The crime that dare not speak its name | Ann Marie Mangion

There is more than one kind of victim of child abuse. Family lawyer Ann Marie Mangion explains the legal ramifications of an apparent spike in underage sex abuse cases

raphael_vassallo
Raphael Vassallo
8 September 2014, 3:37pm
Ann Marie Mangion
Ann Marie Mangion
Child abuse is never an easy subject to talk about. But with a number of new cases hitting the headlines this summer, it is also difficult to avoid. On one hand, there is the disconcerting impression that more police reports were filed regarding child abuse this year than in preceding years, causing a widespread perception that the issue itself may be on the increase.

On another level, the definitions of ‘child abuse’ seem to vary from case to case… creating the uncomfortable sensation that, with certain conditions in place, almost anyone can be charged with child abuse… provided that a child interprets his or her actions as abusive.

Ann Marie Mangion is a lawyer specialising in family law and the rights of the child. She helped draft the National Children’s Policy, and was a former member of the Adoption Board. My first question for her when we meet at her legal office in Mosta concerns the prevalence of child abuse in Malta.

Are we talking about an increase in actual abuse, or in the reporting of abuse – be it to the police or in the media?

“More cases are being reported now than before, definitely. In the past similar cases used to occur, but there was a social stigma associated with such abuse. Children and parents tended not to report cases. For example, I have come across separation cases where the wife, in her testimony, says that she was abused – or where the husband says that his wife had been abused as a child, and only ever spoke about this to him. These cases would not have been reported at the time, and the psychological effect would have had such an impact that it will have eventually caused the separation. So definitely, these cases are being reported more now…”

But with an increase in such reports, there has also been an apparent inconsistency in the way individual cases are handled. In the past month, two separate cases were filed involving child abuse: the first against a Gozitan priest charged with defiling a number of girls; the second against a MUSEUM teacher from Siggiewi, accused of attempting to defile a boy while ostensibly helping him out of the water at the beach.

Bail was initially granted in the first case, and subsequently revoked. In the second case bail was withheld from the start. Likewise, there was a ban on the publication of names in the first case, but not in the second. Are there specific bail conditions or considerations that are applicable to child abuse cases? And what is the procedure with regard to ‘naming and shaming’ by court order… given that neither suspect has actually been convicted yet?

“Bail is always given in all cases, except in two circumstances: fear that the suspect may abscond – i.e., leave Malta – or when there is reasonable suspicion that he or she can influence the possible witnesses, or tamper with the available evidence. In the cases you mention, once the witnesses have testified, bail should be granted. Liberty, to the accused, is a fundamental human right.”

Presumably, then, the decision to grant Fr Jesmond Gauci bail before the witnesses had testified was an oversight that was corrected on appeal. But the discrepancy regarding the publication ban is less straightforward.

“The law says that for a ban on the publication of names – which means also that the case will be heard behind closed doors – the nature of the case must be so sensitive that it will cause a great scandal to the country. Therefore it is at the discretion of the court. But the basic rule is that all cases in Malta must be held in public; it’s the exception that they are held behind closed doors. So you need to prove that the merits of the case will cause a moral outrage.”

Doesn’t this mean that the standard of what is considered ‘outrageous’ is down to the subjective opinion of an individual magistrate? And given the sensitive nature of such cases – child abuse allegations provoke a moral indignation that sometimes blinds people to such conventions as ‘innocent until proven guilty’ – isn’t it a bit unfair that such a weighty decision is so arbitrary?

“It’s always like that, because in Malta we don’t have the concept of precedence. Judges and magistrates are not bound by previous case law. They can look at it, refer to it, yes, but it is not binding.”

Mangion however disputes that such decisions are, in fact, arbitrary.

“It is not necessarily unfair, because though we do have cases which seem to differ from one another, as time goes by the law can change and the public perceptions and way of thinking can change. Obviously, then, the older case law will not be held in such importance as recent case law. For example in the recent past…  the 1960s and 1970s… obtaining a foreign divorce was deemed as having committed adultery. The approach to child custody has changed, too. There was once a case where the father wanted his children to live with him, after the mother had emigrated to America. She was no longer taking care of the children, and he applied to take care of them himself. But the court – because he was the father, not the mother – decided that it was best for the children to be brought up in an institution. Public perceptions have since changed: nowadays, the father in that case would definitely be given custody…

It seems that public perceptions of what constitutes child abuse have also changed. A lot of people are asking now, in the light of the most recent case, whether existing laws on child abuse are being interpreted slightly too literally. Without entering into the specifics, it ultimately boils down to whether a child’s accusations can be believed. No doubt in many cases the abuse will be genuine. But – and I admit this is a sensitive area – there are also a number of possible reasons why a child (or for that matter parent) may fabricate claims that abuse had taken place. We can all think of scenarios where, for instance, a child hates a particular teacher, and is perhaps too young to fully understand the implications, so concocts a story to get that teacher into trouble, and so on. Children can also be manipulated by their parents…

“Unfortunately, yes. False accusations do happen, especially in separation cases. It will be a traumatic experience for the father, because he would have to wait until the inquiring court determines whether there is sufficient proof to prosecute him. The wait alone would cause undue pressure. It would even be sufficient reason for access to the children to be stopped, or for access to take place under supervision. If it results that there isn’t sufficient proof, things would return to normal. However it would have caused immeasurable suffering to the father… these things do take time, they are not decided in a week. Meanwhile, not just the father suffers but also the child, because the child in some cases is made to say things which he or she might not understand.”

In this scenario, even the threat of a child abuse accusation makes a highly effective weapon in separation cases.

“If, for instance, a mother even utters one sentence to the father, and tells him he could be charged with abuse, the father is usually so worried – even if he hasn’t done anything – that he would prefer to stop seeing the children altogether, rather than face abuse charges. Many of them would lose their profession. If they work as teachers, or with children, or as medical practitioners… they would lose their job.”

This raises questions regarding police procedure when handling such reports. Are the police obliged to investigate every report they receive? And what level of evidence is needed before proceeding with a charge?

“If the police receive a report and they deem there is sufficient evidence to prosecute, then yes, they have an obligation to proceed. Cases involving sexual abuse are usually handled by the Vice Squad. Initially an inspector will assess the case, and a medical practitioner will be brought in to the scene to determine if the child had been defiled. A psychologist may also be called in at a later stage. If they feel they have enough proof, charges will be filed in court.”

But the word ‘defilement’ may be subject to different interpretations. Sticking briefly to the most recent case: both the child and the suspect agree on the version of events – i.e., that the child was lifted out of the sea, and that contact was made in an inappropriate area, etc. – but one party sees this as ‘defilement’, and the other sees it as an involuntary accident. In legal terms, does the word ‘defilement’ even apply to this specific case?

“According to newspaper reports the suspect was lifting the child out of the water, and the victim thought he was going to touch his genital area… if true, that would be defilement, because defilement is not necessarily rape. In rape there must be sexual intercourse, but defilement can also involve showing a child lewd things that he didn’t know, touching in inappropriate places, or making him do lewd acts and so on…”

Coming back to police procedure: how does one assess evidence in the case of one person’s word against the other’s? Are there any specific tests that are carried to determine the reliability of a witness’s claims?

“That’s where social workers and psychologists come in. Often it will be obvious that what the child is saying is untrue, especially when they’re very young. When they are asked to elaborate, for instance, they often go blank and can’t elaborate any further. For example, they keep saying ‘it happened’… so you’d know they were repeating what they had been told to say….”

By the same token, the psychologist would also be in a position to tell if the allegations are true… if a child gives details of things he or she would not be expected to know at that age, it would be a significant indicator, and so on.

But in contrived cases, Mangion adds that the accused will suffer serious consequences. “Apart from loss of access to children, even his reputation will suffer even though the case is held behind closed doors. There are other issues. For example, in an inquiry, if I am legally representing the father, I might only have access to the file if I make an application. Since he is not accused of any crime, I won’t have automatic access to the court file.”

Recent case history suggests that wrongly accused fathers can also suffer prison sentences. Emmanuel Camilleri was charged in 2004 with corrupting a minor and sentenced to two years, of which he served 400 days before being provisionally released. It later transpired that the charges had been fabricated by his estranged wife, who got their (then 16-year-old) daughter to testify against him.

One particular suspicion raised by that case was that the investigating officer/s may have been predisposed – for want of a better word – to assume guilt, and that procedure may therefore not have been followed to the letter. This is in fact subject to an ongoing inquiry, as well as a court case filed by Camilleri.

The prospect doesn’t offer much reassurance over existing procedures for such sensitive cases. What safeguards exist to ensure that bogus claims are weeded out at investigation stage?

“Legally speaking, the police must have the discretion to determine that the evidence is sufficient… and in such cases there are medical evaluations. There are other levels, including the court case itself. In the event of a guilty verdict, the decision will have been affected by various levels: the police investigation, the medical reports, the magistrate who assesses the evidence – even a judge, if the case is appealed. All these considerations will have gone into the final decision. And in criminal law, the level of proof must be ‘beyond reasonable doubt’. The magistrate must have 100% moral certainty that the accused is truly guilty. There are certain factors which have to be in place: evidence must be corroborated and fool-proof… and it works both ways. If a witness changes his or her version of events, it’s a sign that person is lying.”

In an ideal world, this would work every single time. But we’ve all seen how this is not always the case…

“Mistakes happen. It is unfortunate, but one can’t be deterred.” Here she pauses to correct herself. “I don’t like to refer to these as mistakes myself, because… if, for example, a case is decided one way, and then the appeal court rules in a different manner, does that mean that the first case was a mistake?”

Well, I personally would certainly consider that a mistake, yes. How can an innocent person spend two years in prison, and the case itself not be a miscarriage of justice?

“A miscarriage of justice, yes. But you can’t say it was a mistake made by the magistrate. If, for example, the child’s version was fool-proof, and she didn’t change versions, then the magistrate had no real choice…”

But this merely reinforces the issue. The system, as Mangion describes it, can easily result in miscarriages of justice. At least one case so far has already turned out to be a fabrication. That is true for all cases and all crimes, granted; but when applied specifically to child abuse, there may be other factors to take into account. We have been seeing more of these cases lately, suggesting that people are likelier to report abuse – rightly or wrongly – than ever before. If there aren’t proper structures in place to deal with these reports, there is no telling who might be unjustly charged with child abuse in future. Doesn’t this shake public confidence in the justice system?

“These events do leave an impact on society, but one can’t lose faith in justice just because of these few instances. We have to also look at it from the other point of view; that of the victims in real cases. They might reason that it’s not worth going to the police station, because people might think we are making this up. We must be cautious. Let’s not forget that there are real sexual abuse cases, too; we can’t end up being too influenced by the false accusations.”