Justice and the child victim

By Sajeeva Samaranayake

'Child abuse' has become one of the foremost topics of discussion today. Our society is awakening, albeit gradually, to the grim reality that we are simply not giving adequate care to our children.

In our scramble for material advancement, we overlook the fact that there is nothing - human or otherwise, that demands to be cherished, nurtured or protected so much as our children.

Our civic consciousness is lost in conventional prejudice and ignorance, finding solace in simplistic platitudes which affirm the status quo and scarcely touch the root of the problem. A classic example of this is our national pre-occupation with law reform to the virtual exclusion of how laws are implemented and enforced. Another example is the hidebound attitude towards corporal punishment and its mechanical justification "spare the rod and spoil the child"

It is a sign of the times that societal attitudes towards child abuse should reflect established attitudes regarding other national problems. A small minority which is actually doing something about it is left to their own devices. It requires a major calamity for the general public to sit up and take notice and little time is needed thereafter to conveniently forget about it. Members of the public who are genuinely concerned are given neither the direction nor the opportunity to give meaningful support to those who are actively involved in containing the problem. However, fingers are pointed, views expressed, theories and solutions advanced, but at the end of the day society is not just divided, but confused and uncertain.

Therefore, there is no consensus and clarity of purpose and no social cohesion in dealing with what is after all a threat to the very existence of society.

Society has already acknowledged that child abuse is a serious problem and that something must be done about it. This article seeks to highlight the relevance of child welfare and identify the priorities in combating child abuse.

The link between child abuse and the care system of an abused child

Child abuse is no ordinary crime. Generally the physical, sexual or emotional abuse of a child reflects upon the failure of his family and immediate community to protect him. The following classification is therefore based upon the universal principle of inter-dependence.

Category A

This is where a child is abused by an immediate member of his care circle. Insofar as the family is concerned, such failure may be attributed to a lapse or breakdown in inter-personal relations within the family which may be caused in turn by socio-economic factors beyond its control.

Category B

These cases reflect adversely, not upon the family but upon the wider society, as where a school girl returning home from school is abducted and raped by a stranger. In such cases, the care system of the child ( comprising the immediate family and other care-givers ) whilst not having 'caused' the crime may nevertheless have to contend with its traumatic effects and consequences.

Category C

In cases falling under this category a breakdown of the care system is exploited by a third party in order to abuse the child.

Category D

A child belonging to this category is the most vulnerable for in his case there is a

complete absence of a care system and no legitimate parent or guardian. This may even be an aggravated phase of a child who initially belonged to the third category. (1)

This categorization illustrates the critical importance of the care system surrounding

An abused child in preventing abuse from taking place at all and in supporting

Recovery and rehabilitation where it has taken place.

Suggested priorities in child protection

The adoption of a holistic approach and a child perspective therefore

reveals three principal objectives which ought to be included in any agenda for action which has child protection as its foremost goal.

1. Prevention of abuse either through family support or the provision of an alternative care system.

2. Protection of an abused child from further harm and his recovery and re- integration to society

3. Prosecution of the offender and his rehabilitation and re-integration to society

Societal response in sri lanka and its inadequacy

Child abuse has been prevalent in our society in its various manifestations, ( some considered tolerable like the employment of child domestics, and others, not ) for a considerable length of time but it was never perceived as a serious problem. During the late 1980s, however, certain types of abuse (like sex tourism which thrives on the abundance of poverty-stricken children) grew so alarmingly that the conscience of the society was shocked both by their nature and extent. For a country which had more than its share of problems on its plate the societal response was understandably late. But this delay by itself may not have exacerbated the problem if the state response had addressed not merely the symptoms of the problem but its causes as well.

The breakdown of care systems in our society can probably be traced ( albeit broadly ) to the social changes brought about by the opening up of the national economy in 1977. It was this economic climate which prompted a mass exodus of mothers and fathers

for employment in the middle east generating immense wealth by way of foreign exchange but at a crippling social cost.

In October 1995 a unanimous Parliament passed the celebrated Penal Code (Amendment ) Act No.22 of 1995. The problem of child abuse was thereby entrusted to the criminal justice system, lock stock and barrel. Five years later it is obvious to all that what was done in 1995 was woefully inadequate to even contain the problem. The fault lay not with the Amendment Act which, despite certain drawbacks was an influential piece of legislation but with official attitudes which regarded the passing of the Act as an end in itself.

Apart from setting up Women and Children's Desks in police stations all over the island no serious effort has ever been made, up to now, to understand the limitations and dynamics of the three institutions charged with the task of enforcing the law, and to render them more efficient and service oriented; these being, the Police Department, the Attorney General's Department and the Judiciary

A cursory glance at the statistics emerging from the Attorney General's Department reveals that a total of 464 cases were submitted for processing of indictment during the period 05.08.99 to 31.12.99 (2) alone. The number of cases submitted during the first five months of this year has exceeded 500 and a conservative estimate could place the total for this year at 1000. Comparative statistics taken from the period 01.08.99 to 31.12.99 represent the general trend

Murder 465

Attempted Murder 150

Adult Rape 70

In reading these statistics it is important to bear in mind that the percentage of reported cases of murder far exceed the percentage of reported cases of child abuse. Virtually every case of murder gets reported whilst in child abuse we are said to be dealing with the tip of the iceberg.

As the numbers mount upwards our children continue to pay the price which is necessarily extracted by a criminal justice system sans child-friendly procedures hell-bent on punishing the offender without addressing the most basic issue of caring for and supporting the victim through a protracted judicial process. Therefore, even the successful prosecutions achieve little by way of providing relief and redress to the child victim.

The legislative response in 1995 was confined to the third principal object mentioned above which was identified as ""prosecution and meting out stringent punishment to the offender". In the result the nature and complexity of the crime itself as well as the other two objects are being ignored today.

This phenomena is aptly summed up by King and Trowell in their pioneering work, "Children's Welfare and the Law - The Limits of Legal Intervention"

"We voice our concern over the way in which, whenever the spectre of child sexual abuse is raised, all other aspects of that child's needs and welfare seem to vanish from sight as social workers, police, lawyers and judges all seek answers to the two big questions : 'Did it happen ?' and 'Who did it".

The need for a pragmatic approach to intra - family abuse

Where abuse takes place within the family the law needs to be circumspect as legal intervention in its present form offers no guarantees of a better life for the victim. Prof. Savithri Goonesekere (Children Law and Justice. A South Asian Perspective) points out that the law must strike a balance between intervention and non-intervention in the area of abuse within the family in order to protect the child's interest in retaining his/her relationships within the family.

In terms of our Constitution it is a Directive Principle of State Policy that the State should recognize and protect the family as the basic unit of society. Accordingly in all but the most extreme cases of intra-family abuse (for which criminal prosecution could be reserved) the State should actively pursue a policy of non-legal intervention which ought to be specialized but supportive and reconciliatory in nature. Such an approach would give due recognition to the primary role of parents and family as partners in child care and protection and promote the long term integrity and well-being of the family.

The protection of an abused child

Child friendly procedures seek to minimize the trauma that an abused child undergoes in Court. A more fundamental issue is his life outside Court; his education and training, his health and moral development. These are matters which Courts are ill-equipped to handle. It is therefore high time that the relevant social service agencies, both governmental and non-governmental, addressed these issues in a systematic, cohesive and meaningful way.

In the case of abused children in categories A and C referred to above, their efforts should also be directed towards restoring the broken care systems whilst the provision of an alternative care system would, strictly speaking, be only required for children falling within category D.

The prevention of abuse

A prosecution strategy which does not go hand in hand with effective preventive strategies is doomed to failure. The rapid increase of cases of child abuse since 1995 is ample testimony to this fact. This again is an area which offers great scope for both governmental and non-governmental organizations and it is a matter for regret that this subject has not been incorporated in any agenda for action which has hitherto been adopted.

As things stand at present making Sri Lanka a child friendly nation once again appears but a distant dream. Nevertheless much could be accomplished once all sectors of society engaged in combating child abuse reach a consensus and establish the priorities in child law and child protection. If this is achieved, the seemingly endless road would at least be clear and free of distractions.

1. These categories are not water-tight compartments but a practical guide for classifying the child victim with reference to the most relevant criterion in so far as his security and well being is concerned.

2. The division of criminal files within the Department is generally based on the criminal circuits which prevailed during an era when Supreme Court Judges went on assizes to hear cases of murder and rape. Files submitted from the Criminal Investigation Department, Colombo Fraud Investigation Bureau and the Police Narcotic Bureau are exceptions to this rule and treated as special categories. To this special list was added cases of child abuse submitted to the Department from all over the Island and such cases were designated as "CH" files from 05.08.99. Cases of child abuse submitted prior to 05.08.99 came under the respective circuits.

Appreciations

AIMEE JONLKAAS WILLIAMS

In July this year, Aime Jonklaas Williams, a woman of Ceylonese birth, died in Spain, just short of her 81st birthday. Her ashes were interred in an English village on July 20. Early in August, in another Sri Lankan newspaper, a close friend using the pseudonym "City Dweller" wrote a moving tribute in celebration of the life of this remarkable woman.

Aime Gholdstein Jonklaas, born on August 19, 1919, was the youngest child of E.G. Jonklaas, a proctor of Gampola, and his wife Amelia (ne Daniel). Her siblings were Ernest, Ninette and Cecil. After early schooling at a convent in South India, Aimee completed her formal education, then went to the United Kingdom. It was here, during World War II that Aime joined the Royal Air Force (RAF), a move that would have a profound effect on her life.

"City Dweller" enumerated the many qualities that Aimee possessed. She was a clever and "fast" cook, always leaving behind a fastidiously clean kitchen. A graceful dancer, Ms. Jonklaas's aim was to live life at the optimum. According to the anonymous writer, "Man, woman or child, Aimee made time for them, and if she met a person for the first time her enthusiasm for life left a stranger breathless. Intelligence, bounding energy, beauty and charm were Aime."

One of Aime's great loves was the Yala wild life sanctuary. During the Fifties and Sixties, she organised jungle trips for herself and her friends, attending to all the minute details with slick efficiency. They would camp in tents, usually beside a river, for days at a time. In the true spirit of outdoor adventure, Aime and her companions washed their clothes and bathed in the river, cooked meals over firewood, and sat patiently for hours in trees and hideouts waiting to observe the abundant wildlife.

Describing Aime's vibrant, energetic character, "City Dweller" did not disclose, but only hinted at, her claim to fame: a career as arguably Ceylon's only female military pilot during the Second World War.

It began when, as a member of the Women's Auxiliary Air Force (WAAF) in Britain, Aime met and married a Belgian Squadron Leader of the Netherlands Air Force named Gilles de Neve. Sadly, only a few days after their wedding, de Neve was shot down and killed, leaving Aimee a young war-widow.

Enlisting in the Air Transport Auxiliary (ATA) of the WAAF, Aime became a pilot herself. Although women were not permitted to fly combat missions, ATA pilots like Aime played a vital role ferrying warplanes from factories and maintenance units to RAF squadrons all over the British Isles.

Remarkably, the women flew these aircraft all by themselves, and the types of aeroplanes they operated would vary from day to day.

Aime Jonklaas de Neve learnt to fly in small planes, then graduated to the Harvard, an American trainer. She described it as "Very exciting! The Harvard felt so powerful after all the light aircraft and Marks (her instructor) liked to give me quite frightening shocks to make sure I was awake!"

Then, echoing the sentiments of thousands before and after, she was exhilarated when her turn came to fly a Spitfire solo for the first time: "My first Spitfire flight was unbelievable! This beautiful aircraft was actually all mine for a brief time. I was rather worried when I had to do several circuits, as a RAF aircraft had done a belly landing, and I had all the red flares, etc. thrown at me".

In 1945, Aimee de Neve left the air force and married again. Her second husband was a Norwegian naval officer, Jan Helen, a native of Bergen. Living in Norway, they had three children, Teeny, Erik and Jan Ernest, born in 1946, 1949 and 1953 respectively. Their children are now all married and domiciled in England, Norway and the United States.

Aime kept her hand in as a flying instructor in Norway, much to the initial consternation of her students, to whom a female instructor was a rarity.

Much later, after her second marriage ended in divorce, Aime met Mark Williams in Sri Lanka. They were married in a small ceremony at South Kensington, London.

During her latter years, Aime Jonklaas Williams lived a life of quiet retirement in Brighton, England. Despite failing health, she maintained regular contact with her many friends and relatives scattered all over the globe.

With her passing, the final chapter has closed on one of Sri Lanka's unsung heroines. A woman who, contrary to the norms and conventions of her gender, made a sterling contribution to the Allied cause during the dark and dangerous days of World War Two.

R.T.
Melbourne, Australia

DHARMASIRI SENANAYAKE

Dharmasiri Senanayake's achievements during a career spanning over 40 years of politics are so many- a Cabinet portfolio close to his heart, Chairmanship of the World Tourism Organization and the powerful post of SLFP General Secretary. Yet he would perhaps be remembered for a quality which set him apart from the rest: his affable personality.

Dharmasiri Senanayake remained essentially simple, happily mingling with the people: his witticisms and irrepressible humour always evident. Here was a legislator who transcended all barriers and drew friend and foe (in the political context) to him, where he held them captive.

Yet Senanayake's endearing smile often beguiled a fine fighting spirit. He was hand-picked by Mrs. Sirimavo Bandaranaike to contest the Dedigama seat- a pocket borough of the mighty Senanayakes from the' Botale Walawwa'.

My first encounter with this gentle politician was wayback in 1991 during my cub reporting days at the Darly Raod SLFP headquarters. I instantly liked his guileless smile. And over the years, a gentle affection grew, creating a bond that would seem impossible between a politician and journalist. But with Dharmasiri Senanayake, all such divisions didn't matter. For he was a man who built bridges instead of walls.

I recall an interview he gave me on the eve of the 1994 general polls- full of hope and plans with the PA poised for a historic victory. When I queried him about the potential prime ministerial and presidential candidates ( over which there was intense speculation), his face wreathed with smiles he quipped: "Whatever your question is, my answer would be 'a lady' " and chuckled.

He was indeed blessed with many a gift. His career was of his own making, legal and political. And he took on people more powerful and pedigreed than he, and bore no illwill when he was not rewarded by the party he faithfully worked for.

Tourism and journalism formed home turf- as he often stated, and was absolutely comfortable with media personnel in contrast to the warfares of recent times.

He was a man who could move with kings and yet not lose the common touch-A man for all seasons- sprinkling warmth wherever he went.

Naturally he drew people, earned their respect. Perhaps this explained his political success. even when one disagreed, nobody wished to cross swords with a man who generated that kind of warmth. In an era when vituperative outbursts have become the norm of the day, his wise cracks and digs at the opposition lacked the customary sting.

A true gentleman of the old school with an infectious chuckle and a smile which would always remain etched in memory, his ability to laugh with his heart, soul and entire body spoke volumes of his joie de vivre. Just before he fell ill, I met him at a social gathering where he posed the question: " Why is it that ladies favour high heels and further dwarf a man like me". Such was his humour.

Rare indeed is it to find an opportunity to truly bemoan the death of a legislator- living in an era rampent with political corruption. That is why the likes of Senanayake will be missed in the near future when gentlemen would not wish to enter the power game. While some seemed to experience increased levels of arrogance, power seemed to make him nicer.

Living a scandal- free public life despite a flourishing career, he also enjoyed people's affection- something he cherished above all. As Cabinet colleague Mahinda Rajapakse quipped recently: " He was the milk of human kindness".

Politicians are usuallyremembered for varying reasons: their power, achievements, loyalty and even negative traits. But this pint sized, mirth- filled man will retain a small corner of the nation's heart for all the love, loyalty and affection he represented. For not being greedy, for not illegally amassing wealth and for being a fine gentleman.

Dharmasiri Senanayake was a 'sun crowned man who lived above the fog'. And we shall miss him- that infectious grin, the mirth and the quick brain . We have undoubtedly lost an exemplary human being and an honest legislator- a man for all seasons.

By Dilrukshi Handunnetti

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