Fun Place for Sex Crimes
Child rights campaigners are up in arms over the leniency displayed by the Indian judicial system towards foreigners who abuse children sexually. The most striking and recent example of this is the ruling of Justice A S Aguiar of the Mumbai High Court setting free two Swiss pedophiles, Wilhelm (61) and Lily Marty (58), on the grounds that "no useful purpose would be served" by keeping them in custody!
The Supreme Court (SC) stayed the judgment, on an appeal filed by the Maharashtra government. However, the SC Bench headed by Chief Justice V N Khare granted bail to the two in an order passed on Monday, April 5, 2004, but impounded their passports to prevent them from leaving the country.
Expressing dismay at the turn of events, the Forum Against Child Sexual Exploitation (Mumbai) also fears that the couple might jump bail and leave the country. On December 16-17, 2000, even as the police were in the process of arresting him and were recording statements in a prominent five-star hotel, Marty boasted to child rights campaigners that he possessed "multiple passports" and would walk away scot-free because "Indians were so corrupt".
The couple had been arrested in December 2000 after they were caught red-handed while photographing minor girls picked up from the Gateway of India. The horror story of child sexual abuse by the Swiss couple was told in-camera to a sessions court in Mumbai. And in March 2003, Additional Sessions Judge Mridula Bhatkar convicted the couple. They were awarded a sentence of seven years rigorous imprisonment and directed to pay a fine of Rs 25,000, including Rs 5000 (1US$=Rs 44) to each of the victims.
It was on their appeal against this conviction that the Mumbai High Court accepted their contention that if the matter was not expedited, the appeal would not be heard until after seven years, the term of their original sentence. The judge also directed them to pay an enhanced compensation of Rs 100,000 to each of the victims. The gravity of their offence did not figure anywhere in the judgment.
"The couple did not even bother to argue against the charges framed against them. They only said they had served more than half their term, and agreed to pay the enhanced compensation to their victims," says child rights campaigner Sangeeta Punekar. Along with Mansoor Kadri and Trupthi, Punekar was part of the trio who tipped off the police on the activities of the Martys.
Their passports revealed that the couple had been visiting India every year since 1989. They operated in different countries and their laptop was stocked with photographs of children including those from Sri Lanka and the Philippines. Posing as a lonely, grandfatherly couple, they befriended street children and their parents, promising to give them a good time on the pretext of charity. Marty (who described himself as a general manager in a multinational pharmaceutical company) and his wife were well stocked with lubricants, condoms and penile sprays. Lily Marty, a trained nurse, would tend to the wounds the children suffered as a result of their abuse.
But none of this, all recorded evidence, figured in the judgment of the Mumbai High Court. "We had treated this as a test case and with the support of the police, especially the social service branch, kept the pressure up continuously, attended every hearing and opposed bail at every turn," Punekar says.
Apart from the seriousness of the Martys' crime, several other issues arise from the recent judgment of the Mumbai High Court. Lawyers debated whether the duo was justified in making what was akin to "plea-bargaining" - agreeing to enhance the compensation amount to each victim so as to avoid serving their full sentence. Nishta Desai, director of the NGO, Child Rights in Goa, and author of 'See the Evil', a book on child sexual abuse, says that the judgment implies that you could "buy your way out of the Indian legal system".
Senior Advocate Indira Jaising dismisses any reference to plea-bargaining in this case. "India does not have any law on plea-bargaining. In fact, a Bill on plea-bargaining is pending in Parliament and seeks to amend the Criminal Procedure Code," she says. Sounding a strong note of caution, she says that plea-bargaining could be invoked in very petty offences like traffic violations.
In any case, the notion of plea-bargaining was hardly applicable in the Mumbai High Court judgment in the Martys' case, says Jaising; the judgment was "completely wrong and insensitive". Plea-bargaining takes place before a conviction whereas here, the conviction had taken place and the charges were clearly proved. Punishment for serious charges such as these allows for the application of compensation, fine and a sentence. None of these punishments can be a substitute for any other, Jaising points out.
But all this still begs the question: Is the judiciary being lenient to foreigners accused of child sexual abuse, and why?
Desai is in no doubt that law-enforcing authorities and the courts are careful to the point of being careless in their treatment of cases involving foreigners. "I guess they (the administration) fear that adverse publicity would affect the tourism business. We have been trying to convince them that tourists don't like what is going on...we collected over 200 signatures of foreign tourists in a week decrying child sexual abuse. But officials have a mindset," she rues.
The mindset works in several ways, Desai elaborates. For instance, many Goans believe that in their state, the victims (of sexual abuse) are not Goan children but those of migrant labor. In some cases, courts even rule that the boy victims could be accomplices under sections governing homosexuality. And to make the situation worse, police delay in action means that the accused are granted bail and manage to escape easily.
In February 2000, Domnique Sabire, a French associate of the 71-year-old convicted pedophile Freddy Peats, was out on bail and had to report to the Panjim (Goa) police. He stayed at Calangute (much further away) and secured permission to report to police there every alternate day. On February 27, he stopped reporting to police. On March 30, more than a month later, the police at Calangute revealed that he had stopped reporting to them. He had fled the country and there was no way of tracing his whereabouts.
In another case, despite forensic evidence against a German national, the court said that the sperm found in the child victim's anus was his (the child's) own! The Goa state government went in appeal before the High Court but failed to inform the German Embassy of the appeal. The accused blithely produced the lower court order freeing him and left the country, in his own name, using his own passport!
This was all the authorities did: The immigration officers in Delhi wrote to the Goa police asking if it was time to withdraw the lookout circular issued in the name of the accused, since he had left the country.
"By these actions, India sends out a message that it is a fun place for sex crimes and that India's kids are for sale," says Punekar, echoing Desai's urgent plea: to society to take responsibility for all children and to the State to protect the rights of the child.
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