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Will we feed our children to online predators? 

07 Oct 2021

  • Updating our legal system to deal with online sexual exploitation
By PEaCE-ECPAT Sri Lanka  Time and again it has happened in Sri Lanka: a particularly grisly case of child abuse makes headlines, the nation recoils collectively in disgust over the details, and people contemplate how abusers best deserve to be punished. Meanwhile, our justice system continues to plod along unchanged, and victims often have to wait years – and in some cases, be well into their adulthood – before legal action concludes, and are thus forced to revisit their nightmares.  While the legal system has been slow to adapt to the evolving nature of how such crimes are committed, child abusers have wasted no time finding new ways to satisfy their unhealthy desires, and now pose a far greater threat thanks to the Internet. Common online tools, such as social networks, file sharing systems and live streaming platforms, have become dangerous weapons in the hands of predators, furthering the sexual exploitation of children.  What is online child sexual exploitation (OCSE)?  This phenomenon has given rise to the term OCSE. Though OCSE is not strictly defined in international legal terms, CSE generally describes a situation where an underage individual takes part in sexual activity in exchange for some benefit or promise of such, and thus OCSE refers to such when it occurs over the Internet.  Children may be exploited for non-commercial purposes, which is when abusers seek personal gratification, or even commercial purposes, such as child prostitution and trafficking, as well as sex tourism – a key issue in Sri Lanka. The digital component has only made it more difficult to identify the different forms of exploitation. It currently includes child pornography, cyber harassment and grooming, which is defined as the “preparation of a child for sexual abuse, motivated by a desire to use the child for sexual gratification” in the Council of Europe Convention on Protection of Children against Sexual Exploitation and Sexual Abuse/the Lanzarote Convention (to which Sri Lanka is not a signatory).  A common argument in this regard is that parental supervision and limited Internet access can curb children’s exposure to online predators. However, as Sri Lanka sees soaring rates of smartphone use, our children have shown increasing engagement in information and communications technology, while the older generation – like the law – struggles to keep up, making it difficult to ensure that they are sufficiently protected.  Adding to this is how the Covid-19 pandemic has made Internet access an absolute necessity for school children. In the new normal, classes are conducted online to prevent children from contracting the virus, but at the same time, the windows of virtual classrooms open to face the hunting grounds of online predators.  Thus, we now face an urgent need for clearer and more effective legislation regarding the sexual exploitation of children online. A study titled “Sri Lanka: OCSE – Legal Gap Analysis” conducted by Verité Research and commissioned by the Protecting Environment and Child Everywhere (PEaCE)/End Child Prostitution, Child Pornography and the Trafficking of Children for Sexual Purposes (ECPAT) Sri Lanka, highlights key areas that need to be addressed if we want a safer online environment for future generations.  Outdated and indistinct legal terminology  To sufficiently protect victims and prosecute abusers, we must first clearly define what constitutes sexual abuse and similar crimes. However, the terminology used in Sri Lanka’s Penal Code as amended is woefully behind the times in this regard.  It uses gendered pronouns that cast males as perpetrators and females as victims, making it difficult to counter abuse perpetrated against young boys – who have proven more likely to be victims of child sex tourism in coastal areas. The Penal Code also includes vague descriptions such as “carnal intercourse against the order of nature”, through which even sexual activity between same-sex partners have been unfairly prosecuted, highlighting how too much is left to interpretation.  This issue is exacerbated when it comes to OCSE, as the digital platform has created new means of exploitation that require definition. Online grooming, for instance, is not explicitly defined as a crime, and nude photographs or videos are not explicitly defined as personal property. While the existing definitions can be interpreted to prosecute abusers, they may be unable to sufficiently mitigate the damage done, and in the worst cases, even put victims at risk of facing legal action.  For instance, a video of child abuse may continue to circulate online even after the abuser is brought to court. Should all those in possession of the video also be prosecuted? How is the age of the victim at the time of abuse to be determined? If the victim, as an adult, is being accused of maintaining a same-sex relationship, can the video be produced against them as evidence? We can hope that such situations will not occur, but such hopes matter little in a court of law; therefore, what we need are firm standpoints.  Explicitly defining offences  In this regard, the PEaCE/ECPAT study proposes several amendments to be made to the Penal Code, as well as the Computer Crime Act, No. 24 of 2007 as amended, for better legal definition of OCSE-related issues. Firstly, the definition of a child must be made consistent across the legal infrastructure, while vague terms in the Penal Code such as “obscene” and “indecent” must be made more precise. At the same time, the use of gendered pronouns regarding rape must be amended to allow equal consideration for male victims.  Secondly, several variations of OCSE need to be explicitly criminalised in the Penal Code, strictly in line with international standards such as the Convention on Cybercrime/the Budapest Convention, with emphasis on the exchange that occurs in sexual exploitation, as opposed to sexual abuse, while also including online solicitation and grooming as explicit offences.  Similarly, the production of child pornography, and the intent to distribute such, must also be explicitly criminalised, as these are currently deemed offences only through the interpretation of the existing law. The Computer Crime Act also requires an update to explicitly prohibit OCSE, which will allow authorities greater investigative powers regarding such crimes and aid the prosecution of abusers. PEaCE/ECPAT also recommends that images and videos of simulated child pornography – i.e. that do not feature actual children – be prohibited, as such material encourages the demand for child pornography.  Although a proposed Obscene Publications Ordinance (Amendment) Bill aims to include online methods of creating, sharing and consuming child pornography, the study notes that it is still plagued by a lack of precise terminology – which is a must if we are to hold every participant in the chain, from production to consumption, accountable to justice.  The study further stresses that the following be included in the Bill: “Any material that visually depicts a child; a person appearing to be a child; realistic images representing a child engaged in sexually explicit activity; or of the sexual organs of a child for sexual purposes; including the distribution through a computer system; procuring child pornography for oneself or others; or possessing child pornography.”  Inconsiderate policies and shoddy practices  Victims of sexual exploitation and abuse, whether perpetrated online or offline, have to face very real consequences as a result of abusers actions, and it falls to the legal system to not only see that they are done justice, but also that they are not further victimised in the process. In Sri Lanka, however, this is sadly not the case.  In Sri Lanka, sexual abuse cases in general have been known to drag on for years and in some cases, even decades. In itself, this is a major shortcoming, but there are further issues with how victims are handled during such an extended period.  Although the Assistance to and the Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 as amended codifies that child victims be treated in the “best interests of the child”, which implies that they must receive counselling and protection, this is rarely the case in practice.  They are often placed in remand homes that also house juvenile delinquents, which only exposes them to further trauma. It has been noted that they tend to be re-victimised even when reporting such incidents, due to law enforcement personnel – especially at the Women and Children’s Bureau – lacking adequate training on victim sensitisation. In some cases, their identities are revealed to the public due to unethical media coverage, cementing their lifelong status as a victim.  Unfortunately, perpetrators are able to avoid such branding, as despite provisions that allow for fingerprint-able offences to keep track of repeat offenders, Sri Lanka is yet to maintain a national sexual offender registry, as child abuse does not fall under such offences. Sri Lanka’s National Action Plan for Human Rights has committed to establishing such a registry by 2021. Such a registry should finally allow for better monitoring and sentencing of such criminals.  This inadequacy in maintaining records sadly persists across the legal infrastructure when it comes to dealing with OCSE. For instance, the Criminal Investigations Department’s (CID) Cybercrime Division (CD) does not categorise complaints by the age of the victim. At the same time, the National Child Protection Authority (NCPA) does not categorise OCSE-related complaints as such. Such data is vital to understanding how such crimes are being perpetrated and where resources should be dedicated to prevent them from occurring. More efficient utilisation of resources is indeed a must, as pointed out by the study, which highlighted how the NCPA received a total of 10,315 complaints on alleged child abuse in 2014, out of which 1,777 were clearly sexual and gender based violence related issues, but only 2,080 complaints were concluded by the end of the year.  A smarter, more sensitive approach  As abusers have a wealth of methods and resources at their disposal to commit their crimes and cover their tracks, the study recommends that law enforcement agencies undergo technical capacity building so that they can effectively investigate such crimes that occur online. In doing so, the NCPA and the CID’s CD also need to appropriately categorise the data from such cases so that trends can be analysed and better counter strategies can be devised, whether this be through awareness building, software based solutions or active online policing.  As multiple agencies are involved in such cases, this would be facilitated through a centralised complaint system – this would not only enable them to share gathered data, but it will also prevent victims from having to repeatedly visit multiple institutions and relive their trauma repeatedly.  At the same time, stakeholders across the legal system, including the NCPA and the CID’s CD, as well as prosecutors and judges, will require sensitivity training so that they can appropriately deal with victims without re-victimising them in the process. This will need to be accompanied by an understanding of what exactly constitutes OCSE – it is currently taken to mean only child pornography, whereas there is a wider range of offences that come under the label.  The need to evolve  Sri Lanka’s legal system has thus far maintained a disappointing track record when it comes to dealing with sexual abuse in general, let alone OCSE. However, just as the Covid-19 pandemic has strongly armed the nation’s youth and elders alike into integrating the Internet into their daily lives, we should also open our eyes to the threat this poses to our children.  With the benefits of remote learning come the risks of online predators, and unless Sri Lankans look forward to a new wave of shudder inducing sexual crimes against children, we need to ensure that our legal system is ready to deal with the future. The digital age is now in full effect; and we can no longer ignore the bright opportunities the Internet provides, nor the shadows it brings with it.  (The PEaCE-ECPAT Sri Lanka campaign-cum-organisation works to end the sexual exploitation of children by nurturing collaborations among local civil society activists, and to widen the child rights community, in order to form a network for the protection of children from sexual exploitation) If you feel that you or someone you know may be going through a similar situation, the following institutions would assist you:  Police Child and Women Bureau: 011 2444444  NCPA: 1929 LEADS: 011 495 4111  Sri Lanka Computer Emergency Response Team (CERT): 011 269 1692  

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