2.2. THE NATURE OF SEXUAL OFFENCES
2.2.9 The comparative rights of the victim regarding sexual offences in different countries
Bhattacharyya (2009) highlights that sexual violence crime affects all countries across the globe, indicating the necessity to develop protective measures for victims of sexual offences. The term victim is defined in different administrative divisions as referring to a person suffering some form of harm, loss or injury caused by a criminal act. Victims’
right are also stated by several administrative divisions. Zwanenburg (2006) confirms that in India (IN), a victim is defined or rather interpreted as a person who has suffered any loss or injury caused by the act or omission for which the accused person has been charged; while in Kenya (KE), the term victim refers to any natural person who has suffered injury, loss, and damage because of another person’s offence.
The Canadian (CA) Victim Bill of Rights (2015) defines a victim as an individual who has suffered physical or emotional harm, economic loss, or property damages because of a crime committed against them.
Examining the South African definition of the term victim, according to the Victim Charter, a victim of crime is a person who has suffered harm, including physical or mental injury, emotional suffering, economic loss, or substantial impairment of their fundamental rights through acts or omissions that are in violation of South Africa’s criminal law. The term victim includes, where appropriate, the immediate family or dependents of a direct victim. Victims have the following rights, according to Funk (2015):
The right to information.
The right to protection.
The right to participation.
The right to seek restitution.
The right to make a complaint.
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The victims may apply their rights at all stages of the criminal process, including when an offence is being investigated or prosecuted, when the offender is subjected to the corrections or conditional release process, when the accused is subjected to court or the Review Board’s jurisdiction, if the perpetrator is found unfit to stand trial or criminally responsible based upon a mental disorder.
Kenya: The Victim Protection Act [VPA] (No. 17 of 2014) provides that any person dealing with a victim shall ensure that the victim is immediately secured from further harm before any other action is taken in relation to the victim. This includes securing food and shelter until the safety of the victim is guaranteed; securing urgent medical treatment for the victim and immediate psycho-social support for the victim; police protection for the victim where appropriate; and placing the victim and any other person related to the victim who may still be in the custody or control of the offender in a place of safety. However, in most cases, resources are limited, and, in some cases, support will be limited to advising the victim on self-help measures such as advising a victim to move to a different location (Barbour &
Gorlick, 2008).
Colombia (CO): In theory, victims have the right to access free legal aid during certain parts of the criminal proceedings. However, where the state provides legal services to victims, this is often substandard and only provided during the trial phase. Langford (2008) stated that this made the role of the prosecutor in promoting the victims’ interest during the investigation phase very important.
Democratic Republic of the Congo (DRC): Legislation relating to victims of sexual violence allows a judge to make a direct request to a medical officer and psychologist to examine the victim to determine appropriate medical care and address psycho-social trauma. Rules of procedure and evidence exclude defence relating to the victim’s consent. Court protection measures for victims of sexual offences are provided in the form of security, physical and psychological wellbeing, dignity and privacy. Closed court sessions may be ordered at the request of the victim (Zwanenburg, 2006).
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United States of America (USA): Evidence pertaining to a complainant’s prior sexual conduct was admissible in sexual assault trials in both the USA and Canada during the mid-1970s and early 1980s, However, rape shield statutes were introduced in the United States in the early 1980s (Barbour et al., 2008). The aim of the shield legislation is to protect rape complainants from the psychological trauma associated with the public disclosure of the rape complainant’s prior sexual activities and propensity for unchaste behaviour. The aim of the rape victim shield laws is thus to eliminate a common defence strategy of putting the complainant rather than the defendant on trial. The rape shield law has many prohibitions, which are applicable during a sexual offence trial to protect the complainant. The rape shield law prohibits the questioning of rape victims about their past sexual history (Friman, 2009). Victims of sexual offences in the USA are afforded the following rights (Boateng & Abess, 2017):
The right to be reasonably protected from the accused.
The right to reasonable, accurate, and timely notice of any public proceeding involving the crime or any release or escape of the accused.
The right not to be excluded from any such public proceedings.
The right to confer with the attorney for the state in the case.
SA: Despite the substantial reforms in rape laws, especially those governing character evidence, there are still factors in SA’s courts that prevent a successful prosecution. These may include considerations such as the victim’s sexual inexperience, her respectability, absence of consensual contact with the accused before the assault. It may also include the level of resistance by the victim, and that the complainant may be cross-examined regarding her credibility or lack thereof if she testifies in court. However, the right to cross- examine is not absolute, as the right to cross-examination can be abused in a system that requires the judicial officer to play a passive role (Daly & Bouhours, 2010).
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According to Section 227(2) of the Criminal Procedure Act - CPA [No. 51 of 1977] (in Omar, 2010) reveals that:
“Evidence regarding the character and sexual history of a women may not be adduced and such female shall not be questioned regarding her previous sexual history except, with the leave of the court, which shall not be granted unless the court is satisfied that such evidence or questioning is relevant. It is submitted that Section 227(2) of the CPA, 1977 is similar to Section 2(1) of the Canadian Criminal Code, because these sections prohibit the admission of evidence pertaining to the complainants’ past sexual history unless such evidence is relevant to the case.” (Omar, 2010).
It should be noted that Section 227 of the CPA, 1977 applies to both males and females. According to Olugbuo and Wachira (2011), victims are afforded the following rights:
The right to be treated with fairness and with respect for dignity and privacy.
The right to offer information.
The right to receive information.
The right to protection.
The right to assistance.
The right to compensation.
The Right to restitution.