I.Introduction
Victim Position in Criminal Justice System
The rights to fair trial are fundamental to ensure that justice is done to every individual. In the criminal justice system the accused stand against the state, whereas the state has particular task to raise law and order. Imbalance position between state and the accused may evokes abuse of power from the state to the accused. Thus, by entailing accused his legal rights to defense in the proceedings can prevent the abuse of power from the state. Therefore, this stand in the criminal justice system is much more concern and it focus to protect the rights of the accused. The rules of evidence and other effort, to safeguard for accused rights are legitimate attempts to ensure that violations from state do not occur.
The purpose of criminal law enforcement is fair trial. Unfortunately, the concern on the fair trial disregard to the victim’s interests. Most of the victim’s rights during the trial are implicitly presented by the state. Therefore, ignoring the plight of the victim,[1] a major criticism often made on the criminal justice system, whereas, one of the purpose of the exertion of criminal justice system are to minimize victimization in the community through the trial and punishment of offenders. However, method used to minimize this victimization can often be harsh to victims.
Victims hold crucial role in the process of criminal law proceeding. They are usually considered as main prosecution witnesses. Victim plays role to “providing evidence in circumstances of the crimes, identifying the offender in court, and describing the injuries and losses sustained. If victims do not make statement to the police there is little chance of guilty plea and probably no prosecution.”[2] Therefore, victim’s evidence will often be crucial to the outcome of the case. This means they will probably undergo cross-examination by the defense and so together with his or her family and friends, must endure the stress associated with being a witness in a criminal proceeding and the public examination of his or her affairs that this entails.[3] Consequently prosecution process must cover and safeguard the interests of victims. These measures can assist in not unduly infringe their rights and interests. One among of the methods to overcome clash of legal rights between victim and accused depends on how rights of the victims are provided in various types of procedure or process on the criminal law and criminal justice system.
I.2 Necessity of the Rule of Procedure that Can Reduce Victim’s Trauma in Sexual Crime Prosecution
During the prosecution process, victim of sexual crime may decide not to cooperate with court since he/she is skeptical of the court’s ability to pursue an impartial and an unbiased justice. This skeptical arises from considering how the procedure may be employed to handle him/her, since the procedures for victims’ examination are sometimes embarrassing and dehumanizing.
The existence of “gracious” rules of procedure in the criminal justice system proceeding not only can help to reduce victim trauma but also can serve other several important judicial goals. Moreover, the high rate and occurrence of sexual crimes can be reduced if the impunity of the perpetrators becomes less pronounced through higher convictions and stronger punishment. The Judicial process may be ineffective if it is unable to give protection to the victim or victim’s family where it can be expressly found that there is intimidation from the accused. At the same time, during the criminal process if victim will be stopped to give testimony and also if the rules of procedures do not support victim’s interests, the judicial legitimacy may suffer as there will be no balance of protection between both victim and defendant. I.3. Research Issue
The legal systems around the world differ depending on their culture and history; each has different rules of procedures to protect victim of sexual crime. This paper will broadly explore the protection afforded to victim of sexual crime. The comparative study will be made between Indonesia as representative of the civil law country which embraces inquisitorial and United Stated as representative of the common law country which embraces adversarial system respectively.
Furthermore, the specific focus on this paper will be to explore how the rules of victim participation in sexual crime prosecution can be applied without infringing the rights of the accused.
II. Legal Discussion
II.1 The Rights of the accused
The International Convention on Civil and Political Rights (ICCPR)[4] states that:
“In determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing
To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”
According to article 14 of Human Rights Committee (HRC) evaluation, which is advocating on the right of the accused to confront a witness, does not include a right to direct confrontation between the two. The International Convention on Civil and Political Rights (ICCPR) provides minimum guidelines that fit with the framework for both civil and common law countries in guaranteeing accused rights.
The right to confront and examine witness is one of the accused rights that exist in many of different legal systems worldwide. In fulfilling the requirements of impartial and fair trial, then the challenge that remains is on how to create the balance between parties involved in the prosecution so as to make sure that all are given equal chances to exercise their legal rights and interests as guaranteed in the national laws and international human rights instruments like ICCPR.
II.2 Rules of Procedure
Despite of being guided by various rules as provided in the above mentioned laws, still victims find themselves surrounded with different fears when they are required to testify their experiences encounter, particularly those associated with sexual crime. Some of these fears come from in understanding a situation where what will happen when the perpetrators recognize their identity. This is because if perpetrators will recognize them, may injure their life security and that of their relative. Furthermore, the victims of sexual crime feel enormous shame and embarrassment when people around them in particular and the society in general identify that sexually they had been assaulted. This identification can be made through the media or publication of the trial. They are scared for further humiliation, double trauma and their sufferance may cause them to stop giving testimony.
Three main categories of protective measures for victim and witness can be distinguished in criminal trial prosecution process. These are:[5] (1) protection from the press and the public, which is also called confidentially measures; (2) protection from the accused, the same also known as anonymity measures; and (3) protection from retraumatisation
Measures to protect a victim from increased traumatisation or retraumatisation can be divided into the following four categories:[6] (1) measures that avoid face-to face confrontation with the accused; (2) measures which, among other things, restrict the question that may be posed by the parties; (3) measures that seek to limit the frequency of questioning; and (4) other measures that facilitate testimony by a witness or victim sexual crime such as having support persons attending the trial and controlling the manner and length of the questioning.
In order to stop possible threats of victims or witness, protective measures need to be taken. One means of abolishing these threats is by utilization anonymity measure. It must be understood that an anonymous witness is that one whose identity is kept from the accused and his/her counsel in order to protect the witness’s safety. There are various degrees of rules to safeguard victim’s anonymity. These include but not limited to accused to do not see the witness in the court; or through picture and voice alteration devices. Others include accused to do not be allowed to see and hear the real appearance and voice of the witness. Not only that but also other forms of anonymous testimony can be given through hearsay evidence.[7] However, granting full anonymity to a witness is highly controversial since it touches with the rights of the accused to a fair trial, particularly the right to examine the witness against the accused.
Judicial bodies in many countries have different requirements and their own rules to allow victim-witnesses anonymity such as under what conditions and what kind of reasons these requirements should be imposed. These requirements are being applied in order to create fair trial in defend victim’s rights and interests at the same time not violating the rights and interests of the accused. Therefore the examination of an anonymous witness in court should be left in the hands of the judges; in most cases, question raised by the defence team should be discussed with the witness through the mediation of the judge.
Confidentially measures employed are to guarantee that victim or witness’s identity is not revealed to the public or press. These measures include withholding of the victim’s name from the court’s public record (such as transcripts, order, decisions and judgments), the use of pseudonym for a victim throughout the proceeding; (usually by using letters and/or numbers); and prohibition of disclosing victim’s identity by any of the participants in the trial to a third party. Conducting proceeding in camera and presentation of testimony by electronic or even by using other special means are some of the measures used in confidential trial. These measures make an exception to the general rule that hearings will be held in public, and in case of video conferencing, testimony of a witness must be given in person in court. Such measures can not be considered to violate the rights of the accused as the accused and his/her defence team/counselors are aware of the true identity of the victim in due time before the start of the trial. In camera proceedings are generally not seen as violation of the accused’s right to a public and fair trial. The accused’s right to examine witness is retained in closed sessions, as only the public and press are excluded from the proceedings, not the accused and his defence team. It has also been held that the public’s right to information may yield to confidentiality when protection of victim and witness is at stake. The purposes of these measures are in order to protect the victim’s privacy. Besides that, live testimony by means of audio or video link technology may serve different purposes. Not only it be used as a measure to protect a witness’s identity from the public and the press, but also it can be invoked when it is physically impossible for a witness to come to court to testify.
III. Comparison of Rules of Procedure between Indonesian and US
III.1 Indonesian Rules of Procedures on Witness Anonymity, Confidentiality Measures and Protection from Retraumatisation
The protection for victim-witness in Indonesian criminal procedure code had never been regulated before. The rules that provide protection to victims are only related with the protection outside the trial. In referring to Indonesian criminal procedure code, there is only one article which specifically mention about victim’s protection. Article 229 provides that victim or witness, who gives testimony in every step of examination procedure, has a right to receive fund for reward. Even pursuant to the criminal procedure code, victim and witness who are not present in the court to fulfill their obligation to give testimony can be punished and get criminal sanction. From these two rules as mention thereon it can be concludes that the Indonesian statute for the protection of victim are relatively weak as one can compare with the United State of America as shown hereunder.
In 2006, Indonesian government enacted new legislation, namely Protection on Victim and Witness Act.[8] This act was enacted with the objective to provide adequate protection concerning to the witness and victim rights as also enshrined in international human rights laws which Indonesia is a party thereto.
According to this act, the victim is person who is injured physically, mentally or economically by criminal act. This person is protected in every step of criminal justice system. The purposes are to provide protection for victims and witness whenever they bring testimony in the crime prosecution process.
Furthermore, this act provides some new rules of procedure which are linked up with victim participation, protective and special measures in the crime prosecution process. Victim has rights to give testimony without his/her identity to be revealed directly in the court; he/she is allowed to testify under the written document with prerequisite that the same document must be signed in front of the judicial official or testimony can be performed and heard via electronic media or behind the screen.
Nevertheless, this legislation provides that where the victim does not give the testimony directly in the trial, there is an extraordinary procedure that may only be permitted under the following circumstances and requirements to give the testimony. These procedures include the importance of the testimony, analysis result from the expert (psychologist) of the victim, the degree of victim traumatic, and criminal trace record of the victim.
Based on the provisions expressly stipulated in the act, there are some contradictory rules which can be found therein. General principle and procedure to hold a criminal trial process are some of the contradictory rules. This is because in the consideration of legal evidence provided by victim and witness, the criminal procedure code declares their testimony admissible if it is given in proceeding of examination in the trial.
The protective measures related with confidentiality in the victim examination process only are held in a close trial which means that public can not access the process. On the other hand, criminal procedure code in Indonesia, mention that examination process in the court must be made public. However, there are exceptions to the general rules which provide that in case examination process involves morality issue (crime against sexuality) or the accused is a child the same examination may be conducted in camera. This means that consequently no body can access the process and the trial must be held in the closed trial, only judge, prosecutor, lawyer and defendant can access it. Publication through media related with the case only may be allowed to mention the initial name’s of the victim to cover their identity.
There are no specific rules on Indonesian legislation which are linked up with the limit- cross examination and rape shield provisions. Pursuant to article 165 of the criminal procedure code states that public prosecutor, defendant, lawyer through permission of the judge are allowed to ask question to the victim. The judge will decide whether the questions asked may be accepted or not, including the reasons of their rejection if the judge decide to ignore them. Moreover, article 166 provides rule which does not allow inquiring trapping questions to the victim or witness. Both of the articles can be used as basic principles to give limitation in cross-examination or special measures in order to protect victim from retraumatisation.
On the contrary, article 185 (6) (d) of Criminal Code Procedure, allowed judge to use morality, attitude, and the way of life of the victim as a standard when assess or examine the truthful of victim’s testimony. This rule contradicts with the principle that implied in the rape shields provisions.
III.2 United States Rules of Procedures on Witness Anonymity and Confidentiality Measures, and Protection from Retraumatisation
Grants of anonymity are less controversial in civil law countries as one may compare to common laws countries since the judicial process is not an adversarial one. In the civil law trials judge controls the whole process. They are not structured as in adversarial contest, which make it easier to accommodate the interest of victims at trial without disturbing the adversarial balance that is central to common law criminal trials. Like most legal issues in civil law countries a great deal of discretion is given to the judge in determining issue of witness anonymity. As one commentator observed in civil law countries “the general tendency is to rely on the skill, competence and experience of a professional judge.”[9]
In United States of America, there are no rules that assist in keeping victim’s identity during the trial process. As strictly mentioned in sixth amendment of United States Constitution, that this Constitution ensures rights of the accused to confront any witness. The confrontation clause of the Sixth Amendment guarantees the right of an accused in criminal prosecution to be confronted with the witness against him. The courts have found “means more than being allowed to confront the witness physically.”[10] The main and essential purpose of confrontations is to secure for the opponent the opportunity of cross-examination.[11] Courts in US are tremendously unwilling to infringe the rights of an accused to examine the victim-witness, thus they hardly ever give chance to any degree of victim-witness anonymity. However, some federal courts do not consider that the rights provided by Sixth amendment can be enforced totally. Some exceptional circumstances can be accepted to diverge from this norm. The exceptional condition such as the victim to be a child or someone with diminished mental capacity; testimony under pseudonyms, behind screens or with voice alteration, has been allowed.
In Coy v Iowa,[12] the Supreme Court found that it is unnecessary to reach appellant’s due process claim since his constitutional rights of face-to-face confrontation was violated. The US Supreme Court reversed the judgment of the Iowa Supreme Court and remanded the case for further proceedings for being not inconsistent with this opinion. In Ellis v United States, the court encourages that it is the rights of witness for their identity to be withheld from the accused (hide the real name, address and occupation).
The main thing that we can see from cases above which have been dealt in US legal system, is that the anonymity of victim-witness is rarely accorded to protect victim-witness in the court. The rules to allow victim anonymity are limited only in such kinds as hiding the identity (name, the address, occupation) of the witness from the accused. Giving testimony via circuit television or technology, behind the screen and written statement are not granted and are not allowed in adult cases. The exceptions are given by considering the age of the victim (for cases involving children).
Pursuant to the first amendment United States Constitution the publication of truthful information is protected. Therefore, there are no any prohibitions for journalist, media or news agencies to expose the identity of the victim of the sexual crime. Even though, the publication of victim’s identity is allowed and legal, most of the media corporation in United States agree and have made a non-disclosure corporate policy.
Most of countries, both in common and civil law system recognize the rule of rape shields provisions that there is prohibition to rising issue related with the victim’s past sexual history and general morality. To reduce victim trauma some courts also have rules to restrict some types of questions or give limitation on cross examination.
Rising issues concerning victim’s sexual behavior in the past often apply as evidence to show that victim’s attitudes are distrusted, have bad manners or have a tendency to consent in sexual intercourse. The assumption behind giving evidences related with the past sexual victim’s history is to make certain that victim agree and consent to have sexual intercourse or in other words there is no enforcement or it was not done voluntarily. The assumption is completely flawed and unreasonable since someone‘s credibility can not be judged from the past sexual history. Sexual habits are irrelevant to the assessment of victim’s credibility. A legitimate line of inquiry might be not whether the complainant is celibate but whether she is in the habit of making false allegations of sexual assault.[13]
Due to those consideration as mention above, most of countries both in common law and civil system recognize the rule of rape shields provisions that there is prohibition to rising issue related with the victim’s past sexual history and general morality, since through this question there are much more possibility the victim will be disgraceful and coerced to release the aspect of their private life that are not related with the case. Therefore, to reduce victim trauma some courts also have rules to restrict some types of question or give limitation on cross examination.
Most common law countries have enacted legislations that prohibit the defense to give evidences related with the past sexual history of the victim, including United States as a common law country. Commonly at federal level, the victim’s past sexual behavior is inadmissible if it was submitted as evidence. In United States, most of the states have operated and adopted this rules. The main purpose which wants to be reached by enacting the rape shields provision is to protect victim from further victimization and retraumatisation from the process of the legal procedure.
IV. Conclusion
In this study, it is concluded that, in general the criminal law system both in civil and common law countries provide possibilities and special measures in order to protect victims of sexual violence crimes. However in order to do so, the court should take into account such factors as realities of the crimes, the respectful treatment of victim of sexual violence in the proceedings, the seriousness of the crimes and the needs of the victim of sexual violence.
In Indonesia, pursuant to Criminal procedure code and Protection on Victim and Witness Act[14] the protective and special measure for victim of sexual violence is not clearly mentioned. These acts only regulate extra ordinary procedures that provide possibilities for the victim not to give the testimony directly in the trial. And it is only permitted under such circumstances and requirements; the importance of the testimony, analysis result from the expert (psychologist) of the victim, the degree of victim traumatic, criminal trace record of the victim. However based on the rules that are mentioned in the act of Protection of victim and witness, there is awareness from the legislative to ensure the rights of the victim.
Meanwhile, under the United States criminal law procedure, the possibilities to provide measures are relatively difficult to be applied. Victim anonymity is only granted in limited circumstances especially for cases whereby victim is a child. Since, it is strictly mentioned in sixth amendment of United States constitution that ensures the rights of the accused to confront any witness. In addition, pursuant to the first amendment of United States Constitutions the publication of truthful information is protected. Therefore, there are no prohibitions for journalist, media or news agencies to expose the identity of the victim of the sexual crime. Furthermore, the rule of rape shields provisions are recognized by the US criminal law procedure, thereby, the protection for victim from retraumatisation is guaranteed.
Considering the rights for fair trial, anonymity as measure can be granted without violating the rights of the accused, especially his/her right to examine the witness or to have the witness examined, when special criteria and guidelines are followed.
Another category of protective measure seeks to prevent further traumatisation of the rape victim giving testimony. Avoiding direct confrontation with the accused is one measure and can include of one-way closed circuit television, using screen in court or removal of the accused from the courtroom. Another avenue is giving testimony by mean of prior recorded testimony, which can avoid the victim to repeated testimony in court. The special evidentiary rules on sexual violence crimes restrict admitting consent and subsequent sexual conduct into evidence and therefore protect the victim of sexual violence from retraumatisation in court as well. Admitting such evidence would subject the victim-witness to unnecessary, humiliating questions, and may only be accepted in very limited circumstances. Cross examination need to establish in between of establishing the truth and respect for the victim. In general, it is paramount important that victim of sexual violence are treated with respect and their rights highly acknowledged.
[1]Simpson, Brian. Justice for Victim (Legaldate, July 1994,Vol 6, Issue 3)
[2] Stover, Eric. The Witnesses : War Crimes and the Promise Justice in the Hague (Philadelphia: University of Pennsylvania Press,2005),p. 24
[3] Simpson,Brian. Justice for Victim (Legaldate,July 1994,Vol 6,issue 3)
[4] Article 14(3)(e) of the Convention
[5] De Bouwer,Anne-Marie,Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR (Antwerpen: Intersentia, 2005),p. 235
[6]ibidem, p. 257
[7] Ibidem, p. 248
[8] Act no.13 of 2006
[9] Suscinki,Sarah. Witness Protection (www.nesl.edu/center/WCMEMOS/2002/suscin.pdf ),p. 17
[10] Ibidem,p. 13
[11] Ibidem,p. 13
[12] 487 U.S. 1012 (198 8) Appellant was charged with sexually assaulting two 13-year-old girls. At appellant’s jury trial, the court granted the State’s motion, pursuant to a 1985 state statute intended to protect child victims of sexual abuse, to place a screen between appellant and the girls during their testimony, which blocked him from their sight but allowed him to see them dimly and to hear them. The court rejected appellant’s argument that this procedure violated the Confrontation Clause of the Sixth Amendment, which gives a defendant the right “to be confronted with the witnesses against him.” Appellant was convicted of two counts of lascivious acts with a child, and the Iowa Supreme Court affirmed
[13] Fitzgerald,Kate. Problem Prosecuting and Adjudication of Rape and Other Sexual Assault under International Law (http://www.ejil.org/journal/Vol8/No4/art6.pdf) p. 5
[14] Ibidem, Act no.8/1981 and Act no13/2006
Victim Position in Criminal Justice System
The rights to fair trial are fundamental to ensure that justice is done to every individual. In the criminal justice system the accused stand against the state, whereas the state has particular task to raise law and order. Imbalance position between state and the accused may evokes abuse of power from the state to the accused. Thus, by entailing accused his legal rights to defense in the proceedings can prevent the abuse of power from the state. Therefore, this stand in the criminal justice system is much more concern and it focus to protect the rights of the accused. The rules of evidence and other effort, to safeguard for accused rights are legitimate attempts to ensure that violations from state do not occur.
The purpose of criminal law enforcement is fair trial. Unfortunately, the concern on the fair trial disregard to the victim’s interests. Most of the victim’s rights during the trial are implicitly presented by the state. Therefore, ignoring the plight of the victim,[1] a major criticism often made on the criminal justice system, whereas, one of the purpose of the exertion of criminal justice system are to minimize victimization in the community through the trial and punishment of offenders. However, method used to minimize this victimization can often be harsh to victims.
Victims hold crucial role in the process of criminal law proceeding. They are usually considered as main prosecution witnesses. Victim plays role to “providing evidence in circumstances of the crimes, identifying the offender in court, and describing the injuries and losses sustained. If victims do not make statement to the police there is little chance of guilty plea and probably no prosecution.”[2] Therefore, victim’s evidence will often be crucial to the outcome of the case. This means they will probably undergo cross-examination by the defense and so together with his or her family and friends, must endure the stress associated with being a witness in a criminal proceeding and the public examination of his or her affairs that this entails.[3] Consequently prosecution process must cover and safeguard the interests of victims. These measures can assist in not unduly infringe their rights and interests. One among of the methods to overcome clash of legal rights between victim and accused depends on how rights of the victims are provided in various types of procedure or process on the criminal law and criminal justice system.
I.2 Necessity of the Rule of Procedure that Can Reduce Victim’s Trauma in Sexual Crime Prosecution
During the prosecution process, victim of sexual crime may decide not to cooperate with court since he/she is skeptical of the court’s ability to pursue an impartial and an unbiased justice. This skeptical arises from considering how the procedure may be employed to handle him/her, since the procedures for victims’ examination are sometimes embarrassing and dehumanizing.
The existence of “gracious” rules of procedure in the criminal justice system proceeding not only can help to reduce victim trauma but also can serve other several important judicial goals. Moreover, the high rate and occurrence of sexual crimes can be reduced if the impunity of the perpetrators becomes less pronounced through higher convictions and stronger punishment. The Judicial process may be ineffective if it is unable to give protection to the victim or victim’s family where it can be expressly found that there is intimidation from the accused. At the same time, during the criminal process if victim will be stopped to give testimony and also if the rules of procedures do not support victim’s interests, the judicial legitimacy may suffer as there will be no balance of protection between both victim and defendant. I.3. Research Issue
The legal systems around the world differ depending on their culture and history; each has different rules of procedures to protect victim of sexual crime. This paper will broadly explore the protection afforded to victim of sexual crime. The comparative study will be made between Indonesia as representative of the civil law country which embraces inquisitorial and United Stated as representative of the common law country which embraces adversarial system respectively.
Furthermore, the specific focus on this paper will be to explore how the rules of victim participation in sexual crime prosecution can be applied without infringing the rights of the accused.
II. Legal Discussion
II.1 The Rights of the accused
The International Convention on Civil and Political Rights (ICCPR)[4] states that:
“In determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing
To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”
According to article 14 of Human Rights Committee (HRC) evaluation, which is advocating on the right of the accused to confront a witness, does not include a right to direct confrontation between the two. The International Convention on Civil and Political Rights (ICCPR) provides minimum guidelines that fit with the framework for both civil and common law countries in guaranteeing accused rights.
The right to confront and examine witness is one of the accused rights that exist in many of different legal systems worldwide. In fulfilling the requirements of impartial and fair trial, then the challenge that remains is on how to create the balance between parties involved in the prosecution so as to make sure that all are given equal chances to exercise their legal rights and interests as guaranteed in the national laws and international human rights instruments like ICCPR.
II.2 Rules of Procedure
Despite of being guided by various rules as provided in the above mentioned laws, still victims find themselves surrounded with different fears when they are required to testify their experiences encounter, particularly those associated with sexual crime. Some of these fears come from in understanding a situation where what will happen when the perpetrators recognize their identity. This is because if perpetrators will recognize them, may injure their life security and that of their relative. Furthermore, the victims of sexual crime feel enormous shame and embarrassment when people around them in particular and the society in general identify that sexually they had been assaulted. This identification can be made through the media or publication of the trial. They are scared for further humiliation, double trauma and their sufferance may cause them to stop giving testimony.
Three main categories of protective measures for victim and witness can be distinguished in criminal trial prosecution process. These are:[5] (1) protection from the press and the public, which is also called confidentially measures; (2) protection from the accused, the same also known as anonymity measures; and (3) protection from retraumatisation
Measures to protect a victim from increased traumatisation or retraumatisation can be divided into the following four categories:[6] (1) measures that avoid face-to face confrontation with the accused; (2) measures which, among other things, restrict the question that may be posed by the parties; (3) measures that seek to limit the frequency of questioning; and (4) other measures that facilitate testimony by a witness or victim sexual crime such as having support persons attending the trial and controlling the manner and length of the questioning.
In order to stop possible threats of victims or witness, protective measures need to be taken. One means of abolishing these threats is by utilization anonymity measure. It must be understood that an anonymous witness is that one whose identity is kept from the accused and his/her counsel in order to protect the witness’s safety. There are various degrees of rules to safeguard victim’s anonymity. These include but not limited to accused to do not see the witness in the court; or through picture and voice alteration devices. Others include accused to do not be allowed to see and hear the real appearance and voice of the witness. Not only that but also other forms of anonymous testimony can be given through hearsay evidence.[7] However, granting full anonymity to a witness is highly controversial since it touches with the rights of the accused to a fair trial, particularly the right to examine the witness against the accused.
Judicial bodies in many countries have different requirements and their own rules to allow victim-witnesses anonymity such as under what conditions and what kind of reasons these requirements should be imposed. These requirements are being applied in order to create fair trial in defend victim’s rights and interests at the same time not violating the rights and interests of the accused. Therefore the examination of an anonymous witness in court should be left in the hands of the judges; in most cases, question raised by the defence team should be discussed with the witness through the mediation of the judge.
Confidentially measures employed are to guarantee that victim or witness’s identity is not revealed to the public or press. These measures include withholding of the victim’s name from the court’s public record (such as transcripts, order, decisions and judgments), the use of pseudonym for a victim throughout the proceeding; (usually by using letters and/or numbers); and prohibition of disclosing victim’s identity by any of the participants in the trial to a third party. Conducting proceeding in camera and presentation of testimony by electronic or even by using other special means are some of the measures used in confidential trial. These measures make an exception to the general rule that hearings will be held in public, and in case of video conferencing, testimony of a witness must be given in person in court. Such measures can not be considered to violate the rights of the accused as the accused and his/her defence team/counselors are aware of the true identity of the victim in due time before the start of the trial. In camera proceedings are generally not seen as violation of the accused’s right to a public and fair trial. The accused’s right to examine witness is retained in closed sessions, as only the public and press are excluded from the proceedings, not the accused and his defence team. It has also been held that the public’s right to information may yield to confidentiality when protection of victim and witness is at stake. The purposes of these measures are in order to protect the victim’s privacy. Besides that, live testimony by means of audio or video link technology may serve different purposes. Not only it be used as a measure to protect a witness’s identity from the public and the press, but also it can be invoked when it is physically impossible for a witness to come to court to testify.
III. Comparison of Rules of Procedure between Indonesian and US
III.1 Indonesian Rules of Procedures on Witness Anonymity, Confidentiality Measures and Protection from Retraumatisation
The protection for victim-witness in Indonesian criminal procedure code had never been regulated before. The rules that provide protection to victims are only related with the protection outside the trial. In referring to Indonesian criminal procedure code, there is only one article which specifically mention about victim’s protection. Article 229 provides that victim or witness, who gives testimony in every step of examination procedure, has a right to receive fund for reward. Even pursuant to the criminal procedure code, victim and witness who are not present in the court to fulfill their obligation to give testimony can be punished and get criminal sanction. From these two rules as mention thereon it can be concludes that the Indonesian statute for the protection of victim are relatively weak as one can compare with the United State of America as shown hereunder.
In 2006, Indonesian government enacted new legislation, namely Protection on Victim and Witness Act.[8] This act was enacted with the objective to provide adequate protection concerning to the witness and victim rights as also enshrined in international human rights laws which Indonesia is a party thereto.
According to this act, the victim is person who is injured physically, mentally or economically by criminal act. This person is protected in every step of criminal justice system. The purposes are to provide protection for victims and witness whenever they bring testimony in the crime prosecution process.
Furthermore, this act provides some new rules of procedure which are linked up with victim participation, protective and special measures in the crime prosecution process. Victim has rights to give testimony without his/her identity to be revealed directly in the court; he/she is allowed to testify under the written document with prerequisite that the same document must be signed in front of the judicial official or testimony can be performed and heard via electronic media or behind the screen.
Nevertheless, this legislation provides that where the victim does not give the testimony directly in the trial, there is an extraordinary procedure that may only be permitted under the following circumstances and requirements to give the testimony. These procedures include the importance of the testimony, analysis result from the expert (psychologist) of the victim, the degree of victim traumatic, and criminal trace record of the victim.
Based on the provisions expressly stipulated in the act, there are some contradictory rules which can be found therein. General principle and procedure to hold a criminal trial process are some of the contradictory rules. This is because in the consideration of legal evidence provided by victim and witness, the criminal procedure code declares their testimony admissible if it is given in proceeding of examination in the trial.
The protective measures related with confidentiality in the victim examination process only are held in a close trial which means that public can not access the process. On the other hand, criminal procedure code in Indonesia, mention that examination process in the court must be made public. However, there are exceptions to the general rules which provide that in case examination process involves morality issue (crime against sexuality) or the accused is a child the same examination may be conducted in camera. This means that consequently no body can access the process and the trial must be held in the closed trial, only judge, prosecutor, lawyer and defendant can access it. Publication through media related with the case only may be allowed to mention the initial name’s of the victim to cover their identity.
There are no specific rules on Indonesian legislation which are linked up with the limit- cross examination and rape shield provisions. Pursuant to article 165 of the criminal procedure code states that public prosecutor, defendant, lawyer through permission of the judge are allowed to ask question to the victim. The judge will decide whether the questions asked may be accepted or not, including the reasons of their rejection if the judge decide to ignore them. Moreover, article 166 provides rule which does not allow inquiring trapping questions to the victim or witness. Both of the articles can be used as basic principles to give limitation in cross-examination or special measures in order to protect victim from retraumatisation.
On the contrary, article 185 (6) (d) of Criminal Code Procedure, allowed judge to use morality, attitude, and the way of life of the victim as a standard when assess or examine the truthful of victim’s testimony. This rule contradicts with the principle that implied in the rape shields provisions.
III.2 United States Rules of Procedures on Witness Anonymity and Confidentiality Measures, and Protection from Retraumatisation
Grants of anonymity are less controversial in civil law countries as one may compare to common laws countries since the judicial process is not an adversarial one. In the civil law trials judge controls the whole process. They are not structured as in adversarial contest, which make it easier to accommodate the interest of victims at trial without disturbing the adversarial balance that is central to common law criminal trials. Like most legal issues in civil law countries a great deal of discretion is given to the judge in determining issue of witness anonymity. As one commentator observed in civil law countries “the general tendency is to rely on the skill, competence and experience of a professional judge.”[9]
In United States of America, there are no rules that assist in keeping victim’s identity during the trial process. As strictly mentioned in sixth amendment of United States Constitution, that this Constitution ensures rights of the accused to confront any witness. The confrontation clause of the Sixth Amendment guarantees the right of an accused in criminal prosecution to be confronted with the witness against him. The courts have found “means more than being allowed to confront the witness physically.”[10] The main and essential purpose of confrontations is to secure for the opponent the opportunity of cross-examination.[11] Courts in US are tremendously unwilling to infringe the rights of an accused to examine the victim-witness, thus they hardly ever give chance to any degree of victim-witness anonymity. However, some federal courts do not consider that the rights provided by Sixth amendment can be enforced totally. Some exceptional circumstances can be accepted to diverge from this norm. The exceptional condition such as the victim to be a child or someone with diminished mental capacity; testimony under pseudonyms, behind screens or with voice alteration, has been allowed.
In Coy v Iowa,[12] the Supreme Court found that it is unnecessary to reach appellant’s due process claim since his constitutional rights of face-to-face confrontation was violated. The US Supreme Court reversed the judgment of the Iowa Supreme Court and remanded the case for further proceedings for being not inconsistent with this opinion. In Ellis v United States, the court encourages that it is the rights of witness for their identity to be withheld from the accused (hide the real name, address and occupation).
The main thing that we can see from cases above which have been dealt in US legal system, is that the anonymity of victim-witness is rarely accorded to protect victim-witness in the court. The rules to allow victim anonymity are limited only in such kinds as hiding the identity (name, the address, occupation) of the witness from the accused. Giving testimony via circuit television or technology, behind the screen and written statement are not granted and are not allowed in adult cases. The exceptions are given by considering the age of the victim (for cases involving children).
Pursuant to the first amendment United States Constitution the publication of truthful information is protected. Therefore, there are no any prohibitions for journalist, media or news agencies to expose the identity of the victim of the sexual crime. Even though, the publication of victim’s identity is allowed and legal, most of the media corporation in United States agree and have made a non-disclosure corporate policy.
Most of countries, both in common and civil law system recognize the rule of rape shields provisions that there is prohibition to rising issue related with the victim’s past sexual history and general morality. To reduce victim trauma some courts also have rules to restrict some types of questions or give limitation on cross examination.
Rising issues concerning victim’s sexual behavior in the past often apply as evidence to show that victim’s attitudes are distrusted, have bad manners or have a tendency to consent in sexual intercourse. The assumption behind giving evidences related with the past sexual victim’s history is to make certain that victim agree and consent to have sexual intercourse or in other words there is no enforcement or it was not done voluntarily. The assumption is completely flawed and unreasonable since someone‘s credibility can not be judged from the past sexual history. Sexual habits are irrelevant to the assessment of victim’s credibility. A legitimate line of inquiry might be not whether the complainant is celibate but whether she is in the habit of making false allegations of sexual assault.[13]
Due to those consideration as mention above, most of countries both in common law and civil system recognize the rule of rape shields provisions that there is prohibition to rising issue related with the victim’s past sexual history and general morality, since through this question there are much more possibility the victim will be disgraceful and coerced to release the aspect of their private life that are not related with the case. Therefore, to reduce victim trauma some courts also have rules to restrict some types of question or give limitation on cross examination.
Most common law countries have enacted legislations that prohibit the defense to give evidences related with the past sexual history of the victim, including United States as a common law country. Commonly at federal level, the victim’s past sexual behavior is inadmissible if it was submitted as evidence. In United States, most of the states have operated and adopted this rules. The main purpose which wants to be reached by enacting the rape shields provision is to protect victim from further victimization and retraumatisation from the process of the legal procedure.
IV. Conclusion
In this study, it is concluded that, in general the criminal law system both in civil and common law countries provide possibilities and special measures in order to protect victims of sexual violence crimes. However in order to do so, the court should take into account such factors as realities of the crimes, the respectful treatment of victim of sexual violence in the proceedings, the seriousness of the crimes and the needs of the victim of sexual violence.
In Indonesia, pursuant to Criminal procedure code and Protection on Victim and Witness Act[14] the protective and special measure for victim of sexual violence is not clearly mentioned. These acts only regulate extra ordinary procedures that provide possibilities for the victim not to give the testimony directly in the trial. And it is only permitted under such circumstances and requirements; the importance of the testimony, analysis result from the expert (psychologist) of the victim, the degree of victim traumatic, criminal trace record of the victim. However based on the rules that are mentioned in the act of Protection of victim and witness, there is awareness from the legislative to ensure the rights of the victim.
Meanwhile, under the United States criminal law procedure, the possibilities to provide measures are relatively difficult to be applied. Victim anonymity is only granted in limited circumstances especially for cases whereby victim is a child. Since, it is strictly mentioned in sixth amendment of United States constitution that ensures the rights of the accused to confront any witness. In addition, pursuant to the first amendment of United States Constitutions the publication of truthful information is protected. Therefore, there are no prohibitions for journalist, media or news agencies to expose the identity of the victim of the sexual crime. Furthermore, the rule of rape shields provisions are recognized by the US criminal law procedure, thereby, the protection for victim from retraumatisation is guaranteed.
Considering the rights for fair trial, anonymity as measure can be granted without violating the rights of the accused, especially his/her right to examine the witness or to have the witness examined, when special criteria and guidelines are followed.
Another category of protective measure seeks to prevent further traumatisation of the rape victim giving testimony. Avoiding direct confrontation with the accused is one measure and can include of one-way closed circuit television, using screen in court or removal of the accused from the courtroom. Another avenue is giving testimony by mean of prior recorded testimony, which can avoid the victim to repeated testimony in court. The special evidentiary rules on sexual violence crimes restrict admitting consent and subsequent sexual conduct into evidence and therefore protect the victim of sexual violence from retraumatisation in court as well. Admitting such evidence would subject the victim-witness to unnecessary, humiliating questions, and may only be accepted in very limited circumstances. Cross examination need to establish in between of establishing the truth and respect for the victim. In general, it is paramount important that victim of sexual violence are treated with respect and their rights highly acknowledged.
[1]Simpson, Brian. Justice for Victim (Legaldate, July 1994,Vol 6, Issue 3)
[2] Stover, Eric. The Witnesses : War Crimes and the Promise Justice in the Hague (Philadelphia: University of Pennsylvania Press,2005),p. 24
[3] Simpson,Brian. Justice for Victim (Legaldate,July 1994,Vol 6,issue 3)
[4] Article 14(3)(e) of the Convention
[5] De Bouwer,Anne-Marie,Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR (Antwerpen: Intersentia, 2005),p. 235
[6]ibidem, p. 257
[7] Ibidem, p. 248
[8] Act no.13 of 2006
[9] Suscinki,Sarah. Witness Protection (www.nesl.edu/center/WCMEMOS/2002/suscin.pdf ),p. 17
[10] Ibidem,p. 13
[11] Ibidem,p. 13
[12] 487 U.S. 1012 (198 8) Appellant was charged with sexually assaulting two 13-year-old girls. At appellant’s jury trial, the court granted the State’s motion, pursuant to a 1985 state statute intended to protect child victims of sexual abuse, to place a screen between appellant and the girls during their testimony, which blocked him from their sight but allowed him to see them dimly and to hear them. The court rejected appellant’s argument that this procedure violated the Confrontation Clause of the Sixth Amendment, which gives a defendant the right “to be confronted with the witnesses against him.” Appellant was convicted of two counts of lascivious acts with a child, and the Iowa Supreme Court affirmed
[13] Fitzgerald,Kate. Problem Prosecuting and Adjudication of Rape and Other Sexual Assault under International Law (http://www.ejil.org/journal/Vol8/No4/art6.pdf) p. 5
[14] Ibidem, Act no.8/1981 and Act no13/2006
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