Anita’s stepfather started raping her when she was 11, and only stopped after she reported him when she was 19. But her nightmare continues, even though she is now a teacher in another state. Her court case is still ongoing after three years, and she has been recalled four times to repeat details of her rape.
Her stepfather has also paid stalkers to harass her, so she continues to live in fear. As she has kept her case a secret at her workplace for fear of stigma, it is also difficult to explain her absence from work to attend court hearings.
Carrying on with the trial has taken a severe toll on Anita, who has been diagnosed with depression.
But she has persisted in making sure her stepfather pays for his crime because she has had good support from Women’s Centre for Change (WCC), a Penang-based NGO that helps abused women and children.
The Investigating Officer (IO) had also ensured that Anita would not encounter her stepfather or third parties during the trial, protecting her from the parking lot to the courtroom. She was also accompanied in a separate waiting room while waiting for her turn in court. The DPP (Deputy Public Presecutor) also arranged for the use of a whiteboard as a screen in court during the victim and her mother’s testimony so that they would not be intimidated by her stepfather.
But such support is not consistently provided to victims. The fear of being shamed by society and disdained by authorities has discouraged most victims of sexual and domestic abuse from even speaking up or reporting their case.
And when they do lodge reports, only about a third of victims of sexual assault and domestic violence will ever get their day in court. Less than 10% of them will see the conviction of the perpetrators, which means that wife beaters, child molesters and rapists largely go scot-free.
“Our research into sexual crime cases in Penang, published in 2009, showed that almost half of those cases that go to court result in a discharge not amounting to an acquittal verdict (DNAA). In many of these DNAA cases, the victims drop out of the trial process.
“We were shocked. Not only were the chances of getting a case into court extremely difficult, but to have victims drop out at the pretrial or the trial stage seemed an appalling travesty in the justice process. It was simply unacceptable,” says Women’s Centre for Change (WCC) president Mariam Lim at the recent launch of the Proceedings of the National Consultation on “The Rights of Vulnerable Witnesses in Court”.
In a video documentary, WCC’s clients share the difficulties they face in getting justice. They recount their anxieties; from not knowing the court process to being intimidated by badgering lawyers to being stretched to their limits by a prolonged trial. A father laments that his nine-year-old daughter has been in and out of court for two years, and wants to know why protecting his child is not a priority.
Recognising vulnerable victims’ need for support, WCC has actively supported them through the criminal justice process, accompanying them to the police station, hospital and court.
They have also published a guide book called Surviving Court and a video series called Menghadapi Proses Mahkamah (Facing the Judicial Process), which are available online.
The NGO has also conducted training on domestic violence, sexual crimes and the rights of vulnerable witnesses with stakeholders such as the police, court officials and lawyers. They also hold regular dialogues to address victim support issues in court.
WCC also works with lawyers to hold watching briefs for their clients in court.
But there was still a need to have a more systematic approach that involves all stakeholders. So, in 2015, WCC held the inaugural National Consultation on the Rights of Vulnerable Witnesses in partnership with the Bar Council and Unicef to raise awareness on the importance of victim advocacy in courts and to push for a national victim support system. Among those who participated in this consultation were members of the judiciary and Deputy Public Prosecutors from every state in the country. Other stakeholders such as the police, the relevant ministries, Attorney General Chambers, Legal Aid Bureau, the Judicial and Legal Training Institute (ILKAP), and NGOs were also consulted.
Among their recommendations are the implementation of an effective and efficient victim support system, the appointment of victim advocates, training to sensitise personnel in the criminal justice system, monitoring the victim advocacy system and holding inter-agency dialogues.
One of the issues identified is the lack of a legal definition of vulnerable witnesses. In Malaysia, the definition used is based on international standards.
“The definition used for vulnerable witnesses include persons under 18 years of age, victims of sexual crime or domestic violence, persons suffering from mental or physical disability/disorder and persons with significant impairment of intelligence and social functioning,” says Lim.
At the Proceeding’s launch, Human Rights Commission of Malaysia (Suhakam) commissioner Datuk Mah Weng Kwai stressed on the importance of protecting the vulnerable.
“When there is mistreatment of vulnerable persons after violence has occurred, we are depriving them of their rights to human dignity. This is simply unacceptable.
“We must not let people who seek justice and protection from the criminal justice system, be further punished by the very system they seek recourse and assistance from,” says the retired Court of Appeal Judge.
In the two years since the National Consultation, there has been progress in protecting vulnerable victims and witnesses, namely the passing of the Sexual Offences Against Children Act 2017 and a special court to try sexual crimes against children. This has demonstrated that Malaysia has the capacity to provide the facilities and procedures to protect vulnerable victims, especially with strong political will.
Mah however stresses that reforms to protect vulnerable victims and witnesses involve much more than structural changes to a courtroom … it’s also about “ensuring a sensitised judiciary; skilled prosecutors; and more ethical defence counsel. All the crucial stakeholders must move in tandem to make legal processes more just, and create a sensitised environment in court.”
A roundtable discussion was held after the launch of the Proceedings to take stock and map out what needs to be done in the quest for a victim support system.
“The roundtable discussion charted some of the steps taken by the various stakeholders in addressing witness vulnerability in the criminal justice system. It was clear that the stakeholders saw the importance of addressing the vulnerability of victims/witnesses in the criminal justice system and the need to have comprehensive and effective victim support services.
“There was much discussion over the definition of vulnerable witnesses, the need for sufficient officers who are trained for the job, the need to ensure facilities are standardised and accessible throughout the country, the need for proper standard operating procedures which involve all the different stakeholder roles so as to ensure comprehensive support of a witness, from the point of reporting to the appeals stage,” says WCC’s programme consultant Dr Prema Devaraj.
There was also an acknowledgement of the need to extend victim support services from children to include adult witnesses who could also be vulnerable.
Dr Prema adds that the launch and the roundtable discussion helped to further consolidate the work done by WCC, the Bar Council and Unicef on victim support services and vulnerable witness advocacy in court. The agencies present were supportive of the rights of vulnerable witnesses in court and were open to having training to sensitise their personnel on the issue.
The launch also introduced Suhakam as a new partner in this advocacy.
“Suhakam has offered to help bring the issues raised at the roundtable to both the Prime Minister’s Department and the Ministry of Women, Family and Community Development for consideration and possible action,” shares Dr Prema.
Supporting the vulnerable
Below are the recommendations to enhance the rights of vulnerable victims and witnesses.
1. Standard operating procedures
Focus must be on professionalism and sensitivity, in order to bring the best evidence before the court. Services should be tailored towards systematic referrals, protection and continuous support throughout the entire criminal justice process. All personnel must be able to apply special measures and guidelines that are suited to the needs of the victims or witnesses.
2. Compulsory and consistent training
All criminal justice agencies and institutions must have training modules that are victim-centric. The police and protection officers with the Social Welfare department need this training as they are the main enforcement officers handling victims. Inter-agency joint trainings are also needed.
3. Victim’s fund
Similar to legal aid, this proposed fund should go towards all costs to meet the needs of vulnerable victims and witnesses, from post-incident to post-trial treatment and recovery. As a start, it is proposed that the Legal Aid Department expands its ambit to represent vulnerable victims such as abused women and children in court. This also covers conducting watching briefs and acting as counsel to obtain protection orders.
4. Expanding beyond Klang Valley
Focused court support projects should also be initiated and expanded to areas outside the Klang Valley, using standard operating procedures.
5. Monitoring victim advocacy
A multi-agency and NGO-inclusive monitoring body should be set up to make continuous dialogue and due dilligence in victim advocacy a reality.