The Protection of Child Victims

by Criminal Justice System in Thailand

By Mr. Trakul Winitnaiyapak

For the sake of convenience, I would like to outline my presentation as follows.

II. General Situation

VII. Conclusion

Most countries in the world are experiencing serious difficulties in the prosecution of offenders who abuse and exploit children. The rules of criminal procedure and the practices of the criminal justice system mean that children are repeatedly interviewed, the process is lengthy, there are few and inadequate services provided and children are frequently not protected from those who may intimidate or further abuse them. The result is that children seldom report the abuse case because they are afraid of telling the story to officials as well as of testifying in the court room. Little progress can be made on improving the overall situation for child protection until these problems are successfully addressed.

Moreover, little progress will be made in terms of prosecuting offenders, including organized criminals and others who traffic in children and young persons, until the courts and the criminal justice system can protect child victims and witnesses throughout the criminal process and beyond.

Given this, it is encouraging that there is significant momentum building all over the world including in Thailand to improve the protection of children under these circumstances. Thailand has signed the UN Convention on the Rights of the Child. Thailand was also a key participant at the 1996 World Congress against Commercial Sexual Exploitation of Children and has pledged to work toward implementing the Congress declaration.

It has been, in fact, said that sexual exploitation of children is one of the most common forms of child abuse. Moreover, sexual abuse of children is considered a major cause of juvenile delinquency. It was also found by several studies that most of juvenile delinquents were abused when they were children. It is found by many studies that a large number of criminals were abused as children, that most juvenile offender were abused, that most runaway were abused,…….…” Given the significance of children for our society in the future, effective protection of our children from being abused or exploited is one of the most reliable strategies to cease the cyclic order of child abuse at its start.

II. General Situation

In Thailand, even there is no formal statistics on the national basis. In 1998, the Office of the Attorney General received 818 cases, the majority of which were sexual abuse cases (617). However, these were only the reported cases. It is believed that there are quite a large number of unreported cases that children are afraid of contacting with the government officers. Among those numbers, it is well recognized that quite a large number of children are lured by false promises of a good, decent, and well-paid job in the city but end up being forced into prostitution. Sometimes, they are left to survive on their own in a cruel urban environment. They are not mature enough to protect themselves and thus are most vulnerable to abuse or exploitation. Worse, frequently, they do not even know that to whom and where they can turn for help when they are abused and exploited.

As a party to the United Nations Convention on the Rights of the Child, Thailand has taken several significant steps toward the protection of children in order to comply with the standard mandated by this Convention. It has strengthened its laws and enforcement against child sexual abuse and prostitution by enacting the two important legislation, that is the Prostitution Prevention and Suppression Act of 1996 and the Measures in Prevention and Suppression of Trafficking in Women and Children Act of 1997. Although the problem still persists, we have so to speak achieved a satisfactory result.

III. Laws Regarding the Protection of Child Victims in Child Abuse Cases.

In Thailand, there are many laws relating to the protection of children from becoming victims in child abuse cases. As most countries, besides the Penal Code which, of course, is one of the principal legislation affording protection to children, the Prostitution Prevention and Suppression Act of 1996 (PPSA) is another law to safeguard the children. It must be noted with delight that this law does not generally treat a prostitute as a criminal. Instead, it regards the prostitute as a victim of poverty, social problem and organized crime. Therefore, the main principle of PPSA is to punish customers, procurers, and owners, or managers of prostitution business like brothel, and the controller of prostitutes such as mama sans and pimps. Interestingly, it is also a criminal offense for parents to sell their offspring for prostitution.

A procurer or trafficker of a person, with or without the child consent, is liable for imprisonment of 1 to 10 years. The penalty will be 5 to 15 years if such person is over fifteen but not over eighteen years of age. If the victim is not over fifteen years of age, then 10 to 20 year imprisonment will be imposed

The owner or manager of a prostitution business or the controller of prostitutes is punished with imprisonment of 3 to 15 years. If he/she has a prostitute with the age of over fifteen but not over eighteen years, the penalty is 5 to 15 years of imprisonment. A 10 to 20 year imprisonment will be imposed if he/she has a prostitute with the age of not over fifteen years. Anyone who detains another person for prostitution is punished with imprisonment of 10 to 20 years or life imprisonment or death depends on the harshness of the cases.

In addition, a customer is punished with imprisonment of 2 to 6 years if he has sexual intercourse with a child not over fifteen years of age. The imprisonment is 1 to 3 years if a child is over fifteen but not over eighteen years of age. Also, parents who sell their children to a procurer or customer for prostitution are liable to imprisonment of 4 to 20 years and their guardianship may be revoked by the order of the court.

Apart from PPSA, the Act On Measures In Prevention And Suppression Of Trafficking in Women and Children 1997 (MPST) protects children of both sexes equally. An aider and abettor of the commission of any offense in the Act is also punished by the same penalties as the principal offender. MPST also gives the officials the authority to stop and confine suspected victims for questioning that may uncover the trafficking process. Officials are authorized to search various places including vehicles so as to facilitate the prevention and suppression of the trafficking and to provide assistance to those victimized. The courts are, furthermore, empowered to take early deposition of a victim’s testimony soon after he or she has been rescued and this testimony can be admissible as evidence against the offender in the court hearing.

VI. The Protection of Child Victims in Child Abuse Cases: The Role of the Office of the Attorney General

The Office of the Attorney General has established the Office of the Protection of the Rights of the Child within the International Affairs Department to serve as a focal point of cooperation and coordination among governmental agencies and non-governmental organizations (NGOs) involved in child’s right protection, especially those within the Criminal Justice System. Our cooperative effort has yielded fruitful results. Furthermore, quite a number of legislation reforms are currently under review by a special task force in which the prosecutors of the International Affairs Department participate.

Currently, this office is also working in close cooperation with various NGOs particularly “the Center for the Protection of Child’s Rights (CPCR) Foundation” to provide protection and treatment to child victims. In addition, with the support from the Canadian Government and by working hands in hands with Mr. Danial Prefontain QC, Executive Director of the International Centre for Criminal Law Reform and Criminal Justice Policy in Vancouver, Canada as well as with Dr. John Evans Senior Consultant of the Centre, a pilot project on Interagency Child Abuse Investigation and Care which brings medical, social service, and law enforcement agencies to work together as a multidisciplinary team has been launched at Thammasat University Hospital near Bangkok.

The idea behind the initiation of this project is as follows. In cases of child abuse several agencies must respond in a coordinated and effective way. The child needs protection and justice must be done. Victims of child abuse need medical care. They need social welfare to ensure they are protected and that their physical, emotional and social needs are addressed. The victims and the community also need to have justice done, and those who offend against children should be prosecuted. Prosecution of child abusers is, however, particularly challenging. The prosecutor must go to trial with a child as the crucial, and frequently only, witness. Children who are not protected from their abusers during the criminal process cannot be expected to testify. Children who are cared for and prepared for the process of being a witness in court can be effective witnesses. The Criminal Procedure Amendments, which accommodate the child in such circumstances, will make it easier for children to be effective witnesses, while protecting them throughout the process. None of this will be possible if the police, the social worker, the doctor and the prosecution work independently. They must work closely in multidisciplinary manner.

Child abuse cases therefore bring together healing, social welfare and legal objectives. These objectives cannot be adequately addressed by each agency working alone. A coordinated, inter-agency response to child abuse is essential. It is suggested that inter-agency co-operation be based on the following principles:

The Office of the Attorney General has also realized the usefulness of the civil process in providing assistance and protection to these children. Therefore, through the Department of Civil Rights Protection and Legal Aids, it has exercised its authority under the Civil and Commercial Code to assist and protect these children as the pilot project is carrying on.

For example, in an Intra-Familial Abuse case where the child is sexually abused by his/her close relatives or even parents, the prosecutor is authorized to apply to the Juvenile and Family Court for an order of the deprivation of the parental power or guardianship. This would, of course, help protect the child from being continuously abused by his or her parents.

It has to be recognized that sexual exploitation is a civil tort as well and the abuser is under a legal duty to make compensation therefor. However, the prosecutor in this case is not authorized by any law to represent the child to sue for such compensation. It is not a case of civil right protection as is the case of the revocation of guardianship. Nevertheless, the Department of Civil Right Protection and Legal Aids can provide for free the attorney who is not a prosecutor to sue the abuser for damages or compensation for the child.

V. Traditional Criminal Justice Process and Child Victims in Child Abuse Cases:

Hurt or Protect?

Whether the traditional criminal justice process is appropriate for child abuse cases is still in question in our modern legal system. Given the fact that children are our future, their welfare must be at the forefront of the minds of members of agencies responsible for the handling of child abuse cases. These child victims need not only medical cares for their physical injuries but they are also very much in need of psychological treatments to reduce traumatic experiences they have suffered during the abuses and after. Thus, great care must be exercised to avoid any act tending to create additional trauma for these abused children. The criminal justice proceedings either during the investigation or trial should be flexible, responsive, and sensitive to the needs of these children. None of these measures should further victimize them.

Another consideration should be on how many times the child victims have to tell the incident which had happened to them to the strangers. Besides to their own parents, to the doctors, to the social workers, who else do they have to repeat the stories they do not want to even talk about?

Let us take the case of Thailand as an example. According to the Thai Criminal Procedure Code in the mean time, the police are responsible for the investigation of criminal cases. Upon the completion of investigation, they will submit the file of investigation to the prosecutor for review. The prosecutor then will decide whether or not to charge the alleged offender or order the police to do additional investigation if necessary. Such additional investigation means another one or more interviews. While the additional investigation is acceptable in general, it may not be so when sexually abused children are involved. Such additional investigation requires these children to repeat their suffering experience they want to forget. It is like a second victimization.

Of course, it does not mean that we cannot interview these children. What it does mean is that we should interview these children as completely as possible in one time so that they do not have to repeat their traumatic and painful experience. Nevertheless, it is not easy for them to be able to tell the story. Often, they are too embarrassed to talk about their painful experiences particularly to the police, the strangers in a uniform, who have generally been trained to be tough on crimes. Even worse if the interviewers are not familiar with child abuse cases where psychological skills and linguistic techniques in questioning child victims and witnesses are of utmost importance.

At court hearing, the only probable protection afforded to the victims in child abuse cases is the trial in secrecy. However, the trial in secrecy does not alleviate any of the concerns the victims particularly the children face in the trial stage. Still, they are again required to talk about their suffering experience in response to questions put forward by the prosecutor and the defense lawyer or sometimes by the judge. In the period of cross-examination, the defense lawyer would certainly take advantage of intellectual immaturity of these children by asking complicated, intimidating, and misleading questions in order to destroy their credibility.

As the general rule, the trial has to be conducted with the presence of the defendant who has the right to confrontation of witnesses. Consequently, it can be a harrowing ordeal for the children if they have to testify eye-to-eye with those who abused them in the court hearing. Frequently, the child victims or witnesses are not capable to give a complete testimony in such a formal and frightening environment of the trial. Whether or not justice is being correctly served, the unavoidable effect on them from going through the court is panic, harassment, intimidation, and disgrace. Thus, proper measures must be introduced to the criminal justice system to create a child-friendly atmosphere where they are sufficiently protected and able to give their statement or evidence more easily both at the investigation and trial stages.

IV. Toward Law Reforms for the Protection of Child Victims in Child Abuse Cases: The Changing Role of The Police, Prosecutor and Court

Given the fact that child abuse cases will not reach the desired achievement unless children both as victims and witnesses are treated with sympathy and understanding in the criminal justice system. Thus, the Government of Thailand had pushed forward a proposal for the reform of the criminal procedure laws. Such a reform has taken “the best interest of the child” as a primary consideration in accordance with Article 3 of the United Nations Convention on the Rights of the Child. Currently, the amendment of the Criminal Procedure Code is now promulgated on 14 September 1999. However, it will come into force after one year as from the date of its publication in the Royal Gazette which means that we only have about 9 months in preparation.

This criminal procedural amendment has a practice in which the child victims are not generally required to repeat their suffering experience at both investigation and hearing stages. In order to avoid multiple interviews and contacts with different criminal justice officials, which it is believed, further victimize the children. Therefore, the prosecutor will partake in the interview of child victims and witnesses in the investigation stage in order to make the case more complete for prosecution. Of course, the police still do investigation.

It should be noted that, in Thailand, the investigation focuses only on the gathering of evidence, which is likely to prove the guilt or the innocence of the accused. There is no gathering of evidence for the protection, healing and re-integration to the society of the child victims.

In child abuse cases, what would happen to the child victims after the judgment should also be taken into account. For example, if the convicted is a family member or a caretaker, who is going to take care of the child? Or what will happen if, after prison, the felony is back to live with the child?

Thus, it is important that both kinds of evidence should be collected in child sexual abuse cases. The gathering of such evidence would enable the court to be aware of the victim environment including the causes of the problem necessary for making a decision on the proper punishment to be imposed on the defendant as well as the proper treatment of those victimized children.

However, the investigating official and/or the prosecutor generally are not specially trained to handle child abuse cases and, thus, are not likely to be able to collect this kind of evidence. Accordingly, it is more appropriate to have social service professionals like a psychologist or social worker participate in the investigation of child abuse cases.

Frequently, the investigating official and prosecutor cannot communicate with these child victims properly as a result of the lack of understanding and linguistic skills. It is sometimes the case that these children are simply quiet because the questioning by the investigating official is too intimidating for them.

Therefore, it is believed that the presence of a psychologist, social worker and support person the child requested would help make the process of taking statement friendlier. In such atmosphere, they would feel more comfortable, relaxed, and relieved and thus will be able to give a complete picture of the suffering events. In addition, it is required by this new law that the statement of the child as a victim or a witness shall be taken in privacy in a suitable place.

As well, it is recognized by this new law that psychologist or social worker has to be present. Their participation will definitely assist the investigator and/or prosecutor in the interview because they possess understanding and skills in properly questioning these children without further damaging them. Such partaking would as well increase the credibility of the child statement. This, of course, will be of great benefit at trial in case that the prosecutor cannot find the victim to testify later on in the court. Moreover, in practice, it is well recognized that the psychologist or social worker should get involved in the process and provide psychological treatment and welfare support to these children as early as possible because childcare and healing should be the first priority.

Furthermore, the statement of the child victims must be recorded and be able to be used as evidence at trial in order to avoid further victimization of these children. Such videotapes and audiotapes should be played instead of the children being forced to give or repeat their painful experience. Forcing them to testify in the court will cause severe emotional damage or they may simply freeze on the stand.

However, it may be the case that the prosecutor or the court needs to further examine them. To be sure, the defendant also has the right to confrontation of witnesses, which also includes the right to cross-examine witnesses. Therefore, the child victims yet must appear in the court despite the admissibility of such videotape-recorded statement.

Given also the fact that the court proceeding in general is not designed for child victims or witnesses. Even adult frequently finds the courtroom and criminal trial too intimidating to stand. It is quite naturally that children are not likely to remember the details of the event in such a situation. In fact one research has concluded that a child who is not in the courtroom is likely to remember what has happened better. Thus, in this new criminal procedure law, the using of the closed circuit television to broadcast the child’s live testimony from another suitable place to the trial courtroom is permitted.

It is also important that a psychologist or social worker should accompany the child victims in this place in order to create child friendly atmosphere and assist the child. Frequently, the child victims cannot understand questions because they are too complicated especially when the lawyers use the legal term in asking them the questions. Some of these questions are too offensive to respond or even further damage these vulnerable children. Therefore, it is suggested in this law that if the judge thinks fit the judge may give an order to have the examination and cross-examination done through a psychologist or social worker who has the capacity to adjust, rephrase or simplify questions so that the child victims are able to understand and give complete facts of the case.

In my view, the use of closed circuit television does not substantially affect the right to confrontation of witnesses because the defendant is still free to cross-examine the child victims. It should not be necessary that the victims have to testify eye-to-eye with the defendant in order to satisfy the requirement that the witness must testify before the accused. It is quite sufficient that the defendant can view the child during the testimony through the video links.

Nevertheless, the defendant’s viewing of the child during the testimony through the closed circuit television is still different from his actual confrontation. Therefore, the closed circuit television should be used only when it is necessary. The court should be authorized to decide whether such necessity exists. In making such a decision, the court should take into account various factors including whether forcing the child victims to testify eye-to-eye with the accused will cause severe psychological injury to them and whether the use of closed circuit television would enhance the accuracy of the child testimony. Precisely, it is the duty of the public prosecutor to provide the recommendation to the trial judge to employ such an instruction.

Another aspect of the reform relates to the early deposition of the child victim or witness. This reform requires the court to take a statement of the child victim or witness upon a request of the prosecutor before the offender is indicted if there is a reasonable ground to believe that child victims or witnesses will travel out of the country, or has no definite residence, or live far away from the trial court, or there is reasonable ground to believe that they will be directly or indirectly tampered with or there is any other reason arising from necessity which will cause difficulty in bringing them to testify in the future.

One important aspect that ought to be mentioned is the case where the legal representative of the child becomes the abuser. Though the child can file a complaint by himself or herself, however in this situation the child is usually quiet because he/she does not want the perpetrator who may be his/her parents or relatives to be punished or he/she is still in need of the care of such person. In this condition, other persons such as the child’s teacher or a social worker cannot initiate the case on behalf of the child. Even if Section 6 of the Code allowing the court, upon a request, to appoint an interested person as the child’s representative, it does not solve the problem because the offender, upon the notice of the motion for such appointment, would be able to destroy all the evidence. In the mean time, the offender is, furthermore, still be able to repeatedly abuse the child.

Thus, one research has suggested that the law should allow the officials responsible for child welfare to be able to get involved upon only suspicion that the child is being abused without regard to whether a complaint has been filed. When there is such a suspicion, the officials without consent from the child’s parents should be authorized to bring the child to the specified authority to assess the child safety and welfare for a period of time and to examine the incident whether there is any evidence of abuse. Should there be any evidence of abuse, such officials must notify the inquiry official promptly in order to further investigate the case.

In my opinion, this suggestion is quite effective because it allows the officials to proceed quickly for the protection of the child. Such a swift response would not only prevent the child from being abused for long but also enable law enforcement officials to better uncover the offense. However, this idea and strategy as set forth in the Draft on Child Welfare Act is still under the consideration of the Cabinet. Hopefully, it will be submitted to be read in the Parliament in due course.

　

　

B. The Changing Role Of The Police, Prosecutor and Court

The previous discussion has introduced the inter-agency investigation and care system where the police, prosecutor, medical personnel and/or social worker interview child victims in a multi-disciplinary manner. It has also introduced the use of videotaped statement of the child victims and witnesses as well as closed circuit television in the courtroom that must be done through a psychologist or social worker.

It should be noted as well that the initial interview and assessment of the child must focus on the issue of whether the child should be treated and taken into childcare center for appropriate treatment and protection. This is quite different from general investigation process in which the only most important goal is to pursue the offender.

Of course, the determination of whether a crime was committed, the identification of the perpetrator and the ascertaining of physical evidence are also important in the child abuse investigation. However, they should not be the focus of the initial interview because childcare and protection must be an utmost priority in child abuse cases.

For this reason, the police and/or prosecutor, who generally take the lead in questioning witnesses, may occasionally have to learn to be second to the psychologist or social worker for the best interest of the child, which is paramount. Such an attitude cannot be attained unless law enforcement, medical personnel and social worker have a trust in the motive and action of each other. They must understand their own and the other’s role and responsibility in order to develop such a trust which is essential to the success of the joint interviews and all related responsibility.

The prosecutor should get involved in the inquiry or interview of the children as early as possible particularly for the purpose of tendering evidence. The police should not feel that the prosecutor interferes with their investigation. Instead, they should understand that the prosecutor is there to assist and support not to lead or instruct them in the investigation and that the purpose of the participation of the prosecutor is to protect the children from further victimization through a number of interviews. Such understandings would ensure that the police and prosecutor actually work in close cooperation, which is crucial to achieve the goal.

It must be noted as well that child abuse cases should be expedited to avoid any delay and reduce trauma for the child victims. This is not only for the benefit of the child but also for the quality of the evidence. Children change quickly in a short time and have more difficulty recalling the details of incident. It is occasionally difficult for the healing process to fully accomplish until the court process is complete. Thus, it is necessary for law enforcement agencies to keep in mind that fast tracking of criminal cases involving children is a principle to be followed to the most possible extent. Such recognition is as well particularly important in the trial stage where the defendant can ask for the postponement of the trial. In Thailand, the court usually cannot continuously try a case because of the problem of case overload. Frequently, the adjournment period is a month that is fairly long. Such a practice is absolutely not toward the best interest of the child. Therefore, the court should also be more cautious when it considers whether to allow a trial postponement in child abuse cases.

As true with other types of cases, the offender is guaranteed a right to be released on bail by the Constitution. It is a principle that the offender must be released on bail unless the ground for refusal specifically provided by law exists. Nevertheless, in child sexual abuse cases, the officials should be extraordinarily careful in allowing the release of the offender. This is particularly important in the case that the offender is a member of the victim family, or a relative such as the case of child abuse between parents and their offspring. In such a case, it is very likely that the offender, upon the release, would be back to live with the child victims and thus be able to further abuse or even exert any influence on them. It is necessary that an application for provisional release in such a case be denied by the inquiry official, the prosecutor or the court as the case may be in order to protect the children from being further abused by the released offender. Such recognition of criminal justice officials would guarantee that the child victims would be protected from the abuser to the most possible extent.

VII. Conclusion

In concluding, I would like to once again stress the importance of children for our future. As a weakest member of society, they are so vulnerable that they cannot protect themselves from various kinds of exploitation, especially sexual exploitation. We cannot let our future be exploited. We have to protect them through strengthening substantive laws and reforming procedural laws so that the procedure would be flexible and sensitive to the needs of these children. The Office of the Attorney General in Thailand together with various governmental and non-governmental agencies has coped with the problem of various forms of exploitation of children through several legal measures allowed by the current laws. Yet in practices, there are still a need on part of the law enforcement personnel, medical personnel and social service professionals to develop, refine and maintain effective procedures and understandings between each other for working together. All of which will definitely enable responses to child abuse cases handling more logically related and coordinated, carried out in the proper sequence, and effective. My personal belief is that with such legal reform and effective implementation, our children will be more protected and be able to grow up to be our future with decent morality and benefit to our society as well.