A child might be too scared to report that s/he was sexually abused. S/he might think that nobody will believe him/her because there is no-one else who saw what had happened to him/her or that s/he took too long to report the sexual abuse. However, this is not always the case and the protection of a child is a serious matter in court. - Ganga v S
Facts of the case:
- Lucy (11 years old), Sally (11 years old) and Mary (9 years old) were staying in the same area as the appellant, Malcolm Ganga (“Ganga”), and visited his house regularly. The three girls looked up to him as a father figure; their parents also knew him well and trusted him.
- On separate occasions, Ganga sexually abused the three girls by raping Lucy and sexually violating Sally and Mary.
- Lucy told her friend that she was raped by Ganga the day after it had happened, which led to Lucy’s father being made aware of this. Sally told her mother that she was sexually violated after it happened.
- Mary did not tell anyone that she was sexually violated, as she was frightened that Ganga would hurt her if she did. However, after Lucy and Mary’s sexual abuse came to light and being threatened by her mother with a hiding, she told her mother what had happened.
- Ganga was criminally charged for sexually abusing the three girls and the Magistrate’s Court (“MC”) found that he was guilty (“convicted”) of an offence and sentenced him to life imprisonment.
- Ganga appealed to the High Court (“HC”) against his conviction and sentence on the basis that the State did not prove his guilt on the following grounds:
- the evidence that was provided was that of a single witness, meaning that there were no eyewitnesses to confirm the evidence of the three girls;
- that Lucy did not immediately tell her father of the sexual abuse; and
- the evidence of Mary was not reliable due to her only mentioning what happened after her mother threatened her with a hiding.
What the court said:
- As a general rule, the evidence of a single witness will not always be enough to prove a person’s guilt. However, the Criminal Law (Sexual Offences and Related Matters) Amendment Act (“Act”) provides that the evidence of a victim of sexual abuse (“complainant”) may be enough to prove a person’s guilt, due to the nature of the offence, for example, there will generally not be eyewitnesses when a person is being sexually abused.
- The Act also provides that a court cannot make any negative conclusion from a delay between the date on which the sexual abuse occurred and the date when it was reported.
- It is also a general rule that a complainant must willingly report (tell another) of the sexual abuse without being influenced by any other person.
- However, in certain matters where a child is a complainant, a parent may have to guide a child on reporting the sexual abuse in order to obtain the truth of what had happened. This will depend on the specific circumstances of every matter.
- The minimum sentence of life imprisonment must only be applied in the most serious cases.
- The manner in which Lucy reported the sexual abuse does not negatively impact her evidence. There is no general rule that the complainant must report sexual abuse immediately and certain factors can be applicable that give rise to a delay for the report, such as fear of what could happen if it is reported.
- Due to the young age of Mary, the fact that her mother threatened her with a hiding to tell the truth can be seen as a form of guidance and did not mean that she reported the sexual abuse unwillingly.
- The HC held that the evidence of the three girls could not simply be ignored on the basis that they were single witnesses to the sexual abuse; the MC was correct to convict Ganga.
- Sexual abuse, such as rape, is a very serious offence and should be severely punished. However, the sexual abuse committed by Ganga does not justify a sentence of life imprisonment. The HC held that the sentence of life imprisonment must be substituted with a sentence of 15 years’ imprisonment.
Kindly note that Lucy, Sally and Mary are fictional names to protect their real identity.