Monday, May 7, 2012

Trial format leads to low conviction of child molesters (Jamaica)

It's not just Jamaica. Just by changing a few minor details, this could describe the treatment that mothers and children get anywhere in the world when the father molests the kids.

And it's always much worse when UNNAMED DAD happens to be a police officer.

Trial format leads to low conviction rate of child molestersBY INGRID BROWN Associate editor — special assignments
Sunday, May 06, 2012

ONLY one in five child molesters is convicted in Jamaica, leaving victims of this sexual crime to feel twice traumatised by court proceedings which often drag on for years before ending in futility.

Children's Advocate and former Deputy Director of Public Prosecutions Diahann Gordon Harrison said there is a range of issues which contribute to the low conviction rate of sex offenders in Jamaica.

According to Gordon Harrison, the conviction rate in Jamaica is comparatively low when compared to other offences such as murder and wounding.

The manner in which trials are conducted is said to impact directly on the rate of conviction.

"We have little girls who are sexually abused and they have to give their evidence twice -- first before the Resident Magistrate's (RM) Court in preliminary enquiry and if the RM feels the child has given sufficient evidence to establish a prima face case, then it is committed to the Circuit Court and that is where the Supreme Court judge and a jury will sit to try the case," she explained.

The child is again required to take the stand and recount the incident before a jury.

The mother of a child who is now 13-year-old has grown weary of pulling her daughter from school once every three months to attend the Half-Way-Tree RM Court where the matter of indecent assault by her father has dragged on for two years with no immediate end in sight.

The mother, whose identity we will not reveal because her daughter is still a minor, said she has grown impatient with a legal system which is yet to deliver justice for what happened to her only child.

According to the mother, she first learnt in 2009 that the accused, who is a police officer, had been molesting their daughter since she was eight years old.

"She told me that the first time it happened she was by his house and woke up one night to see him kissing her breast and vagina. She told me that she started to cry and ask him to stop but him wouldn't, instead telling her to stop the noise before she mek the neighbours hear," the mother recounted.

However, according to the mother, when the child failed to stop crying the father beat her with a belt.

"I remember when he brought her home the next day her eyes were red and I asked what is wrong with her and he said nothing, but even then my intuition as a mother told me that something was wrong," she said.

However, the mother said it never crossed her mind that the man who she though was an upstanding police officer would molest his daughter.

Unaware of what was happening, the mother said on other occasions, she sent her daughter to spend time with him at his girlfriend's house where he allegedly continued to molest the child.

But for two years the child told no one of her ordeal, as the father convinced her he would be sent to jail if the secret was ever revealed.

"After I took her to the police station and she gave the statement, she kept asking if he is going to go to jail and get locked up," the mother said.

He was later charged with indecent assault -- as the police report showed that the child was not penetrated -- and granted bail shortly after.

But the mother said the trauma for the daughter began all over when she learnt she would be required to testify against her father in court.

"When it get close to the court date she would get depressed," she said.

However, in February when the child finally took the stand to give evidence, the mother said she was very disheartened to learn she could not remain in the courtroom to be a support to her scared daughter.

"He was in there with his lawyer talking on his behalf and she had to be there all by herself," the mother said.

Added to that, the mother said she is being made to feel like a liar as his lawyer's defence is that the incidents didn't happen but were made up by the mother.

The mother does not hold out too much hope that the accused man will be convicted but believes the case will drag on until she becomes too frustrated to fight it any longer.

The children's advocate said with the lengthy delays in the court system it is not unusual for a matter to reach the jury two years after it was first brought to court.

With the passage of time, the psychological effect and the emotional trauma which would have accompanied the incident, Gordon Harrison said the child may not be willing to discuss the issue in a candid way before seven jurors she does not know.

"Sometimes it compromises the quality of the evidence the child is able to give, and if the quality of the evidence is not to a particular standard, or is riddled with lots of inconsistencies, this is not to say the child is lying, but because as a defence mechanism the child has chosen to block the gory details from his/her mind and so is not able to recount as accurately," she said.

Gordon Harrison cited cases during her tenure as a deputy director of public prosecutions where jurors did not believe the offender should be punished.

"I have done cases where the evidence is quite clear but the jurors are of the view that it is a 'bad pickney' so we are not going to send the man to prison, even though we know he did it," she said.

There is yet another view where jurors do not believe that sexual abuse should be given a similar punishment as any other crime.

"Some jurors have a view that say 'yes, it sad, but is just a little sex and she didn't die and he never hurt her too bad' and so the accused gets let off the hook," Gordon Harrison said.

There are also instances, she said, where persons encourage and even pay the child's family not to pursue the matter.

"It is a multiplicity of issues, but it goes back to societal response and the jurors come from the society, and if societal response is a very casual one in relation to the seriousness of these abuses, then you are going to have that reflected in some of the verdicts you do get, even if the evidence is there," she said.

As for child molesters being charged with the lesser offence of indecent assault, which is answerable in RM Courts, and which attracts a maximum of three years' imprisonment, Gordon Harrison said this is what the law dictates.

"If it is that a father performed an oral sex act on the child and there was no actual vaginal penetration by the penis, it would be an indecent assault charge as there has to be penetration, not by a finger or an object, but by the actual male organ for it to be considered as rape or carnal abuse," she explained.

She said that the Sexual Offences Act, which took effect from June 2011, encompasses some additional offences such as sexual grooming, sexual interference or touching and attracts stronger penalties.

"The penalties for those are a little bit more rewarding from the perspective of the victim and it gives the judges and prosecution more flexibility in terms of what is the appropriate charge to prefer, depending on the circumstances," she said.

As for the exclusion of a mother from the court where a child is testifying, the children's advocate said this is standard procedure in instances where the mother has not yet given evidence in the trial.

The thinking of the court, she said, is that the mother's evidence may not be independent and objective but would be tailored to support that given by the child.

However, Gordon Harrison said this can be left to the discretion of the prosecutor to structure the case in a manner which would allow the parent/guardian to remain in the courtroom.

"What I used to do as a prosecutor, depending on the fragility of the child, I would make an assessment as to whether or not it would be good to have her mother in and what I would do is switch the order of witnesses and call the mother first and once she gives evidence she would be allowed to sit in court," she said.

The delay in these court proceedings, she said, often results in witnesses becoming frustrated with the process and this at times leads to the parties compromising the case.

Meanwhile, the children's advocate said her office does not have the number of investigators required to deal with the current reported cases of sexual abuse.

"We have an internal investigation unit and we have four investigators on staff who are mandated with investigative powers across the island, so it makes it quite challenging to deal with the case load in as quick a manner as we would like," she told the Jamaica Observer.

The limited number of investigators, Gordon Harrison said, makes it difficult for her office to do unannounced inspection at some of these facilities.

"If it is that we are to be ensuring children are in fact in conditions that are suitable for their well-being,I think it is important to have unannounced visits," she said, adding that even an additional three investigators would assist the department greatly.

Head of the Centre for Investigation of Sexual Offences and Child Abuse (CISOCA) Superintendent Gladys Brown-Campbell said many times these persons who are convicted of sexual offences are given probation which often does not fit the crime.

"In a lot of these cases these persons are getting probation and so they think it is no big deal," she said.

However, the superintendent said CISOCA has been and will continue to aggressively pursue sexual predators.

"It is important for Jamaica to know that we are not joking here at CISOCA, and so now people are becoming more confident in the system and we are seeing far more persons coming in to report things which happened seven months or two years ago," she said.

As for those cases where offenders are not convicted, she said this sometimes happens either when the jury fails to find them guilty or children whose cases have languished in the courts until they are over 18 years old decide not to show up in court.

"But our job is to take them before the courts and we are doing just that and we are not letting up," she said.