Clinical factors associated with rape victims’ ability to testify in court: a records-based study of final psychiatric recommendation to court

Abstract

Objective: A rape victim may encounter professionals in both the health and the legal systems. Unanswered questions remain about clinical factors associated with a rape victim's ability to testify in court, and the quality of care offered to rape victims. The objectives of this study were thus to determine the clinical factors that are associated with a rape victim's ability to testify in court, as well as to undertake a preliminary exploration of the referral system between the court and the mental health services. Method: A retrospective study was conducted of rape victims referred by the court (n=70) to be assessed psycho-legally by psychiatrists. Rape victims who were recommended as able and those recommended as unable to testify in court were compared with regard to their clinical characteristics. Results: Thirty-seven (53.6%) victims were recommended as able to testify and 32 (46.4%) victims as unable to testify in court. Victims from rural areas and victims with severe mental retardation were statistically significantly more often found to be unable to testify in court. Almost half (49.2%) of the victims were referred by court for first assessment within six months of being raped. Most (63.5%) victims were assessed for the first time within one month of being referred. Conclusion: The decision about a victim's ability to testify should not be based solely on the two statistically significant variables but, rather, individualised. Optimal mental health and legal services should be offered to rape victims. Further studies are required in assessing the collaboration between the health and legal systems.

Intellectual disability rights and inclusive citizenship in South Africa: What can a scoping review tell us?

“…Yet in cases of sexual violence perpetrated against PWID, the burden to prove competency that consent was refused is on the survivor with ID (Pillay 2008 , 2012a , 2012b ). Despite the survivor’s ability to give an account, legal determination of capacity to testify against the perpetrator is ultimately out of the survivor’s hands and depends on results of mental health examinations (Phaswana, Van der Westhuizen & Krüger 2013 ; Pillay 2008 , 2010 , 2012a ; Pillay & Kritzinger 2008 ; Pillay & Sargent 2000 ). Augmentative and alternative communication can enable courts to consider various forms of non-conventional proof of capacity and competence to give testimony (Bornman et al 2011 ).…”

“…We appreciate that sexual assault cases involving complainants with ID challenge the South African investigative and judicial systems (Calitz 2011 ; Pillay & Kritzinger 2008 ). Decisions about an ID survivor’s ability to testify should not only depend on measures of intellectual functioning but consider self-determination as well (Phaswana et al 2013 ). Appropriate mental health and legal services for ID rape survivors can aid justice and equality under the law (ss9.1 and 9.2) (RSA 1996 ).…”

“…A finding of intellectual impairment need not summarily disqualify one from testifying, because defendants with comparatively better adaptive than intellectual functioning can be triable (Calitz et al 2007 ; Pillay 2012a , 2012b ). The disenfranchising South African ‘unsound mind’ aphorism is again criticised, because PWID are not automatically without capacity (Combrinck 2014 ; Phaswana et al 2013 ).…”

Rape victim assessment: Findings by psychiatrists and psychologists at Weskoppies Hospital

“…In a recent study, Phaswana et al [15] found in their sample of rape victims referred for evaluation by the court that 53.6% could testify in court and 46.4% were unable to do so. In addition, they found two significantly associated variables associated with the victims' ability to testify, namely the residential category of the victim and the level of mental retardation of the victim.…”