En­sur­ing jus­tice is done

There is a push for a sup­port sys­tem for vic­tims of abuse so they could help put away wife beat­ers, rapists and child mo­lesters.

The Star Malaysia - Star2 - - Woman - By IVY SOON star2@thes­tar.com.my

ANITA’S step­fa­ther started rap­ing her when she was 11, and only stopped af­ter she re­ported him when she was 19. But her night­mare con­tin­ues, even though she is now a teacher in an­other state. Her court case is still on­go­ing af­ter three years, and she has been re­called four times to re­peat de­tails of her rape.

Her step­fa­ther has also paid stalk­ers to ha­rass her, so she con­tin­ues to live in fear. As she has kept her case a se­cret at her work­place for fear of stigma, it is also dif­fi­cult to ex­plain her ab­sence from work to at­tend court hear­ings.

Car­ry­ing on with the trial has taken a se­vere toll on Anita, who has been di­ag­nosed with de­pres­sion.

But she has per­sisted in mak­ing sure her step­fa­ther pays for his crime be­cause she has had good sup­port from Women’s Cen­tre for Change (WCC), a Pe­nang-based NGO that helps abused women and chil­dren.

The In­ves­ti­gat­ing Of­fi­cer (IO) had also en­sured that Anita would not en­counter her step­fa­ther or third par­ties dur­ing the trial, pro­tect­ing her from the park­ing lot to the court­room. She was also ac­com­pa­nied in a sep­a­rate wait­ing room while wait­ing for her turn in court. The DPP (Deputy Pub­lic Prese­cu­tor) also ar­ranged for the use of a white­board as a screen in court dur­ing the vic­tim and her mother’s tes­ti­mony so that they would not be in­tim­i­dated by her step­fa­ther.

But such sup­port is not con­sis­tently pro­vided to vic­tims. The fear of be­ing shamed by so­ci­ety and dis­dained by au­thor­i­ties has dis­cour­aged most vic­tims of sex­ual and do­mes­tic abuse from even speak­ing up or re­port­ing their case.

And when they do lodge re­ports, only about a third of vic­tims of sex­ual as­sault and do­mes­tic vi­o­lence will ever get their day in court. Less than 10% of them will see the con­vic­tion of the per­pe­tra­tors, which means that wife beat­ers, child mo­lesters and rapists largely go scot-free.

“Our re­search into sex­ual crime cases in Pe­nang, pub­lished in 2009, showed that al­most half of those cases that go to court re­sult in a dis­charge not amount­ing to an ac­quit­tal ver­dict (DNAA). In many of these DNAA cases, the vic­tims drop out of the trial process.

“We were shocked. Not only were the chances of get­ting a case into court extremely dif­fi­cult, but to have vic­tims drop out at the pre­trial or the trial stage seemed an ap­palling trav­esty in the jus­tice process. It was sim­ply un­ac­cept­able,” says Women’s Cen­tre for Change (WCC) pres­i­dent Mariam Lim at the re­cent launch of the Pro­ceed­ings of the Na­tional Con­sul­ta­tion on “The Rights of Vul­ner­a­ble Wit­nesses in Court”.

In a video doc­u­men­tary, WCC’s clients share the dif­fi­cul­ties they face in get­ting jus­tice. They re­count their anx­i­eties; from not know­ing the court process to be­ing in­tim­i­dated by bad­ger­ing lawyers to be­ing stretched to their lim­its by a pro­longed trial. A fa­ther laments that his nine-year-old daugh­ter has been in and out of court for two years, and wants to know why pro­tect­ing his child is not a pri­or­ity.

Recog­nis­ing vul­ner­a­ble vic­tims’ need for sup­port, WCC has ac­tively sup­ported them through the crim­i­nal jus­tice process, ac­com­pa­ny­ing them to the po­lice sta­tion, hospi­tal and court.

They have also pub­lished a guide book called Sur­viv­ing Court and a video se­ries called Meng­hadapi Proses Mahkamah (Fac­ing the Ju­di­cial Process), which are avail­able on­line.

The NGO has also con­ducted train­ing on do­mes­tic vi­o­lence, sex­ual crimes and the rights of vul­ner­a­ble wit­nesses with stake­hold­ers such as the po­lice, court of­fi­cials and lawyers. They also hold reg­u­lar di­a­logues to ad­dress vic­tim sup­port is­sues in court.

WCC also works with lawyers to hold watch­ing briefs for their clients in court.

But there was still a need to have a more sys­tem­atic ap­proach that in­volves all stake­hold­ers. So, in 2015, WCC held the in­au­gu­ral Na­tional Con­sul­ta­tion on the Rights of Vul­ner­a­ble Wit­nesses in part­ner­ship with the Bar Coun­cil and Unicef to raise aware­ness on the im­por­tance of vic­tim ad­vo­cacy in courts and to push for a na­tional vic­tim sup­port sys­tem. Among those who par­tic­i­pated in this con­sul­ta­tion were mem­bers of the ju­di­ciary and Deputy Pub­lic Pros­e­cu­tors from ev­ery state in the coun­try. Other stake­hold­ers such as the po­lice, the rel­e­vant min­istries, At­tor­ney Gen­eral Cham­bers, Le­gal Aid Bu­reau, the Ju­di­cial and Le­gal Train­ing In­sti­tute (ILKAP), and NGOs were also con­sulted.

Among their rec­om­men­da­tions are the im­ple­men­ta­tion of an ef­fec­tive and ef­fi­cient vic­tim sup­port sys­tem, the ap­point­ment of vic­tim ad­vo­cates, train­ing to sen­si­tise per­son­nel in the crim­i­nal jus­tice sys­tem, mon­i­tor­ing the vic­tim ad­vo­cacy sys­tem and hold­ing in­ter-agency di­a­logues.

One of the is­sues iden­ti­fied is the lack of a le­gal def­i­ni­tion of vul­ner­a­ble wit­nesses. In Malaysia, the def­i­ni­tion used is based on in­ter­na­tional stan­dards.

“The def­i­ni­tion used for vul­ner­a­ble wit­nesses in­clude per­sons un­der 18 years of age, vic­tims of sex­ual crime or do­mes­tic vi­o­lence, per­sons suf­fer­ing from men­tal or phys­i­cal dis­abil­ity/dis­or­der and per­sons with sig­nif­i­cant im­pair­ment of in­tel­li­gence and so­cial func­tion­ing,” says Lim.

At the Pro­ceed­ing’s launch, Hu­man Rights Com­mis­sion of Malaysia (Suhakam) com­mis­sioner Datuk Mah Weng Kwai stressed on the im­por­tance of pro­tect­ing the vul­ner­a­ble.

“When there is mis­treat­ment of vul­ner­a­ble per­sons af­ter vi­o­lence has oc­curred, we are de­priv­ing them of their rights to hu­man dig­nity. This is sim­ply un­ac­cept­able.

“We must not let peo­ple who seek jus­tice and pro­tec­tion from the crim­i­nal jus­tice sys­tem, be fur­ther pun­ished by the very sys­tem they seek re­course and as­sis­tance from,” says the re­tired Court of Ap­peal Judge.

In the two years since the

Na­tional Con­sul­ta­tion, there has been progress in pro­tect­ing vul­ner­a­ble vic­tims and wit­nesses, namely the pass­ing of the Sex­ual Of­fences Against Chil­dren Act 2017 and a spe­cial court to try sex­ual crimes against chil­dren. This has demon­strated that Malaysia has the ca­pac­ity to pro­vide the fa­cil­i­ties and pro­ce­dures to pro­tect vul­ner­a­ble vic­tims, es­pe­cially with strong po­lit­i­cal will.

Mah how­ever stresses that re­forms to pro­tect vul­ner­a­ble vic­tims and wit­nesses in­volve much more than struc­tural changes to a court­room ... it’s also about “en­sur­ing a sen­si­tised ju­di­ciary; skilled pros­e­cu­tors; and more eth­i­cal de­fence coun­sel. All the cru­cial stake­hold­ers must move in tan­dem to make le­gal pro­cesses more just, and cre­ate a sen­si­tised en­vi­ron­ment in court.”

A round­table dis­cus­sion was held af­ter the launch of the Pro­ceed­ings to take stock and map out what needs to be done in the quest for a vic­tim sup­port sys­tem.

“The round­table dis­cus­sion charted some of the steps taken by the var­i­ous stake­hold­ers in ad­dress­ing wit­ness vul­ner­a­bil­ity in the crim­i­nal jus­tice sys­tem. It was clear that the stake­hold­ers saw the im­por­tance of ad­dress­ing the vul­ner­a­bil­ity of vic­tims/ wit­nesses in the crim­i­nal jus­tice sys­tem and the need to have com­pre­hen­sive and ef­fec­tive vic­tim sup­port ser­vices.

“There was much dis­cus­sion over the def­i­ni­tion of vul­ner­a­ble wit­nesses, the need for suf­fi­cient of­fi­cers who are trained for the job, the need to en­sure fa­cil­i­ties are stan­dard­ised and ac­ces­si­ble through­out the coun­try, the need for proper stan­dard op­er­at­ing pro­ce­dures which in­volve all the dif­fer­ent stake­holder roles so as to en­sure com­pre­hen­sive sup­port of a wit­ness, from the point of re­port­ing to the ap­peals stage,” says WCC’s pro­gramme con­sul­tant Dr Prema De­varaj.

There was also an ac­knowl­edge­ment of the need to ex­tend vic­tim sup­port ser­vices from chil­dren to in­clude adult wit­nesses who could also be vul­ner­a­ble.

Dr Prema adds that the launch and the round­table dis­cus­sion helped to fur­ther con­sol­i­date the work done by WCC, the Bar Coun­cil and Unicef on vic­tim sup­port ser­vices and vul­ner­a­ble wit­ness ad­vo­cacy in court. The agen­cies present were sup­port­ive of the rights of vul­ner­a­ble wit­nesses in court and were open to hav­ing train­ing to sen­si­tise their per­son­nel on the is­sue.

The launch also in­tro­duced Suhakam as a new part­ner in this ad­vo­cacy.

“Suhakam has of­fered to help bring the is­sues raised at the round­table to both the Prime Min­is­ter’s Depart­ment and the Min­istry of Women, Fam­ily and Com­mu­nity De­vel­op­ment for con­sid­er­a­tion and pos­si­ble ac­tion,” shares Dr Prema.

Lim be­lieves sup­port­ing their clients in court is cru­cial.

Datuk Mah says a sen­si­tised court en­vi­ron­ment is cru­cial in en­abling the vul­ner­a­ble to ac­cess jus­tice.

There is a push for fa­cil­i­ties to cater to the needs of vul­ner­a­ble vic­tims in court, like the five-year-old abuse vic­tim in this file pic.

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