Faculty of Law
Department of Procedural Law
Selected Highlights from Research Findings
Child sexual abuse cases represent an arena where the disciplines of psychology and the law converge. One reason for this convergence is the fact that courts need to take into account evidence regarding the psychological impact of the crime on the victim when determining the sentence.
In addition, available data on psychosocial factors underlying the perpetrator’s behaviour need to be considered. Prof Annette van der Merwe has investigated several aspects of this convergence between behavioural science and the law during research for her doctoral thesis.
One component of her research focused on the role of psychological evidence regarding the impact of rape on underage victims. The Criminal Law Amendment Act 105 of 1997 provides that life imprisonment shall be imposed inter alia in a case of rape where the victim is a girl under the age of 16 years, unless the court finds substantial and compelling circumstances that would justify a deviation from the prescribed minimum sentence.
The Supreme Court of Appeal developed this test in that the present and future psychological impact of rape on a victim should also be taken into account. Van der Merwe investigated the manner in which courts had applied this factor in child rape cases since the minimum sentence legislation was effected.
She found that, where evidence concerning the impact of rape on children was introduced at all, it varied in content and form. She also found that the account of harm suffered by the complainant has been met with mixed reactions by the court.
The way in which these after-effects have been interpreted has proved to be dependent on a complex value judgment made by the presiding officer. In none of the judgments being investigated could the victim’s story concerning the impact of the crime outweigh the cumulative effect of the mitigating circumstances to tip the scale in favour of life imprisonment.
Nevertheless, the formal recognition of such impacts by both draft legislation and common law contributes towards the ongoing education of the judicial officer. This will hopefully bring about a much needed paradigm shift, with more weight being attached to the evidence of harm suffered by the complainant.
Another aspect of Van der Merwe’s research pertained to the use of behavioural science experts to determine the impact of paedophiles’ actions on their victims. It was found that role players in court generally lack knowledge and understanding of the impact of the paedophile’s modus operandi on the victim, and therefore often fail to make use of available psychological expertise.
In addition, such a lack of knowledge and understanding influences the way expert evidence is perceived by the court, with the result that the court again fails to get the whole picture.
A third component of Van der Merwe’s research focused on cases where expert evidence was presented on a diagnosis of paedophilia. The aim of this investigation was to ascertain the role of expert testimony concerning the condition of paedophilia and the prospect of rehabilitation, as well as the interpretation of such testimony by the court and the weight attached to it.
It was found that, because available psychological knowledge does not offer certainty with regard to rehabilitation of paedophiles, the court does not follow a uniform approach to preference for rehabilitation outside prison.
The evidence of the behavioural expert has in many instances been considered as the most important piece of evidence concerning the accused. However, problems were highlighted regarding the validity and reliability of expert reports.
Such problems were associated with the issue of conscious or unconscious bias on the part of experts and presiding officers. All these studies point to the need for role players in court to receive training with regard to the characteristics of offenders in child sexual abuse cases and the potential harm of their actions to their victims.
Prof IA Van der Merwe
Procedural Law
+27 (0) 12 842 3604
annette.vandermerwe@up.ac.za
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