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LN – Stolen children: the obstacles that allow impunity in cases of sexual abuse


There are more complaints but most of the aggressors are free and even seek to rejoin the victims; Carla and Mirna fight to protect their sons and daughters Credit: Victoria Elizalde

For Carla Severo “the bomb” exploded in 2016. “I found out that my little sister had been abused when she was between 11 and 12 years old by the father of my oldest son, when she lived with us,” he recalls. “When I knew,” she adds, “I was already separated from him, I never would have thought that I was capable of something like that.”

From that moment on, she and her family began a long journey through the courts. On November 22, the man was sentenced in an abbreviated trial to three years of suspended sentence for aggravated sexual abuse. But Carla's struggle did not end there. Today, he asks that he fulfill the rest of his sentence in prison and that his son's parental responsibility be suspended.

“At the judicial level there is a great helplessness, he is free, he manages like any citizen, until recently he managed a collective and asks for the connection with my son because he says that I invented everything,” says Carla, who is 29 years old and He has eleven to his sister.

A tortuous and labyrinthine road, where the testimonies are questioned again and again, that revictimizes and that in very few cases ends with the condemnation of the aggressor: this is how they describe those who were victims of sexual abuse during childhood and their protective adults, such as Carla , which implies the passage through Justice.

Although in the last time the denunciations of
sexual abuse against children and adolescents were increasing, it is estimated that out of every 1000 cases, only 100 are reported and
just one is condemned. The referents in the theme agree that breaking with the culture of silence was a fundamental step, but that there is still a long way to break down the obstacles that, in the Justice, contribute to impunity and undermine the protection of victims. Consulted by LA NACIÓN they identified eight of the main obstacles.

“Society is talking more about the issue and public denunciations have increased, but we do not see that this has an impact on the Judicial Branch.” For example, the horror of children and adolescents who are forced to rejoin their parents they have a criminal complaint under way for sexual abuse, this should be a scandal, but it's still happening, “says Silvia Piceda, co-founder of
Adultxs for the rights of children, and ends: “The gaze of Justice is, above all, adult-centric”.

Carla lived it in her own flesh. She tells that the psychologists of the court told her that she should not ask for the separation of the father with her son, because the boy had not stated that he was a victim of abuse. “But it's the same person who stole my sister's childhood and who is convicted of sexual abuse, as if someone in their right mind wanted to raise their child with someone like that,” he says.

The numbers speak for themselves. The WHO estimates that one in five girls and one in thirteen boys are sexually abused before the age of 18. In Argentina, there are potentially 2,000,000 victims.

“We have a massive problem in childhood and clearly the design of the current judicial system does not allow us to address these cases efficiently or offer a timely, adequate and coordinated response”, underlines Paula Wachter, founder of
Network for Children “The path of justice is brutal: a meat grinder, a process of constant revictimization that does not take into account the best interests of the child, who does not protect or listen to it and who, in nine out of 10 cases, leaves his aggressor “, deepens.

One afternoon, while preparing the snack, Mirna Fernández (32) learned that a year before her ex-partner had sexually abused two of her daughters and father of one of them, when they were four and a year old. The first who could put into words the horror was his eldest son, who at that time had seven and had witnessed the abuse. “It was very hard to see my little girl, who was five years old, gesticulating what this person was doing to her, my son told me that he knew that was wrong, that he was angry with my then partner, but that he locked him in the bathroom violently, “says Mirna with a broken voice. “The biggest ones also told me how the pedophile abused my baby, who was also his own daughter.”

Mirna ran to make the complaint. “He is on two counts of aggravated child sexual abuse for being the progenitor in the case of the youngest and the custodian in the case of my daughter, currently he is at liberty and we await trial,” says Mirna. Meanwhile, she is scared, for her and for her children: “I do not even want to go out to the square with the kids for fear of finding me, I had restriction of approach, but he violated it, we want to continue with our lives,” says Mirna. “They judge you, they do not believe you and when you go to court they do not listen to you or protect you,” adds the woman, who is part of a collective (
@ColectivoMural) of self-convened mothers looking to make this situation visible.

After an arduous fight, Carla got in May to grant an injunction that prevents the parent of her son, provisionally and for a period of 90 days with the possibility of extension, communication with the boy. “Today I know more about laws than about my own profession, it is very hard to be a mother who fights against abuse in this country,” concludes Carla, who is currently accompanying other mothers and protective adults on her journey in search of justice.

1 Limited free legal sponsorship

According to specialists, there is a marked asymmetry between the resources assigned by the State to the accused and the victim. “The accused has the right to be assigned a lawyer, an expert and a psychologist, but in the case of victims, access to free legal patronage is limited, both by the requirements for access and by the availability of professionals.” , says Wachter.

Its costs make private defense a luxury that few victims can afford. “The State should provide representation for them to access justice as plaintiffs, intervening actively in the cause in the defense of their particular interests,” adds the founder of Red por la Infancia.

Gabriel Vitale, head of the Court of Guarantees N ° 8 of Lomas de Zamora, the largest judicial department in the country, states: “60% of sexual abuse complaints are filed, of the rest, more than half have private attorneys: Obviously, there is a preminence of causes that continue to have a lawyer. ” And it tells: “Five years ago we inaugurated with a decision the figure of the child's lawyer in the province of Buenos Aires and then the legislature sanctioned the law that contemplates it, but, in practice, it is not always possible to access it” .

Other initiatives are working in this direction. María Fernanda Rodríguez, Secretary of Justice of the Nation, explains that the law 27210 that creates the Body of Lawyers and Lawyers for Victims of Gender Violence, sanctioned in 2015, provides that all cases of sexual abuse committed in the intrafamiliar environment have access to a free legal sponsorship. “We are in the process of implementation, and for next year the goal is to have two lawyers per province,” he says.

2 Little articulation between the fueros

As 80% of cases of child sexual abuse are intrafamilial, after the complaint two processes are opened, one criminal and one civil. The referents emphasize that they have different logics and times, and they are not always coherent with each other. For example, the abuser is initially granted a renewable approach restriction for 30, 60 or 90 days, but the criminal trial can last for years.

Vitale says that many times civil justice does not know what happens in the prison and vice versa. “We have seen occasions in which the criminal courts say the opposite of the family courts, they begin to discuss who is right and what matters least is the victim, the accused or those left in the middle,” he says. “It is very difficult for us to be mainstream, that is, to work with other members of the Justice and public sectors, which is fundamental”.

Rodríguez believes that it is necessary to implement another procedural model that works in the integrality and in a unified manner. “Today is far from being a reality because the resistance to change of the models of judicial organizations to respond to these cases is huge,” he says.

The Ministry of Justice worked for a year to promote, together with Red por la Infancia, a bill that seeks to establish a new organizational paradigm with unified civil and criminal jurisdiction. To avoid fragmentation and shorten the deadlines of the process, it generates no more one-person courts but a large school of judges, where there will be common offices to process the cases in cases of domestic, sexual, child and institutional violence. “Gender perspective, access to justice and due process, oralization and breadth of evidence, are some of the principles of the law,” says Rodríguez.

3 Do not believe in the words of the boys

For Eva Giberti, coordinator of the
program Victims against Violence, not believing children is the main obstacle that Justice has today, “solidly crossed by patriarchy”. “As abusers are in almost 90% of male cases,” he says, “judges have a hard time condemning them.” That is one of the great difficulties for which the individuals responsible for these crimes are usually dismissed or said that the guys fantasize, which is absolutely false because in these situations they do not lie. “

The rest of the referents coincide in the persistence of gender stereotypes. Not only do they tend to distrust a priori the testimony of the victims, but also of their protective adults, who are usually mothers, accusing them of having “filled their heads” with their children against their parents. “The use of the non-existent Parental Alienation Syndrome (SAP) was rejected by both chambers of the National Congress in 2014 and by the psychologists' colleges, but in practice, openly misogynist conceptions persist without the perspective of childhood,” says Wachter.

Malena Derdoy, director of the Directorate General of Accompaniment, Guidance and Protection of Victims (Dovic) of the Public Prosecutor's Office, asks: “Why is it that when a person comes to report that they stole it, we do not send it to the expert, to see if Is it lying or not? In these crimes, we start with a lie, instead of starting with credibility In the 1700 cases that we accompany, there is not one that has had a counter-claim of false testimony “.

False complaints do not reach 5% according to Forensic Medical Body studies and are detected in the first evaluation where the professionals analyze the child's story.

4 The repetition of the testimony

It is essential that the children who are victims of sexual abuse can tell what they experienced once, to avoid revictimization. Although the Gesell Chamber established as a norm in the criminal court, there are difficulties in accessing it in a timely manner. In addition, the same criteria are not used in the civil jurisdiction and children are often cited multiple times to testify.

Vitale determined that, in his courtroom, 15 days before holding a Gesell Chamber, all those who are working with the boy or investigating the crime should be summoned. “That is what we call State co-responsibility,” says the judge.

The lack of additional testing measures is another problem. “Frequently, the boy's listening is bureaucratic, the Gesell Chamber acts as a mere procedural act and when the child can not put words in front of a stranger and in those few minutes the abuse suffered, it is inferred that it did not happen, more test measures are taken and the file of the cause is available, “says Wachter. 82% of the cases of children under 5 years old that Dovic has ended in a premature dismissal for that reason.

Virginia Berlinerblau, specialist in child and juvenile psychiatry and forensic medicine of the National Justice, points out that the judges have a training that starts, in general, from physical evidence and witnesses, which is what usually does not exist in these cases: “Yes Well the Supreme Court was issued on the assessment of the sayings of children to take them as valid, which seems to work sometimes, although not explicitly, is 'what is not seen, does not exist.' And in the case of abuse Just the opposite is true, and under this logic, each case is a battle of discourses where, in general, the strongest prevails, which is not precisely that of the victim. “

5 Lack of training for judicial operators

Achieving greater training for judicial operators dealing with children and adolescents victims of abuse is one of the fundamental debts. “Conducting forensic investigative interviews with children in the Gesell Chamber is a specialized skill and a very delicate training is needed,” says Berlinerblau. “They also have to train the judges and the judicial operators who are going to see the interview, and they should be aware that there are protocols.”

For Berlinerblau, it is very important that there is a training with perspective in childhood in the undergraduate studies of doctors, psychologists and lawyers, for example. “So that they can understand what is happening with these children and that investigations do not fall because of the persistence of the myths that they are influenced, that they are maternal ventriloquists or that they invent easily.” That is not supported by literature but in the imaginary of society, “he says.

Sebastián Cuattromo, from
Adultxs for the rights of children, believes that it would be a great contribution to sanction a rule similar to the Micaela Law (on training on gender issues for members of the State), but specifically referred to sexual abuse against children. “It is time to face a systematic and obligatory work of awareness and training,” he says.

On the other hand, Cuattromo points out that there is a great ignorance of the Law of Respect for the Time of Victims (sanctioned in 2015), which establishes the suspension of the prescription while the victim is younger and still having reached the age of majority, until can make the complaint on its own. However, the Justice continues to claim prescription in most cases.

6 The forced rebellions

“Attempts to re-associate with the aggressor constitute a real curse for the lives of the children,” says Giberti. “We have seen terrible scenes in which the boy or girl refuses by all means to rejoin and the Justice insists because the father figure can not fail, but it must be clear that a father who abuses is not a father”.

In this line, Wachter argues that while criminal justice investigates in order to punish the aggressor, civil courts usually minimize or deny the crime until there is a final judgment. “Excusing oneself in the lack of due diligence of the criminal process and in the belief that the link is an attenuating and not an aggravating circumstance and that the function of civil justice is to reestablish what they call 'family harmony,' they are forced to establish a link with his alleged aggressor by imposing forced reincorporation therapies or therapies of forgetfulness and forgiveness, even with open criminal proceedings, “he describes.

Piceda explains that it is important to use the term “progenitor” instead of father, because “being a mother or father is a function that implies the protection of the children and adolescents who are in charge”.

“The parent is recognized as having a blood relationship but not a real familiarity based on care,” adds Piceda.

In 2017, article 702 of the Civil Code was modified and the automatic deprivation of parental responsibility was established for those convicted of the sexual abuse of their children. In addition, it was determined that with the processing the parental responsibility should be suspended, in order to protect the child victims of all contact with their possible aggressor during the criminal process. However, in practice this does not always happen.

7 Long processes and short sentences

According to a Red de la Infancia investigation that received the first prize from the Ford Foundation, today in Argentina it takes an average of almost seven years for there to be a final decision in cases of sexual abuse, twice the average for any other type of criminal offense.

On the other hand, of 100 complaints made, 4% were submitted to oral proceedings and only 1% were convicted.

“Not only children are caught in a process that does not respect their rights and that causes them more suffering, but once the sentence comes, for our Penal Code the simple sexual abuse of a child under 13 implies the same It's a shame to pay a check without funds: from six months to four years, “says Wachter.

On the other hand, a report from the Public Prosecutor's Office indicates that only additional rules were imposed on half of the sentences. “Of these rules, only 23% contemplate the prohibition of contact and approach to the victim, knowing that it is the crime with the highest recidivism rate.The victim remains at risk beyond having managed to condemn his aggressor”, adds the founder of Red por la Infancia.

Mirna lives daily with fear: “The abuser of my children stops harassing us for a few months and then starts again, I had a restriction of approach, he violated it, I presented the evidence and that was rejected by Justice. time limit and they are still due with the criminal process under way “.

Wachter warns that when the aggressor is dismissed, “in most cases they make a report to the woman who filed for justice for false accusation and for being unable to contact the boy or girl during all those years, and the mother they can condemn in seven months for those two crimes. “

8 A comprehensive approach is lacking

The lack of primary prevention policies for abuse and official statistics at the national level; the need to generate more dissemination campaigns that alert the indicators and signals; as well as an adequate implementation of the law of Comprehensive Sexual Education, are for the referees consulted some of the most urgent challenges.

According to the research program “Out of the shadows: shedding light on the response to child sexual abuse and exploitation”, prepared by the Economist Intelligence Unit, which assessed the response capacity of 40 countries against the crime of abuse and sexual exploitation against children and adolescents, Argentina is ranked number 35 in the ranking. It was in the worst position among the American States analyzed and below several Africans. Among the first places, are the United Kingdom and Sweden.

The scores range from 0 to 100 (Argentina obtained 45.4) and take into account four variables, ranging from the response that victims receive from part of the protection systems; even if the government's capacity to invest resources is being deployed.

Irene Intebi, director of the Regional Resources Center for Latin America of the International Society for the Prevention of Abuse, Abuse and Neglect against Children, adds: “There is a lack of policies in relation to violence and childhood. policies, everyone does what they can from where they can “.

For her, a systematization of what are the most effective ways to intervene in cases of violence is needed. “There is a field that is not taken into account in our country, which is to contemplate the phenomenon of violence in general, not only sexual abuse, as a public health problem,” he says.

The calls to the national line 0800-222-1717

  • 2017: There were 1,845 calls, with 2,037 registered victims of sexual abuse, according to the program Victims against Violence
  • 2018: The calls were 3,776 and the victims 4,202. The most frequent form of sexual victimization is the touching
  • 2019: 1,204 calls were received in the first quarter, involving 1,625 victims. 7 out of 10 are girls and 50% are under 11

Where to ask for help and learn about this problem

Assistance to victims

For assistance and referral: 0800-222-1717 or 137 from CABA. To report: go to police stations, criminal prosecutors or specific tax units for crimes against sexual integrity, criminal and family courts, counseling or the Ombudsman's Office. More information: www.lanacion.com.ar/abuso

Add your signature against the prescription

By the Law of Respect to the Time of the Victims the crimes of sexual abuse in the childhood do not prescribe. However, if the victim was of legal age when she was abused, she does not have the same benefit. That is why Thelma Fardin and Red por la Infancia launched a petition in
Change.org: “That crimes of sexual abuse do not prescribe”

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Publicado en el diario La Nación