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Child abuse: Righting the many wrongs
By Randima Attygalle
Sri Lanka was one of the first countries to ratify the UN Convention on the Rights of the Child (CRC) yet the number of cases of sexual abuse, child labour and various types of torture inflicted on children reported each year in the country is rising rapidly.

Recognizing the need for speedy justice in cases of child abuse, the Attorney General's Department has launched a Child Protection Unit to expedite them. The Unit headed by Deputy Solicitor General Palitha Fernando, includes four Attorneys-at-Law and Senior State Counsel Yasantha Kodagoda and Sarath Jayamanna acting as supervising officers.

"The system which prevailed up to August 2004, was for files of child abuse to come into the criminal division of the Attorney General's Department and for such cases to be handled in the manner that we'd handle any other criminal case. The lack of a special task force to handle cases of this nature resulted in a delay bringing the perpetrators to justice. Thus we felt the need for a special unit to handle the increasing number of child abuse cases," explained Mr. Fernando.

"With the establishment of the National Child Protection Authority and The Penal Code (Amendment) Act No. 22 of 1995, there was a more focused approach in the conduct of criminal investigations into offences against children, and in particular, offences having a sexual connotation. The Police also took heed and established a Women and Children's Bureau and separate desks at Police stations to handle complaints of this nature."

Explaining the procedure adopted in filing indictments, Mr. Kodagoda said the three parties- the victim, a parent or guardian or any other person could lodge a complaint of child abuse with the police. If the complaint gives rise to a 'B Report' (information report for arresting purposes) that will be forwarded to the Magistrate and he or she will then direct it to the Attorney General's Department. Upon receipt of such investigative material, the Attorneys-at-Law of the Child Protection Unit prepare a report which includes recommendations- whether to institute proceedings or not.

They will also attach a draft indictment, which will be forwarded to the supervising officers based on which they decide whether to institute criminal proceedings or not.

There are also instances when a case is pending before the Magistrate's Court and there is reference to a previous act of statutory rape (when the victim is under 16 years) , where once again the files are directed to the Attorney General's Department, where fresh indictments would be instituted.

"Once the investigative material is forwarded to the Attorney General's Department, the primary duty of the Attorneys-at-Law of the Child Protection Unit is to see under which offence of the Penal Code it falls into. For instance, in the case of rape, the age of the victim is important to determine if the offence is statutory rape. Under the provisions of the Penal Code (Amendment) Act No. 22 of 1995, if the victim is below the age of 16, her consent is immaterial. Medical evidence is vital in cases of rape and lacking such evidence, or when evidence is vague we are authorized to correspond with medical and other authorities concerned. In cases of incest, the relationship between the parties is important," explained Mr. Fernando.

Mr. Fernando believes there is increased willingness by both victims and parents to shed the so-called 'stigma' attached to child abuse and seek justice. " This is a gradual process and I think we are now on the correct track as we have come across several cases where the child-victim has insisted on complaining," he said.

Talking about the harassment children may face at the hands of school teachers, Mr. Kodagoda said that the concept of discipline is exploited by some teachers. "There is a thin line between abuse and discipline. Parents should be aware of the remedies they have before the institutions of justice."

In any case concerning children, a cardinal principle in law is the 'best interest of the child'. In keeping with this principle, there are instances when law enforcement bodies have to deviate from the technical aspect of law and give it a more sociological impact.

"We can't look at investigation material purely from a theoretical angle. In view of the need to balance and see things from a sociological point of view there are instances where though technically we ought to have indicted the suspect, we refrain from doing so, in the larger interests of society," explained Mr. Kodagoda.

There are cases, he said, where girls below 16 have had sexual intercourse with their lovers who later have been indicted. Later on, the courts have withdrawn indictments when the girls are happily married to the same men. In cases like this, the law takes into account the best interests of the girl, as imprisoning a man to whom she is married and perhaps has borne children will result in a breakdown of the social unit.

Talking about the technical problems encountered, Mr. Fernando said, " Unlike in many foreign legal systems, our code of professional ethics, does not permit us to interview or consult the victim of the crime either prior or during the criminal trial. I feel that in child abuse cases this should be changed. If we can interview the victim, it would reflect very positively on the final outcome of the case."

Even international bodies such as the International Criminal Tribunal of former Yugoslavia recognized the necessity to interview all the victims before leading evidence, Mr. Kodagoda pointed out. "There is a need to develop a special code of conduct in handling cases of this nature because we go to court only having studied the investigative material and it's very difficult to conduct the prosecution effectively relying purely on police statements," said Mr. Kodagoda.

Post Traumatic Stress Disorder is evident in many abuse cases. As a result, the victim undergoes a 'denial stage' where he or she would be unwilling to recall the incident. An incident of abuse is hard to erase from a victim's memory, thus a psychological assessment of the victim is necessary, with therapy and counselling. "Closed-court proceedings or in camera alone is not sufficient and our system has been a bit slow in appreciating what the field of psychology could do in criminal justice," said Mr. Kodagoda.

Ignorance and negligence on the part of parents can be identified as the root causes of child abuse. "When parents go on overseas employment leaving children with one spouse, or guardians, broken families, children interacting with young adults, school vans- all these make children vulnerable. Therefore our message is prevention is better than cure," said Mr. Fernando.

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