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Perspectives of presiding officers and state
prosecutors on the expected content of
forensic social workers' court reports
JK Malebana
orcid.org / 0000-0001-9077-578X
Dissertation accepted in fulfilment of the requirements for
the degree Masters of Social Work in Forensic Practice at
the
North-West University
Supervisor:
Dr S Smith
Graduation:
July 2020
Student number: 27473023
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Ms J.K Malebana is a Master’s student in Social Work (Forensic Practice) at the North-West University. Dr S. Smith is a Senior Lecturer at the School of Psychosocial Behavioural Sciences, Social Work division, at the Potchefstroom Campus of the North-West University. Research is conducted under the research focus area, Community Psychosocial Research (COMPRES).
Key Words: Presiding Officers, State Prosecutors, Perspectives, Forensic Social Work, Court Report
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DEDICATION
I would like to dedicate this study to my parents: my late father, Tlou Malebana, as it was his last wish for me and my sisters to go to school and my mother, Lebeko Malebana, who worked very hard to make her late husband`s wish to come true. I am sincerely thankful to my mother for raising me as a single parent and helping me to become the woman I am today.
This is also dedicated to my two sisters, Refiloe and Morongoa, my three children, Thabang, Kgodiso and Boikanyo, whom I pray will follow in my footprints.
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ACKNOWLEDGEMENTS
I wish to place on record my sincere gratitude to the following people:
The Almighty God for keeping me safe and I was able to do all things through Christ who strengthened me.
My mother, Lebeko Malebana, for her unconditional love and support through good and bad times.
My supervisor, Dr Sufran Smith, at first I thought she was tough on me, but as time went by I understood that she only wanted me to produce the best. Thank you for your assistance, inputs and guidance. I can never forget the time I wanted to give up but she encouraged me to continue and always gave me hope by applauding each and every progress I made. I thank you from the bottom of my heart may God richly bless you. My three lovely children, Thabang, Kgodiso and Boikanyo, for your patience and
understanding when I could not play the mother role fully as your quality time with mommy was taken by school work.
My pastor, Disego Andronicca Mokgobu, for your prayers and motivation when I did not have the strength to carry on.
Mr Richard Masindi, thank you for your patience when I was always calling you to assist with law things that I did not understand.
Mr Phiri Monyepao, your contributions in this study did not go unnoticed. Mrs Ruth Mampa, you played a very big role in this study, thank you.
My best friend and colleague, Lerato Mokobane, thank you very much for being my co-coder. You did the best and played a very vital role in my study.
The Department of Justice and Constitutional Development for granting me permission to interview State Prosecutors, who took part in this study.
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All the State Prosecutors who took time from their busy schedule to help me with my study, may God bless you.
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FOREWORD
This dissertation is presented in article format according to the guidelines set out in the Manual for Postgraduate Studies (2020) of the North-West University. The article will be submitted to: Social Work/Maatskaplike Werk. See the guidelines for submission on the next page.
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INSTRUCTION TO THE AUTHORS
SOCIAL WORK/MAATSKAPLIKE WERK
The guidelines for the submission of an article to this journal include the following:
Manuscripts may be written in English or Afrikaans while ensuring that the use of capital letters and punctuation marks are done so accurately; all articles should include an abstract in English and it should not exceed 100 words. All contributions will be critically reviewed by at least two referees on whose advice contributions will be accepted or rejected by the editorial committee and will be kept strictly confidential.
Manuscripts may be returned to the authors if extensive revision is required or if the style or presentation does not conform to the journal practice. Articles of fewer than 2000 words or more than 10 000 words are normally not considered for publication; manuscripts should be typed in 12pt Times Roman double-spaced on A4 paper size, as well as making use of the Harvard system for referencing. Short references in the text: When word-for-word quotations, facts, or arguments from other sources are cited, the surname(s) of the author(s), year of publication and page number(s) must appear in parenthesis in the text, e.g., “...” (Berger, 1967:12). In addition, more details about sources referred to in the text should appear at the end of the manuscript under the caption “References” and the sources must be arranged in alphabetical order according to the surnames of the authors (Social Work/Maatskaplike Werk, 2014:1).
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ABBREVIATIONS
1. SAPS: South African Police Services
2. FCS: Family Violence, Child Abuse and Sexual offences Unit 3. VEP: Victim Empowerment Programme
4. SACSSP: South African Council for Social Services Professions 5. CSA: Child Sexual Abuse
6. NPA: National Prosecuting Authority
7. HREC: Health and Research Ethics Committee
8. DOJ&CD: Department of Justice and Constitutional Development 9. FSW: Forensic Social Work
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SUMMARY
TITLE: Perspectives of Presiding Officers and State Prosecutors on the Expected Content of Forensic Social Workers’ Court Reports
KEY WORDS: Presiding Officer, State Prosecutors, Perspectives, Forensic Social Work, Court Report
Sexual violence against children is a gross violation of children`s rights. Section 54 of the Sexual Offences and Related Matters Amendment Act 32 of 2007 stipulates that all South Africans have a statutory obligation to report any suspicion of Child Sexual Abuse to South African Police Services (hereafter referred to as SAPS). Corroborative evidence in these cases is rare. Because of this reason, cases of Child Sexual Abuse are often referred to Forensic Social Workers for further investigation, who, in turn, will compile a report on their findings and testify in court on the matter. During such testimony, Presiding Officers and State Prosecutors would sometimes express their frustration with regard to Forensic Social Workers’ reports.
This study aimed to address that aspect and to make some recommendations to Forensic Social Workers, based on the perspectives of Presiding Officers and State Prosecutors, regarding the reports they submit to court. To succeed in that aim, semi structured interviews were conducted with Presiding Officers and State Prosecutors in Limpopo’s Capricorn District. The interview structure comprised of 5 open-ended questions. Since it was relatively small sample, the researcher made use of an all-inclusive sample. Data were analysed manually by the researcher. From the findings of the study, it was discovered that many Presiding Officers and State Prosecutors are not entirely familiar with what Forensic Social Work entails. This does not only complicate matters for the Forensic Social Workers, but it also means that their
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services cannot be put to optimal and effective use. The majority of participants does utilise Forensic Social Workers in order to determine if a child should testify by means of an intermediary, but it seems that they are not aware of the other roles of Forensic Social Workers. The findings also indicated that the participants are of the opinion that the reports of Forensic Social Workers may assist the court in some cases. .
xiii TABLE OF CONTENTS Dedication……….…… ii Acknowledgement……… iv Declaration………....vi Foreword………...vii
Instruction to the Authors: Social Work/Maatskaplike Werk………...…. viii
Abbreviations………..ix
Summary……….……x
SECTION A: INTRODUCTION AND ORIENTATION………... 1
1. INTRODUCTION………... 1
2. AIM OF THE RESEARCH………... 6
3. RESEARCH METHODOLOGY……….. 6
3.1 Research Approach/Design………..………….. 6
3.2 Population……….…7
3.3 Sample………..…7
3.3.1 Sampling method……….. 7
3.3.2 Sample inclusion criteria……….. 8
3.3.3 Sample exclusion criteria……….. 8
3.3.4 Sample size and motivation……….. 9
3.4 Data Gathering Process………. 10
3.4.1 The role of the researcher………..10
3.4.2 Data collection methods……… 11
3.4.3 Risks and benefits………. 14
3.4.4 Privacy/confidentiality……….. 14
3.4.5 Incentives/reimbursement………. 15
3.4.6 Storage and archiving of data………...… 15
3.5 Data Analysis Method……….... 16
4. ADDITIONAL ETHICAL ISSUES……… 17
4.1 Expertise of the researcher………...17
5. TERMINOLOGY……….. 18
5.1 Perspectives………..18
5.2 Forensic Social Work………... 18
5.3 Forensic Social Worker………..………..19
5.4 Presiding Officer……….. 19
5.5 State Prosecutors……….. 19
5.6 Court report……….…. 20
6. CHOICE AND STRUCTURE OF REPORT……….... 20
7. REFERENCES………...21
SECTION B: PERSPECTIVES OF PRESIDING OFFICERS AND STATE PROSECUTORS ON THE EXPECTED CONTENT OF FORENSIC SOCIAL WORKERS’ COURT REPORTS……….. 27
Abstract………..27
1. INTRODUCTION AND PROBLEM FORMULATION……….. 28
2. RESEARCH METHODOLOGY……….. 33
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3.1 Profile of the Participants……….………..……..35
3.2 Themes and Sub-Themes from the Interviews………...…… 36
4. CONCLUSION………..…… 49
5. RECOMMENDATIONS………...… 49
6. REFERENCES………...50
SECTION C: CONCLUSIONS AND RECOMMENDATIONS……… 57
1. INTRODUCTION……….… 57
2. CONCLUSIONS………... 57
3. RECOMMENDATIONS………...… 58
4. TESTING THE CENTRAL THEORETICAL ARGUMENT………. 60
5. CONTRIBUTION OF THIS RESEARCH………....… 60
6. LIMITATIONS OF THE STUDY…….………61
7. REFERENCES………... 62
SECTION D: ADDENDA………... 63
Addendum 1: Interview Schedule…….……….… 63
Addendum 2: Letter Requesting Participation………... 64
Addendum 3: Informed Consent Form…….………. 66
Addendum 4: Ethical Approval……….…………....… 73
Addendum 5: Request to Conduct Research………...… 74
Addendum 6: NPA permission and approval……….78
Addendum 7: Editor’s Letter………. iii
LIST OF TABLES Table 1: Identifying profile of participants………35
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SECTION A
INTRODUCTION AND ORIENTATION
1. INTRODUCTION
Sexual violence against children is a gross violation of children`s rights. It is a global reality and can take place in the form of sexual abuse, harassment, rape or sexual exploitation such as child prostitution or child pornography (Pinheiro, 2014:26). The Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007 defines sexual abuse as the actions of any person who engages a child (a person under the age of 18) with or without the consent of the child in a sexual act. It further defines a sexual act as an act of sexual penetration or an act of sexual violation. According to the 2018/2019 annual report of the SAPS, a total of 24 387 sexual offence cases of persons under the age of 18 years were reported while for 2017/18 the number was 23 488. According to these stats, there was an increase of 899 cases of Child Sexual Abuse.
Section 54 of the Sexual Offences and Related Matters Amendment Act 32 of 2007 stipulates that all South Africans have a statutory obligation to report any suspicion of Child Sexual Abuse to SAPS. After a report has been made to SAPS, the case is allocated to an investigating officer employed by the Family Violence, Child Abuse and Sexual offences Unit (hereafter called FCS) of SAPS, who will in turn, after completing their investigation, hand the docket over to the State Prosecutor (Fouché & Fouché, 2015:105). It is the duty of the State Prosecutor to decide if any further investigation is required and if the matter will be enrolled. Should a case be prosecuted, other court personnel or legal practitioners like Presiding Officers private and State Attorneys will also be involved (Joubert & Van Wyk, 2014:492). A number of researchers (Chetty, 2006:2; Connolly et al., 2008:258) agree that the prosecutor will bear in
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mind that in most cases of Child Sexual Abuse, corroborative evidence is rare. Because of this reason, cases of Child Sexual Abuse, are often referred to Social Workers with specialised knowledge and skills who can test the veracity of the child’s claims with regard to sexual abuse (Carstens, 2006:185,189; Fouché & Joubert, 2009:42). Such Social Workers are known as Forensic Social Workers (Fouché & Fouché, 2015:105) and are mostly employed by SAPS, trauma centres or are self-employed (Fouché & Fouché, 2015:107). For the purpose of this study, the researcher specifically wanted to focus on the perspectives of Presiding Officers and State Prosecutors. The State Prosecutor must decide if a case will be prosecuted. The Presiding Officer must propose a verdict, after considering evidence from all the involved parties, which includes the evidence provided by the Forensic Social Worker (Ernberg et al., 2018).
Forensic Social Work is a relatively new field of specialisation in South Africa and requires effective training and skills (Mangezi, 2014:15). Barker (2003) explains that the Forensic Social Work assessment is a practice specialty that focuses on the law, and legal issues. The court is the client of the Forensic Social Worker and Forensic Social Workers often appear before court to provide expert testimony of relevance to the final decision regarding abuse (Fouché & Fouché, 2015; Jonkers, 2012; Joubert & Van Wyk, 2014). Testimony by the Forensic Social Worker on the results of the forensic assessment, is primarily given by means of a report, compiled by the Forensic Social Worker (Fouché & Fouché, 2015:107). Forensic report writing is a complex process that requires careful and meticulous attention in order to provide a report of good quality. However, there is no specific guideline or format for writing a Forensic Social Work report and Social Workers write these reports as they deem fit (Joubert & Van Wyk, 2014:485). Considering that during April 2018 and March 2019 a total of 4 307 Forensic Social Work assessment reports pertaining to sexual offences complaints against persons under the age of 18 years were compiled for courts by SAPS Forensic Social Workers (SAPS, 2019), writing reports as deemed fit, can be problematic. The mentioned number of
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reports does not include reports compiled by Forensic Social Workers employed by other organisations.
Fouché and Fouché (2015:105) pointed out that South African case law has until recently been silent about matters relating to the requirements for evidence by a Forensic Social Worker in Child Sexual Abuse investigations. During an analyses of the process of communication between courts and expert witnesses in cases of child sexual abuse Gumpert and Lindblad, (2001:1497-1516) found that written reports varied in length, language use and level of critical analysis. Only a portion of Child Sexual Abuse cases initially investigated by local authorities will lead to a prosecution. One of the causes for this may be incomplete documentation (Cussons, 2011:33; Faller, 2007:58; Ntlatleng, 2011:2-3; Stern & Walsh, 1997:10). Helm (2016), as well as Munro (2008), found that practitioners tend to overlook relevant information, attach too much importance to irrelevant details, are prone to tunnel vision, and have a tendency to be biased to information that confirms their assumptions. These critical areas that are part of data interpretation in assessment, also significantly impact Social Work court reports and Social Workers’ expertise as witnesses in court.
According to Joubert and Van Wyk (2014:485) some research studies also show that Social Workers’ reports are frequently unfit for use in the legal context. A research article by Joubert and Van Wyk (2014:485) indicates that public prosecutors seldom utilise Social Work reports in court cases. These authors also state that there is a high demand for professional Forensic Social Work reports of higher quality to assist legal practitioners. Forensic Social Work reports are further described as speculative and unfounded due to inter alia, inadequate explanation of the reasoning behind professional opinions or conclusions, and failure to use forensically relevant assessment tools ( Joubert & Van Wyk, 2014; Malatji, 2012; Mnisi, 2012; Robinson,
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2015; Roestenburg & Van Breda, 2003:). Many legal practitioners also complain that Social Workers are inadequate witnesses, and that their lack of competence in the court adversely affects case decisions (Joubert & van Wyk, 2014; Malatji, 2012; Roestenburg & Van Breda, 2003). Case reports that are formulated vaguely or fail to communicate vital information, might not have intended procedural influence, or might even undermine the quality of the legal process (Pelisoli et al., 2015). When considering this information, it is clear that legal practitioners are of the opinion that there might be limitations in Forensic Social Work reports.
Joubert and Van Wyk (2014:486) state that in order for Forensic Social Workers to write admissible reports that is relevant for a Court of Law, it is important to understand the interrelationship between criminal law and Social Work as well as to consider the mentioned characteristics of legal discourse. Criminal law also stipulates the rules regarding the investigation of a suspected offence and the process which should be followed in court (Kleyn & Viljoen, 2002:100). To succeed in this, Forensic Social Work reports must be written according to the principles of the Law of Evidence and these Social Workers must at all times understand the mandate of the information or evidence required (Joubert & Van Wyk, 2014:487-488). These authors further state that in order for the forensic report to adhere to legal practitioners’ expectations, the Social Worker needs to illustrate in the report that the information in the report will assist the court in making a fair and just decision. From the previous arguments it is evident that although Forensic Social Workers can be regarded as experts in a Court of Law, there is certain limitations in their reports. The researcher also found limited literature with regard to guidelines for Forensic Social Work report writing. Joubert and Van Wyk (2014:485) also mention that there is no specific format or guideline for the writing of Forensic Social Work reports. This can be seen as a problem since Child Sexual Abuse is difficult to prove (Myers, 2011:388). Because of the latter, prosecutors and defence
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attorneys depend on Social Work experts as their most trusted professional allies to assist in Child Sexual Abuse litigation matters (Butters & Vaughan-Eden, 2011: Fouché & Fouché, 2015). One must thus bear in mind that the NPA only prosecutes prima facie cases or cases that have a reasonable chance of succeeding (Rademeyer, 2013). It is thus clear if the quality of a Forensic Social Work report is substandard, it will have a negative impact on the possibility of prosecution of Child Sexual Abuse. Zinn (2016:4) states that there can be a myriad of factors in the local decision to decline to prosecute Child Sexual Abuse cases, such as poorly compiled Forensic Social Work reports. For the purpose of this research, the researcher wanted to focus on the perspectives of legal practitioners regarding the content of reports of Forensic Social Workers.
The researcher is a Social Worker employed by the Department of Social Development, but is stationed at Mankweng Police Station Victim Empowerment Program (VEP) Centre in Polokwane and must testify in court on a regular basis. During such testimony, State Prosecutors would sometimes express their frustration with regard to the limitations of Forensic Social Workers’ reports. This issue is difficult to address since Forensic Social Workers write reports as they deem fit. It is within this context that the researcher wanted to answer the following research question; “What are the perspectives of Presiding Officers and State
Prosecutors on the expected content of Forensic Social Workers’ court reports?”
With the information at hand, it was clear that the court is of the opinion that Forensic Social Workers’ reports sometimes have certain shortcomings. The researcher could only find limited literature with regard to guidelines for Forensic Social Work report writing and Joubert and Van Wyk (2014:485) mention that there is no specific format or guideline for the writing of Forensic Social Work reports. Perspectives of Presiding Officers and State Prosecutors
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regarding the content of Forensic Social Work court reports, will assist with the constructing of guidelines with regard to Forensic Social Work report writing. In turn, this might lead to a better prosecution rate of cases of Child Sexual Abuse.
2. AIM OF THE RESEARCH
The aim of this study is to explore the perspectives of Presiding Officers and State Prosecutors on the expected content of Forensic Social Workers’ court reports.
3. RESEARCH METHODOLOGY
The following research methodology was employed during this research.
3.1 Research Approach/Design
In view of this research study, the researcher was interested in developing a better understanding of the perspectives of Presiding Officers and State Prosecutors with regard to limitations of a sufficient Forensic Social Work court report. According to Osang et al. (2013:60), gathering data for research is divided into two categories, namely, qualitative and quantitative. The researcher followed a qualitative approach for the study. Qualitative researchers apply an emerging qualitative approach to collect data in a natural setting sensitive to the people and places under study. They are concerned with understanding rather than explanation, with naturalistic observation rather than controlled measurement (Fouché & Schurink, 2011:308)
The study was explorative in nature in order to gain insight into the perspectives of Presiding Officers and State Prosecutors on the expected content of Forensic Social Workers’ reports. Thus the study consists of an explorative nature as there is a lack of basic information on Presiding Officers and State Prosecutor’s perspectives on the elements of a sufficient Forensic
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Social Work court report (Fouché & De Vos, 2011:95). Explorative research is defined as a type of research design where the aim is to investigate the phenomenon, where there is little or no information with a view to finding patterns or developing propositions rather than testing them (Collins & Hussey, 2009:5). The perspectives of Presiding Officers and State Prosecutors on the expected content of Forensic Social Workers’ reports, was explored.
3.2 Population
Strydom (2011:222) describes a population as a term that sets boundaries on the study units. It also refers to individuals in the universe who possess specific characteristics. Population is also defined as a complete set of persons or objects that possess some common characteristics that is of interest to the researcher (Brink et al., 2012:131). In this study, the geographical area is the Capricorn District. The reason for this was because the researcher was responsible for the costs of the research and conducting the research in that area was going to suit the researcher’s budget. The researcher is also full time employed and only has two years to complete the research.
In the Capricorn District, there are five sexual offences courts in different municipalities. At these courts there is a total of 6 Presiding Officers and a total of 13 State Prosecutors (legal practitioners) that are allocated to work specifically with Child Sexual Abuse cases. Thus a total of 19 possible participants.
3.3 Sample
3.3.1 Sampling Method
For the purpose of this study, the researcher used purposive sampling as research method. Strydom and Delport (2011:390) describe purposive sampling as based entirely on the
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judgement of the researcher. This implies that the sample is composed of elements that contain the most characteristics, representative of typical attributes of the population. According to Botma et al. (2010:199), individuals, groups and settings wherein the specific topic being studied is most probable to occur are identified by the researcher.
Since the participants came from a small population, all the participants were selected. Total Population Sampling is a form of purposive sampling where the entire population that meet the criteria as stipulated by the researcher are included in the research being conducted. Total Population Sampling is more commonly used where the number of cases being investigated is relatively small as in this instance where there was a total number of 19 participants (Etikan, Musa & Alkassim, 2016:3). The researcher used all the participants so that in the end the researcher had relevant information that is required for the achievement of the main aim of the study. The researcher believed that the Presiding Officers and State Prosecutors would be able to make recommendations to Forensic Social Workers regarding effective report writing.
3.3.2 Sample Inclusion Criteria
In this study the researcher included the following participants:
Presiding Officers and State Prosecutors dealing with Child Sexual Abuse cases as they
had knowledge with regard to Forensic Social Work court reports.
Presiding Officers and State Prosecutors who were able to communicate in English as
this is the official language of the court.
3.3.3 Sample Exclusion Criteria
9 Attorneys in private practice.
3.3.4 Sample Size and Motivation
In qualitative studies, there are no rules for determining sample size. It depends on what is useful, available and can be done with the available time and resources (Strydom & Delport, 2011:391). Malterud et al., (2016:1753) propose the concept ‘information power’ and suggest that determining a sample size with enough information power will be subject to the particularities of the study. These particularities include the aim of the study, sample specificity, use of established theory, quality of dialogue and analysis strategy. Malterud et al., (2016:1754) emphasize that a sample size will be estimated in the planning phase but must be continuously evaluated during the research. The purpose of this study was to explore the perspectives of Presiding Officers and State Prosecutors on the expected content of Forensic Social Workers’ reports. The information obtained in that way may guide Forensic Social Workers with regard to the elements of sufficient court reports and may also add to the body of practice related knowledge within Forensic Social Work. The sampling frame was focused on State Prosecutors and Presiding Officers in Child Sexual Abuse cases in the Capricorn District. The researcher conducted face-to-face semi-structured interviews with the participants.
Participants were selected on the basis of their significance, which was to explore the perspectives of Presiding Officers and State Prosecutors on the expected content of Forensic Social Workers’ reports. Strydom and Delport (2011:393) described data saturation as the collection of data to the point where a sense of closure is attained because new data provide information that is redundant. However, in this research, the researcher used the total
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population who gave written informed consent and continued with the interviews even after data saturation was reached.
3.4 Data Gathering Process 3.4.1 The Role of the Researcher
The researcher first asked authorisation from the head of the Department of Justice to
conduct this research, who acted as gatekeeper. A letter of request was sent to the Department of Justice (Addendum 5).
After permission was granted, the researcher contacted the head of Justice in the
Capricorn District of Limpopo to inform him about the study and to obtain goodwill permission.
After goodwill permission was obtained from the head of Justice in the Capricorn
District, the researcher requested goodwill permission from the head of each court of the respective municipal court that was involved in the study. The researcher also determined from the head who are the Presiding Officers and State Prosecutors working with cases of Child Sexual Abuse.
The researcher made use of an independent person to approach participants. The
independent person in this study was a Social Worker who is knowledgeable on research but who had no interest in the study whatsoever, thus a person who is independent of the study or its outcomes. It was also expected of the independent person to sign a confidentiality agreement. The researcher trained the independent person how to approach the participants.
After that process, the researcher compiled an invitational letter (Addendum 2)
requesting participation in the study and the independent person distributed those invitational letters via email to the participants in order for them to study and decide if
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they want to participate. Participants were not forced to participate in the study. The form also stated that the participants were participating in their own free will and that they can withdraw at any time from the study, without any consequences. The independent person explained the possible information such as the goal of the study, the duration of the involvement with participants and the advantages of the study. Participants were granted three days to decide if they want to participate in the research project. Those who agreed to participate in the research project were given informed written consent in the presence of the independent person and the independent person also signed the Informed Consent Form (Addendum 3) as witness.
The researcher made appointments with all the participants who gave informed written
consent, to participate in the research. Data were collected in the form of face-to-face semi-structured interviews.
3.4.2 Data Collection Methods
Face- to-face semi-structured interviews were conducted at the participants’ office. This kind of interview enables the researcher to follow up on particular interesting avenues that emerge on the interviews (Conghurst, 2010:105; Greeff, 2011:351-352). Questions that were included in the interview schedule (Addendum 1) were theory driven in that they derived from theory. The researcher chose to use the semi structured interviews. Focus groups were not going to be possible in this study because of logistical reasons like the distance between the magistrates offices covered in the study. The impossibility of getting the participants at the same time due to their work schedules, was another problem. The interview schedule consisted of five open-ended questions.
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Experts from the Department of Social Work at the Potchefstroom Campus, at the North-West University, evaluated the semi-structured interview schedule. These experts are knowledgeable regarding the construction of an interview schedule and on matters of Forensic Social Work.
The interview schedule was also evaluated to see if it obtains the expected answers to address major research questions. After consulting literature on report writing, Forensic Social Work, court procedures, child protection and sexual offences, the researcher compiled a set of predetermined questions for an interview schedule. Those questions were used to gather data in the study. The following tentative questions were used as a guide to facilitate the process of face-to-face interviewing:
In your opinion, what is the purpose of a Forensic Social Work report?
What are the reasons that you make use of a Forensic Social Work report?
In your opinion what are the limitations of a Forensic Social Work court report?
In your opinion what are the strengths of a Forensic Social Work court report?
In your opinion how can the quality of Forensic Social Work reports be improved?
Is there anything else you would like to add?
The researcher orientated herself with regard to the interview schedule. The researcher arranged convenient dates and times with each participant. The semi-structured interviews were conducted in the offices of the participants. The duration of the interviews conducted was approximately one hour. The researcher utilised different communication techniques such as probing and the participants did most of the talking (Greeff, 2011:343).
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An audio recorder is a valuable tool when conducting research, as it will allow the interviewer to pay full attention and to stay focused on the participants (Greeff, 2011:359; Rubin & Babbie, 2005:457). The researcher used an audio recorder to digitally record the interviews. Each interview was recorded on its own disc to ensure that the researcher would not get confused with the responses of different participants and to minimize the risk of deleting data by accident.
The information collected was transcribed by the researcher. Transcription refers to a situation wherein audio recordings are formally written on paper for the purposes of analysis (Creswell, 2007:121). Greeff (2011:373) suggested that descriptive field notes be taken by the interviewer directly after interviews with the participants. The researcher made field notes after each interview. The purpose of field notes is to identify and describe indigenous and local meanings and develop an understanding of what participant’s experiences and activities mean to them (Emerson et al., 2011:16).
The use of an independent co-coder after transcription was implemented in the study in order to ensure trustworthiness. It was also expected from the co-coder to sign the confidentiality agreement to ensure confidentiality of information.
When the study is finalised a summary of the results will be communicated to the participants. The researcher asked participants during the interviews, the method they would prefer the results to be communicated to them. Options to choose from included an e-mail or personal interviews with the participants.
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3.4.3 Risks and Benefits
There were minimal dangers or risks to the study. All participants were experienced State Prosecutors and Presiding Officers who were well informed about Child Sexual Abuse cases in the Capricorn District. Participants were subjected to face-to-face semi-structured interviews. The duration of these interviews were approximately one hour. The participants did experience boredom and fatigue. The researcher made sure that participants were given body breaks whenever necessary and the semi-structured interview did not last longer than an hour. The researcher was aware that time pressure and frustration could also form part of some of the risks involved and made sure to finalise the interviews in the shortest possible time. Since the researcher went directly to the participants to collect data, arrangements were made that semi-structured interviews were conducted at the time and place fairly convenient to the participants. The study involved no participant classified to be from vulnerable groups.
3.4.4 Privacy/Confidentiality
The privacy and confidentiality of the participants were safeguarded. The researcher ensured the participants that everything that was discussed would be kept confidential. All the data were kept safely in a locked fireproof cabinet in the researcher’s office and was reported anonymously to protect the identity of the participants. Electronic data were stored on a password-protected memory stick, as well as on a password-protected cloud. Recorded data were transferred immediately after the interviews to a password-protected computer and recordings were erased from the audio recorder. Only the researcher, her study leader and co-coder had access to the data.
The participants’ right to privacy or confidentiality as well as anonymity was also maintained in the study. Privacy refers to the participants’ ability “to control when and under what
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conditions others will have access to their beliefs, values, or behaviour” (Monette et al., 2008:57). The researcher ensured that the semi-structured interviews were conducted in the privacy of the participants’ offices. A ‘Do Not Disturb’ sign was put up on the outside of the door.
With anonymity the participants’ identity was protected in that no one would be able to identify any participant afterwards by removing any identifiable information of participants from interview transcripts or quotations used (Hennink et al., 2011:71). All identifying information of participants in relation to the content of the study was kept confidential and anonymous by using numbering coding in order to refer to the participants. In support of moral and legal reasons, participants were not coerced into participating in the research project. The independent person as well as the co-coder was also asked to sign an agreement of confidentiality.
3.4.5 Incentives/Reimbursement
After completion of the study, the researcher wrote a personal ‘thank you’ note to each participant accompanied by a pen branded with the NWU logo, and promised to provide feedback about the results of the study. There was no form of remuneration offered to the participants for taking part in the study.
3.4.6 Storage and Archiving of Data
Participants were informed about the storage and archiving of the data, before they consented to the research. The researcher collected data from the participants by means of electronic data in the form of audio recordings, as well as hand-written data. Written data were typed and after recorded data were transcribed it was transferred immediately after the interviews, to a
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password-protected computer and recordings were erased from the audio recorder. The hand-written data were typed and then stored on a memory stick and a Cloud after the completion of the interviews. For the duration of the study, only the researcher, the person responsible for coding and the study leader were able to access the disc. It was also locked away in a lockable cabinet in a lockable office and will be saved at the offices of COMPRES for the duration of five years. After five years, the data will be destroyed.
3.5 Data Analysis Method
Schurink et al. (2011:397) describe qualitative data analysis as reducing the volume of data, identifying the significant information, recognizing important patterns and developing a structure for communicating the essence of what all the data reveal. According to Marshall and Rossman (2011:207), data analysis is the process of bringing order, structure and interpretation to the mass of collected data. Yin (2012:15) elucidates that data analysis of case study data can take many forms.
In other words, the researcher begun to transcribe, analyse and interpret the data from the transcripts even before the process of data collection was completed. The researcher started to recode the existing data. The organising system helped the researchers to give structure to their research reports.
Tesch (1992:142–145) provided detailed guidelines to develop an organising system for unstructured qualitative data: The researcher read the entire transcripts carefully to obtained a sense of the whole notes and to jotted down some ideas.
The researcher selected one case, asks “what is this about?” and thought about the underlying meaning in the information. The researcher’s thoughts were written in the margin.
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A list was made of all the themes or topics. Similar themes or topics were clustered together.
The researcher applied the list of themes or topics to the data. The themes or topics were abbreviated as codes, which were written next to the appropriate segments of the transcripts. The researcher tried out that preliminary organising scheme to see whether new categories and codes emerge.
The researcher found the most descriptive wording for the themes or topics and categorises them. Lines were drawn out between categories to show the relationships.
The researcher made a final decision on the abbreviation for each category and alphabet the codes.
The data material belonging to each category was assembled and a preliminary analysis was performed. The researcher requested an independent Social Worker, that is also knowledgeable on the processes of research and trained in the same method of analysis, to act as external co-coder to ensure the accuracy of the analysis (Botma et al., 2010:224; 232). Once the final stage of analysis was reached, taxonomies was exchanged, coding checked, compared and verified. In this way, the trustworthiness of the research was enhanced.
4. ADDITIONAL ETHICAL ISSUES 4.1 Expertise of the Researcher
The researcher is a qualified Social Worker registered with the South African Council for Social Services Professions (SACSSP). The researcher is also a post-graduate student for the Master’s in Forensic Social Work and has been trained in both qualitative and quantitative methods of research. Training was provided by the research module leader on equipping all Social Work Master’s students with necessary skills in the collection of data for research
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purposes. This training took place before the actual study commenced. The researcher also attended workshops on qualitative research in preparation for conducting qualitative research. In qualifying for the undergraduate degree in Social Work (BSW) at the University of Limpopo (2009) a qualitative research project was undertaken by the researcher entitled “The need for EAP in secondary schools around Mankweng”. The researcher also did the TRREE online ethical course.
5. TERMINOLOGY
KEY WORDS: Presiding Officers, State Prosecutors, Perspectives, Forensic Social Work,
Court Report
5.1 Perspectives
Perspective refers to a person’s outlook or way of viewing something. In reality, people do not have the exact same thoughts and feelings about everything. People have different ideas and opinions based on their experiences in life. Individuals inherit perspectives by being members of a particular society, which informs them how to experience and interpret their world (Dawes & Higson-Smith, 2005:98). From this definition, the researcher is, therefore, of the opinion that one cannot simply assume that legal practitioners have similar perspectives about Forensic Social Work. This is particularly true since Forensic Social Work is a fairly new specialty in South Africa and within the courts.
5.2 Forensic Social Work
According to the South African Council for Service Professions (2008:11), Forensic Social Work is defined as a “specialized field of social work that focuses on the interface between society’s legal and human systems and is characterized by the social worker’s primary function
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of providing expert testimonies in the Courts of Law with the primary client being the judiciary system”. On the 1st September 2017, the Minister of Social Development officially recognised Forensic Social Work as a specialist field of Social Work in South Africa (Government Gazette, 2017:47-52).
5.3 Forensic Social Worker
The Social Service Professions Act 110 of 1978 as amended on 1 September 2017, states that the Forensic Social Worker is a “social worker with scientific and specialised knowledge, skills, training and education and experience in Forensic Social Work, who provides the court with written or oral impartial and factual expert testimony”.
5.4 Presiding Officer
Legal Practice Act 28 of 2004 the defines the term “Presiding Officer” as generally used to refer to individuals who take charge of the court proceedings or proceedings in any tribunal and make findings and orders after hearing evidence (and arguments) on the matters at hand. Presiding Officers in the Courts of Law are also known as judicial officers. The term “judicial officers” is used in the constitution to specially refer to judges, magistrate, and other Presiding Officers.
5.5 State Prosecutors
All legal actors who exercise the authority to prosecute matters on behalf of the State exist according to set levels in a hierarchical order. The order flows from the top that is the National Director of Public Prosecutors down to Directors of Public Prosecutions and finally to individual prosecutors or State Advocates. We can, therefore, say that the power to institute criminal proceedings on behalf of the State rests with the National Director of Public
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Prosecutors. The Director of Public Prosecutions decides on matters that may be proceeded with, while the role of the prosecutors or State Advocates is to prosecute these cases according to Legal Practice Act 28 of 2004.
5.6 Court report
Social Workers produce court reports in advance of court hearings to provide key information to those involved. Depending on the hearing, court reports may include excerpts from other documents such as police reports, investigation narratives, case notes, case plans, and letters from service providers. Report preparation requires Social Workers to be very clear about their role, and writing a report may be the first occasion on which you have had to step into a formal, official and legal role. The process can be uncomfortable and may even be more so when it is necessary in a family where a less official relationship has already been established (Watt, 2013:12).
6. CHOICE AND STRUCTURE OF REPORT
Mini-dissertation with the following chapters:
Section A: Introduction and Orientation
Section B: Perspectives of Presiding Officers and State Prosecutors on the expected
content of Forensic Social Workers’ court reports
Section C: Conclusions and Recommendations
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Fouché, A. & Fouché, D.F. 2015. Requirements for evidence by a forensic social worker as set by the Supreme Court of Appeal. Child Abuse Research in South Africa, 16(2):105-115. Fouché, A. & Joubert, J.M.C. 2009. Facilitating disclosure of child sexual abuse victims in the middle childhood: A seven-phase forensic interview protocol. Acta Criminologica, 22(2):41-59. Fouché, C.B & Schurink, W. 2011. Qualitative research design. (In De Vos, A.S., Strdom, H., Fouche, C.B & Delport, C.S.L., eds. Research at grass roots: for the social science and human services professions. Pretoria: Van Schaik. p. 286-313).
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Kleyn, D. & Viljoen, F. 2002. Beginnersgids vir regstudente (3 rd ed). Cape Town: Juta Law. Malatji, H.Q. 2012. The Social worker, as an expert witness in sexual offences committed against children. Master’s thesis: North-West University.
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Mnisi, G.T. 2012. The social work competency report as an aid in court cases on child sexual abuse. Potchefstroom: North-West University. (Dissertation-MA Social Work: Forensic Practice).
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Rademeyer, J. 2013. Conviction rates an unreliable benchmark. Africa Check: @africacheck. Robinson, T.M. 2015. An explorative study of false allegations of child sexual abuse in divorce and custody proceedings in South Africa. (Doctoral thesis) University of Cape Town.
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Roestenburg, W.J & Van Breda, A. 2003. Ecometrics: Dynamic new direction in accountable social work practice. Joint Universities Conference: Contemporary Issues in Social Work. UNISA 8 October 2003.
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Schurink, W., Fouché, C.B. & De Vos, A.S. 2011. Qualitative data analysis and interpretation. (In De Vos, A.S., Strydom, H., Fouché, C.B. & Delport, C.S.L. eds. Research at grass roots: for the social sciences and the human professions. Pretoria: Van Schaik. p. 397-423).
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Strydom, H. 2011. Sampling in the quantitative paradigm. (In De Vos, A.S., Strydom, H., Fouche, C.B & Delport, C.S.L. eds. Research at grass roots: for the social sciences and human service professions. Pretoria: Van Schaick Publishers. p. 192-204).
Tesch, R. 1992. Qualitative research: Analysis types and software tools. Falmer: New York.Watt, J. 2013. Report writing for social work. London, Learning matters: Sage.
Yin, R.K. 2012. Applications of Case Study Research. 3rd ed. London, Thousand Oaks New Zinn, B. 2016, Low prosecution rates haunt child sexual abuse cases.www.newsleader.com. Retrieved 18 January 2020.
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SECTION B
PERSPECTIVES OF PRESIDING OFFICERS AND STATE PROSECUTORS ON THE EXPECTED CONTENT OF FORENSIC SOCIAL WORKERS’ COURT
REPORTS
Perspectives of Presiding Officers and State Prosecutors on the Expected Content of Forensic Social Workers’ Court Reports
Ms J.K Malebana is a Social Worker practising as a VEP Social Worker stationed at
Mankweng Police Station but employed by the Department of Social Development.
Dr S Smith is a Senior Lecturer in the School of Psychosocial Behavioural Sciences, Social
Work Division, Potchefstroom Campus of the North-West University.
Email: Sufran.smith@nwu.ac.za
ABSTRACT
Sexual violence against children is a gross violation of children`s rights. Because of this
reason, cases of Child Sexual Abuse (CSA), is often referred to Forensic Social Workers for
further investigation, who on their turn, will compile a report with their findings and testify in
court on the matter. This study discussed empirical data obtained from a qualitative research
that focused on exploring the perspectives of Presiding Officers and State Prosecutors on the
expected content of Forensic Social Workers’ court reports. From the findings, it was clear
that there is a lack of proper knowledge on Forensic Social Workers and their expertise
whereas they make a valuable contribution in the investigation of Child Sexual Abuse cases in
court.
Keywords: Presiding Officer, State Prosecutors, Perspectives, Forensic Social Work, Court Report
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1. INTRODUCTION AND PROBLEM FORMULATION
Sexual violence against children is a gross violation of children`s rights. It is a global reality and can take place in the form of sexual abuse, harassment, rape or sexual exploitation such as child prostitution or child pornography (Pinheiro, 2014:26). The Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007 defines sexual abuse as the actions of any person who engages a child (a person under the age of 18) with or without the consent of the child in a sexual act. It further defines a sexual act as an act of sexual penetration or an act of sexual violation. According to the 2018/2019 annual report of the South African Police Service (hereafter referred to as SAPS), a total of 24 387 sexual offence cases of persons under the age of 18 years were reported while for 2017/18 the number was 23 488. According to these stats, there was an increase of 899 cases of Child Sexual Abuse.
Section 54 of the Sexual Offences and Related Matters Amendment Act 32 of 2007 stipulates that all South Africans have a statutory obligation to report any suspicion of Child Sexual Abuse to SAPS. After a report has been presented to SAPS, the case is allocated to an investigating officer employed by the Family Violence, Child Abuse and Sexual offences unit (hereafter called FCS) of SAPS, who will on their turn, after completing their investigation, hand the docket over to the State Prosecutor (Fouché & Fouché, 2015:105). It is the duty of the State Prosecutor to decide if any further investigation is required and if the matter will be enrolled. Should a case be prosecuted other court personnel or legal practitioners like Presiding Officers private and State Attorneys will also be involved (Joubert & Van Wyk, 2014: 492). A number of researchers (Chetty, 2006:2; Connolly et al., 2008:258) agree that the prosecutor will bear in mind that in most cases of Child Sexual Abuse, corroborative evidence is rare. Because of this reason, cases of Child Sexual Abuse are often referred to Social Workers with specialised knowledge and skills who can test the veracity of the child’s claims with regard to
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sexual abuse (Carstens, 2006:185,189; Fouché & Joubert, 2009:42). Such Social Workers are known as Forensic Social Workers (thereafter referred to as FSW) and are mostly employed by SAPS, trauma centres or are self-employed (Fouché & Fouché, 2015:107). For the purpose of this study, the researcher specifically wanted to focus on the perspectives of Presiding Officers and State Prosecutors on the content of Forensic Social Work court reports. The State Prosecutor must decide if a case will be prosecuted. The Presiding Officer must propose a verdict, after considering evidence from all the involved parties, which includes the evidence provided by the Forensic Social Worker (Ernberg et al., 2016:21-22).
Forensic Social Work is a relatively new field of specialisation in South Africa and requires effective training and skills (Mangezi, 2014:15). Barker (2003) explains that the Forensic Social Work assessment is a practice specialty that focuses on the law, and legal issues. The court is the client of the Forensic Social Worker and Forensic Social Workers often appear before court to provide expert testimony of relevance to the final decision regarding abuse (Fouché & Fouché, 2015; Jonkers, 2012; Joubert & Van Wyk, 2014). Testimony by the Forensic Social Worker on the results of the forensic assessment, is primarily given by means of a report, compiled by the Forensic Social Worker (Fouché & Fouché, 2015:107). Forensic report writing is a complex process that requires careful and meticulous attention in order to provide a report of good quality. However, there is no specific guideline or format for writing a Forensic Social Work report and Social Workers write these reports as they deem fit (Joubert & Van Wyk, 2014:485). Considering that during April 2018 and March 2019 a total of 4 307 Forensic Social Work assessment reports pertaining to sexual offences complaints against persons under the age of 18 years were compiled for courts by SAPS forensic (SAPS, 2019) Social Workers, writing reports as deemed fit, can be problematic. The mentioned number of
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reports does not include reports compiled by Forensic Social Workers employed by other organisations.
Fouché and Fouché (2015:105) pointed out that South African case law has until recently been silent about matters relating to the requirements for evidence by a Forensic Social Worker in Child Sexual Abuse investigations. During an analyses of the process of communication between courts and expert witnesses in cases of Child Sexual Abuse, Gumpert and Lindblad (2001:1497-1516) found that written reports varied in length, language use and level of critical analysis. Only a portion of Child Sexual Abuse cases initially investigated by local authorities will lead to a prosecution. One of the causes for this may be incomplete documentation (Cussons, 2011:33; Faller, 2007:58; Ntlatleng, 2011:2-3). Helm (2016) and Munro (2008) found that practitioners tend to overlook relevant information, attach too much importance to irrelevant details, are prone to tunnel vision, and have a tendency to be biased to information that confirms their assumptions. These critical areas that are part of data interpretation in assessment, also significantly impact Social Work court reports and Social Workers’ expertise as witnesses in court.
Some research studies also show that Social Workers’ reports are frequently unfit for use in the legal context. Forensic Social Work reports are further described as speculative and unfounded due to inter alia, inadequate explanation of the reasoning behind professional opinions or conclusions, and failure to use forensically relevant assessment tools (Joubert & Van Wyk, 2014; Malatji, 2012; Mnisi, 2012; Robinson, 2015; Roestenburg & Van Breda, 2003; Smith, 2014). Many legal practitioners also complain that Social Workers are inadequate witnesses, and that their lack of competence in the court adversely affects case decisions (Joubert & van Wyk, 2014; Malatji, 2012; Roestenburg & Van Breda 2003). Case reports are
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formulated vaguely or fail to communicate vital information, might not have intended procedural influence, or might even undermine the quality of the legal process (Pelisoli et al., 2015). When considering this information, it is clear that legal practitioners are of the opinion that there might be limitations in Forensic Social Work reports.
Joubert and Van Wyk (2014:486) state that in order for Forensic Social Workers to write admissible reports that are relevant in a Court of Law, it is important to understand the interrelationship between criminal law and Social Work as well as to consider the mentioned characteristics of legal discourse. Criminal law also stipulates the rules regarding the investigation of a suspected offence and the process that should be followed in court (Kleyn & Viljoen, 2002:100). To succeed in this, Forensic Social Work reports must be written according to the principles of the Law of Evidence and these Social Workers must at all times understand the mandate of the information or evidence required (Joubert & Van Wyk, 2014:487-488). These authors further state that in order for the forensic report to adhere to legal practitioners’ expectations, the Social Worker needs to illustrate in the report that the information in the report will assist the court in making a fair and just decision.
From the previous arguments it is evident that although Forensic Social Workers can be regarded as experts in a Court of Law, there is certain limitations in their reports. The researcher also found limited literature with regard to guidelines for Forensic Social Work report writing and Joubert and Van Wyk (2014:485) mention that there is no specific format or guideline for the writing of Forensic Social Work reports. This can be seen as a problem since Child Sexual Abuse is difficult to prove (Myers, 2011:388). Because of the latter, prosecutors and defence attorneys depend on Social Work experts as their most trusted professional allies to assist in Child Sexual Abuse litigation matters (Butters & Vaughan-Eden, 2011:63). One
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must thus bear in mind that the NPA only prosecutes prima facie cases or cases that have a reasonable chance of succeeding (Rademeyer, 2013). It is thus clear if the quality of a Forensic Social Work report is substandard, it will have a negative impact on the possibility of prosecution of Child Sexual Abuse. Zinn (2016:4) states that there can be myriad factors in the local decision to decline to prosecute Child Sexual Abuse cases, such as poorly compiled Forensic Social Work reports.
For the purpose of this research, the researcher wanted to focus on the perspectives of Presiding Officers and State Prosecutors regarding the content Forensic Social Work reports, as they are the ones who mostly make use of Forensic Social Work reports, and they are in service of the court. The researcher is a Social Worker employed by the Department of Social Development, but is stationed at the Mankweng Police Station Victim Empowerment Program (VEP) Centre in Polokwane and must testify in court on a regular basis. During such testimony, State Prosecutors would sometimes express their frustration with regard to the limitations of Forensic Social Workers’ reports. This issue is difficult to address since Forensic Social Workers write reports as they deem fit.
It is within this context that the researcher wanted to answer the following research question; “What are the perspectives of Presiding Officers and State Prosecutors on the expected content of Forensic Social Workers’ court reports?”
With the information at hand, it is clear that the court is of the opinion that Forensic Social Workers’ reports sometimes have certain shortcomings. The researcher could only find limited literature with regard to guidelines for Forensic Social Work report writing and Joubert and Van Wyk (2014:485) mention that there is no specific format or guideline for the writing of Forensic Social Work reports. Perspectives of Presiding Officers and State Prosecutors
