Reporter: Hassen Ayadi
Haifaa describes her four years of sexual assault at the hands of the director of her care center as moving “from care center to prostitution den.”
According to the details of case no. B332/10, Malak was sentenced to just six months in prison for rape after Haifaa’s family accidentally destroyed evidence against him.
In Tunisia, the lack of understanding by victims’ relative to keep evidence safe, combined with administrative negligence and legal loopholes, have led to increased failure to prosecute perpetrators of sexual assaults against children.
Haifaa’s case illustrated how minors are losing their rights because of loopholes in the 1995 Child Protection Code and the 1913 Penal Code. Investigations said that absence of due diligence by the relevant authorities and delays reporting assaults have worsened the situation.
Over the past three years, the Child Protection Department at the Ministry of Women and Family Affairs recorded 773 cases of sexual assault against children, including incest, molestation, and rape, but fewer than half have made it to trial in Tunisia’s court. The total number of reported sexual assaults against children for both male and female increased by 56 percent from 152 in 2012 to 332 in 2013, and stayed nearly constant at 331 cases in 2014.
“Although many children are subjected to rape, they fail to provide the evidence necessary to convict. This can have mental and social repercussions on the victims for the rest of their lives,” said child protection judge Asmahan Buthrewa.
Psychologist Hayat al-Wartani, who works at a support center for victims of violence under the Tunisian Association of Democratic Women (known by its French acronym ATFD) spoke about the case of Buthayna, a girl raped starting at the age of 9. According to Wartani, Buthayna, now 29, still suffers from social anxiety and behavioral disorders.
Despite signing 12 international agreements on children’s rights and drafting several domestic child protection laws (see box below), Tunisia has failed to stop the increasing threats against children.
According to Mehyar Hammadi, the general delegate of child protection, unrest in the country contributes to this increase. Also, the growing freedom to address a once-taboo subject means more cases get reported.
Studies have found that psychological distress of victims during confrontations with their assaulters often leads them to retract statements which hinders prosecution.
According to Judge Buthrewa, interference was necessary when the perpetrator intimidated his victim into retracting her testimony during a confrontation. In another case in 2009, a child raped by his neighbor was threatened in front of the judge, hindering the initial hearing of the case.
According to Hammadi, a follow-up psychological evaluation by the Child Protection Delegation was carried out at the request of the judge. Results showed that the child retracted his statement out of fear. The perpetrator eventually was convicted and sentenced to five years in prison.
These cases, however, are exceptions, and too often prosecutions are ruined.
Tunisia’s system differs from the French and Canadian systems, where victims are only confronted once and always in the presence of a psychologist. The child’s testimony is recorded and referred to by the judge throughout the trial.
Adult During Confrontation, Minor During Testimony
Ironically, the same law that treats children as adults during a confrontation also treats them as minors when addressing the testimonies recorded, as they are not recognized by the judge unless submitted with sufficient evidence.
According to Article 72 of the Code of Criminal Procedure (see box 2), during the confrontation, both the child and the perpetrator are confronted with each other’s statements.
During a trial in 2009, a male perpetrator in his 30s almost escaped prosecution for the rape of his 11-year-old neighbor. Justice Ministry spokesperson Sufyan al-Suhaili explained that the child’s testimony was not sufficient and that any conflicting statements, no matter how small, would destroy the case. Suhaili admitted there are loopholes within the criminal procedure in Tunisian courts, resulting in children changing their statements.
According to child protection delegate Anis Awnallah, a number of cases were closed after victims unknowingly destroyed the evidence. In 2013, Tunisia’s court of first instance ruled against looking into four cases of child rape after the victims washed away possible evidence in clothing before they went to the police.
This was confirmed by Sufyan al-Sulaiti, general prosecution spokesperson in the capital, Tunis.
Most cases of sexual assault referred to Tunisian courts lack evidence because victims shower to wash away the traces of semen from their body and clothes. This leads to disparity between the number of cases reported to the Child Protection Delegation and the figure referred to court.
Furthermore, the chances for a judge to prosecute decreases. This was true in Malak’s case, where she claimed to have been raped by an old man but had waited nearly six months before reporting the case to the general prosecution, by which time all evidence had been destroyed.
Abuse Under Care
In 2013, Women and Family Affairs Minister Siham Badi announced that the ministry had referred four cases to trial relating to sexual assault at childcare centers involving their officials. However, the cases were never received by the Tunisian court system.
Reports of sexual harassment from childcare centers have been submitted to the ministry since 2005, yet no administrative punishments have been recorded to date.
Haifaa’s experience at the childcare center included frequent sexual remarks from the director, Abdallah, as well as invitations to have sex, according to a supervisor at the center in the coastal town of Ben Arous. Haifaa, now 18, suffered from this for four years, according to an internal report by the Ministry of Women and Family Affairs in August 2012.
A report submitted June 18, 2011, by a psychologist at the integrated center for youth and children in Tunis notes, “One educator continues to work at the center despite sexually harassing one of the children he supervised for four years, without receiving any administrative or legal punishment.”
Under Tunisian law, Abdallah’s behavior is considered sexual harassment.
According to Article 226 of the Penal Code, “gross indecency” committed through gesture or speech includes sexual harassment with the purpose of pressuring someone to respond to sexual requests. If committed against a child, the crime is punishable with up to two years in prison and a fine of 6,000 dinars ($2,740).
Abdallah continued working as a child educator following a six-month suspension during the investigation. He was transferred to another childcare center at his request in July 2011, despite a psychologist’s report advising he be kept away from children due to the behavioral disorders he suffered from.
In mid-2013, the Ministry of Women and Family Affairs admitted that the country’s 23 childcare centers had witnessed four cases of rape. In an internal probe by the ministry, it was noted at least five centers had witnessed cases of sexual harassment, mostly against children under 10.
The rape cases involved children at state-run centers. According to the ministry’s internal reports and exclusive statements given by a Child Protection Delegation, some were raped by relatives, others by caretakers.
According to a report from the ministry’s investigation committee in August 2012, a number of officials were involved in the covering up of sexual assaults against children at childcare centers. The report shows that K. A., a supervisor at an integrated center in Tunis, was aware of the sexual harassment Haifaa faced, but took no action.
In one case, a resident educator at the Sidi Thabet Centre failed to keep a child raped on Jan. 20, 2012, protected even after the incident. According to the testimony of Inas Qarfala, the head of the special investigation unit, the center’s director had to step in after three days to reallocate and separate the child from those attacking him.
Confronting Former Current Ministers
Two ministers for Women and Family affairs ran the office during the course of this investigation.
When confronted, the former Women and Family affairs minister Siham Badi stated that the ministry was looking into the issue and that a number of people accused of sexual harassment had been referred to trial while others were being disciplined.
Badi said the ministry is following standard administrative measures against those who have breached their duty to protect child victims. Although the ministry assigned a specialized committee to investigate, no official punishment was made against the parties involved in rape, according to sources at the ministry.
Despite stating that all those who committed or covered-up the crimes would be held accountable, the ministry denied that there had been rape or sexual exploitation of children by their supervising educators. It also denied the possibility of complicity between supervisors and perpetrators.
The current minister Samira Marei states that addressing the issue of sexual assault against children was her top priority, especially after 289 cases were reported last year. Moreover, Marei admitted to a lack of action by relevant state institutions in dealing with these cases, especially in terms of reviewing and implementing the law.
The Tragedy Continues
The difficulty of proving sexual violations against children shows the legal and procedural loopholes, leaving many culprits unpunished, especially in cases of harassment occurring in nonpublic places. However, technologies such as photographs and voice recordings may offer new solutions worth looking into.
In addition, measures to encourage the prompt reporting of sexual assaults and safekeeping of evidence by victims and their family can improve the situation. Moreover, a law that stipulates victims’ testimony is to be only heard once by a psychologist and recorded to avoid subjecting them to pressure during a confrontation with the perpetrator should be drafted.