By Hassen Ayadi
Tunis, Aug 2015, (Lemaghreb):
“From care centre to prostitution den,” said Haifaa, describing her life after being subjected to sexual assaults over four years by the director of the childcare centre that housed her.
Malak, accused of raping her, was sentenced to six months in prison after her family unknowingly destroyed the evidence against him, leaving nearly no valid evidence to prosecute him, according to case (number B332/10),
Administrative negligence, legal loopholes, and ignorance of the victim’s family on how to maintain the evidence needed for conviction in cases of rape are among reasons contributing to the spread of sexual assault against children in Tunisia. As a result, a large number of perpetrators go unpunished.
The cases of Malak and Haifaa are part of a series of sexual assaults against minors, whose rights are lost due to loopholes in the 1995 Child Protection Code and the 1913 Penal Code.
After two years of investigating this phenomenon, the reporter has established that this phenomenon is further worsened by delay in reporting the assault, as well as the absence of due diligence by the competent authorities.
The Child Protection Department at the Ministry of Women and Family Affairs has reported 773 cases of sexual assault against children, including incest, molestation, and rape in the last three years.
But less than half of these reported cases made it to trial in Tunisia’s courts, an alarming sign of increasing crimes and the impunity of perpetrators against children.
In 2013 alone, the child protection delegation referred 230 cases to trial, out of 332 reported cases of sexual assault against children. Tunisia’s court of First Instance issued 146 convictions – 63% of the total referred cases.
The court decided to suspend complaints related to the rest of cases due to legal loopholes based on the ignorance of the victims’ families on how to preserve evidence in the first few hours after the assault.
“Many boys and girls are subjected to rape, but they fail to prove these heinous crimes that continue to have mental and social repercussions for the rest of their lives,” said child protection judge Asmahan Buthrewa.
Psychologist Hayat al-Wartani, who works at a support centre 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 who had been subjected to rape since the age of nine.
According to Wartani, Buthayna, 29, still suffers from psychological repercussions, such as social anxiety and other behavioural 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 violations against children, especially sexual assault.
The number of reported sexual assaults against children – both male and female – has increased by 56% in one year; from 152 in 2012 to 332 in 2013.
According to Mehyar Hammadi, the General Delegate of Child Protection, this increase is caused by the unrest in the country, as well as the growing freedom to tackle what was once a taboo issue.
The same rate of reported cases continued through 2014 at 331 cases.
The first obstacle before bringing justice for the victim and prosecuting the perpetrator is the “procedural aspect” of proving the accusation, described by Tunisian judicial sources as a “complicated path”, especially regarding the confrontation between the child victim and the perpetrator in the absence of a psychologist or social specialist. This often leads to the child retracting his/her statements.
Studies have found that child victims often experience psychological distress during a confrontation with the perpetrator, leading them to change their statements and thus charges are dropped.
According to judge Buthrewa, one child who was raped changed her official statement during the confrontation with the rapist, who intimidated her into retracting her testimony. However, Buthrewa “interfered to stop him and warned him against using this intimidation method”.
In another case in 2009, a child who was raped by his neighbor, was threatened by him during the confrontation before the investigating judge, thus initially hindering the hearing of the case.
However, according to Hammadi, the judge insisted on following up on the case and asked the child protection delegation to submit a psychological evaluation of the child.
According to the delegation’s report, the child retracted his statement out of fear and remembered the violence he was subjected to during the rape. As a result, the perpetrator was convicted and sentenced to five years in prison.
These cases, however, remain exceptions, as most cases of confrontation, according to Hammadi, cause psychological and procedural problems that may hinder the prosecution of the perpetrators.
He added that treating children as adults during the procedural part of rape cases, and particularly having them confront the perpetrators, often leads to the children retracting their statements out of fear.
Tunisia did not follow the French and Canadian examples in the confrontation part where the victim is heard one time only and in the presence of psychologist. The child’s testimony is recorded and used referred to by the judge throughout the trial.
Adult during confrontation, minor during testimony
Ironically, the same law that treats children as adults during the confrontation treats them as minors whose testimonies are not recognized by the judge.
In addition, 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.
In a 2009 rape case, where a man in his thirties raped his 11-year-old neighbor, the perpetrator almost went unpunished because the child’s testimony was not recognized by the court unless it was accompanied by evidence.
Justice ministry spokesperson Sufyan al-Suhaili explained this obstacle saying that the child’s testimony was not sufficient, and that any conflicting statements, no matter how small, would destroy the case.
Suhaili admitted there is a dilemma of criminal procedure in Tunisian courts, forcing children to change their statements several times.
Another obstacle adding to the child’s inability to testify is the lack and destruction of evidence due to the ignorance of both the victim and the family.
According to child protection delegate Anis Awnallah, a number of cases were closed without reaching a verdict after the 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 all the evidence before reporting the crimes 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 and wash their genitals after the assault, resulting in the removal of traces of semen, which is often used as evidence, whether from the victim’s body or clothes, he explained.
According to Sulaiti lack of evidence turns these cases into “empty cases”. This, he said, explains the disparity between the number of cases reported to the child protection delegation and others referred to court, not to mention cases where the perpetrator is ruled innocent.
Malak’s case – where she claimed she was raped by an old man – fell under this category. She waited nearly six months to report the case to the general prosecution, long enough to destroy the evidence.
This journalist also established administrative inaction against officials suspected of involvement in sexual violations, which led many supposed culprits to go unpunished.
In 2013, Women and Family Affairs Minister Siham Badi announced that the ministry had referred four cases to trial after childcare officials molested and raped children. But the Tunisian court system never received these cases.
In addition to the legal vacuum, the ministry clearly does not follow-up on reports of sexual violations at childcare centres, to the extent of covering up for the perpetrators at times, this investigation has found.
Worse, the reports submitted to the ministry on sexual violations at childcare centres have been going on since 2005 to date without any deterrent administrative punishment against the perpetrators.
Haifaa’s experience at the childcare centre included “a kiss, fondling, and sexual remarks” by the director, as well as “an invitation to have sex”, according to a supervisor at the centre in the coastal town of Ben Arous.
Haifaa, now 18, suffered from sexual harassment by the centre’s director for four years, according to an internal report by the ministry of women and family affairs in August 2012.
This matches the conclusion of a report submitted on June 18, 2011 by a psychologist at the integrated centre for youth and children in the greater metropolitan area of Tunis.
“One educator continues to work at the centre despite sexually harassing one of the children he supervised for four years, without receiving any administrative or legal punishment,” the report said.
The behaviour of Abdallah, the supervisor at the Ben Arous childcare centre, where Haifaa lived is considered by the Tunisian law as 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 by an imprisonment of up to two years and a fine of 6,000 Dinars ($2,740).
Ironically, Abdallah’s punishment was limited to approving an earlier request he submitted in July 2011 to transfer to another childcare centre, while keeping his job as child educator after a six-month suspension during the investigation. This is despite the psychologist’s report, which said that he suffered from behavioural disorders that required keeping him away from children.
In mid-2013, the Ministry of Women and Family Affairs admitted that the country’s 23 childcare centres had witnessed four cases of rape. In an internal probe, the ministry also admitted that at least five centres had witnessed cases of sexual harassment without giving a specific number.
The four cases of rape involved children staying at state-run centers. Some of them had already been raped by relatives while others were raped by those who were supposed to care for them, according to the ministry’s internal reports and exclusive statements by a child protection delegation.
According to the copy of an August 2012 report by an investigation committee in the ministry, a number of officials were involved in covering up for perpetrators of sexual assault against children at childcare centres.
The report, a copy of which was obtained by this reporter, shows that K. A., a supervisor at an integrated centre in the Tunis metropolitan area, knew about the sexual assaults by Abdallah against Haifaa. But she covered up for him.
In addition, the ministry’s 2012 internal probe confirmed that supervisors had not interfered to stop the assaults, mostly against children under 10 years of age, despite knowing of such cases at the centres.
In one case, a resident educator at the Sidi Thabet centre knew a child who was raped on 20th of January 2012, but no measure was taken to protect him. He did not even change the child’s room to keep him away from the “rapists”, a measure taken three days later by the centre’s director, according to the testimony of Inas Qarfala, the head of the special investigations unit.
Confronting the former and current ministers
Two ministers for women and family affairs ran the office in the course of this investigation.
When confronting former women and family affairs minister Siham Badi, she said 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. However, no administrative punishments have been given to any of the perpetrators in these cases.
Despite pointing out that all those who committed the crime or covered-up for it 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.
Badi’s statements that the ministry is following standard administrative measures against those who have “breached their duty” protecting child victims was not reflected in any concrete measures in reality. It all ended with a specialized committee assigned by the ministry to look into the integrated centre’s incident, without any official punishment against any of the parties involved in rape crimes, according to higher sources at the ministry, speaking on the condition of anonymity.
Due to the long period of time it took to finish this investigation (nearly two years), we returned to confront the current minister Samira Marei, who in turn announced that addressing the issue of sexual assault against children was her top priority, especially after 289 cases were reported last year.
Marei admitted a lack of action by all state institutions in dealing with this issue, especially in terms of reviewing and implementing the law.
The tragedy continues
The difficulty of proving violations against children represents a legal and procedural dilemma, leaving many culprits go unpunished, especially in cases of sexual harassment in places not open to the public, as well as verbal sexual harassment.
However, resorting to technologies such as photographs and voice recordings may offer solutions that are worth looking into. In any case, the decision remains up to the court.
In addition, this “legal vacuum” can be overcome by measures that include the prompt reporting of the sexual assault and keeping the evidence and the victim’s clothes intact, according to Hammadi. And so is the need to pass a draft law that stipulates a victim’s testimony should be heard only once by a psychologist and recorded to avoid subjecting the victim to pressure during a confrontation with the perpetrator or when repeating the story more than once.
This investigation was completed with support from Arab Reporters for Investigative Journalism (ARIJ) and coached by Amin bin Massoud.