From minors to sexual crime victims: Ensuring justice for vulnerable witnesses

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https://hakam.org.my/wp/2017/07/27/from-minors-to-sexual-crime-victims-ensuring-justice-for-vulnerable-witnesses-2/
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Source: The Malay Mail Online

KUALA LUMPUR, July 27 ― For victims of sexual crimes and domestic violence, getting the alleged perpetrators to court is only half the battle. But for many, that is sadly where their journey for justice stops.

WCC president Mariam Lim speaks at the launch of the proceedings of the National Consultation on the Rights of Vulnerable Witnesses in Kuala Lumpur July 26, 2017. — Pictures by Choo Choy May

According to Penang-based advocacy group Women’s Centre for Change (WCC), one of its clients had her husband charged with causing hurt after a domestic violence case. However after her case was postponed 11 times over the course of two years, she just gave up.

Another client admitted to being asked questions that “do not make sense” in court. “I was asked about the crime scene: How many kilometres away? How many centimetres?” she was recorded saying in a video on vulnerable victims, compiled by WCC.

With nearly three decades of experience working with women and children who are victims of sexual assault and domestic violence, WCC revealed that only around a third of victims would ever see the inside of a courtroom, even with police reports lodged.

For the cases that went into court, almost half would result in a discharge not amounting to an acquittal ― many due to the victims themselves dropping out. In the end, fewer than one in 10 would see their perpetrators convicted, WCC said.

“We were shocked at these findings. Not only were the chances of getting a case into court extremely difficult, but to have victims drop out at the pre-trial or the trial stage seemed an appalling travesty in the justice process.

“It was simply unacceptable,” WCC president Mariam Lim said while launching the proceedings of the National Consultation on the Rights of Vulnerable Witnesses here  yesterday.

Fear of stepping into court

While there have been many discourses on the rights of the accused ― to be presumed innocent until proven guilty, for one ― arguably less attention is being paid to the rights and welfare of the victims, many who would appear in court as witnesses.

Lim pointed out that the victims usually lack support and information on the legal process ― which leads to fear of even appearing in court.

Added to that, they also sometimes face intimidation from the accused, and often experience secondary victimisation from agencies who are meant to be helping them, Lim said.

Suhakam commissioner Datuk Mah Weng Kwai speaks at the launch of the proceedings of the National Consultation on the Rights of Vulnerable Witnesses in Kuala Lumpur July 26, 2017.

“When that happens to an ordinary person, especially children, they will be rattled,” Datuk Mah Weng Kwai, a commissioner with the Human Rights Commission of Malaysia (Suhakam), told reporters, referring to the conduct of some judges.

“Even though they want to come and tell their stories, they will hold back. In that sense, justice is being defeated. They dare not to speak up,” added Mah, who served as a Court of Appeal judge between 2012 and 2015.

WCC’s work led to the inaugural National Consultation on the Rights of Vulnerable Witnesses with the Bar Council and United Nations Children’s Fund (Unicef) at the Judicial and Legal Training Institute (ILKAP) in 2015.

The launch of the proceedings yesterday was a “stock take” of its progress, including a roundtable together with stakeholders such as the Attorney-General’s Chambers (AGC), Home Ministry, and the Ministry of Women, Family and Community Development.

Who counts as a vulnerable witness?

A big barrier in supporting vulnerable witnesses is the lack of a consistent definition by the AGC of who is even considered as one.

“There is still no specific definition for ‘vulnerable witness’ or explanation of ‘vulnerability’ in any legislation in Malaysia,” said Mah in his launching speech.

“Without a proper definition of witnesses that may fall within the category of a ‘vulnerable witness’, this may hinder those dealing with such witnesses from identifying and providing proper and adequate protection to these witnesses.”

This lack of proper measures in place to provide identification and protection, Mah said, is among the reasons why these witnesses may be reluctant or may even refuse to cooperate and provide important evidence and information that may be vital to their cases.

“This may result in the perpetrators of such crimes escaping punishment and justice not being served,” Mah added.

While there are various definitions for “vulnerable witnesses”, it has been proposed in the 2015 consultation that it includes those under the age of 18, victims of sexual crime or domestic violence, those who are mentally or physically disabled, and those with significant impairment of intelligence and social functioning.

Going beyond special courtrooms

The last two years have seen some progress including the passing of the Sexual Offences Against Children Act 2017 and a special court to cover sexual crimes against children, but Suhakam said the reforms to protect vulnerable witnesses must go beyond structural changes to a courtroom.

“To ensure the rights of vulnerable victims and witnesses, we have to also ensure a sensitised judiciary; skilled prosecutors and more ethical defense counsel,” Mah said in his speech.

WCC’s programme consultant Prema Devaraj told the media that it hopes to see the support services for not only children witnesses ― but also vulnerable adults across the country. Pic from MMO.

WCC’s programme consultant Prema Devaraj told the media that among others it hopes to see the support services for not only children witnesses ― but also vulnerable adults ― across the country, in addition to a monitoring system to evaluate victim advocacy steps.

WCC’s senior advocacy officer Melissa Akhir speaks at the launch of the proceedings of the National Consultation on the Rights of Vulnerable Witnesses in Kuala Lumpur July 26, 2017. Pic from MMO.

It has also recommended consistent and standardised training for personnels involved with handling vulnerable witnesses, with WCC’s senior advocacy officer Melissa Akhir calling for the move to be compulsory.

“We can’t just have facilities that look really nice but we want them to be used, and at the centre of them is the vulnerable witnesses,” Melissa told reporters.

According to Melissa, current training such as the ones WCC organised with ILKAP do not cover vulnerable witnesses as a holistic category, and there is no such avenue for lawyers and advocates who wish to hold watching briefs in court.

At the same press conference yesterday, Malaysian Bar president George Varughese expressed his support for compulsory training, but only for lawyers who are involved in relevant cases.

“To provide training, the Bar would definitely support such an idea and we would inevitably move in that direction,” George said.