Children in Court: CRINmail 58

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21 March 2016 subscribe | subscribe | submit information
  • CRINmail 58:
    Children in Court

    In this issue:

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    This month’s CRINmail includes news about redress at the regional level for state failure to secure children’s access to justice, the latest on the cover-up of sexual abuse in religious institutions, cases on the right to health, children’s right to vote and new legislation on protecting children from violence. Near the end of the CRINmail, you can find links to new legal resources related to business and human rights, children’s right to participate and more.

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    Latest news and cases

    State failure to protect children from rape

    The African Commission on Human Rights has ordered the Ethiopian government to pay $150,000 in compensation to a girl for failing to prevent her abuse and to provide her with justice. The victim was raped, abducted and forced to marry at the age of 13. After the first time she was raped, the abuser was arrested, but when he was released on bail, he abducted and held her for a month until she agreed to sign a marriage certificate. Although the perpetrators were initially convicted, an appeals court overturned the verdicts and the men were freed on the basis of a law - now repealed - precluding the prosecution of a rapist who subsequently marries their victim. The girl with the help of her father and two NGOs sought redress from the national courts but when domestic avenues were exhausted, they filed a complaint at the African Commission. Human rights advocates welcomed the Commission’s decision as a victory for the child in the case as well as for all other girls who are victims of sexual violence. "The disposability of girls in Ethiopia and around the world needs to end [...] We can only hope that the message this unprecedented ruling sends will have a ripple effect at all levels of society." said Faiza Mohamed from the rights group Equality Now, which acted in the case.

    Last week Romania was also condemned for its failure to protect children from rape and sexual abuse. The ruling came in the case of a girl who suffered repeated rapes by a 52-year-old neighbour and four other minors. Domestic prosecution resulted in the conviction of the neighbour for the offence of intercourse with a child. The highest court in the country rejected a conviction for rape because there were no signs of resistance on the girl’s body to demonstrate a lack of consent as required by national law. The national courts further accepted evidence that the girl sought sexual contact with the accused, despite a psychiatric report stating that the child had insufficient discernment due to her age and showed signs post-traumatic stress. The European Court unanimously held that Romania failed to fulfil its positive obligation to protect the girl from inhuman and degrading treatment and to protect her private life as required by the European Convention on Human Rights. Read CRIN’s summary of the case.

    Liability for child abuse in religious institutions

    In the United States, legal provisions requiring mandatory reporting of suspected child abuse by religious officials, even in the context of confessions, have been struck down by a Louisiana judge on the basis that they violate the clergy’s freedom of religion. The ruling was made in relation to a civil suit alleging negligence by the Catholic Diocese of Baton Rouge for the alleged sexual abuse in 2008 of a 14-year-old girl by a 64-year-old parishioner. The victim had spoken of the abuse to Reverend Bayhi during confession, but he failed to notify anyone, allowing the abuse to continue. Bayhi testified that, had he reported the suspected abuse, he would have been automatically excommunicated from the Church for breaking the sanctity of confession. Judge Caldwell concurred, saying that Article 609 A(1) of the state’s Child Code violated Bayhi’s right to free exercise of religion under the First Amendment of the Constitution. The ruling is subject to an immediate appeal to the Louisiana Supreme Court.

    Meanwhile, a grand jury in the state of Pennsylvania concluded that two Catholic bishops in the Altoona-Johnstown Diocese have assisted in the covering up of the sexual abuse of hundreds of children over a 40-year period. The jury’s 147-page report states that the bishops had “placed their desire to avoid public scandal over the well-being of children” and also alleges that the church exercised considerable influence over matters of law enforcement, so much so that it helped in the selection of a police chief. However, the Attorney General for Pennsylvania announced no criminal charges will be brought due to the expiration of statutes of limitations and some of the abusers being no longer alive. At the time most of the cases occurred, the statute of limitations required a civil suit to be brought within two years but current law allows civil suits until the victim reaches 30 years of age and criminal charges until as late as 50 in some cases. The grand jury recommended the complete removal of time limitations for criminal charges in future cases, as well as temporarily allowing civil suits for past abuse where statutes of limitations have lapsed.

    See CRIN’s campaign to end sexual violence in religious institutions for more information about sexual abuse in the Catholic Church, including a selection of case law.

    Rights of children recruited by gangs in Colombia

    A ruling by Colombia’s Constitutional Court puts child victims of recruitment by ’gangs’ on an equal footing with children recruited by paramilitary forces for the purposes of their rehabilitation in society. The case was brought by the Ombudsman who argued that the Victims' Law, which offers reparations to persons recruited as children in the country’s internal armed conflict must extend not only to children who fought in paramilitary or guerilla groups but also to those recruited into organised crime groups. The Court agreed and ruled that treating the two groups of children differently would amount to discrimination and, therefore, the Victims Law must also extend to children who were gang members where they have obtained a certificate to prove their disaffiliation from the illegal group.

    Right to health and clean water

    Last month in Poland an administrative court in Warsaw ruled in favour of a child seeking funding from the State for muscular dystrophy medication. The Ministry of Health was refusing to reimburse the costs of importing any medication which has not been registered in the European Union. However, the court held that this is inconsistent with the obligation of public authorities to provide special healthcare to children and the constitutional right to equality. The boy’s lawyers welcomed the ruling as an important step to securing access to medication.

    In the United States, seven families have filed a class action lawsuit against the Governor of Michigan and other public officials, alleging gross negligence under the Safe Drinking Water Act, in relation to lead contamination of the water supply in the city of Flint. The families are suing for damages regarding the thousands of Flint residents who are subjected to physical and economic injuries as a result of the contamination.

    A jury in Missouri has awarded $72 million in damages to be paid by the producer of a baby talcum powder to the family of a woman who died from ovarian cancer after prolonged use of their product. The plaintiffs argued that the company was aware of the risks from talcum powder but had failed to warn the consumer. Research into potential links between talcum powder and ovarian cancer has thus far been inconclusive and the company is considering an appeal. This is the first award in a talcum powder claim in the United States. It is reported that more than 1,000 similar claims are pending in courts around the country.

    Right to vote

    In the run-up to the presidential election, an emergency order by a US court in Ohio allowed 17 year olds who will have turned 18 by the time of the election to vote in the state primary last week. Votes in primary elections are cast to support a candidate for the official nomination by their party. The suit was filed by nine teenagers following the release of a voting manual, which stated that the right of this group of children to vote in presidential primaries, which has been in effect since 1981, would no longer apply as a result of a new interpretation of the words “elections” and “nominations”. State officials decided not to appeal the court order as the matter was not going to be resolved in time for the primary. A number of other states also allow 17 year olds to cast a vote in primary elections or caucuses, but only if they will have attained 18 years old on the day of the election.


    New Zealand’s adoption laws have been declared outdated and discriminatory in a decision of the Human Rights Review Tribunal. The Adoption Act 1955 and the Adult Adoption Information Act 1985 were found to breach the Human Rights Act and the Bill of Rights Act by discriminating in eight different respects on six prohibited grounds of discrimination. In particular, provisions preventing persons under the age of 20 from obtaining a copy of their birth certificate were held to discriminate on the ground of age. The government has 120 days to respond to the decision.

    In the United States, the Supreme Court reversed a decision by an Alabama court refusing to recognise a child’s adoption by a same-sex couple which was completed in another state. The Supreme Court determine that a state cannot disregard court judgments from another state simply because they disagree with the decision. Rights advocates have celebrated the ruling as a breakthrough for the rights of LGBT parents and the best interests of their children. Meanwhile, a court in Rome has for the first time in Italy allowed a same sex couple to adopt each other’s biological children. Although each of the partners will be recognised as a parent to both children, paradoxically the children will not be recognised as siblings. It is reported that the court based its decision to allow the adoptions on the paramount consideration of the right of the children to “ongoing affection”.

    In Uganda new legislation which limits foreigners' ability to adopt Ugandan children has been passed in an effort to curb trafficking and sale of children. Previously, foreigners could apply for and be awarded legal guardianship of a child within days of arriving in the country. Under the new law, only Ugandan nationals can be guardians and intercountry adoptions are only permitted if the child has no known relatives or a legal guardian. The law also references the best interests of the child.

    Birth registration of premature babies

    A court in Bulgaria has struck down regulations under which some premature babies who didn’t survive had to be disposed of as biological waste. Until now babies who were born before the 26th week of gestation and those weighing less than 800 grams were considered to be miscarriages, rather than live births, unless they survived for three or more days. Prior to 2014, the conditions for viability were 600 grams or 22 weeks of gestation. This meant that such births are not registered and the families, unable to obtain a death certificate, cannot bury or cremate their child. The regulations were held to be void on procedural grounds as no reasons were presented in support of the 2014 amendment at the time it was passed and will be superseded by the pre-2014 conditions for viability.

    New child protection legislation

    A landmark piece of legislation has been adopted by Pakistan’s Senate to raise the minimum age of criminal responsibility from seven to ten years of age and to criminalise child sexual abuse and child trafficking and pornography. Previously criminal punishments were applicable only to acts of rape, but not other kinds of assault and to trafficking only where a child was taken outside the country.

    China’s first domestic violence law came into effect at the beginning of this month. The law provides a legal definition of domestic abuse for the first time and allows courts to issue restraining and personal protection orders to victims within 72 hours, or within a day in urgent cases. Where a child is unable to seek such a remedy independently, the law allows non-governmental organisations to apply on their behalf.

    Finally, the Ukrainian parliament has adopted legislation to incorporate the best interest of the child in its national law. From now on decisions affecting children on different issues should primarily be based on their best interests. The purpose of the amendments is to strengthen social protection of children, as well as give full support to families with children.

    Child pornography

    A court in Japan has convicted a man of child pornogrpahy for creating computer-generated virtual reality images. The possession of child pornography was banned in 2014, however the law only criminalises images of real people but it does not cover manga (Japanese comics) and anime (computed animation). The man had created and attempted to sell 34 computer generated images of a naked child. He argued that the images are not real but the police found that at least three of them were based on photographs of a girl featured in a book from the 1980s. The court ruled that the man could be convicted of producing and distributing child pornography in relation to just those three images.

    In December last year the Supreme Court of the Netherlands ruled that paintings can also constitute child pornography and upheld the convictions of two men who produced and attempted to sell paintings depicting young children performing sexual acts. According to the domestic legal definition, pornography must be realistic and life-like, however, the court said this doesn’t mean that only photographs can be considered pornography. In the current case, the fact that some elements of the painting were unrealistic - like wings sprouting from the child’s back - did not prevent the lower court to hold that the material amounted to pornography.

    In the United States, the Governor of New Mexico has signed into law a new bill decriminalising consensual ‘sexting’ by teenagers. Children aged 14-18 years old sharing nude photographs of each other can no longer be charged for child pornography offences or sent to prison. The legislation has received the backing of the American Civil Liberties Union of New Mexico, labelling the criminalisation of such behaviour as “just absurd”.

    Juvenile justice

    A public interest litigation challenge to India’s new Juvenile Justice (Care and Protection of Children) Act 2015, filed last month by a human rights activist, was ruled inadmissible by the Supreme Court for lack of standing of the petitioner. The Court did not agree that there was a larger issue at stake that justifies hearing the case in the public interest. However, it did leave the door open for a future challenge by “somebody who is convicted or affected by the new legislation”.

    In the United States new legislation in South Dakota bans sentences of life imprisonment without the possibility of parole (LWOP) for juveniles, becoming the fifteenth state in the country to do so. In January this year the US Supreme Court determined that the mandatory imposition of LWOP in relation to crimes committed by a person under the age of 18 is unconstitutional. However, such sentences remained lawful in case of “the rare juvenile offender whose crime reflects irreparable corruption”.

    Legal resources

    The Business and Human Rights Documentation Center has released its annual briefing In the courtroom and beyond: New strategies to overcome inequality and improve access to justice. The briefing examines the manner in which “lawyers, legislators and their allies are using creativity and innovation” to overcome the rising inequality of power and wealth distribution and the increasing obstacles facing victims seeking redress for business-related human rights abuses.

    A Practical Guide - Monitoring places where children are deprived of liberty was published last month as part of the Children’s Rights Behind Bars project, co-ordinated by Defence for Children International (DCI). The first of its kind in Europe, the guide aims to contribute to the reinforcement of the capabilities of monitoring mechanisms in places where children are deprived of liberty.

    DCI-Italy have also published a Handbook on children’s right to participation and the juvenile justice system. The publication, which aims to promote an understanding of participation as an essential element of a child-rights based approach, was prepared on the basis of research and consultations carried out in six European countries.

    Penal Reform International have also published a Short Guide to the Nelson Mandela Rules. The guide consists of a summary of the 122 rules of the Standard Minimum Rules for the Treatment of Prisoners, revised by the UN in 2015. It is intended for policy-makers developing national prison management standards and guidelines and for prison authorities and personnel putting them into practice on a day-to-day basis.

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    Last Word:

    “But for the windfall provided by Pennsylvania’s statutes of limitation for serious sexual offenses, the priests who sexually and psychologically abused Archdiocesan children could be prosecuted for the following serious crimes: rape, statutory sexual assault, involuntary deviate sexual intercourse, indecent assault, endangering welfare of children, corruption of minors.

    Unfortunately, the law currently stands in the way of justice for the victims of childhood sexual abuse.“

    - Report of the Grand Jury on the sexual abuse of minors by clergy in Pennsylvania.

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