Proving child molestation beyond reasonable doubt is challenging, say prosecutors
When the Office of the Attorney General (OAG) dropped a molestation case against a child who was less than three years old for lack of evidence last year, the distressed father questioned the officials why they did not prosecute the case.
He was neither the first nor would be the last person to question the OAG.
It was learnt that the Royal Bhutan Police (RBP) and the National Commission of Women and Children (NCWC) have asked the same questions to the office.
While the agencies involved refused to share information on how many child molestation cases OAG dropped, it was evident that the number was high.
An official working with NCWC, on the condition of anonymity, said the OAG has the blanket evidential test and does not provide any consideration for child victims.
“They do not even accept the circumstantial evidence.”
The official, concerned by the numbers of child molestation cases, even questioned if the investigation report submitted by police are strong enough for the OAG to prosecute the cases. “The number of child molestation cases we have is just about five percent of the total number of cases police deal with.”
When Kuensel contacted police for comments, the police chief directed Kuensel to talk to NCWC.
OAG’s chief prosecutor, Kinley Tenzin said they need adequate and credible evidence as a ground for prosecution. “OAG cannot prosecute a case just because the victim is a child. We require other elements as proof.”
He said that while they would want to prosecute every single case of child molestation, they couldn’t do so without evidence. “There is no way we can prosecute a case just because the evidence indicates a person might have molested a child. “Police and NCWC want us to prosecute the cases based on suspicion and doubt. They have questioned us but in any criminal cases, OAG has to prove the crime beyond reasonable doubt.”
He explained that when the child is a victim, perpetrator or witness, by procedure the child should be treated differently but when it comes to prosecution, the standard of proof remains the same. “The standard is not lowered just because the victim is a child.”
The chief prosecutor said any case forwarded to the OAG should fulfil evidential test, where every offence has different elements and they have to ensure each and every element of the case can be proven. “We need to be provided with all the corresponding evidence for every element.”
OAG, he said, has to determine whether the evidence that is presented to them is sufficient to prove the case beyond any doubt. “We need to establish whether the evidence is admissible.”
He said that if it’s a child molestation case, it is important to establish whether the person who committed the crime is identifiable. “In most molestation cases we receive, it states that a person got the opportunity to commit the crime. We cannot jump from the opportunity of committing the crime to guilty directly.”
Kinley Tenzin said most of the cases they sent back did not have evidence to support the claims. “When there is only one victim, gathering evidence is difficult but when there are more victims, the likelihood of evidence is more.”
Section 42 (1) of the OAG Act 2015 states “the office may return the case to the referring agency if there is insufficient evidence.”
Although some lawyers pointed out that proving child molestation is difficult, as the Penal Code of Bhutan does not have a different definition for child molestation, the chief attorney said the law is clear.
Section 203 of the Penal Code states, “A defendant shall be guilty of the offence of child molestation if the defendant molests a child.”
Kinley Tenzin said while OAG acknowledges that it is difficult to obtain evidence in child molestation, it does not mean they could prosecute the case without evidence.
“The onus of proof falls on OAG and OAG has to rely on evidence gathered during the investigation. I don’t blame the police for not obtaining evidence but I blame them for forwarding cases without evidence.”
He said there is no fingerprint in molestation cases and most of the time, molestation cases are done in private places without witnesses.
He said the only effective way of dealing with the on-going issue is to train the investigators with specific training so that they could deal with the kind of offence. “The kind of investigation and evidence gathering method is a general one and it does not work.”
When it comes to circumstantial evidence, Kinley Tenzin said there should be only one logical conclusion derived from circumstantial evidence. “If circumstantial evidence shows two or three things are possible, you have to give benefit of the doubt to the person.”
What courts say?
Judges Kuensel talked to say that OAG doesn’t have the authority to drop cases, as their job is to prosecute and not to judge the merit of the case.
A judge said that because the victims of molestation and rape cases do not come forward, some courts participate and take efforts to inquire and gather more information on the cases.
Following the recent child molestation cases, Prime Minister Tshering Tobgay asked the OAG to relook into the security clearance guidelines for people convicted of rape, sexual harassment and molestation, especially of a child or a minor.
In an earlier meet the PM session, he said the convicts should not be given the clearance whether they work with the government, corporation or private sectors that require coming in contact with children.
Attorney General Shera Lhundup said they have submitted the report to the PM.
Lyonchhen Tshering Tobgay also instructed NCWC to look into the need and possibility of hiring their own lawyers, who are an expert on issues related to all forms of laws, policies and regulations on women and children in consultation with the OAG.
“Right now police would investigate, the OAG would try their best to prosecute, and then maybe the dzongkhag court would pass the judgment that may appear actually acceptable and nobody appeals,” Lyonchhen said. “But if NCWC, the women and victims feel that punishment is too light, then having their own lawyer would empower NCWC to be able to prosecute their own cases.”
Meanwhile, OAG justified that they had to drop the child molestation case referred earlier as the only evidence presented before them was that the man had the opportunity to molest the child from the time he picked her from school till the time he dropped her home.
“There is no proof to show he molested her. There is circumstantial evidence that he could have molested her but the circumstances were so open that she could have been molested by some other people like teachers in the school. We cannot draw a conclusion and cannot say opportunity equals guilt,” Kinley Tenzin said.
Tashi Dema and Tshering Palden
Additional reporting by Yeshey Dema and Rinzin Wangchuk