“RAPE, PAEDOPHILIA AND SEXUAL ASSAULT ON GIRLS: CHALLENGES FOR ACCESSING JUSTICE BY VICTIMS”

BY: FRANCIS BEN KAIFALA, ESQ.

The recent case involving the alleged rape of a University student by the Deputy Minister of Education, if not anything, has brought to the public attention and stimulated debate in several quarters on the plight and vulnerability of young girls and children, the prevalence of rape, abuse of office and the weak position of the legal and regulatory framework in providing adequate protection or safeguards for young girls and victims of rape.

With no intention to delve into the merits or demerits of the actual case, which is still sub judicae, I must confess that listening to the weeping voice of the alleged victim via her recorded interview which went viral on social media shortly after the alleged incident aroused my sympathy for the plight of several other young girls who may have been taken advantage of every day but suffer in silence either because of the stigma of being identified as victims of rape by the wider Sierra Leonean society, or the backlash of the perpetrators (who are usually very influential members of society) and their supporters, or for the fear of being let down by the police and/or the judicial system who ought to otherwise help them pursue and obtain justice.

It is a fact that many young girls want several things that they or their parents cannot afford or provide. So the tendency has developed for them to approach older and well placed men in society under several guises to solicit, most times, genuinely needed help with tuition fees, material things, transportation and their general care or needs. In a society where kindness is hardly freely given by the few who have too much to the many who wallow in poverty and want, it becomes easy for most men to take advantage of the vulnerability of these girls and make sexual advances towards them. When they refuse, the fear of rejection and the belief that they are untouchables make these men become agitated, and sometimes violent in their bid to get what they want in return for the kindness they may have shown or intend to show or for nothing at all. More often than not, they take advantage of the situation to have sex with these unwilling young girls who mostly submit to their advances for fear of harm to their person, but do not consent to the act.

On another, but related, note, I always felt that Paedophilia and child molestation were a concern for other societies and not Sierra Leone; but I was shocked at the number of incidences involving sexual assault on girls of incredibly young ages that were reported. As such, cases involving sexual assault and penetration of children from as young as between six (6) months and 13 years old have exponentially increased and is a major cause of alarm and awe among right-thinking members of society. These do not include the proportionately greater number of cases that are simply “kept quiet” within family circles and go unreported. Some are only brought to the attention of the authorities by the victims’ family if some responsible member of the family becomes aware and is willing to pursue it, or there is some underlying discontent, discord or animosity with either the male perpetrators in question or their families. This does not however mean that those exceptional situations when the love of the children abused pushes one or both the parents to uncompromisingly seek redress do not exist – but they are more of exceptions than the rule.

In both these unfortunate situations involving victims of rape on the one hand, and child molestation, abuse and assault on the other, the victims and/or their families usually neither know their rights nor the means of their realization. Very few bring incidences to the attention of families or friends and very little is done about them by anyone anyway. The Family Support Unit of the police which is meant to safeguard and help seek justice for such victims is mostly understaffed and is to a large extent manned by poorly trained, irresponsive and sometimes dispassionate personnel.

On the other hand, the very minute amount of incidences which end up going through the labyrinth of conspiracies, family cover-ups, and questionable police investigations and belatedly make their way to courts prove to be an even more tedious experience for the victims and their families: even though there are several safeguards provided by the law for the handling of such cases and the protection of the identity and testimonies of the victims as well as the accused persons, very little consideration is given to these stipulations in actual fact – the press publish the  identity, depositions and addresses of the victims even before trial or preliminary investigations would commence; some magistrates, being overwhelmed with the number of cases they have to handle, do not bother to hear testimonies in chambers (though a few do), but proceed with the hearing of these cases in usually crowded and open courts – the direct transcript of which are published by some  journalists without caution, care or regard for the law.

Moreover, whereas in other countries, medical examination and report on victims are easily and readily available to assist the prosecution of alleged rape cases, this is sadly not the case in Sierra Leone. Therefore, the paucity or limited availability of medical facilities, equipment and properly trained, qualified and certified personnel to carry out proper medical and forensic investigation on the victims so as to provide the all important “corroborative evidence”, which in legal terms  is a sine qua non for conviction remains a mammoth challenge for the prosecution.

In addition to all the above challenges, the actual prosecution of the alleged offences are mostly carried out by, with all due respect, poorly trained and less experienced police prosecutors who struggle to grapple with the technicalities of the law, the intrigues of legal practice, and the intricacies of procedure. This leaves the case at the mercy of usually very well trained and experienced defense lawyers (because the Accused person or their families or well-wishers can afford them).

In view of the above, most victims and/or their parents end up feeling intimidated, ashamed and become tired of pursuing their cases altogether. As a result, they invariably become susceptible to compromises and prefer to settle out of court and from thence onward prove most reluctant to cooperate with the prosecution, which eventually, most times, lead to the inevitable collapse of the case. For this reason, only few cases of rape or sexual assault against women, young girls and children end up reaching an ultimate legal conclusion, and of those which do, only a limited number of persons charged end up being convicted.

In the light of all the foregoing, no matter what the outcome of the case against the former Deputy Minister of Education may turn to be (with no intention to give it merit or remove from it) let it serve as the clarion call on all stakeholders in the fight for the protection of young girls and children against rape, sexual assault and other paedophiliac related offences so as to stimulate discourse and action with the view to properly regulate, monitor, re-direct, supervise and overhaul the judicial, legislative and legal framework - as it is not merely enough to strengthen the laws (as was recently done with the new Sexual Offences Act 2012), which will increase the awareness of this social malaise and galvanize conscientious action and resources in order to minimize incidences, prevent impunity and provide a greater sense of justice and security for children, young girls and women generally.

In conclusion, I strongly recommend the following: the police and their support staff should be adequately staffed, better trained, properly equipped, and thoroughly supervised for greater commitment and success in their duties; the journalists should be reminded of their ethics and the stipulations of the law so as to guide their public information dissemination role in a way that does not jeopardized the interest of the victims and the cases pending before the courts – and defaulters should be punished according to law; we lawyers should take seriously our duty to society from whom we receive so much; and above all, the government, the Legislature, and the Judiciary should plunge deep down into the sanctum sanctorum of their beliefs, responsibilities, and commitment, and resurface to earnestly rethink, re-examine and review the existing legal and regulatory framework and the way sexual assault, rape and child molestation cases are being handled by all concerned as aforesaid, so as to better protect young girls, women and children in a world that is becoming more and more unfriendly to their growth, development and well-being.

Francis Ben Kaifala Esq. is the Managing Partner in the Law Firm Kaifala, Kanneh & Co., Top Floor, 81 Pademba Road, Freetown; He holds the joint LL.M in Law & Economics from Queen Mary University of London. He is currently a Fulbright Scholar at the University of Texas at Austin pursuing the LL.M in Comparative Constitutional Law, Administrative Law & International Human Rights; He is also Human Rights Scholar with the Rapoport Center for Human Rights and Justice in Austin, Texas, United States of America.  Email: fkaifala@kaifalakannehandcolawsl.com