x Abu Dhabi, UAETuesday 23 January 2018

Victims of sexual assault should not be forced into silence

Too often, courts can end up blaming the victims in sexual assault cases, which can make tragic situations even worse. A veteran court reporter suggests changes which would help solve this problem.

An 18-year-old Emirati girl is charged with consensual sex after reporting she was gang-raped by five men. A 14-year-old Brazilian girl is charged with consensual sex after her parents reported that she was raped by her school's 26-year-old bus driver. And another 14-year-old girl reports that she was raped by her uncle; the man is eventually acquitted for lack of evidence.

As a reporter covering courts and justice in Abu Dhabi, I found sexual assault cases to be not only emotional for those involved, but also incredibly complex in the practice of the law.

Each one of these cases was tragic, but the real tragedy was the precedent they set. In fact, several female expatriates told me that they be would reluctant to report a sexual assault if they were a victim because of the way victims in other cases are often treated.

I often raised the issue with police officers, prosecutors and judges, and received varying responses. A police colonel, for instance, said fear is exaggerated by sensationalist, unbalanced media reports. A prosecutor I spoke to said the Public Prosecution, which charges suspects, can only act according to the law. And a judge told me that the judiciary are confined by the evidence presented in court papers.

In many cases, these issues are resolved on appeal. The Brazilian girl, for example, was subsequently acquitted and never detained. But cases like hers do raise questions about victim protection in the courts that warrant attention.

In theory and in most cases, the UAE law takes the issue of sexual assault seriously. This year, one rapist was sentenced to death for raping a woman and abandoning her in the desert; another man was sentenced to life in prison for raping his under-age niece.

But while these examples make headlines, many more offenders go unpunished because of insufficient evidence, while victims end up being punished for engaging in sex wrongly termed "consensual".

In the course of my coverage of Abu Dhabi courts, I identified three areas of possible reform.

The most salient issue arises when charges are filed against a woman who is herself reporting a crime. The UAE law considers any sexual act outside of wedlock a criminal offence. When a victim goes to the police to report an assault, she will be asked about the nature of her relationship with the alleged assailant - and be charged if she admits that she had any sexual relationship with the man, even if it was years in the past. The man can still be charged with non-consensual sex, sexual assault or rape depending on the situation, but the alleged victim also suffers.

A person who is the victim of an assault should not be coerced into silence because of a previous relationship. This seems self evident, and legally speaking, there is precedent for reforming existing law.

In human trafficking cases, for instance, a woman who reports a trafficking ring cannot be charged with prostitution even if she consented to having sex. This is guaranteed by Article 11 of the Federal Human Trafficking Law, 2006, which prohibits prosecutors from charging a prostitute who is part of a human trafficking ring if she reports the ring.

Providing similar legal protection for victims of sex assault will help prevent injustice and encourage more victims to come forward.

The second area for possible reform is the issue of gathering evidence. In the majority of cases I have reported on, accused assailants were acquitted for insufficient forensic evidence. To sustain a conviction, judges require either a confession or forensic evidence. Justices often find themselves with no evidence to convict an offender. In the recent gang-rape case, for example, one defence lawyer told me there was no forensic evidence against the men. The judges convicted them largely based on their confessions to the prosecutors against themselves and against each other.

Unfortunately, confessions are the exception. Just last month, two teenagers were acquitted of sexually assaulting a boy, for lack of evidence. The police referred the boy to the appropriate prosecutors three days after the incident - while the law requires them to do that within 24 hours.

Prosecutors must gather evidence with vigour before sending the case to the courts. The police must also send the victim and the suspect for tests quickly to avoid the disappearance of assault evidence. Taking a shower, for example, can remove assault evidence. Victims must be examined before they change their clothes. Police stations should have a legally trained officer who can make accurate legal decisions from the beginning.

This early phase is critical as it shapes court proceedings. In some countries, such as Iraq, interrogation at a police station is carried out by a qualified judge. Such a system in the UAE would help protect victims' legal rights and avoid incorrect procedures that may lead to the acquittal of perpetrators.

Finally, the law should not give discretion to prosecutors and judges to drop a case when the victim no longer wishes to press charges. This issue is related to the acquittal of perpetrators.

Last year, for example, a man who had allegedly sexually assaulted his maid was acquitted after she told the court she would no longer press charges against him. The man's lawyer told me his client offered money for the maid to drop the charges and she accepted. Bribing victims is no way for justice to be served.

The UAE undoubtedly seeks to be ahead of other countries in terms of justice. It is the first country in the region to introduce a human trafficking law to curb the illicit trade and protect victims. The Ministry of Justice is also keen on addressing any emerging issues and it recently organised a seminar in which speakers called on prosecutors to follow a victim-centred approach during their investigation. Shelters for abused women have been opened in Abu Dhabi, and a new clinic at the Corniche Hospital aims to reduce the stigma and make it easier for women to report this crime.

Authorities must build on these precedents to protect victims, instead of treating them as criminals.