Suspects in cases of sexual violence against children can currently avoid trial if they reach an out-of-court settlement.
www.iwpr.net Darya Kondratyeva and Begimai Sataeva are IWPR contributors.As a recent prosecution places the issue of child abuse high on the agenda in Kyrgyzstan, rights activists are calling for an end to impunity which they say stems from a loophole in the law.
On March 5 a number of rights groups appealed to parliament to change the Criminal Procedures Code to prevent out-of-court settlements which allow suspected paedophiles to avoid prosecution. The statement from the Association of NGOs for the Advancement of Rights and Interests of Children in Kyrgyzstan, the Centre for Child Protection, the Adilet legal aid clinic, and the Youth Peer Education Network, said that perpetrators were commonly relatives of the victims rather than strangers, and families often sought to cover up the crime.
“Many family members pressure the mother to retract a complaint against a relative who is the perpetrator, in order to avoid bringing shame on the family,” the statement said, adding that as a result, very few mothers were able to pursue cases on behalf of their children.
The joint statement cited the case of a nine-year old girl from the capital Bishkek whose mother sought help from the Adilet group in November, but subsequently backed out of pursuing a case against the child’s uncle.
The appeal to parliament is part of an ongoing campaign against violence against children. NGOs held a public meeting on the issue in Bishkek at the beginning of March.
PUBLIC OUTCRY
The campaign and media coverage were triggered by an incident at the beginning of January involving the rape of a two-year-old boy. Doctors reported the case to police after the child was admitted to hospital with severe injuries that indicated sexual assault. His uncle and aunt have been charged with sexual assault and attempted murder. They deny the charges but have admitted beating the boy.
In a media interview, Talant Omurbekov, the chief doctor of the hospital where the child was treated, said the father did not wish to press charges against the principal suspect, his brother.
Dr. Omurbekov was speaking at a forum in late January held to discuss a national action plan to prevent violence against children.
He said his hospital, which deals with most cases of this kind, treated seven child victims of sexual violence last year, and had already recorded three cases in January 2015.
Official figures for 2014 show there were 140 reports of sexual violence against children, of which 101 went to court, close to the figures for the previous year.
The nature of the crime and the perception it will not result in a successful prosecution leads to a reluctance to report offences. The mother of a very young child told IWPR on condition of anonymity that when her partner raped her daughter two years ago, she was too scared to go to the police herself, and asked doctors not to report the incident. The man also threatened her with violence if she did so.
“My daughter was small at the time and I decided I hadn’t the time or money to go to the police and doctors. I didn’t want to worry my parents, either,” she said. “I just decided to leave and start a new life in a different place.”
According to Kyrgyzstan law, sexual violence against minors carries a prison sentence of up to 20 years of imprisonment or a life sentence.
The case of the two-year-old boy led to calls for tougher penalties. Prime Minister Joomart Otorbaev suggested restoring capital punishment – abolished in 2007 – specifically for sexual assaults on minors, and naming and shaming paedophiles by putting up their photos in Bishkek’s central square.
A recent attempt to legislate for chemical castration of convicted paedophiles was dropped after President Almazbek Atambaev spoke out against it, and parliament instead voted to increase the prison term to life.
Experts say it is not that the current law is too soft. Instead, it is not applied as it should be, since criminal cases often do not get to court because an out-of-court settlement is agreed, including payment of compensation
“The most important thing is to amend the law, for instance to prevent criminal cases being closed because the two sides have reached agreement,” Gladis Temirchieva of the Child Protection Centre told the Ferghana.ru news agency.
In one recent case, a court in Jalalabad, southern Kyrgyzstan, acquitted one man of rape and a second of helping conceal the crime on the grounds that the 14-year-old female victim had retracted her allegations.
The girl’s mother, Gulzada Toktogazieva, is appealing against the verdict.
“Just before the trial, my daughter and I were summoned to the… district court where we met relatives and lawyers of the men,” she said. “They threatened us and forced us to sign a retraction that stated the sexual contact took place by mutual consent.”
Toktogazieva acknowledged that she was offered – and accepted – a payment of some 5,000 US dollars at the same meeting. But she insisted she accepted it to cover the costs of her daughter’s medical treatment, not as a financial settlement.
Kyrgyzstan’s deputy prosecutor general, Lyudmila Usmanova, told IWPR that lack of cooperation from family members was a major obstacle to going to trial and securing a conviction. All too often, they testified that the sexual activity was consensual.
“It might be that they do it because money is involved – I don’t know,” she told IWPR. “The result is that at trial, the case disintegrates and [charges are] brought under a different provision of the criminal code that deals with consensual sexual contact.”
Usmanova added the courts were wrong to accept the principle that a minor could consent to sexual violence.
Nurbek Toktakunov, a lawyer in Bishkek, says the leeway for dropping cases by apparent mutual consent gives perpetrators a sense of impunity. “They can buy clemency and the pay-off allows them to walk free,” he said.
Changing this “all comes down to the political will of government and law enforcement, and how determined they are to address the issue”, he said.
As Toktakunov and others point out, offenders can sometimes bribe police and prosecutors to get them off the hook.
Dilbara Hamidova from the southern city of Osh claims that the perpetrator of repeated rape of her nine-year-son was able to bribe his way out of a prison sentence.
The man, a 22-year-old teacher at the Islamic school the child attended, was ordered to undergo psychiatric treatment.
“If he was mentally ill, as the psychiatrist’s report states, how could he have been employed by a religious school, work with children and study in Turkey?” Hamidova asked.
She has spent the last three years trying to appeal against the Osh regional court’s decision not to go ahead with a trial.
“My son had to undergo several operations under general anaesthetic, and he suffered psychological trauma. He’s afraid to sleep on his own and frequently has nightmares where he wakes up screaming,” Hamidova said.
A representative of the Osh court, speaking on condition of anonymity, denied that anyone was paid off.
“The judges made their decision on the basis of an expert report. They can’t ignore its conclusions on mental illness, can they?” the staff member said, adding that the judges would be reviewing the case later this year after the suspect was examined in Bishkek.
Bubusara Ryskulova, who heads the Sezim Crisis Centre, says that in cases involving minors, prosecutors and courts should proceed on the basis of evidence, regardless of whether one or both parties wishes to pursue the matter.
There are precedents for this. Last year, a court in Bishkek tried Usen Sakataev, 32, after a woman reported him for raping, beating and stabbing her three-year-old daughter.
The woman later withdrew her allegations and spoke in support of the accused. The court ignored her change of position and handed down a 24-year sentence to Sakataev.
Darya Kondratyeva and Begimai Sataeva are IWPR contributors. Timur Toktonaliev is IWPR Kyrgyzstan editor.