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Laws not designed to deal with paedophilia

By Bernadette Hussein

Gates, the head of the Reform of Criminal

Procedures and the Penal Code for the Fiji Law Reform Commission said there were really two questions relat ing to the problem of paedophilia in the country.

One was whether the laws were suited to dealing with paedophilia and the other was the laws protecting children.

“I think that as far paedopilia is con cerned the laws are not designed to deal with that problem. The Penal Code which was largely made in about 1945 didn’t have this problem in mind.”

Gates is looking at special offences against children and has so far prepared a brief summary. (See main story).

He said that one of the things that he was thinking of recommending was that there be a two pronged approach.

“One, that we try to do something straight away so that perhaps before Christmas we can say okay we have some thing and put in a new chapter into the penal code which is attempted swiftly to deal with the problem as we see it.

“The second is that later in the new year we view assaults and perhaps view offences against children generally as well.

In which case after we’ve been able to see what they have done overseas and given it a great deal more thought to the technical and evidential problems in this area that we will be able to do a proper review with out so much haste.

“So that’s really how I see it. Ultimately cabinet will decide when the Fiji Law Reform commission puts its paper for ward.

“I have started to do things which is such an embryonic stage. But when this first came to light, I thought the first thing to do was to try and think of a charge that

might cover the activity that we are talking about. From that, other things keep rising.

There are lot of technical points which need to be looked at.

“It’s easier said than done because it is no good having legislation if we can’t achieve prosecution. It’s a waste of every body’s time.” “Perhaps that will be the approach which is, as I say in summary, get some thing in writing which we accept will not be perfect and will not have a great deal of expertise and experience because we haven’t got it and then later when we have been able to review other jurisdictions, legislation and have got more ideas of it.

“After this we will get a fair idea of how to put up a more polished review and appraisal because the penal code already has provisions for what is called offences against morality.”

This is chapter seven of the penal code from sections 149 to 183.

He added that some of these offences required the consent of the Director of Public Prosecutions for cases to be launched.

The chapter deals with things like rape, indecent assault on females, insulting or annoying females, defilement, procreation on girls for immoral purposes and brothel offences, buying and selling minors for immoral purposes.

“Whether those offences can be brought into paedophilia, I don’t know. It will depend on a complete review.

“We may include some special sentenc ing powers for instance recommending deportation and again we may consider stratifying the powers of sentence or at least suggesting that offences against chil dren are a circumstance of aggravation which the court can pay heed to and enhance sentences. Most judges are expe rienced and they know that certain offences or certain factors will lead to a greater sentence than perhaps an ordinary case.”

He added that with the accessibility of

the Woods Commission Report, they would have a fair idea of how Australia was dealing with the problem and the things they were recommending.

On Woods recommendation for releas

ing names of former or suspected pae dophiliacs, Gates said it should be on a need to know basis for example a kinder garten to use it to check the background of potential employees.

As for checking the backgrounds of expatriates entering the country he said: “Well that is really an administrative mat ter.

No doubt the police through Interpol and other means may have access to more information and I think that’s inevitable.

“I would think there was more co-oper ation on that, most people say fair enough so probably it means that if you are pae dophiliac or a paedophile you have to stay put where you are and not be able to cross boundaries because nobody wants you.

That’s what your track record is.”

He also thought it would be a good idea to retain the sanction of the Director of Public Prosecutions who can review cases and give consent before prosecution.

“That way we can make sure that just because somebody gets soft pom material perhaps on their computer and finds some titillation for this privately, although we may judge those people, that this is a less than good standard of behaviour, on the other hand I don’t think that every case of that kind will result in a prosecution.

“But of course if we have paedophile

Children in Fiji: calls for enhanced protection

rings, what they call family dinners, where paedophiles get together in a group and goodness knows what takes place at these ‘dinners’, but if there are children there and goodness sakes what else, we are not very keen that it be recorded in any way, placed on the internet and made into video copy to be distributed.”

“We do not want children to be abused in this sort of way or any way for that mat ter and we don’t particularly want these people to indulge their habits here in Fiji or form little cells.”

Gates said that under the current law, it would still be an offence to force children to have sex with adults or even bribe them with lollies and things and in fact people photographing such activities would be thought to be aiding and abetting what was going on.

He said people talked about children giving their consent. “Children cannot give their consent, they are too young to do so.”

He added that while there was nothing concrete against paedophilia, many of these activities would still be an offence under the existing laws. For instance: • The defilement of a girl between 13 and 16 is subject to five years of imprison ment with or without corporal punishment; procreation is subject to a two year impris onment. • For defilement of a girl under the age of 13, the maximum penalty is life impris onment, with or without corporal punish ment. • For indecent assault, the penalty is five years and corporal punishment could be included in the sentence. • Attempts to have carnal knowledge is punishable by five years imprisonment. • For unnatural offences (between

males) or with an animal, the crime is pun ishable by up to 14 years imprisonment.

But Gates believed there were instances where there needed to be stricter penalties introduced.

“I think all of it needs to be reviewed and if changes are to be made to existing legislation, maybe that is one way to go.

On the other hand, as I had said earlier, I think we need something that seems to catch this shocking and modern form of offence.

"The idea that these people can roam the internet and put material on the inter net, with a simple camera they could cap ture this material and send it back from Fiji to Thailand or any of these other countries, particularly those that are quite poor.

“That’s a trade. It’s a means of getting money.”

Gates added that it was also a mistake to think that child pornography and things such as paediophiliacs were anything new.

“It's not new just maybe some of the methods are new.

“Putting the internet to one side for a minute, currently the case which is before the court and just looking at what has been happening over past two to three years, it seems there are more complaints and reports now of child abuse.

“When I left Fiji in 1987, I went to work for the State Director of Public Prosecution in Queensland and a good number of my cases were child molesta tion cases, abused children, usually by step fathers, not always, or other relatives and it was quite widespread.

But I think in Fiji it was not a matter being reported. Now people are reporting these matters.

“Before the families were so ashamed

they hushed it up but I think they are more inclined to report things now so that’s why we are seeing more cases. This means we will see much more of it going through the courts.”

On children giving evidence in such cases, Gates said it was the duty of the court and all involved that their evidence be taken in camera and in a friendly room that wasn’t going to make them shy or scared.

“I have seen children put before the court and not being able to give evidence or participate in a court proceeding which is easy and informal - still, unfortunately, a rather intimidating experience and some of them can’t get the story out. They are too

frightened.”

On the publicity given to the alleged paedophiliac case before the court, Gates said if anybody from the group was in the country, they would have scuttled away back overseas and some would be terrified to the point of not daring to do anything.

“The message must have gone out through the region that Fiji is not the sort of place you want to get involved with these kind of activities.

“I don’t think we ever got to a stage of being another Thailand over here.

“I understand Thailand too has legisla tion against all that now because they don’t want that reputation of the child sex indus try.

“I think the main thing is yes we are doing something about this and trying to get something going.

“I haven’t yet reported back to my fel low commissioners and the directors on this but no doubt a lot of people are going to be looking carefully at this, it is just not going to be just put away in the drawer.” ■