Judge sets the standard by ordering therapy for child rape victim

15 June 2022 1584
In light of Youth Day, it is important to reflect on the fact that in all matters relating to the care, protection and wellbeing of a child, the child’s best interest is of paramount importance. Be that as it may, how often do we actually see the application of this notion in abuse cases? 

The Eastern Cape High court set the standard by ordering therapy for a child rape victim in one of its recent cases. The facts of the case were that the accused, a 46-year-old male person, was charged with the rape of his 10-year-old niece. After the charge was put to the accused, he pleaded guilty and the court upon consideration of all evidence sentenced him to 25 years imprisonment. 

It did not end there. The court took an unconventional additional step. The judge noted that normally, the trial is over after a sentence is given to an accused individual. If nothing is mentioned about the young victim other than criticising the illegal act, the child will be sent back home without any help from the legal system. The same principle unfortunately also tends to apply in Children’s Court matters where abuse is present.

The judge further noted that if one has regard to the triad principles applicable when a court sentences an accused person, the interests of minor children are not considered separately, particularly where the children affected are victims of crime or abuse. The triad comprises of the accused, the crime and the interests of society. Although, the courts do take into account the interests of the children, for example where a breadwinner is to be sentenced to a term of imprisonment. In criminal matters those interests are not standalone interests but are more taken together with those of the society. 

Judge Norman took cognisance of the fact that the minor child was greatly affected by the rapes. The social worker testified that the child had been robbed of her childhood and was struggling academically. Furthermore, she couldn't say whether the child would ever be able to heal from her emotional trauma and suggested that the child receive continuing therapy to help her cope with the trauma and the anger she was displaying when she was playing with other children by beating them.

In order to ensure that the well-being of an abused child is taken into account by the trial court, the interests of children who are victims of crime or abuse must be addressed prior to the conclusion of the trial. The judge emphasised that this will help those children grow into emotionally, mentally, and physically capable future members of society.

The representative who appeared for the State in the case confirmed the arrangements and that they then prepared a draft order which contained the schedule to be undertaken by the child. The therapy order made by Judge Norman states that the child should undergo counselling at the Department of Social Development. It was further ordered that the child’s guardian should ensure that the child attends the counselling sessions.

The judge ordered when the first session should take place and that these should continue on a monthly basis on the same day and time for at least two years. The order also states that the social worker is entitled to exercise her discretion in mandating further sessions in the best interests of the child. The judge further directed the Regional Service Office Manager at the Department to arrange and manage the sessions. The social worker was ordered to file progress reports with the Court every six months.

This, in my opinion, sets a new standard and all matters where the child’s best interests are affected will go a step further to put systems in place to ensure ongoing support even after the abuse or crime has taken place, so that in the wise words of Davis J, “Our children must be able to develop their lives in an atmosphere which behoves any society which aspires to be an open and democratic one based on freedom, dignity and equality, the very touchstones of our Constitution”.




Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy has been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s). 
Related Expertise: Child Rights
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