Part 1: Who must act in CSIV according to international law ?

May 17, 2023

What are the international instruments dictating who has to act in Child Sexual Integrity Violations (CSIV)?

The UN sais ...

The Convention on the Rights of the Child (CRC) being a broad spectrum convention, does not mention much CSIV. Only articles 19 and 34 mention it, softly. I condense the essence:

The state shall undertake to protect and prevent and support. The protective measures should, as appropriate, include effective procedures ... for identification, reporting, referral, investigation, treatment and follow-up ... for judicial involvement.

There is no defining who should act, in the fields of identification, reporting, referral, investigation, treatment, follow-up and judicial involvement.

No sweat, the Committee on the Rights of the Child did on 18 April 2011 in its General comment No. 13: The right of the child to freedom from all forms of violence. More then 12 years ago, in an extensive and detailed way. States have had plenty of time to put things in place, wouldn't you agree? Read further in this topic what interpol says ...

I toyed with the idea to only copy the highlights, but decided it is too important for part 2 to copy as much of the relevant info as possible.

Identification: requires that all who come in contact with children are aware of risk factors and indicators of all forms of violence, have received guidance on how to interpret such indicators, and have the necessary knowledge, willingness and ability to take appropriate action (including the provision of emergency protection). Children must be provided with as many opportunities as possible to signal emerging problems before they reach a state of crisis, and for adults to recognize and act on such problems even if the child does not explicitly ask for help.

Reporting: includes: (a) providing appropriate information to facilitate the making of complaints; (b) participation in investigations and court proceedings; © developing protocols which are appropriate for different circumstances and made widely known to children and the general public; (d) establishing related support services for children and families; and (e) training and providing ongoing support for personnel to receive and advance the information received through reporting systems. Reporting mechanisms must be coupled with, and should present themselves as help-oriented services offering public health and social support, rather than as triggering responses which are primarily punitive. Children’s right to be heard and to have their views taken seriously must be respected. In every country, the reporting of instances, suspicion or risk of violence should, at a minimum, be required by professionals working directly with children. When reports are made in good faith, processes must be in place to ensure the protection of the professional making the report.

Referral: The person receiving the report should have clear guidance and training on when and how to refer the issue to whichever agency is responsible for coordinating the response. Following this, intersectoral referrals may be made by trained professionals and administrators when children are found to be in need of protection (immediate or longer-term) and specialized support services. Professionals working within the child protection system need to be trained in inter-agency cooperation and protocols for collaboration. The process will involve: (a) a participatory, multi-disciplinary assessment of the short- and long-term needs of the child, caregivers and family, which invites and gives due weight to the child’s views as well as those of the caregivers and family; (b) sharing of the assessment results with the child, caregivers and family; © referral of the child and family to a range of services to meet those needs; and (d) follow-up and evaluation of the adequateness of the intervention.

Investigation: Investigation of instances of violence, whether reported by the child, a representative or an external party, must be undertaken by qualified professionals who have received role-specific and comprehensive training, and require a child rights-based and child-sensitive approach. Rigorous but child-sensitive investigation procedures will help to ensure that violence is correctly identified and help provide evidence for administrative, civil, child-protection and criminal proceedings. Extreme care must be taken to avoid subjecting the child to further harm through the process of the investigation. Towards this end, all parties are obliged to invite and give due weight to the child’s views.

Treatment: “Treatment” is one of the many services needed to “promote physical and psychological recovery and social reintegration” for children who have experienced violence, and must take place “in an environment which fosters the health, self-respect and dignity of the child” (art. 39). In this respect attention must be given to: (a) inviting and giving due weight to the child’s views; (b) the safety of the child; © the possible need for her or his immediate safe placement; and (d) the predictable influences of potential interventions on the child’s long-term well-being, health and development. Medical, mental health, social and legal services and support may be required for children upon identification of abuse, as well as longer-term follow-up services. A full range of services, including family group conferencing and other similar practices, should be made available. Services and treatment for perpetrators of violence, especially child perpetrators, are also needed. Children who are aggressive towards other children have often been deprived of a caring family and community environment. They must be regarded as victims of their child-rearing conditions, which imbue them with frustration, hatred and aggression. Educational measures must have priority and be directed to improve their pro-social attitudes, competencies and behaviours. Simultaneously, the life conditions of these children must be examined in order to promote their care and support and that of other children in the family and neighbourhood. In terms of children who harm themselves, it is recognized that this is a result of severe psychological distress and may be a result of violence by others. Self-harm should not be criminalized. Interventions must be supportive and not in any way punitive.

Follow-up: The following must always be clear: (a) who has responsibility for the child and family from reporting and referral all the way through to follow-up; (b) the aims of any course of action taken – which must be fully discussed with the child and other relevant stakeholders; © the details, deadlines for implementation and proposed duration of any interventions; and (d) mechanisms and dates for the review, monitoring and evaluation of actions. Continuity between stages of intervention is essential and this may best be achieved through a case management process. Effective help requires that actions, once decided through a participatory process, must not be subject to undue delay. The follow-up must be understood in the context of article 39 (recovery and reintegration), article 25 (periodic review of treatment and placements), article 6, paragraph 2 (right to development) and article 29 (aims of education which present intentions and aspirations for development). Contact of the child with both parents should be ensured in accordance with article 9, paragraph 3, unless this is contrary to the best interests of the child.

Judicial involvement: At all times and in all cases, due process must be respected. In particular, the protection and the further development of the child and his or her best interests (and the best interests of other children where there is a risk of a perpetrator reoffending) must form the primary purpose of decision-making, with regard given to the least intrusive intervention as warranted by the circumstances. Furthermore, the Committee recommends the respect of the following guarantees: (a) Children and their parents should be promptly and adequately informed by the justice system or other competent authorities (such as the police, immigration, or educational, social or health-care services); (b) Child victims of violence should be treated in a child-friendly and sensitive manner throughout the justice process, taking into account their personal situation, needs, age, gender, disability and level of maturity and fully respecting their physical, mental and moral integrity; © Judicial involvement should be preventive where possible, proactively encouraging positive behaviour as well as prohibiting negative behaviour. Judicial involvement should be an element of a coordinated and integrated approach across sectors, supporting and facilitating other professionals to work with children, caregivers, families and communities, and facilitating access to the full range of child caregiving and protection services available; (d) In all proceedings involving children victims of violence, the celerity principle must be applied, while respecting the rule of law.

In Short:

All who come in contact with children must have the necessary knowledge, willingness and ability to take appropriate action.
They are required to receive and advance the information received through reporting systems.
Professionals are required to report instances, suspicion or risk of violence.
Reports must be referred to whichever agency is responsible for coordinating the response.
It must be investigated by a trained and qualified professional.
A full range of services, such as medical, mental health, social and legal services, must be provided.
The whole process must be clear and must be fully discussed in detail with the child, family and other relevant stakeholders.
The judicial system must protect the child, prevent recidivism and coordinate with all involved.

Hmm. What could go wrong? You'll see in part 2.

I admit I particularly loved reading:

Criminal law procedures, which must be strictly applied in order to abolish the widespread practice of de jure or de facto impunity, in particular of State actors; Disciplinary or administrative proceedings against professionals for neglectful or inappropriate behaviour in dealing with suspected cases of child maltreatment (either internal proceedings in the context of professional bodies for breaches of codes of ethics or standards of care, or external proceedings)

I'm going to have a feast on this in part 2... I mean come on Helvetia, wake up !

Several other documents relate to who must do what. For the benefit of part 2 I only reference here the UN resolution 2005/20 Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime. Most if not all elements herein have been violated by Swiss authorities.

Its key points are: – protect witnesses and children from any influence or retaliation; – restrain contact with perpetrator; – foresee in assistance by professionals.

The European Directive on combating the sexual abuse and sexual exploitation of children and child pornography

The directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, says states must. But for the remainder much remains optional.

Member States should encourage any person who has knowledge or suspicion of the sexual abuse or sexual exploitation of a child to report to the competent services. It is the responsibility of each Member State to determine the competent authorities to which such suspicions may be reported. Those competent authorities should not be limited to child protection services or relevant social services. The requirement of suspicion ‘in good faith’ should be aimed at preventing the provision being invoked to authorise the denunciation of purely imaginary or untrue facts carried out with malicious intent.

To ensure successful investigations and prosecutions of the offences referred to in this Directive, their initiation should not depend, in principle, on a report or accusation made by the victim or by his or her representative.

Member States shall take the necessary measures to ensure that investigations into or the prosecution of the offences referred to in Articles 3 to 7 are not dependent on a report or accusation being made by the victim or by his or her representative, and that criminal proceedings may continue even if that person has withdrawn his or her statements.

Reporting suspicion of sexual abuse or sexual exploitation 1. Member States shall take the necessary measures to ensure that the confidentiality rules imposed by national law on certain professionals whose main duty is to work with children do not constitute an obstacle to the possibility, for those professionals, of their reporting to the services responsible for child protection any situation where they have reasonable grounds for believing that a child is the victim of offences referred to in Articles 3 to 7. 2. Member States shall take the necessary measures to encourage any person who knows about or suspects, in good faith that any of the offences referred to in Articles 3 to 7 have been committed, to report this to the competent services.

Any person is only encouraged to report to the competent services, and those services have the possibility, not the obligation, to report taking into consideration their belief. Investigation or prosecution does not depend on a report or accusation by the victim or its representative.

It really is poor in that it gives professionals the possibility to not report, to keep quiet. Professionals should be the first to have to speak and report, not those with an option to do so.

Since the EU directive is much less stringent then the UN's convention, the UN's convention takes precedence in those countries party to the UN convention. Professionals as such have an obligation to act, regardless of what the EU directive said.

the Lanzarote convention

The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse is pretty much a repackaged copy paste of the European Directive.

However, the Council of Europe realises this problem, and in its Explanatory Report it tries to increase pressure on the obligation to report.

Under paragraph 1 Parties must ensure that professionals normally bound by rules of professional secrecy, (such as, for example, doctors and psychiatrists) have the possibility to report to child protection services any situation where they have reasonable grounds to believe that a child is the victim of sexual exploitation or abuse. Although in many member States systems of mandatory reporting are already in place, and are considered to be crucial in detecting abuse and preventing further harm to children, the Convention does not impose an obligation for such professionals to report sexual exploitation or abuse of a child. It only grants these persons the possibility of doing so without risk of breach of confidence. It is important to note that the aim of this provision is to ensure the protection of children rather than the initiation of a criminal investigation. Therefore, paragraph 1 provides for the reporting possibility to child protection services. This does not exclude the possibility provided in certain States to report to other competent services.

Well, The Council of Europe has work to do to come in line with the by the UN defined obligations. For now, professionals can keep quiet under the Lanzarote convention. Until then, the UN's being more stringent, it remains the benchmark of who has to act.

CSIV by “omission” (bias) to act

I'll let wikipedia do the job. Omission bias:

Omission bias is the phenomenon in which people prefer omission (inaction) over commission (action). People tend to judge harm as a result of commission more negatively than harm as a result of omission. The Universal Declaration of Human Rights establishes how basic human rights are to be assessed “without distinction of any kind”. Distinctions often are the basis for omission bias.

Individuals and authorities can facilitate and encourage CSIV by the ease with which it can be performed. They commit CSIV by omission.

Omerta in families, often based on honour and shame, or simply through a refusal to believe a (trusted) person can be a predator. A matter of perceived credibility which initiates omission.

The perceived benefit of the doubt complications, and the need for the maintenance of status to hide the complete lack of competence of services, authorities, the legal and/or the political system are basis for the countless CSIV commission by omission acts.

Together they make up the various levels of a state, who bears the ultimate responsibility in international law instruments for ensuring CSIV commission by omission can not happen. And yet, it is the state making sure it does happen.

Interpol confirmed in a press communiqué on 13 April 2023:

(countries) lack the specialized staff, skills and resources needed to effectively investigate cases, ... conduct victim identification, and safeguard children.

No one acts. In doing so they either commit by omission, or take an active part in the act of committing.

On to part 2.

Tags: #Rights #Sexual #Psychological

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