Law change needed to help child witnesses

A TIME-HONOURED – but also sometimes criticised – legal principle about the way that evidence given by child witnesses should be weighed up and tested by a court should be abolished in Namibia, it is recommended in a new study on the crime of rape.

The principle that testimony given by child witnesses should be approached with caution merely because the witness is a child has already been discarded in Namibia through an amendment to the Criminal Procedure Act that was passed by Parliament near the end of 2003. However, that same rule is set to make a comeback through the new Criminal Procedure Act that was adopted by Parliament at the end of 2004, it is pointed out in an exhaustive new report on rape in Namibia that has been compiled by the Legal Assistance Centre’s Gender Research and Advocacy Project.With the 2004 Criminal Procedure Act not yet in operation, the abolition of the cautionary rule with respect to child witnesses remains in place – but only until the new Act comes into force.An analysis of Police case dockets and court records on rape cases in Namibia that was done as part of the LAC study showed that juveniles – people under the age of 18 – account for a little over a third of the complainants in the about 1 200 cases of rape or attempted rape that are reported in Namibia each year.This means that many rape cases involving child complainants make their way through the country’s courts each year.With the case against alleged child rapists often based mainly on evidence given by child witnesses, people facing charges in these types of cases often escape being convicted because courts decide not to accept the evidence given by the child accuser.The reason for this is that Namibian courts have still been holding on to a legal principle that the evidence of child witnesses should be approached with extra caution.Before the Combating of Rape Act of 2000 became law, a similar cautionary rule requiring courts to approach the testimony given by a complainant in a sexual case with special caution was also still part of Namibia’s legal heritage.The cautionary rule with regard to evidence given by child witnesses was scrapped by an amendment to the Criminal Procedure Act in late 2003, it is recounted in the report.This still leaves in place another legal principle according to which evidence given by a single witness has to be approached with caution.The new Criminal Procedure Act of 2004 however does not contain a similar provision as the one through which the amendment of 2003 did away with this rule on child witnesses’ evidence, it is pointed out in the report.The old approach that has been accepted by Namibian courts as the correct way to regard child witnesses’ evidence was also stated in a judgement from South Africa’s Appellate Division that has often been quoted by Namibian courts.In that judgement of the South African appeals court it was stated that “the dangers inherent in reliance upon the uncorroborated evidence of a young child must not be underrated.The imaginativeness and suggestibility of children are only two of a number of elements that require their evidence to be scrutinised with care amounting, perhaps, to suspicion.”Such a view is not universally accepted as correct, though, the LAC report indicates.International research, for example, indicates that the testimony of children is not particularly unreliable, it is stated in the report.To back up this point, the report quotes from findings that Canada’s Ontario Law Reform Commission made in 1991 on this score: “Children, as a class of witnesses, do not have poorer memories than adults and they do not have greater difficulty distinguishing fact from fantasy in the context of witnessed events.Moreover, studies show that adult witnesses are susceptible to distortions as a result of suggestions or post-event influences in their description of particular events.”Finally, modern research has demonstrated that there is no foundation to the statement that a relationship exists between age and honesty – the testimony of a child is as trustworthy as the evidence furnished by an adult witness.”The LAC report recommends that the change that the 2003 amendment made to the old Criminal Procedure Act should be restored in the new Act.”A court shall not regard the evidence of a child as inherently unreliable and shall therefore not treat such evidence with special caution only because that witness is a child,” such a provision should read, it is suggested in the report.However, that same rule is set to make a comeback through the new Criminal Procedure Act that was adopted by Parliament at the end of 2004, it is pointed out in an exhaustive new report on rape in Namibia that has been compiled by the Legal Assistance Centre’s Gender Research and Advocacy Project.With the 2004 Criminal Procedure Act not yet in operation, the abolition of the cautionary rule with respect to child witnesses remains in place – but only until the new Act comes into force.An analysis of Police case dockets and court records on rape cases in Namibia that was done as part of the LAC study showed that juveniles – people under the age of 18 – account for a little over a third of the complainants in the about 1 200 cases of rape or attempted rape that are reported in Namibia each year.This means that many rape cases involving child complainants make their way through the country’s courts each year.With the case against alleged child rapists often based mainly on evidence given by child witnesses, people facing charges in these types of cases often escape being convicted because courts decide not to accept the evidence given by the child accuser.The reason for this is that Namibian courts have still been holding on to a legal principle that the evidence of child witnesses should be approached with extra caution.Before the Combating of Rape Act of 2000 became law, a similar cautionary rule requiring courts to approach the testimony given by a complainant in a sexual case with special caution was also still part of Namibia’s legal heritage.The cautionary rule with regard to evidence given by child witnesses was scrapped by an amendment to the Criminal Procedure Act in late 2003, it is recounted in the report.This still leaves in place another legal principle according to which evidence given by a single witness has to be approached with caution.The new Criminal Procedure Act of 2004 however does not contain a similar provision as the one through which the amendment of 2003 did away with this rule on child witnesses’ evidence, it is pointed out in the report.The old approach that has been accepted by Namibian courts as the correct way to regard child witnesses’ evidence was also stated in a judgement from South Africa’s Appellate Division that has often been quoted by Namibian courts.In that judgement of the South African appeals court it was stated that “the dangers inherent in reliance upon the uncorroborated evidence of a young child must not be underrated.The imaginativeness and suggestibility of children are only two of a number of elements that require their evidence to be scrutinised with care amounting, perhaps, to suspicion.”Such a view is not universally accepted as correct, though, the LAC report indicates.International research, for example, indicates that the testimony of children is not particularly unreliable, it is stated in the report.To back up this point, the report quotes from findings that Canada’s Ontario Law Reform Commission made in 1991 on this score: “Children, as a class of witnesses, do not have poorer memories than adults and they do not have greater difficulty distinguishing fact from fantasy in the context of witnessed events.Moreover, studies show that adult witnesses are susceptible to distortions as a result of suggestions or post-event influences in their description of particular events.”Finally, modern research has demonstrated that there is no foundation to the statement that a relationship exists between age and honesty – the testimony of a child is as trustworthy as the evidence furnished by an adult witness.”The LAC report recommends that the change that the 2003 amendment made to the old Criminal Procedure Act should be restored in the new Act.”A court shall not regard the evidence of a child as inherently unreliable and shall therefore not treat such evidence with special caution only because that witness is a child,” such a provision should read, it is suggested in the report.