Prosecutors learn fair tactics

For some survivors of sexual and gender-based violence (SGBV), the search for justice can become another trauma, with insensitive procedures and paperwork threatening their ability to tell their stories and sustain cases.

In its pursuit of solid evidence and applicable laws, the justice system can demand that the story be told again and again to the police, prosecutors, medical personnel, judges and magistrates—with each session evoking fear, shame and memories of what happened.

In 2017, Southern Africa Litigation Centre (Salc) examined how conventional police questioning and courtroom procedures created barriers for vulnerable survivors with intellectual and psychosocial disabilities.

Prosecutors often require survivors to retell traumatising tales. | Nation

In Soche East, Blantyre, a girl with an intellectual disability told her parents that she had been sexually assaulted. Her parents reported the matter to police, but when officers questioned the girl, she refused to respond.

Police subsequently labelled the girl ‘uncooperative’ and said they could not verify her account, proving how failure to adapt questioning to rape survivor’s vulnerability can become a barrier to verifying the allegation.

Salc also reports a similar undoing in a case where a boy with a psychosocial disability was allegedly sexually assaulted by an adult. After the incident, he went home and withdrew into his room, where his mother later discovered his injuries after hearing him moaning.

The case reached Mbulumbuzi Nagistrate’s Court in Chiradzulu District, but the boy struggled to testify.

“My child had to testify in an intimidating open-court environment, where he became withdrawn and failed to answer some questions,” his mother complained.

The study noted that the boy’s account lacked corroboration and that his credibility had been questioned, illustrating how difficulties in communicating under courtroom pressure could create problems for the evidence.

These cases do not establish that officials deliberately sought to frustrate justice, but illustrate that questioning and courtroom procedures can defeat the ends of justice when they ignore survivors’ vulnerability, trauma and disability.

The Directorate of Public Prosecutions (DPP) now seeks to plug the gap by giving frontline workers such as prosecutors and police trauma-informed care skills.

“Trauma is involved in almost every sexual and gender-based violence case. Sometimes it even leads to survivors thinking of withdrawing the cases,” days Director of Public Prosecutions Fostino Maele.

The prosecutions chief said this when he opened a training workshop for the prosecutors, supported by the International Justice Mission (IJM).

According to IJM director of social services programme Pamella Masakhwi, trauma can affect a rape survivor’s account, memory, chronological recall and engagement with legal proceedings.

She states: “Trauma can affect how the brain processes and stores information, making it difficult for survivors to recall events in a clear chronological sequence.

“When in court, trauma disadvantages them because it’s very easy for the court to think they are not telling the truth.”

Masakhwi said the pressure to repeatedly recount traumatic experiences can also trigger anxiety and fear, making survivors reluctant to continue engaging with the justice process.

“Trauma-informed care creates an environment of safety and trust in which survivors can participate in proceedings without being unnecessarily retraumatised. It’s about understanding what trauma does to a person and how that can affect their engagement with the justice system,” she says.

For Malawi Police Service director of prosecutions Kennie Mhango, the problem reflects a wider weakness in the traditional criminal justice model.

“The criminal justice system leaves out the victim, focuses primarily on the State interests and accused person,” he states.

Ultimately, the justice system must move beyond prosecutors simply seeking convictions and courts judging how survivors perform under pressure, towards understanding how best to support them to give their evidence.

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