminal procedure and upon the courts, their functionaries and practitioners who regulate its procedure and apply its principles to “protect children from abuse and (to) maximise opportunities for them to lead productive and happy lives … (and to) … create positive conditions for repair to take place”. The thesis that follows, using the principles summarised here, aims to: define sexual abuse of the child, the legal position in South Africa in relation to the sexual abuse of children and case law. Recommendations will then be made and a code of good practice will be established on how to deal with educators who sexually abuse their learners promptly, effectively – without causing any further harm to the child in question.

This thesis investigates current sentencing practices relating to the diverse, complex and emotionally laden phenomenon of child sexual abuse. It focuses on relevant legislative provisions, on case law and on an empirical study conducted amongst regional court magistrates. Trends, developments and problems are analysed and possible solutions to the main problems identified are investigated. The thesis concludes with proposed guidelines regarding the sentencing process in child sexual abuse cases. Such guidelines address general and specific principles, the use of victim impact statements, the increased recognition and use of behavioural science in the sentencing phase with regard to both the victim and the offender, and relevant aggravating and mitigating factors. The guidelines are an attempt to give some structure to the current haphazard approach adopted by the courts with regard to harm experienced by the victim. They are also aimed at assisting experts to provide more effective and reliable pre-sentence reports. Further, the thesis attempts to provide clarity concerning the factors that are considered to be aggravating or mitigating in the offence category, child sexual abuse, as well as with regard to the weight that should be attached to them. In addition, recommendations are made for the purpose of possible law reform and further research in relation to the regulation of judicial discretion through the introduction of formal sentencing guidelines, victim impact statements and the accommodation of behavioural science in the sentencing process pertaining to sexual offenders. This proposal is based on current South African sentencing practices as reflected in the consolidation of local judgments scattered over many years in different law reports and, to some extent, on English, Canadian, Australian and American sentencing practices as researched in this study.

Despite the extensive research conducted on sexual harassment, very little work has focused on the legal and psychological constructions of women's resistance to sexual harassment. In exploring the legal and psychological constructions of women's resistance to sexual harassment, we are confronted with salient issues pertaining to the determination of the welcomeness requirement which call for a reflection. A key characteristic of sexual harassment is that it is unwanted by the recipient. It is for each person to decide what behaviour is acceptable to them and what they regard as offensive. Thus, although there is general agreement about what can constitute sexual harassment, the experience of sexual harassment is subjective in nature and the precise quantification of workplace sexual harassment is problematic. The present study aims to: (a) identify the reasoning/history behind the "unwelcomeness/unwanted" requirement, (b) assess the reasonableness of· the requirement of "unwelcomeness/unwanted" conduct, taking into account the various pieces of legislation and case law, (c) determine how the courts have interpreted this requirement and what factors are looked at, (d) determine whether the test is subjective or objective, (e) identify the struggle and debilitating effects sexual harassment has on women in the workplace. The results of this study will assist in gaining knowledge and understanding of the concept of "unwelcomeness/unwanted" conduct in sexual harassment cases and the effects it has on the victim which will go a long way in assisting management in any business to effectively implement strategies and disciplines to manage the problem of sexual harassment in the workplace.
Private Law
LLM (Labour Law)

The researcher identified in her work as a social worker that sexually abused adolescents experience difficulties with testifying in court. The goal of this research was directed at developing guidelines to assist adolescents who have to testify in court. The researcher utilised the qualitative research approach with an exploratory and descriptive nature. Semi-structured interviews were done with a sample of adolescents who have testified in court, a sample of parents or caregivers of adolescents who have testified in court and social workers working with adolescents who testify in court. These interviews were conducted to gain insight into how the research participants experienced the court process in order to formulate guidelines for adolescents who have to testify in court. The researcher concluded that adolescents experience testifying in court as negative. Guidelines were developed from the information obtained from the research participants to support adolescents who has to testify in court.
Social work
M.Diac. (Play therapy)

Text in Afrikaans
In this dissertation the legal position with regard to children as victims of sexual crimes is examined in South Africa, England, Canada, Australia and New Zealand. Sexual crimes with children are a serious and widespread international problem. The purpose of this study is to identify deficiencies / gaps in the South African law. Children are not only the victims of the sexual crimes, but they are exposed to further trauma whilst giving evidence. Their best interests are also often not taken into proper consideration during the sentencing phase. In is in the interest of justice that children=s interests must be taken into account the whole time. In terms of international conventions and charters State parties are required to protect children against all forms of discrimination, violence, abuse and exploitation. Children may not be exposed to any sexual crimes, because these activities violate their right to bodily (and psychological) integrity, human dignity and privacy. In order to acknowledge the importance of children=s best interest, priority must be given to all cases in which children are the victims and their unique characteristics, age and development must be taken into consideration. This will ensure that they are not further victimized during the trial. Deficiencies in the Criminal Law are addressed by proposing new definitions, for instance for rape and incest. Shortcomings in the Procedural Law are identified and recommendations are made especially with regard to the alternative measures by which children can testify. Guidelines are also suggested for admissible cross-examination. New sentencing options are recommended and possible aggravating circumstances which ought to play a role during the consideration of a suitable and just sentence for sexual crimes with children are suggested.
Criminal & Procedural Law
LL.D.

My interest in criminology was inspired by Dennis Challinger who tolerated a student taking ten years to finish the Diploma in Criminology, and Stan Johnson who encouraged broad-mindedness to which I was unaccustomed. Stan challenged my attitudes, beliefs and conclusions. My interest in cults was inspired by Anne Hamilton-Byrne whose "children'" especially Sarah, taught me a great deal. They introduced me to their personal experience of growing up in strange isolation from the world. I received assistance and constructive criticism from the police Task Force investigating the Hamilton-Byrne “Family” especially Detective Sergeant DeMan. I began this task searching to understand “The Family”, its origins and its meaning. The path towards an understanding of cults took me in unexpected directions. I learned about the Satanic allegations and began accumulating material. Initially, some therapists with an interest in this area saw me as a potential ally, but as I began to question there assumptions I was rejected as a disbeliever, on the basis that “anyone who is not with us, must be against us”.

This study outlines the results of an evaluation of programmes through a developmental quality assurance process within shelters for abused women and their children in Gauteng Province. The survey obtained the attitudes and opinions of the social workers/social auxiliary workers and shelter managers towards their services. The study reflects empirical findings as well as strengths and developmental areas within these shelters. The results from the study indicate that shelters for abused women and their children are functioning well. However, the Minimum Standards for Shelters are not fully adhered to. Therefore, internal and external evaluations should be used by shelter managers to evaluate their own performance and to improve service delivery.
Social Work
MA(SS) (Social Work)

In this study focus is placed on the Impact of the Namibian judiciary system on the sexually-abused child witness and recommendations were made to criminal justice professionals. A literature study was undertaken to establish a grounded theoretical perspective. A single case study was done to evaluate how the Gestalt Play Therapy Process can be applied to mitigate some of the negative effects the judicial system has on the child witness. An empirical study was done and a qualitative approach was utilised. Semi-structured interviews were conducted with children, their parents and criminal justice professionals. Major findings of this study are that the Namibian criminal justice system leads to further traumatization of the sexually-abused child witness and that the Gestalt Play Therapy approach can be applied to make the court proceedings less traumatic and even therapeutic for the child witness. Recommendations were formulated for criminal justice professionals
In hierdie verhandeling is gefokus op die impak van die Namibiese regstelsel op die seksueel-misbruikte kindergetuie en daar word aanbevelings gedoen aan professionele persone in die kriminele regstelsel. 'n Literatuurstudie is gedoen om 'n grondige toeretiese perspektief daar te stel. 'n Enkele gevallestudie is uitgevoer om te evalueer hoe die Gestalt Spelterapieproses toegepas kan word om die hofverrigtinge vir die kind minder traumaties te maak. 'n Empiriese studie is gedoen en 'n kwalitatiewe benadering is gebruik. Semi-gestruktureerde onderhoude is gevoer met kinders, hulle ouers en professionele persone wat met seksueel-misbruikte kindergetuies werk. In die studie is bevind dat die Namibiese regstelsel addisionele trauma veroorsaak vir die kindergetuie en dat die Getaltspelterapiebenadering gebruik kan word om die hofervaring minder traumaties en selfs terapeuties te kan maak vir die kindergetuie. Aanbevelings is gedoen aan professionele persone wat met kindergetuies werk.
Social work
M.Diac. (Play Therapy)

The study provided a general orientation of crimes against children in South Africa to buttress the rationale of the research. A concise definition of crime, child, child abuse, sexual child abuse, physical child abuse, victims and perpetrators of sexual crimes against children. The research described the various forms of crimes against children in Guateng, the causes and explanations. An interpretation of the empirical study was provided in this research. It focussed on the perpetrators and victims of child sex crimes. The types of offenders, the motives and theoretical explanations of their behaviour. The modus operandi of the perpetrators found in the empirical study. The various characteristics of victims and perpetrators, the legal processes in the adjudication of child sexual offenders. The research examined some of the prevention strategies of child sexual crimes. Findings of the empirical research are provided.
Criminology
M.A. (Criminology)

Increasing tourism numbers in third world countries affect their economies and certain aspects of their society positively; however, there are concomitant negative effects that expose the dark side of the tourism industry. One of these is the escalating commercial sexual exploitation of children (CSEC), particularly child prostitution (CP) in the context of tourism, a phenomenon known as child sex tourism (CST). Although tourism plays an important role in creating the perfect storm of poverty-stricken children colliding with wealthy tourists, it is not solely responsible for this phenomenon. Internationally and nationally, the lacuna of knowledge on CST in particular hampers an informed response by way of resource allocation and coordinated service delivery to both victims and perpetrators. Utilising a qualitative research approach, and the collective case study and phenomenological research designs complemented by an explorative, descriptive and contextual strategy of inquiry, the researcher explored the status of the knowledge of and response to the CSEC through the lens of closely associated role players, who were purposively selected for inclusion in the study. These were adult survivors who were as children engaged in sex work and victims of child sex tourism, social workers and non-social workers involved in rendering child welfare and protection services, members of the Family Violence Child Protection and Sexual Offences (FCS) Unit of the South African Police Service (SAPS) and representatives of the hospitality and tourism industry. Data was collected via individual in-depth semi-structured interviews, telephone interviews, and email-communication and thematically analysed. The researcher found that a range of microsystem level factors, such as poverty and family dysfunction, pushed children to the street, and as a means to survive engage in sex work, enabling tourists (i.e. local - out of towners) and foreigners, mainly men from varied sexual orientation) to commercially sexually exploit both boys and girls, from as young as nine years of age, and of different race groups, which leave them with physical and psychological scars. The following main findings surfaced: The social workers, in comparison to the non-social workers, who have a primary responsibility to provide child welfare and protection services were ill-informed in terms of identifying CST as phenomenon, untrained and/or slow to respond appropriately with interventions directed to the victims and perpetrators of CSEC. The service provider groups, as microsystems interfacing on a mesosystem, were fraught with perceptions that the social workers and the SAPS were being inadequate. Furthermore a lack of cooperation, collaboration and communication between the service provider groups to respond to CSEC existed. The hospitality and tourism industry service representatives were also ill-informed about the phenomena of CP and CST with a response that at best can be labelled as fluctuating between an indirect response to that of turning a blind-eye. From the findings, recommendations for social work practice, education and training and recommendations specific for the other closely associated role players in responding to the CSEC were forwarded.
Social Work
D.Phil. (Social Work)

Summary in Afrikaans and English
Although the rights of children in South Africa are being regulated by legislation, statistics prove that statutory services on behalf of children annually increase. Scientific accountable information regarding the child can be obtained by the assessment of the child. The purpose of this investigation was to identify the gaps in the existing assessment guidelines, as well as the needs of social workers regarding assessments. The sequential exploratory strategy was utilized, as quantitative data supported qualitative findings. The investigation showed that minimal assessment literature is available in South Africa and internationally, although assessment is the basis evidence of the social worker. The biggest gap in assessment guidelines is that assessment does not carry weight in the court. There is a need for social workers to be trained in relevant assessment skills based on a specific frame of reference. Gestalt therapy can provide a suitable theoretical frame of reference for assessment, and can serve as scientific foundation for social workers during the statutory process. A framework for an assessment guideline was thus proposed.
Ten spyte daarvan dat die regte van kinders in Suid-Afrika deur wette gereguleer word, bewys statistiek dat statutere dienste aan kinders jaarliks toeneem. Wetenskaplik verantwoordbare inligting ten opsigte van die kind kan bekom word deur die kind te assesseer. Die doel van hierdie ondersoek was om leemtes wat in bestaande assesseringsriglyne is vas te stel, asook die behoeftes wat by maatskaplike werkers ten opsigte van assessering bestaan. Die opeenvolgende verkennende strategie is tydens hierdie ondersoek gevolg, aangesien kwantitatiewe data gebruik is om die kwalitatiewe bevindings te ondersteun. Die ondersoek het getoon dat min literatuur ten opsigte van assessering in Suid-Afrika en internasionaal beskikbaar is, ten spyte daarvan dat assessering die basis van die getuienis van die maatskaplike werker vorm. Die grootste leemte wat in assesseringsriglyne ge'identifiseer is, is die feit dat assessering nie gewig in die hof dra nie. 'n Behoefte ten opsigte van opleiding in toepaslike assesseringsvaardighede vanuit 'n spesifieke teoretiese verwysingsraamwerk bestaan. Gestaltterapie kan 'n teoretiese verwysingsraamwerk vir assessering bied en kan dien as wetenskaplike fundering vir optrede van maatskaplike werkers tydens die statutere proses. 'n Raamwerk vir 'n assesseringsriglyn is voorgestel.
Social Work
M. Diac. (Play Therapy)

The South African Justice System is a broader system that brings law and order to society. This law and order also includes the constitutional rights of the sexually abused children. A special court dealing with cases of children who are sexually abused is functioning throughout the country. The purpose of this study is to develop a framework for social workers working with children in these special courts. The problem identified is that in these courts no framework exists for social workers focusing on the guidance of the child through the processes of the Justice System. This includes the therapeutic guidance by means of brief or directive therapy. The research methodology for this study focused on developmental research by using the Intervention research model of Rothman and Thomas (1994). The phases implemented in the study were Problem analysis and project planning, information gathering and synthesis and design. Qualitative data was gathered by means of semi-structured interviews and integrated in phase two of the research report. A proto-type guideline was developed and needs to be evaluated in future research.
Social Work
M.Diac. (Play Therapy)