CHILD SEXUAL ABUSE | PRINCIPLE OF EQUALITY | ROMA ETHNICITY | DIFFERENT VALUES AND HABITS

 

 

        Supreme Court of Justice, proc. 252/09.0PBBGC.S1, 23.06.2010

 

JURISDICTION: Criminal

SUBJECT: Child sexual abuse

RAPPORTEUR: Armindo Monteiro

RULING: Partial grant of the appeal, with reduction of the penalty imposed for the practice of a crime of child sexual abuse, from six to five years’ imprisonment.

DOMESTIC LAW:

Criminal Code [Articles 40(1), 50(1), 71, 171]

Portuguese Constitution (Article 13)

Code of Criminal Procedure (Article 434)

INTERNATIONAL LAW:

UN Convention on the Rights of the Child [Article 34(1)]

FOREIGN LAW: n.a.

KEYWORDS: Child sexual abuse; principle of equality; Roma race; distinct value scheme; differentiated treatment; lifestyle; Roma ethnicity; different values and habits

COMMENTS:

  1. This judgment is a good illustration of what can be considered a tendency of Portuguese courts to resort to a formalistic understanding of the principle of equality when confronted with cultural arguments invoked by members of minority groups. In this case what was at stake was the practice of a crime of child sexual abuse in which both the defendant and the victim were of Roma ethnicity. The Supreme Court of Justice was asked to consider, among other factors that could lead to a reduction of the penalty set by the lower court, the fact that both the defendant and the victim had, as persons of Roma ethnicity, ‚Äúdifferent values and habits‚ÄĚ and the fact that Roma people started their sex lives when they were still very young. The Supreme Court rejected the argument stating that it was of ‚Äúno weight‚ÄĚ.

 

  1. The defendant had been convicted by the lower court in a penalty of six years‚Äô imprisonment and in the payment of 12.000,00 Euro to the victim as compensation for moral damages. The penalty foreseen by Article 171 of the Criminal Code for the crime of child sexual abuse ranged from three up to ten years‚Äô imprisonment. According to the lower court ruling, the established facts included the following: (i) the defendant and the victim were of ‚ÄúRoma race‚ÄĚ; (ii) the defendant (21 years old) and the victim (11 years old) had kept regular contact, by phone and text messages, in the four months prior to the crime; (iii) a few days before the crime, the victim had sent a text message to the defendant suggesting that they meet and choosing a place for the rendezvous; (iv) in order to attend the rendezvous, the victim had awaited that her parents were asleep and had jumped from her bedroom window, taking care to leave the window open in order to be able to re-enter the house; (v) in that first rendezvous, the defendant and the victim had been together for about five hours, inside the cargo box of a van, talking about ‚Äúintimate stuff‚ÄĚ, and the defendant had ‚Äúcaressed the body of the child over her clothes, in particular her breasts and the genital area, they had kissed on the mouth, and the child was persuaded that they were boyfriend and girlfriend‚ÄĚ; (vi) a similar rendezvous, at the same location and van and with similar caresses, had taken place in the following night; (vii) during the rendezvous that took place five nights later, at the same location and van, the defendant had gone further in his ‚Äúlibidinous acts‚ÄĚ and, in spite of the child‚Äôs resistance, had managed to take her clothes off and to have sexual intercourse with her; (viii) after the sexual act, the defendant had told the child not to say a word to no one, because, if she did it, he would be jailed and sentenced to a heavy penalty, since he had recently been released from prison; (ix) according to the social report, the defendant kept few relations with persons of his ethnicity, whom he considered to ‚Äúhave a lifestyle and a way of being that was different from his own‚ÄĚ; (x) as a consequence of the defendant‚Äôs actions, the victim had suffered heartbreak that affected and would continue to affect her mental development in the future. Before the Supreme Court, the defendant, who had confessed the facts, only contested the measure of the penalty, asking that it be reduced to three years and suspended. The Public Prosecutor allowed that the penalty could be reduced, provided that ‚Äúonly slightly‚ÄĚ ‚Äď closer to five years‚Äô imprisonment ‚Äď but was adamant against the possibility of suspending it. This was also the view taken by the Supreme Court.

 

  1. In his appeal, the defendant listed as attenuating circumstances the fact that he had confessed, that he lived with his mother, that he was enrolled in a computer training programme and contributed with his scholarship to the family expenses, that he spent his free time in the company of colleagues from the training programme, that he did not drink nor take drugs, that he did not keep relations with persons of his ethnicity and that he had his mother‚Äôs support. The defendant also claimed that he had not forced the victim to do anything and noted that ‚Äúthe persons of his race start their sex lives while still very young‚ÄĚ, as attested in court by the defendant‚Äôs mother, who testified that she had been a mother when she was 13 years old, with a ‚Äúhusband‚ÄĚ of more than 40 years of age. The cultural argument according to which the persons of Roma ethnicity have values and habits that are different from those of society at large was used by the defendant in a contradictory manner, something that did not go unnoticed by the Supreme Court. On the one hand, the defendant seems to think that the rejection of those values and habits and his estrangement from persons of Roma ethnicity are attenuating circumstances, since he claims to ‚Äúnot have had relations with persons of his ethnicity for a long time, because they have a lifestyle and a way of being that is different from his own‚ÄĚ. On the other hand, the defendant presents himself as Roma and criticises the lower court for not having taken into consideration, when determining the penalty, the fact that both he and the victim ‚Äúwere of Roma ethnicity, with the consequence that they both had different values and habits‚ÄĚ, namely with regard to the early start of their sex life. The Supreme Court did not view the defendant‚Äôs estrangement from persons of Roma ethnicity ‚Äď which was confirmed by the social report ‚Äď as an attenuating circumstance of his criminal responsibility and noted that the defendant‚Äôs estrangement allegation was incompatible with his claim to benefit from the ‚Äúsupposed ethnic and ethical permissiveness via-√†-vis child sexual abuse‚ÄĚ.

 

  1. The Supreme Court alludes to a ‚Äúsupposed ethnic and ethical permissiveness‚ÄĚ, because it doubts that the values and habits invoked by the defendant truly exist. The Supreme Court held that there was no proof that persons of Roma ethnicity excused those who abused children, pointing to the fact that the victim‚Äôs parents had claimed damages as good indication that they did not excuse such behaviour. ‚ÄúIt is not proven, if it ever was, that there is toleration, excuses, among the Roma for those who sexually abuse children, an axiologically neutral act, something which would, in any case, be incompatible with the damages claim brought by the victim‚Äôs parents‚ÄĚ. From the text of the judgment, it is possible to see that the cultural argument had already been invoked before the lower court, but there is no indication that the lower court discussed the possibility of hearing expert testimony about how sexual intercourse between adults and children under the age of 14 is viewed in Roma communities, nor that it consulted any academic studies on the subject. As for the Supreme Court, it would seem that it did not try to ascertain the state of the art on the issue, since no references are provided in the judgment. It should be noted that, at the time when the judgment was rendered, there were several studies attesting that marriages and unions among Portuguese Roma continued to take place at very early ages, usually between 13 and 15; a trend meanwhile confirmed by more recent studies [see MARIA MANUELA FERREIRA MENDES, Representa√ß√Ķes Face √† Discrimina√ß√£o: Ciganos e Imigrantes Russos e Ucranianos na √Ārea Metropolitana de Lisboa, Lisbon, Instituto de Ci√™ncias Sociais, 2007; MANUELA MENDES, OLGA MAGANO and PEDRO CANDEIAS, Estudo Nacional sobre as Comunidades Ciganas, Lisbon, Alto Comissariado para as Migra√ß√Ķes, 2014]. This point is, in any case, of little importance in the judgment‚Äôs reasoning (one wonders why the Court felt the need to raise it at all), since everything suggests that, even if the existence of the values and habits invoked by the defendant were to be confirmed, they would still be considered of ‚Äúno weight‚ÄĚ by the Court, in the name of the principle of equality.

 

  1. The Supreme Court dismisses the argument that the ‚ÄúRoma race‚ÄĚ operates under a ‚Äúdistinct value scheme‚ÄĚ in which sex starts earlier, counterarguing that ‚Äúthe law is of general and abstract [sic] application, for the entire country, and the protection of Article 171 of the Criminal Code is deserved by all children up to the age of 14 without exception to those of any race, which would lead to a differentiated treatment, of shocking favour to the defendant, in clear opposition to structural principles of the rule of law, in particular that of equality enshrined in Article 13 of the Constitution‚ÄĚ. This statement is problematic because it suggests that the principle of equality is utterly incompatible with differences in treatment, against what is commonly accepted in the literature and in the case law of the Portuguese Constitutional Court [see e.g. Constitutional Court judgment no. 232/03; J.J. GOMES CANOTILHO and VITAL MOREIRA, Constitui√ß√£o da Rep√ļblica Portuguesa Anotada (Artigos 1.¬ļ a 107.¬ļ), vol. I, 4th ed. rev., Coimbra, Coimbra Editora, 2007, pp. 340-342; JORGE MIRANDA and RUI MEDEIROS, Constitui√ß√£o Portuguesa Anotada, vol. I, 2nd ed., Coimbra, Coimbra Editora, 2010, pp. 232-233], and also because it subjects the determination of the penalty to a logic of racial equality among the victims of sexual abuse. As has been pointed out in the literature, the claim that the consideration of cultural factors when determining the defendant‚Äôs guilt leads to discrimination, since if treats differently the victims of ‚Äúcultural crimes‚ÄĚ (usually, members of minorities) and the victims of ‚Äúculturally neutral‚ÄĚ crimes, is based on a mistaken view of criminal justice, which overlooks the fact that the penalties imposed for the practice of the same type of crime are inevitably variable, in cases where the defence involves cultural information as in all others. In our view, whatever the crime at stake and irrespective of who are its victims, the courts should not be indifferent to the defendants‚Äô cultural motivations when assessing their degree of guilt, as they are not indifferent to other ‚Äúculturally neutral‚ÄĚ motivations such as economic status or mental health [see MANUELA IVONE CUNHA and PATR√ćCIA JER√ďNIMO, ‚ÄúDas leis, dos tribunais e das diferen√ßas culturais‚ÄĚ, in Manuela Ivone Cunha (ed.), Do Crime e do Castigo: Temas e Debates Contempor√Ęneos, Lisbon, Mundos Sociais, 2015, pp. 8-10; ALISON DUNDES RENTELN, ‚ÄúWhat do we have to fear from the cultural defense?‚ÄĚ, in Will Kymlicka et al. (eds.), Criminal Law & Cultural Diversity, Oxford, Oxford University Press, 2014, pp. 182-183].

 

  1. The Supreme Court ended, in any case, by reducing the penalty to five years. The Supreme Court took into account the fact that the defendant had confessed and also the fact that it had been the victim who had ‚Äútaken the initiative of sending the defendant a message suggesting a rendezvous in the proximity of a predefined place, during the night, for the purpose of which she jumped through the window of her bedroom in her parents‚Äô house, leaving it open in order to be able to re-enter, for that and two other rendezvous‚ÄĚ. The Supreme Court pondered this circumstance while stressing the irrelevance of the apparent agreement of the victim in cases of child sex abuse, ‚Äúgiven the young age of the victim, her lack of maturity and of intellectual development necessary for her to be able to determine herself with freedom, responsibility, and with full knowledge of the effects and reach of the sexual act agreed to‚ÄĚ. The Supreme Court noted that in the case under appeal ‚Äúthe sexual intercourse engaged in by the defendant had been on the brink of lack of consent, since it had been established that it was the defendant‚Äôs insistence with the victim, overcoming her resistance, that had led to her having sexual intercourse for the first time with any man‚ÄĚ. According to the Supreme Court, the age difference should have made the defendant refrain from using a 11-year-old child to satisfy his lust and the fact that she took the initiative to meet during the night does not ‚Äúlead to the conclusion that she meant to give herself to the defendant, and even if it did it was irrelevant because it lacked the legitimating sexual will‚ÄĚ.

 

  1. Even though the defendant tried to use his estrangement from Roma persons as an attenuating circumstance, his and the victim’s identification as Roma was listed as established fact by the lower court and was not questioned by the Supreme Court. The text of the judgment does not offer any indication as to how the determination was made by the lower court, namely, whether the lower court merely accepted the individuals’ self-identification or whether it relied on witness testimonies or on other means of proof.

 

  1. One final note on terminology. Both the Supreme Court and the lower court make the ‚Äúold mistake‚ÄĚ [to paraphrase LU√ćS SOUTA, ‚ÄúDa ra√ßa ao racismo‚ÄĚ, in AAVV, O Que √Č a Ra√ßa? Um Debate entre a Antropologia e a Biologia, Lisbon, Espa√ßo Oikos, 1997, p. 46] of using the phrase ‚ÄúRoma race‚ÄĚ, on a par and interchangeably with ‚ÄúRoma ethnicity‚ÄĚ. The use of race and ethnicity as synonymous is common in day-to-day lay language and the phrase ‚ÄúRoma race‚ÄĚ is used by persons of Roma ethnicity [see e.g. MARIA MANUELA MENDES, ‚ÄúEtnicidade cigana, exclus√£o social e racismos‚ÄĚ, Sociologia, vol. VIII, 1998, p. 244]. It seems likely that the defendant and/or witnesses used the phrase themselves in their allegations and/or depositions at trial. In any case, it would be expected that courts be more precise and consistent in their use of the terms. Patr√≠cia Jer√≥nimo

Patrícia Jerónimo

REFERENCES IN THE LITERATURE:

JER√ďNIMO, Patr√≠cia, ‚ÄúDireitos humanos e diferen√ßa cultural na pr√°tica dos tribunais‚ÄĚ, in Patr√≠cia Jer√≥nimo (ed.), Temas de Investiga√ß√£o em Direitos Humanos para o S√©culo XXI, Braga, Direitos Humanos ‚Äď Centro de Investiga√ß√£o Interdisciplinar, 2016, pp. 303-328.

JER√ďNIMO, Patr√≠cia, ‚ÄúDireito P√ļblico e Ci√™ncias Sociais: O contributo da Antropologia para uma densifica√ß√£o ¬ęculturalista¬Ľ dos direitos fundamentais‚ÄĚ, Scientia Iuridica, vol. LX, no. 326, 2011, pp. 345-383.

 

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