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Summary: The objective of the Article 34 Newsletter is to give continuity to the discussions held at the Third World Congress Against the Sexual Exploitation of Children and Adolescents in Brazil in 2008. The name of the publication derives from article 34 of the 1989 UN Convention on the Rights of the Child, which enshrines the commitment of all Member States to protect children against all forms of sexual exploitation and sexual abuse. Special Testimony The challenge of guaranteeing the right of boys and girls to be heard before the Courts. The need to investigate and prosecute sexual crimes against children often requires the delicate task of taking testimony from victims. At the outset it is necessary to understand that the participation of boys and girls in this procedure should be aimed at obtaining substantive evidence, while ensuring they are not re-traumatized as they recount their experiences. As provided for under article 12 of the UN Convention on the Rights of the Child (see Conventions table), boys and girls have the right to be heard before the Courts. However, certain precautions are required to assure effective implementation of this right. "We must understand the child's development stage: what he or she feels, how he or she speaks, the time the child requires to express him or herself, and how the questions are to be posed. Otherwise, the child's rights will not have been fulfilled," says José Antônio Daltoé Cezar, a Youth and Child Protection Judge in Porto Alegre (capital city of Rio Grande do Sul, Brazil's southernmost state), who has published extensively on the issue. Moreover, the establishment of special conditions for the taking of testimony from victims offers an avenue for making the experience less traumatic. "We are clear on the right of children to speak, but they also have the right to protection when they speak. In Brazil, this point is underscored by our adherence to a Convention that guarantees children and adolescents the right to testify under special conditions," says Itamar Batista, program coordinator for Childhood Brazil, and one of the organizers of Depoimento sem medo (Testimony without Fear), a study mapping the range of practices adopted worldwide for taking special testimony from children. Humanizing Testimony There is no single standard for the taking of special testimony from girls and boys. Methods vary from country to country, and even within countries. However, the different approaches seem to converge around the need to offer children a safer environment in which to testify. "Generally, sexually abused children have been traumatized by their experience. They are distrustful, feel threatened by their abusers, and no longer believe in adults. So, we first strive to create an environment in which they feel safe and confident, " explains Tony Butler, a forensic psychologist and retired chief constable of the Gloucestershire Police Constabulary in England. As such, increasingly children provide their statements in separate rooms with the assistance of specialized professionals who mediate between the victims and the actors charged with the respective criminal investigations or prosecutions. The investigating or prosecuting authorities view the conversations via simultaneous broadcast or from behind one-way mirrors (see Experiences chart). "Under the traditional approach, the child was taken to a room with several adults. Yet, in a special room and with a skilled professional, the child can be received in another way. In addition, not having to face the defendant in a court of law is very comforting," argues Betina Tabajaski, a psychologist with the Youth and Child Protection Court in Porto Alegre. According to Tabajaski, the individual mediating the conversation must assess if the child is emotionally equipped to speak, while making clear that the conversation constitutes legal testimony that will be used at trial. "A qualified professional will not force the situation. If the child is unable to testify, he or she will not testify," she concludes. Another concern is to ensure that the statement provided by the child or adolescent generates substantive evidence, without imposing undue pressure. A widely used method for obtaining testimony is the cognitive interview, a technique adopted in a number of countries, including Brazil, Argentina, and Great Britain. Through the approach, the interviewer avoids leading the witness, instead allowing him or her to exercise greater control over the conversation. "Repeated and closed questions can have the effect of prompting the child. It is essential to focus on posing open questions and letting the account flow more freely, thereby stimulating the child to speak from memory," explains Tabajaski. Number of Statements Another factor to consider is the number of times the victim is required to testify. After all, revisiting the experience will almost invariably reignite the trauma of painful memories and situations. In countries such as Great Britain, where special testimony provisions for children have been implemented, victims are required to provide only two statements: one to law enforcement agents, who videotape the testimony, and one before the Court, where deemed necessary by the presiding judge. In Brazil, the number of statements provided by victims varies significantly based on the procedures adopted in individual localities. In general, child victims of violence are required to describe the incident to the Guidance Council (Conselho Tutelar), the body with primary responsibility for processing reports of sexual violence; to the Specialized Police Precinct (Delegacia Especializada), for the purpose of officially launching the criminal investigation; to the Medical Examiner's Office (Instituto Médico Legal), which prepares the medical report; and finally to the Youth and Child Protection Court (Justiça da Infância e da Juventude), at which time the child is heard before the judge. However, in those states that have adopted special testimony provisions the child's statement before the Courts is recorded, thus releasing the victim from testifying at other stages of the legal proceeding or in a new proceeding arising from a defense motion for a new trial. The Use of Video In addition to serving as an important tool for reducing the number of times a child is required to testify, video recordings enhance the credibility of victim testimony as legal evidence. According to Judge Daltoé Cezar, the medium registers the victim's account in far greater detail than alternate recording methods. "Even in the case of audio recordings, in which none of the victim's statements are lost, other elements are missed. A certain look, a gesture, a tear, everything capable of informing the judge at trial is right there on video," maintains Daltoé Cezar. As former constable Tony Butler argues, the use of video also makes it possible to determine whether the interview was conducted properly. "It is as important to hear the questions as it is to hear the responses," says Butler. However, he also calls attention to the fact that the quality of the testimony depends on the dispatch with which the statement is taken. "It is in the Courts' interest to ensure children provide their evidence as quickly as possible following the incident, thereby reducing the difficulties caused by memory lapses," he notes. Controversy While a growing movement has taken shape to ensure boys and girls are able to provide their testimony under more humane conditions, disagreement persists concerning some aspects of the issue. For example, Brazil's o Federal Council of Psychology (Conselho Federal de Psicologia - CFP) has come out against the participation of psychologists in the taking of special testimony. In the view of the institution's counselor, Iolete Ribeiro, the practice has the potential of blurring the lines between the psychologist's role and that of the Courts in confronting sexual violence. "It is not the psychologist's place to take testimony. In addition, the notion of 'truth' in psychology differs from that adopted by the Courts," argues Ribeiro. Judge Daltoé Cezar maintains, however, that at no time does the psychologist take part in formulating the decisions arising from special testimony. "The psychologist serves as a facilitator through application of the cognitive interview method. But decisions as to the truth are made by the judge, who is well aware of the position he occupies and is sure to never delegate his responsibilities," he contends. According to the magistrate, psychologists and social assistants are currently the most qualified professionals to handle children in the country's various court settings. However, he does not discount the potential of individuals with other professional backgrounds to become actively involved in the taking of testimony, provided they receive the proper training. To underscore his point, Daltoé Cezar cites a number pertinent examples, "In Argentina, it is psychologists, in Great Britain, law enforcement officers with social assistance training, while in Cuba, child protection authorities specifically trained in interview techniques," Iolete Ribeiro stresses the need to respect the child's decision to provide testimony or not. In Ribeiro's view, it is essential that the debate on special testimony not eclipse the broader discussion on preventing and confronting sexual violence, which must consider, above all else, the welfare of girls and boys and the recovery of those victimized by the related offenses. In the opinion of Helena Oliveira, project officer for the Child Protection Unit at Unicef Brazil, to advance the discussion on the testimony of child victims of sexual violence those engaged in the issue should avoid polarized positions. "We should think about the possibility of judicial inquiries based on a broad interdisciplinary effort. We need to bring together the experiences and proposals of the various actors involved in the discussion: psychologists, social assistants, families, the Courts, and the executive branch," says Oliveira. Experiences Brazil Argentina Great Britain Source: Depoimento sem medo (Testimony without Fear). Organized by Benedito Rodrigues and Itamar Batista Gonçalves. São Paulo: Childhood Brasil, 2009. Learn more: Depoimento sem medo (Testimony without Fear): Português – English. Resolution of the Federal Council of Psychology of Brazil on the testimony of children and adolescents, Portuguese. Official site for the First International Symposium of Non-Revictimizing Cultures and Practices in the Taking of Special Testimony from Children and Adolescents in Legal Proceedings,First International Symposium of Non-Revictimizing Cultures and Practices in the Taking of Special Testimony from Children and Adolescents in Legal Proceedings held in 2009 in Brazil. Available in Portuguese and English.
Initially developed by the Child and Youth Court of Porto Alegre, Rio Grande do Sul State, the taking of special testimony is now widely disseminated practice throughout the country. The procedure is generally performed by a social assistant and a psychologist in a separate room within the premises of the courthouse, where the interview is recorded and broadcast live to the courtroom.
During the law enforcement investigation, a specialized psychologist takes the victim's testimony in a Gesell Chamber - an observation room designed with a one-way mirror - where it is simultaneously videotaped. As deemed necessary, the victim may be required to testify again at trial.
Testimony is taken by a trained police officer in a specially prepared room. While the interview is recorded during the investigation, the child may be required to testify at trial in order to answer questions regarding his or her initial statement.