So Many Questions

Two judges in the High Court in Pretoria overturned on appeal the life sentence imposed on an adult male who had repeatedly raped an 11-year-old, because the girl had seemed ‘willing’. Chris Barron asked Childline national co-ordinator Joan van Niekerk .

What does this say about our justice system? That there is something seriously wrong with it. What is interesting is that our new Sexual Offences Act is absolutely clear that a child under the age of 12 cannot consent to sex. The definition of consent excludes children under the age of 12. How can high court judges ignore that? I cannot believe they’re ignorant of the law, because they’re judges of the high court. But perhaps they are ignorant of the ways in which children of this age are persuaded to co-operate in acts of sexual abuse that are beyond the understanding of the child.

You’re talking about grooming? Not just grooming. We see children who “consent” who are not groomed. But it is the rewards that they are offered.

Sugar daddies? Yes. People who exploit the lack of maturity of children.

How widespread is this? Very widespread. To be honest, we have struggled to get the criminal justice system to respond appropriately. Not just in this case — we can give you many, many accounts of children being turned away from police stations and being told “this is your boyfriend”.

A child who is pregnant at the age of 14, whose mother has persuaded her to have sex with a 44-year-old traditional healer . . . You say you can’t believe high court judges are ignorant of the law, but clearly in this case they were, weren’t they? I can’t explain their behaviour. I find the whole judgment and lack of empathy for the child very difficult to accept in people who are supposed to be thinking about people and dispensing justice.

It shows the need for the adjudication of cases involving children to be done by people who understand not just the law, but childhood. Isn’t this what the new sexual offences act was meant to address? Yes, but the former minister of justice decided there would be staff rotation in terms of presiding officers because it would be too traumatic for them to sit through cases month after month.

This means that we lose people who develop a store of knowledge about childhood and how children are vulnerable. Do you buy that? That judges wouldn’t be able to cope emotionally? No. All of us who work in this field on an ongoing basis need occasional debriefing because of the trauma involved. If we can learn to cope, why can’t judges? So this is what you wanted to see in the new sexual offences act? To be honest, it is very different from the version recommended by the South African Law Reform Commission. Extremely different.

Why? The commission brings together experts who look at the problems to be addressed and make recommendations. But, essentially, it is the politicians who decide. Why did they ignore the recommendations?

They thought they knew better. What were the politics? Were the recommendations politically unpopular? You had a ministry that was not very knowledgeable about children or the victimisation of children. Just remember that this came just after the conviction — sorry, the acquittal — of Jacob Zuma for rape. So, politically, legislation that was extremely sympathetic towards the victims of sexual abuse would not have been that popular.

You have to think of the political context in which legislation is made. The fact that we have a president who, a highly respected former Constitutional Court justice reportedly said, should have been convicted of rape but instead became president — what does that say about our attitude to rape? Well, if you remember what happened during his trial, where we had female supporters lying in the street saying “Zuma can rape me any time”— it trivialises sexual abuse. Not just of adults, but of children. Why is sexual abuse trivialised in this country? I find it difficult to explain. I find it difficult to explain why the ANC Women’s League, for example, has not stood up over the years and really made itself heard on the issue of sexual abuse, and particularly the abuse of children. The women’s league is a powerful body and it really needs to lock horns with this issue. How, if at all, will the closure of the Ministry of Women, Children and People with Disabilities affect the situation? I’m not anti that, because it didn’t appear to achieve much.

We now have a ministry of women in the Presidency; we also have a committee that is going to look at disability. But, once again, children’s issues have been totally ignored by our political leaders.

When it comes to children’s issues in this country, we don’t have politicians who stand up and are counted.

Why not?

Children don’t have a vote.