Stop abuse now

Ruwini JAYAWARDANA

We have heard of fantasy stories or real life incidents that are either too good to be true, rags to riches tales or occurrences which are so full of suffering and human misery that we have a hard time comprehending its reality.

A majority of child abuse stories fall into the last category. Every year tales of child victimisation are splashed across newspapers or reported in the news generating shock waves across the society in the island.

UNICEF Child Protection head Caroline Bakker states, "Case delays lead to the further victimisation of those children who have already suffered too much because of abuse and exploitation. Children caught up in the lengthy justice process are voiceless, will lose out on the precious years of childhood and have no means of redress for their injustice. Meanwhile their offenders remain free and continue to commit crimes against children with impunity."

As a result UNICEF Sri Lanka has proposed a plan to bring down the time duration for justice for children in courts. The programme is developed in collaboration with the Ministry of Justice, Attorney General's department and Police.

Children are brought to courts for different reasons. One is for care and protection. This may be because a child is abused and cannot remain in the same environment as he or she had been living in before. Another reason as to why children are called before the court is if they themselves are perpetrators of crimes.

"You do not normally convict a child because they are individuals who can be corrected. You send them to rehabilitation for this purpose. A child could also be an eye-witness to a crime. Therefore he or she is summoned to court to give evidence against for the case," UNICEF Child Protection Specialist Dr Hemamal Jayawardena explained adding that the police will not entertain a complaint related to a child if he or she is less than eight years.

"A court case could be conducted against a child who is between eight and 12. The court would decide whether to prosecute the child or decide if the incident occurred because of the child's immaturity. A liability of a case against a child above 12 is perceived in the same manner as that of a case against an adult but if the child is found at fault, he or she will not be sent to prison if he or she is under 16. They are sent to certified schools to learn from their mistakes. However those above 16 could be jailed though he or she might come under the School for Youthful Offenders under the Prisons Department," he said. Since the age limit in which a case could be conducted against a child is low, the Justice Ministry is considering raising it by several more years. "Though the Judge may release the child, the fact that the child has to go through the police is an issue," he stressed.

Cases concerning children for care and protection purposes are on magistrate court level. The decision is normally attained in three or four months. The second step in such cases is to prosecute the adult responsible for the actions against the child. Such matters are referred to the High Court.

Court cases

One third of the cases in High Court is related to children. These cases usually drag on for a long span. The child is a victim as well as a witness in this situation. A recent research done by the Forensic Medicine Department of the Faculty of Medicine in Kelaniya University showed that out of 110 cases studied 78 percent were on alleged sexual abuse. Around 52 percent belonged to the adolescent age group (12 - 18). Around 74 percent of cases were seen within 24 hours of issue of MLEF but 5.5 percent were seen after seven days. 56 (51 percent) cases examined did not receive summons/request from a relevant authority indicating that either the cases were settled in the police or no further investigations done. Around 80 percent of requests for MLR were sent within three months. Taken to summons/request a report by the relevant authority was 17 months while to receive a summon from the High Court was 50.6 months (4.2 years). The time taken to give medical evidence was 62.5 months (5.2 years) from the day of the examination.

Dr Jayawardena notes, "I recently gave evidence in court for a case which had been pending from 1995. These cases drag on for years. A victim of a rape allegation will not be able to put the experience behind him or her and enter a new life because he or she is summoned to court. This is also a form of secondary victimisation for the child because he or she is not given the chance to move on. The child is made to relive the trauma of an experience which dates years back."

The child becomes a victim by the abuser, eventually he or she has to tell the story to the police. In between he or she is exposed to questioning by various people before approaching the authorities. Later he or she has to repeat the details of the experience to the doctor and the magistrate. It does not stop at that. Years later the child is called to courts again to revive his or her memory of the experience.

"We do not take up the case for the interest of this particular child who had been victimised but to send a message to the society that perpetrators will be caught and punished. Since this is not happening due to the cases being dragged on without a verdict we decided to take steps into shortening the period of trial," Dr Jayawardena said.

The team launched their first pilot project in the judicial zone of Gampaha and expanded it to Polonnaruwa. Later they took the programme to Anuradhapura. Gampaha was chosen mostly for convenience because it is close to Colombo but Anuradhapura and Polonnaruwa have a high rate of child abuse cases.

Several sectors

"The delays can be divided into several sectors: pretrial, AG's department and trial. Pretrial involves the police conducting investigation, recording statements, putting the facts in order, deciding to proceed with the case and getting reports across. Such delays are due to lack of knowledge of the police and not being able to obtain reports in time. With time passing the interest fades as well as the ability to obtain evidence and information too becomes difficult. That is why we decided to train the police and develop a system for those working in the AG's Department to expedite the delays of such cases," Dr Jayawardena said.

Childhood is the best part of a human being's life. You cannot give it back to a child once you have taken those years away from him or her. The damage is irreversible. We all have a role to play in not denying the best part of the life of a human being.

The team has developed a means of identifying such cases by accommodating the data in a file with a yellow sticker. Within 24 hours the OIC of the police should send a basic note of the procedure of events to a Deputy DIG and AG's Department. Within one month the data should be obtained and sent to the AG's Department. If the file does not reach them, they will check up on the delay.

AG's department has to file or release the suspects within one month. Since the suspect needs to be charged beyond any reasonable doubt that he or she committed the action at the High Court, the evidence should be intact. If you know that the case will be a failure, the AG's department would not pursue the matter. There have been many such unresolved cases in the pipeline which have no basis and had been pending for years.

"These have to be handled by State Counsels. There is carder for state counsels. We cannot put money and get them. We can only get them assistants to do the legwork. Attorney General Shanthi Eva Wanasundara is very supportive towards the project," Dr Jayawardena expressed.

Trial delays occur because of the case getting postponed. Due to this the suspect, witnesses and other evidence cannot be found. However if the delays in the pretrial and AG's department is solved, these delays will automatically be solved. The judges are also requested not to postpone the case and to call these cases first for hearing and change their attitude towards child related cases. "We started training programmes with the judges even before the pilot project. This created the environment to incite the project. We have a lot of people who back this programme," he said.

Speaking to 'Daily News Punch', AG's Department Solicitor General Yasantha Kodagoda said that they have been practising the new incentive for around two and a half months. "The AG's department, Justice Ministry, Police Department and Health Ministry work together in this programme. We look to achieve two primary objectives though this system: expedite the passage of cases of child abuse through the criminal justice system and to prevent or minimize secondary victimisation of the child.

The incentive took off on October 15. We will be expanding the system to Jaffna, Badulla, Hambantota and Kurunegala in early and mid 2012. If the first pilot project proves to be a success, we hope to expand it island wide," he said.