Culture of silence an injustice to assaulted minors

By Dann Okoth

About 10 per cent of paedophile cases are reported to the authorities even as it emerged that prosecuting such cases is still a problem.

The Director of Children Services Ahmed Hussein says 80-90 per cent of paedophile cases go unreported.

"The underlying problem in reporting these cases is the stigma associated with the crime. Many parents would not want to expose their children in the event they have been sexually assaulted," he says.

He adds: "The problem is more pronounced in the slums where most people are ignorant of their fundamental rights. It is compounded by vicious perverts who abduct children, defile and then kill them."

Apathy

Meanwhile, a new study has revealed apathy in reporting and prosecuting sexual abuse cases, including the crime of paedophilia. The study by Children Legal Action Network (Clan) shows the reaction to sexual assault by girls and boys by making reports to parents or authorities is only 8.5 per cent and 11.7 per cent.

"This is indicative that most sexual assault cases go unreported and remain a silent cancer that affects the victims to adulthood. It also reflects that the cases we see in the courts are but a tip of the iceberg," notes the report.

The study, Operational Research on Legal Challenges in the Prosecution of Child Sexual Abuses, shows that the prosecution of child sexual abuse cases is a problem — this is due to difficulties in prosecution, investigation and a lack of uniformity in the understanding of the law. Consequently, there is a high percentage of acquittals of persons charged.

"The offence is then repeated until the perpetrator is finally caught, but at what cost to the victims and the State?" the study poses.

It notes sample cases should be probed deeply to advance solutions to solving these problems.

"The problem currently rests in the presentation of sexual abuse cases through relevant witnesses and exhibits. This should be in view of the legal and social changes that have taken place, in particular the enactment of the Children Act 2001, the Sexual Offences Act and the advent of the HIV/Aids pandemic," it says.

According to Farida Bulhan, Senior Programme Officer at Clan, sexual offences now have to be looked at with fresh insight. "This is particularly since the research showed many offenders have a sexually transmitted disease, which they pass on to their victims," she says.

"The enactment of the Sexual Offences Act heralded a milestone in the fight against all forms of sexual violence, as there is now for the first time in Kenya a law that comprehensively seeks to tackle sexual violence by offering stiff sentences."

However, even with the introduction of such novel legislation, there is still a long way to go in terms of achieving full implementation of the Act. Its effective implementation hinges on the extent to which Kenyans and more particularly, the Judiciary, the police and local administration understand and follow the law in accordance with the Act.

Police officers, lawyers, children officers, probation officers and counsellors acknowledge that child witnesses are often fearful of facing the accused in court. Another challenge is inconsistency in the evidence of the child victim due to tenderness of age or other incapacity.

"A child witness is a special category of witness and the law should recognise this and be amended to accommodate it," says Patrick Mureithi, Head of Legal Services at Clan.

"The failure of the child to be able to clearly articulate himself or herself is a serious challenge. The use of "informal language" to describe the sexual act does not assist the case at all," he adds.

Frequently, such a child is unable to answer questions put to him by the prosecutor or ends up giving different evidence in court from that procured at the statement writing stage. Others simply refuse to testify in front of the magistrate and the accused, thus making prosecution difficult.

Socialisation

The child’s appreciation of things like time, distance and size is also a challenge as the child’s perceptions may be dependent on their own age or size or socialisation — this may cause the trial court to perceive them as untruthful, fanciful or unreliable as witnesses.

"The prosecutor usually has no time to allow the child to get used to him or her, or to have a pre-trial briefing with the child, and consequently, the child is not made to feel at ease and neither are the events that occurred drawn out of him during examination in chief," says Mureithi.

Other challenges include the quality of the investigation, inadequacy of training of the stakeholders and compromises by the police, investigating officers, chiefs, magistrates and others.

"Often, the investigating officer is compromised to do a shoddy job, which includes failure to ensure the production of exhibits like the P3 form, Government Pathologist’s Report, weapons or clothing or the crucial witnesses like the doctor or competent witnesses," he adds.

Sometimes, he says, the investigating officer deliberately charges the accused under the wrong section or on the lesser charge of defilement, whereas the victim is 14 years and above, or fails to apprehend the accused despite his location being known, thus leaving the file pending indefinitely.

"As the victim and her family often do not know the procedure, they are frustrated by being sent back and forth, leading to their discouragement and ultimate surrender of the case," he observes.

The most acute challenge may lie in the lack of testing material for use by the pathologist.

"Consequently, the possibility that the prosecution may close their case without this crucial evidence is high thus excluding what is perhaps the only corroborating evidence," says Mureithi.

"DNA testing is expensive and an avenue rarely explored by pathologists, and yet this may form a material link in the prosecution of such cases," he adds.

The study recommends, among other things, that The Limitation of Actions Act should be amended to enable child victims of sexual assault bring a civil suit against the perpetrator and any institution, if any, in a certain number of years from the time of discovery of the offence. This is to cater for cases where a victim may be in denial for a long time.

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