Police (in)action as an access to justice barrier for “defilement” victims

By Sasha Hart

None of the names used in this blog entry are the real names of the individuals.

After completing my placement at the TJRC in Nairobi, I started to do work more directly related to the Equality Effect’s “160 Girls Project.” This project is a test case litigation initiative aimed at holding the Kenyan government accountable for its failure to protect girl children from rape (which is referred to as “defilement” under Kenyan law). While Kenya has a solid Sexual Offences Act, the reality on the ground is that in many cases police officers fail to take these offences seriously and to conduct an adequate investigation. This lack of action results in far too many perpetrators going unpunished. The claimants in the ‘160 Girls’ litigation will argue that the constitutional rights of Kenyan girls are violated by this police failure.

My first assignment was to conduct research and write a legal memo on questions related to the submission of evidence in Kenyan human rights cases, particularly in constitutional cases and cases involving children. Another intern from the University of Toronto joined me for this part of the internship and we conducted the research together at the University of Nairobi’s law library. We also interviewed a brilliant constitutional lawyer in Nairobi who provided invaluable insights into how constitutional cases unfold in practice.

After conducting this research, we went to Meru (a town in Kenya’s Eastern Province) where we began working with staff of a shelter for girls who have been “defiled” (raped). The shelter provides psychosocial support, medical care, and legal advice/support to these girls. We shadowed the staff for 2 weeks in order to gain exposure to how the legal treatment of defilement works in practice. We made sure to keep detailed notes of our work and are currently compiling a report on the process of the legal treatment of defilement, highlighting any practices/procedures that may place defilement victims at a disadvantage in terms of their right to equal treatment under the law and their right to access to justice.

When Rachel’s case was referred to the shelter by the District Children’s Officer (DCO) of Maua, we accompanied one of the social workers to the DCO’s office in order to get more information about her case, as well as to meet with Rachel and assess whether she should be admitted to the shelter. Rachel is 13 years old.  She is now pregnant after having been raped by a police officer in her community. Despite the fact that Rachel has filed a report with the police, and that there is a written admission by the officer himself that he impregnated her, the police have laid no charges against him. Instead, there are efforts being made to have him transferred to another district.

Joyce, a 14-year-old girl, was raped by an elderly man in her neighbourhood while she was on her way to run an errand for her mother. As a result, she is now HIV positive. While the perpetrator has been charged, he was released on bail and is back in the community. We met with Joyce and her mother, who told us that they are doubtful there will be justice in Joyce’s case because the perpetrator is rich and can afford to bribe the police and prosecutor. Indeed, it is suspicious that only a charge of attempted rape has been laid and that the police have not had the man tested for HIV/AIDS, which would provide corroborating evidence for Joyce’s story.

We were working at the shelter one day when 6-year-old Margaret was admitted. Margaret was raped by her next-door neighbour and because he has not been arrested, the organization felt it was unsafe for her to continue living at home. Margaret has not been able to record a statement with police because of psychological trauma following her assault. As a result, the police have not taken any action in her case.

Last week, I accompanied a social worker to the police station in order to have Abigail record a statement. Abigail is 13 years old and lives alone with her dad. Her mom died when she was 2 years old and her dad has been living with her “as husband and wife” (having regular sexual relations with her since she was about 5 yrs old).  At the police station, we were told that we could not file a record of the abuse because of the lack of (eye witness) evidence of the sexual abuse.  We were told that at most this is a case of parental negligence; and that ,in any case, by admitting the child to the shelter, the abuse would no longer continue.

While these stories illustrate the role of police in preventing access to justice for defilement victims, what I’ve grasped from this “on-the-ground” experience is how multi-layered the problem is and the extent to which police (in)action certainly isn’t the only access to justice barrier. For example, the social stigma attached to rape in Kenyan society is perhaps an even greater access to justice obstacle because it perpetuates a culture of silence in regards to this crime. Rape/defilement is likely the most underreported crime in the country. As one police chief in the community explained to us, while there are numerous incidents of rape in his district, very few are reported to police because family members tend to be embarrassed by the incident and fear that their daughter will have no marriage prospects if it is discovered that she has been “defiled”. (Note how even the legal term for the rape of a child in Kenya, “defilement,” is loaded with shameful connotations).

In addition, many families prefer to settle the matter privately instead of through the legal system–often through a monetary settlement. The sense I got was that the girls themselves have limited say in these arrangements and this kind of settlement may be arrived at despite their wishes to take legal action. For example, although Rachel wants her perpetrator jailed, her parents and the perpetrator (a police officer) entered into a written contractual agreement stipulating that the perpetrator would provide regular financial assistance to Rachel until she turns 18 years old. It was only when the terms of the agreement were breached that Rachel’s family decided to bring the matter to police.

Wealthy perpetrators can often buy their way out of facing the criminal justice system, especially when the victim’s family is poor. I initially had a very hard time understanding how a victim’s parents could accept this type of monetary settlement in lieu of pressing criminal charges. Looking at the issue from behind the lens of my own Canadian  perspectives and assumptions, I vilified these parents, questioning their sense of justice and morality.  It wasn’t until I visited Joyce’s home (the 14 year old infected with HIV after being raped) that I began to understand how loving parents could choose to accept this type of settlement. Joyce’s family lives in abject poverty. The perpetrator has offered a sum of money that likely exceeds the amount of income her parents could expect to make in the next 10 years. While her parents have not accepted the offer, the organization has intervened in the case out of concern that they may eventually give in to the temptation and withdraw the case as many others have done.

In short, our observations in the course of shadowing the shelter’s staff revealed that police failures, as well as other contextual factors such as stigma, poverty, and limited agency of defilement victims due to their age, can all intersect to prevent access to justice.

After 2 weeks of shadowing staff and making note of all these observations, two  Canadian lawyers on the 160 Girls litigation team joined us in Meru to collect more evidence for the case. We accompanied them to interviews with police officers, a lawyer, and staff of the shelter , in which we sought to gain these individuals’ perspectives on the legal treatment of defilement. The other Canadian student intern and I also worked on creating a template for the staff to use when recording interactions they have with police. These records will be used in drafting affidavits for the litigation.

We then went to Nairobi for a meeting with the entire 160 Girls legal team, which includes lawyers from the dynamic women’s rights organization, FIDA Kenya. The purpose of the meeting was to strategize and come to a consensus on important details of the case such as who the applicants should be (i.e.: a group of girls from the shelter and/or the organization itself); whether there should be interveners in the case; and what kind of remedies to ask for. I’m grateful to have been able to participate in this meeting because I found it to be a really interesting look into the behind-the-scenes work of public interest litigation.

For my remaining 2 weeks in Kenya I’ll be tackling a number of further research questions that came out of this meeting.

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