CRINmail 35:
Children in Court

In this issue:

Read this CRINmail online.

INTRODUCTION

From how to award compensation for child abuse to the registering of children as sex offenders, the world’s courts have dealt with a diverse set of children’s rights violations this month. It has also been a busy month for juvenile justice reforms, from the worrying developments in Iran, the Maldives and Brunei Darussalam to justice reforms in Burkina Faso. Read on for the latest news on children’s rights in courts around the world.

LATEST NEWS AND CASES

South African court declares sex offenders register unconstitutional

In May, the South African Constitutional Court declared the Sexual Offences Act unconstitutional to the extent that it requires the names of child sex offenders to be automatically entered in the National Register for Sex Offenders upon conviction. Section 50(2), which deals with persons convicted of a sexual offence against a child or a mentally disabled person, requires a court to order the inclusion of the offender’s details on the National Register for Sex Offenders. The applicant in the case had been convicted of committing sexual offences against children when he was a child. The Court ruled that section 50(2) was unconstitutional because it violated children's rights under section 28(2) of the Constitution to have their best interests taken into account as the paramount consideration in every matter affecting the child. Several NGOs have welcomed the decision, saying that it will allow children convicted of sexual offences to be treated on the merits of their case.

Read the judgment and CRIN’s case summary.

In a timely report, Human Rights Watch has argued that harsh public registration laws often punish youth sex offenders for life and do little to protect public safety.

United States Supreme Court rules on restitution for victims of child abuse

Last month, the United States Supreme Court has ruled that victims of child abuse will only be able to claim compensation from those who view images of their abuse to the extent that the defendant’s offence “proximately caused the victims loss”. The court recognised that children are harmed when people view images of them being abused, but left the precise amount of damages to be awarded unclear. Victims will be required to establish the extent to which any person who has viewed images of them being abused is responsible for the harm the victim has suffered in order to determine how much compensation is due. The judgment emerged from the case of a woman (identified only as “Amy” in order to maintain her anonymity) who was sexually abused by her uncle as a child and learned at a later date that images of her abuse had been shared online by thousands of people. She subsequently sought to claim damages of US$3.5 million, including for lost income, future treatment and counselling costs from people who had viewed images of her abuse online.

During the oral arguments in February, the Supreme Court struggled with how to apportion liability for compensation, when so many people had viewed Amy’s abuse and the majority may never be identified. These issues also divided the court in its final judgment. In a dissenting opinion, Justice Sotomayor argued that the restitution scheme set out by the relevant legislation held every person who viewed images of Amy being abused jointly and severally liable for the effect of their shared actions. Had this approach been adopted by the majority, it would have made it easier for victims of child abuse to claim compensation, as it would only require them to pursue offenders that can be identified in order to obtain full compensation for the harm suffered.

The case will now return to the lower courts to determine how much compensation the defendant should pay under this test. Read the judgment and CRIN’s case summary.

Philadelphia Supreme Court to review Catholic Church official’s prosecution

In May, Philadelphia’s highest court agreed to review the prosecution of Msgr. William Lynn, the former Archdiocese of Philadelphia official who was tried, imprisoned and then freed over his handling of complaints of child sexual abuse by priests. Msgr. Lynn allegedly transferred abusive priests from parish to parish as secretary for clergy at the Philadelphia Archdiocese from 1992 to 2004. His conviction stems from the case of Edward Avery, a priest with a history of sexually abusing children who abused a 10-year-old altar boy after such a transfer. Lynn was convicted for child endangerment in July 2012 and sentenced to three to six years in prison. However, an appeal court overturned his conviction last year, finding that Msgr. Lynn was never legally responsible for any individual child's welfare.

The Philadelphia Supreme Court will now weigh two issues: whether Msgr. Lynn can be held responsible for harm caused to a victim he never met, and whether his actions were part of a larger scheme that put the boy at risk. After serving 18 months of his sentence, Lynn will remain on house arrest at a Philadelphia rectory until the state Supreme Court decides the case.

Msgr. Lynn was the first church official in the United States charged with keeping accused priests in ministry, but he is one of many who have exposed children to abusive priests. For more information, see CRIN’s campaign to end sexual violence in religious institutions.

Inhuman sentencing of children in Brunei Darussalam, Iran and Maldives

The last month has seen an alarming trend in the sentencing of children as the Maldives and Brunei Darussalam introduced harsh new penalties for child offenders and Iran continued to execute people for crimes committed as children.

The Maldives has overturned a 60-year moratorium on the use of capital punishment, adopting a new Penal Code which permits the death penalty in cases of murder, including when committed by a child. The Code will authorise the death penalty for children as young as seven for hadd offences, including murder, apostasy and adultery. Alongside the Penal Code, the Maldives has introduced a new regulation to govern the application of the death penalty under which children sentenced to death would be executed once they turn 18. Last year, two people were sentenced to death for offences committed while children in the Maldives.

In response to the new regulations, the UN has reminded the Maldives that international law bans the use of the death sentence against persons below the age of 18 at the time when the offence was committed, and has urged the Government to retain its moratorium on the death penalty in all circumstances.

Brunei Darussalam followed suit in May, by implementing the first phase of the Syariah Penal Code Order introducing imprisonment and fines for a number of Syariah offences. If fully implemented this new Code will allow children as young as 15 to be stoned to death for adultery, robbery in which murder is committed, rape, homosexual intercourse between males and anal intercourse between an unmarried male and a woman who is not his wife. For several forms of apostasy, capital punishment would be lawful without a lower age limit and for committing murder, a child could be sentenced to death from the age of 15.

The Sultan of Brunei announced in April 2014 that the remaining provisions will be gradually introduced over the next three years. You can read detailed analysis of the reforms in CRIN’s report on inhuman sentencing in Brunei Darussalam.

In April, reports emerged that four people had been executed in Iran for offences committed while they were children. Iran Human Rights reported that four young men were killed, bringing the total number of child offenders executed in Iran this year to six. You can find out more about the death penalty affecting children through CRIN and the IJJO’s joint submission to the Secretary-General on the question on of the death penalty.

Solitary confinement of children in Israel and the United States

A report released in May by Defence for Children International - Palestine (DCI-Palestine) indicates that the number of Palestinian children held in solitary confinement in Israeli prisons is increasing. According to the report, the evidence collected by DCI-Palestine “overwhelmingly suggests that the use of isolation for Palestinian child detainees is solely for interrogation purposes… to obtain a confession and/or gather intelligence or information on other individuals”. Between 500 and 700 Palestinian children from the occupied West Bank, some as young as 12-years-old, are detained every year in the Israeli military detention system, “where ill-treatment of children is widespread and systematic”. Since 2000, approximately 8,000 Palestinian children have been detained and prosecuted in Israeli military courts that “lack fundamental fair trial guarantees” and fail to respect children’s rights. The overwhelming charge brought against Palestinian children is stone throwing, which can lead to a sentence of up to 20 years in prison.

Speaking in a video message in May, US Attorney General Eric Holder called for an end to the “excessive” use of solitary confinement for children in juvenile detention centres. Holder noted that isolation is particularly detrimental to children with disabilities, “who are at increased risk under these circumstances of negative effects including self-harm and even suicide”. Holder stated that solitary confinement and isolation “should be taken only in a limited way where there is a valid reason to do so, and for a limited amount of time”, and, “[a]t a minimum, we must work to curb the overreliance on seclusion of youth with disabilities”. Read the full statement.

Solitary confinement is practised in a majority of States. Where solitary confinement causes severe mental and physical pain or suffering, when used as a punishment, during pre-trial detention, indefinitely, prolonged, on children or persons with mental disabilities, it can amount to torture or cruel, inhuman or degrading treatment or punishment. For more information, see the ‘Issues in focus’ report by the Special Rapporteur on Torture.

Indian Supreme Court finds children of de facto relationships “legitimate”

In April, the Supreme Court of India held that children born out of prolonged de facto relationships are not to be deemed “illegitimate”. The Court stated that “if a man and woman are living together for a long time as husband and wife, though never married, there would be a presumption of marriage and their children could not be called to be illegitimate”. Read the judgment and CRIN’s case summary.

Australian court rules Christian group discriminated against LGBT youth

In April, Victoria’s Court of Appeal ruled that Christian Youth Camps unlawfully discriminated against a group of LGBT young people by refusing to allow the group to use one of its camps for a weekend retreat. The case was brought by Cobaw Community Health Services, an organisation that aims to prevent youth suicide, particularly among LGBT children, following the denial of its request for accommodation on the basis that the group would “promote the homosexual lifestyle”. The Court held that there was no error in the finding by the Victorian Civil and Administrative Tribunal, affirming that there was discrimination on the basis of sexual orientation and that exemptions in the Equal Opportunity Act that allow religious groups to discriminate in certain circumstances did not apply. LGBT and human rights activists have welcomed the decision as a vindication of the rights of young people that highlights the need for transparency in discrimination laws. Christian Youth Camps have filed an application for special leave to the High Court to challenge the decision. Read the judgment.

Russian court rejects complaint against journalist for engaging in “forbidden propaganda”

Rare good news emerged from Russia on the rights of LGBT children this month, as a judge rejected a complaint brought against a journalist accused of engaging in “forbidden propaganda” for hosting a social networking website to support LGBT youth. The judge ruled that the website “Deti 404” (“Children 404”), which Elena Klimova set up on Vkontakte and Facebook and on which LGBT youth can share their stories and experiences is not propaganda, but a support page for young people. Commentators have welcomed the judgment as an important precedent, as until now it was thought that any neutral or positive information on sexual diversity would be banned as “propaganda”.

The International Day Against Homophobia and Transphobia (IDAHOT) took place on Saturday 17 May, to celebrate sexual and gender diversity and uphold the human rights of LGBT people.

Civilian jurisdiction extended to human rights abuses by military in Mexico

This month the Mexican Congress passed a law which will require all cases in which a member of the military is alleged to have violated the rights of a civilian to be heard in the civilian courts. The Inter-American Commission on Human Rights welcomed the reforms “as an important step in the protection of fundamental rights in Mexico and in the fulfilment of the State of Mexico’s international human rights obligations, primarily regarding guarantees of the right to truth, justice and reparation for victims and their family members.”

In the past, the military justice system has made it difficult for child victims of human rights abuses to access justice. In 2010, the Inter-American Court of Human Rights called on Mexico to end the use of military courts in the case of Valentina Rosendo Cantu, a 17-year-old girl who was raped and beaten by a group of soldiers and was unable to challenge the abuse through the military courts. Amnesty International has called for further reforms, however, noting that the current law does not extend to human rights violations committed against members of the military by other members of the military.

Children’s right to health in the United States

The conflict between children’s right to health and parental wishes has been the subject of a number of cases over the past month. In Tennessee, the state Supreme Court has agreed to hear an appeal by a woman who tried to heal her teenage daughter’s cancer through prayer. The woman, who was convicted of child neglect 10 years after the death of her daughter, has argued that a Tennessee law protecting some faith healers but not others is unconstitutional. The law says that a child shall not be considered abused, neglected or endangered solely because the child’s illness is treated with prayer rather than surgical or medical care. But the faith healing must be performed “in accordance with the tenets or practices of a recognised church or religious denomination” and “by a duly accredited practitioner of the recognised church or religious denomination.”

In April, the Oregon Supreme Court ruled that the state can immunise children in its custody, even if the child is in temporary custody and even if the parents object to it. The case concerned eight children who were placed in foster care as the parents had failed to provide them with adequate shelter and necessities, and failed to meet their educational, hygiene and healthcare needs. The parents admitted to all charges except the lack of medical care. In a unanimous decision, the Court ruled that the children were in the custody of the state, which entitles the state to administer medical treatment, and this did not violate the children’s or their parent's constitutional rights. Read the judgment.

Mandatory child vaccinations in Croatia was recently upheld by the Croatian Constitutional Court. Read our previous Children in Court CRINmail.

Burkina Faso adopts new juvenile justice law

The Parliament of Burkina Faso has enacted a new law on children in conflict with the law which could revolutionise the way children are treated in the criminal justice system. After seven years of debate on the subject the new law will enter into force establishing a right to legal counsel during preliminary investigations, limits on police custody, specialised provisions for child victims and witnesses, a separate criminal procedure for child offenders and extrajudicial processes that aim to divert children from the criminal law.

Anonymity of children in conflict with the law

The Standing Committee for Youth Justice in the United Kingdom has launched a new report that argues that children in conflict with the law should never be named as to do so jeopardises the child’s rehabilitation. The Committee said, “If we want safer communities and fewer victims, we need to do everything possible to rehabilitate children ... Exposing them and their family to public vilification will make it more, not less, likely that they will go on to commit more crimes.”

The report comes shortly after a High Court ruling that anonymity provided to children involved in court proceedings expires when the child reaches 18. You can find out more about the case in last month’s Children in Court CRINmail and through a summary of the judgment on our website.

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