Judicial and legislative responses to sexual crimes committed by and against children and the potential use of restorative justice practices

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In this article the authors demonstrate the current judicial and legislative response to children who are the victims of sexual crimes or perpetrate such offences. They argue that using either restorative or retributive responses to crimes of a sexual nature is the incorrect approach; sexual crimes committed against or by children require the intervention of a multidisciplinary approach to justice. It is submitted that restorative justice, displayed in the practice of, for example, victim-offender dialogue and family group conferencing, provides the ideal ground on which a restorative approach can be centred, analogous to traditionally retributive responses.

Contemporarily, traditional retributive responses to child sexual abuse and child perpetrators of sexual offences have drawn much criticism from various sectors of society. The criticism is trite although well-founded when one considers the oft-quoted statistics relating to child sexual abuse in South Africa. In response to these statistics the legislature introduced various laws aimed at reducing the occurrence of sexual misconduct. However, the continued upward trend of such crimes, by and against children, indicates that perhaps traditionally retributive responses are ineffective in curbing the scourge of sex-related crimes in South Africa. To reiterate: it is submitted that the use of restorative justice practices, parallel to retributive practices, will have the effect of both reducing the impact of such crimes and begin to normalise the sexualised view of children in society.

Naturally, the use of such practices is justified only by the merits and circumstances of each particular case. The factors which have the potential to influence the use of restorative practices relate generally to the characteristics of sex offenders (both adults and children); societies’ reaction to the alarming sex-crime-related statistics; and the socio-economic and political factors which contribute to the commission of sexual offences in South Africa. Restorative justice, and its unstated reliance on the values espoused by ubuntu, contribute to the field of sexual offences and thus cannot be ignored within a multi-disciplinary approach to criminal cases of such a nature. The underlying factors driving the commission of sexual offences are best understood through a process of restoration as opposed to adversarial trial, where these factors are hardly, if ever, explored before trial or sentencing. The victim, in the current system, remains an outsider who is considered little more than a witness. The accused, by contrast, is viewed as little more than the offence allegedly committed, which naturally invokes revulsion and stigmatisation. These often continue once the convicted are released back into society where they are expected to conform to society’s rules and laws. It is submitted that this not only reinforces potential recidivism but leaves the victim with unresolved resentment and conflict. This is especially trite where sexual crimes occur within a family group where the victim and offender are well acquainted. In these types of cases in particular, both parties may be better served through a process of victim-offender dialogue or family group conferencing. Victim-offender dialogue is a well understood and acceptable practice, particularly in customary law, where it has long been used as an alternative conflict resolution mechanism by, for example, the Khoi-San and other ethnic groups. It provides a platform where the victim and offender can meet in a structured and secure environment in order to begin the process of healing through dialogue. It often results in a written plan according to which the accused undertakes certain tasks or restitutions to the satisfaction of the victim. Family group conferencing is not an alternative to victim-offender dialogue, but rather extends participation to a wider community of people. Considering that the aim of restorative justice is the reharmonisation of community relations, victim-offender dialogue and family group conferencing rely on the active participation of those involved in a specific conflict resolution mechanism.

Recent legislative and on-going judicial responses to the use of restorative justice and its associated practices indicate, however, that it is often seen as an alternative to retributive justice as opposed to an equal co-worker in response to perpetrators and victims of sexual offences; at least in so far as it relates to adult offenders. The supreme court of appeal’s response in DPP v Thabethe 619/10) [2011] ZASCA 186; 2011 2 SACR 567 (SCA) is an example of a system of law relying on outmoded approaches to justice, even in cases where the victim indicates a preference for restorative justice as part of sentence. It is conceded that the court a quoimplemented an almost impossible set of sentencing conditions, and exceeded the bounds of the Criminal Law Amendment Act 105 of 1997, but is argued that the trial court demonstrated the possibilities inherent in using restorative practices in parallel to punitive responses to the infringement of criminal law. While the case before the appeal court provided an ideal platform to formalise restorative justice, the court concerned itself more with the weight of the victim’s input in sentencing, the impossibility of effective implementation of sentence, and the procedural irregularities in the trial court. While these factors are important for the administration of justice, it is submitted that they overshadowed the potential effect of restorative justice and highlighted the effect of the opposite approach on the victim and her family.

In the case of child offenders charged with sexual offences, the legislature saw fit to incorporate restorative justice practices in the form of diversion or sentencing mechanism in the Child Justice Act 75 of 2008. This is a welcome development; the process is formalised and can be implemented only in certain circumstances. One of these relates to the victim’s preference for diversion over trial. The role of the victim within the act is central to diversion decision-making which contrasts clearly with the role of the victim in a case where the accused is an adult. The act is premised on the best-interest standard and has already influenced judicial decision-making in, for example, in J v National Director of Public Prosecutions 2014 7 BCLR 764 (CC).

In conclusion, we posit that a multi-disciplinary challenge such as sexual offending requires a multi-disciplinary problem-resolution mechanism. We argue that formalised restorative justice, practised in communities and implemented by courts, can take over where punitive justice leaves off, and contribute a more effective solution to the challenge of sexual crimes in South Africa.

Keywords: family group conference; restorative justice; retributive justice; sentencing; sexual offences; sexual offenders; victim participation

Lees die volledige artikel in Afrikaans: Geregtelike en wetgewende reaksies op seksuele misdade deur en teen kinders in Suid-Afrika en die potensiële gebruik van herstellendegeregtigheidspraktyke

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