“If a situation arises where the society, government or the law isn’t able to protect a child, and that child
gets subjected to abuse, then the criminal justice for that child should take place successfully, lawfully and quickly,” said Yasantha Kodagoda, President’s Counsel and Judge of the Supreme Court in a discussion held last week by the Rotary Club of Colombo Metropolitan on the topic of ensuring child protection through the successful dispersal of
criminal justice.
Ensuring conviction of the guilty and acquittal of the innocent
Kodagoda went on to explain that a successful criminal justice system is considered as one of the most important factors when it comes to child abuse. “The primary objective of any criminal justice system is to ensure the conviction of the guilty in terms of the law and acquittal of the innocent.” According to him, some basic elements should be completed for criminal justice to take place successfully. The most pivotal among them is the rule of law. Therefore the first step of the criminal justice process which is the criminal investigation process should also happen lawfully.
"It’s very important to remember that the investigating officials should be sensitive when working with the victimized child, without subjecting the child to any other trauma or abuse"
Criminal investigations outside the rule of law with the intention of convicting anyone of the crime are investigations that go against the law. It’s very important to remember that the investigating officials should be sensitive when working with the victimized child, without subjecting the child to any other trauma or abuse. We also shouldn’t forget that even suspects have their human rights. Therefore the investigation process should take place lawfully and according to the rules of justice without inflicting any brutal treatments on them. When the Attorney
General gets the investigative reports, there’s a lawful duty under the common law for the Attorney General to look at these investigative material subjectively and in a semi-judgmental manner and give out the suitable prosecution if a criminal offense is revealed.
"The primary objective of any criminal justice system is to ensure the conviction of the guilty in terms of the law and acquittal of the innocent - President’s Counsel and Judge of the Supreme Court Yasantha Kodagoda"
The duty to initiate a criminal case and end it forthwith is highly important for judges. But unfortunately because of the amount of cases in the court and the professional workload that the lawyers of the defendants have, the situation of not being able to commence daily trials has arisen. “This is a severe problem,” says Kodagoda. “By prolonging a case for months, the only party that benefits from it is the perpetrator who committed the offense. If a case was filed against an innocent suspect, it’s an injustice for that person as well. And it’s obviously a serious injustice and disadvantage for the victimized child.”
Prison time, compensations and the need for follow-ups
Priyani Abeygunawardene, State Counsel, joined the conversation saying that the fulfillment of justice itself is not enough but should be seen as well. “We can mention the punishment given to the perpetrator at the end of the trial,” she explained. “There are two main intentions of a punishment. One is to keep the perpetrator away from people for a period of time for the benefit of the society and the second is to rehabilitate the said perpetrator.” When taking child abuse prosecution into focus, there’s a fixed minimum imprisonment according to the penal code, which means that our legislative has a serious stance on child abuse, she said.
"When taking child abuse prosecution into focus, there’s a fixed minimum imprisonment according to the penal code, which means that our legislative has a serious stance on child abuse"
According to the penal code, if a sexual activity has happened with a child younger than 16 yrs even with her consent, it is still considered as child abuse since the law doesn’t consider a child less than 16 yrs as someone who is able to give consent. If the victim of sexual abuse is under the age of 18, the perpetrator should serve prison time of no less than 10 years and no more than 20 years. And if the said sexual abuse has taken place with a girl under 16 years of age with her consent and the perpetrator is under 10 years old, then they can give a prison time of less than 10 years. “I would like to mention that our judiciary has developed this process and is taking place in a wider scope in the high courts,” said Abeygunawardene.
"Children and women” are the two most vulnerable groups targeted for abuse - Senior DIG Ajith Rohana"
“According to the United Nations Convention of the rights of the child, we should do everything for the greatest good of the children.” If the sexual abuse has taken place with the consent of the victim under 16 yrs old and if the perpetrator admits to be guilty, then the judiciary would decide to give the accused a suspended sentence and to the victim, a compensation. If it’s a Magistrate Court, the maximum compensation given is Rs.100,000. And according to “The Assistance to and Protection of Victims of Crime and Witnesses Act’’, it is also mentioned that a compensation spreading up to Rs. 1 million can be given to the victim’s party. If certain compensation is decided to be given to the victim and if the perpetrator isn’t paying it, it can be acquired in the form of a fine, with an alternative imprisonment. Here the prescribed alternative imprisonment should be one fourth of the maximum imprisonment time that criminal offense has to offer.
With prolonged criminal trials, the biggest problem is for the victim who will face obstacles in securing his/her justice. Situations are also likely to change as the victim’s party would express hesitation to come to court. Therefore as mentioned before, it’s prejudicial for the victim’s party. Normally after a trial is over, the situation of the victim or the follow up of the perpetrator is not done. Hence a suitable mechanism for this is needed as well.
Child-friendly police stations and court procedures
Ajith Rohana, Senior Deputy and IGP attorney, stated that “Children and women” are the two most vulnerable groups targeted for abuse. The Police Women and Children’s Bureau which was established 25 years ago has an idea about initiating separate establishments for children and women and separate sectors for investigation and prevention. He went on to explain that they have already appointed a separate deputy investigator for the prevention of child and women abuse and that section is under development at the moment.
“Especially at moments when children become suspects, it is necessary to handle them in a non-violent manner,” he said. OICs shouldn’t keep child suspects overnight at the police station. They should finish the investigation quickly and make plans to station the child in detention centres through the judicial system. If it’s necessary to keep the child overnight, he highlighted that there should be at least two women officials with the child.
“Don’t put handcuffs on children,” he said. “This child might be a bad mannered child who has committed a criminal offense but we should work with them all while respecting their rights as children. Relevant and proper methods should be followed while producing children in court.”
"Just as it is important to direct child victims to psychiatric guidance, it is also important to direct the perpetrators for psychological evaluation too"
Ajith Rohana also asserted that according to the code of criminal procedure, if a child in between 12-14 years commits a crime, they should be produced in front of a multi-subject committee. Therefore OICs and the OICs of child and women bureau should remember not to arrest a child suspect between the age of 12-14. In case if something like this happens, if the parents of the child agree, they should be produced to the multi-subject committee. And if they don’t agree, they should be taken to court and directed to the multi-subject committee through the court. This is a committee of three people: the judicial medical officer of the area, a child psychiatrist and a psychologist. If this committee affirms that this child’s mind is mature enough to do this certain crime, then we can arrest the child and produce him/her in front of the court.
A National Sentencing Policy
Attorney-at-law Chaminda Athukorala, expressed his point of views on this topic saying that children often experience powerful traumas after incidents such as child abuse. Therefore, in the face of police questioning and court appearances, their memories can waver. A fair trial is necessary for criminal justice and it begins by producing a charge sheet and the relevant accusations to which the accusation is directed. Since the Attorney General produces accusations from the evidence based on the investigation, the investigative officers have a vital responsibility to get the facts correct during the investigation and pave the way for a fair trial.
"another vital factor is providing psychological counselling to children from the very beginning at the police station - Attorney-at-Law Milani Salpitikorala"
“There are people in this society who abuse children as a habit and it is necessary to separate them from the society,” he said. “Having a specific national sentencing policy is really important since punishment policies vary from one judicial system to another.” In some of the child abuse cases that they have seen, some perpetrators pay compensation, close the case and go home while in some other places, a perpetrator who has committed the same crime would be serving a 10 year imprisonment. There can be two perpetrators who went through different punishments and it’s not good for the criminal justice system.
The lawyer suggested that the best solution for this is to discuss with legal professionals and judges of the court and implement a national sentencing policy so that any child abuse perpetrator no matter where they are from, would face the same punishments and in turn ensure justice in child abuse cases.
Psychological counselling and awareness
“What normally happens is that once a child victim is identified, he/she is taken to rehabilitation centres and restricted there while the perpetrator or suspect is granted bail and released back to society”, said Milani Salpitikorala, Attorney, Child Protection Force.
It is well known that there’s the responsibility of spreading awareness to the public, which already exists in our system. We should look at how to successfully and effectively operate these systems that we have and support it as lawyers and social activists. The tedious process that people including children have to go through in court for justice is unfortunate under situations like abuse.
“There was a request to conduct trials that include children only once a week or once in two weeks. I think these are administrative issues,” said Salpitikorala. There should also be the continuous training of ground level officers regarding child abuse (the judge, probation officers and the police children and women’s bureau) about child victims and how to work with them sensitively. According to Salpitikorala, another vital factor is providing psychological counselling to children from the very beginning at the police station. Kodagoda also agreed with her on this saying that perpetrators who repeatedly commit child abuse are also scientifically proven to suffer from physiological disorders. Therefore, in child abuse cases, just as it is important to direct child victims to psychiatric guidance, it is also important to direct the perpetrators for psychological evaluation too, which will help immensely in understanding the perpetrator and taking necessary actions against that person.
Letting perpetrators who were once convicted of child abuse on the loose is dangerous and a challenge. The responsibility of this is not only of the police, it’s also on the officials who work in the child and women protection services in the district secretariat. Following up on these perpetrators, the situation and the rights of the victims and reporting on them is one of their major responsibilities. Salpitikorala further explained that children are brutally subjected to child abuse by religious leaders. According to her experiences, in such situations we are told that we cannot arrest those religious leaders because the civilians would get angry and riot. At these times, we, as government officials, should understand that justice for the children is far more important than their anger.
Promoting restorative justice
“If the criminal suspect is a child, we should understand that this child doesn’t have the mindset of an adult,” explained Athukorala. Children are likely to be sent to rehabilitation centres since they can’t be detained in prisons. But unfortunately their question has been whether these detention centres are up to their standards. They have come across situations where some of the children in these centres and children’s homes are subjected to abuse by the owners. Therefore, more than rehabilitation of the children, they are pushed further into trauma, abuse and crime. He stressed on the fact that these detention or rehabilitation centres should be investigated with government intervention. Otherwise this process would be of no use.
Salpitikorala pointed out that there’s a Youth Justice Board in other countries created with the collaboration of the ministry of justice and the ministry of children and women. When it comes to youth justice, these children are taken through “restorative justice” in which the child perpetrators are provided with complete education, sports and activities that are important to prepare the children to go back to society. They are also educated and made aware of their actions as they go under proper rehabilitation. So more than just rehabilitation, executing it alongside restorative justice is going to be extremely successful in the administration of child abuse. “There are certain limitations to this but it’s highly important and helpful when it comes to these situations,” she said.
“We’ll be taking these requests into forthwith consideration and initiate these policies,” stated Ajith Rohana. “The foundation of these criminal cases is the police, so this foundation should be strong. Our priority on this subject will always be the welfare of the child and we’ll be working with that vision at all times.”
