Violence against children is a widespread phenomenon which cuts across social, cultural and economic strata and occurs in many different settings with long-term implications for the well-being of those children who are affected. However, preventing violence against children that occurs in the framework of state institutions such as orphanages or juvenile justice system poses a particular challenge, since it is inextricably linked to the absence of national legislation or failure of its implementation as well as norms of violence which have long been generated. The countries of Russia and Argentina represent interesting case studies of states whose facilities are settings for regular violence against children, many of whom are already the victims of severe poverty that is exacerbated as they find themselves in situations where their rights are eroded. This paper looks at some of the policies enacted in these countries to deal with the underlying causes of institutional violence against children, followed by a critique of these policies and suggestions for alternative strategies such as investing resources in professional staffing of these institutions, greater independent oversight and more national/federal leadership to help alleviate the situation.
Section 1: Introduction
Global Violence Against Children
This paper addresses physical violence against children and in particular analyzes violence taking place in state institutional frameworks. It describes the international legislative framework established to form a legal basis for tackling violence against children and then reviews the most important and comprehensive research on this subject and the outstanding controversies and debates which surround it.
Violence against children takes place in a multitude of forms and settings and no state is immune from its presence. Different classes, cultures, ethnicities and states may define violence against children in different ways therefore a definition of violence against children which is universally applicable needs to be defined for the purpose of this paper. We have chosen to define violence against children according to the definition employed by the 2006 UN study on violence against children. The report is the first comprehensive global study to date on all forms of violence against children, defined as the following:
All forms of physical or mental violence, injury and abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse...the intentional use of physical force or power, threatened or actual, against a child, by an individual or group, that either results in or has a high likelihood of resulting in actual or potential harm to the child’s health, survival, development or dignity.
Accordingly, this paper defines children according to the first article of the Convention on the Rights of the Child (referred to in this paper as the CRC):
...every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.
Violence against children is a global situation and is apparent in all states, cultures, castes, ethnic groups, though it may be expressed in different ways (e.g. harmful traditional practices, police brutality or severe neglect may be more prevalent in certain states and societies). It transcends class, affecting the educated, uneducated, poor, middle-class and wealthy, but nevertheless it is essential to recognize that poverty has an incredible impact on the incidence of violence towards children. Many factors are associated with the prevalence of violence against children and include economic development, disability, status (including marginalized children), age, sex and gender.
Violence can occur in a multitude of settings including the home, educational settings, care and justice systems, work settings, and the community. The extent of the phenomenon of violence against children is best represented by the following statistics and estimates:
- Almost 53,000 children died in 2002 as a result of homicide
_ Up to 80 to 98% of children suffer physical punishment in their homes
--150 million girls and 73 million boys experienced forces sexual intercourse or other forms of sexual violence.
No matter where the violence takes place, the following trends can be discerned about violence against children:
1. It has deep implications for children’s lives; affecting their health, development, rights and ability to lead a fulfilled life as a child or later as an adult. In fact, violence regularly accompanies other threats to children such as trafficking and recruitment as soldiers.
2. It is frequently hidden and as such goes unreported. In general, children remain invisible and perpetrators of violence hold positions of power and therefore control. Safe mechanisms for children to report cases are often absent. It can therefore be assumed that the extent of the problem is far greater than we can identify using available data.
3. It is frequently accepted by society as a normal practice necessary to reinforce codes of discipline. Many times violence against children is only considered as such when it results in a visible injury.
As stated earlier, the primary purpose of this paper is to examine violence against children which occurs in institutional settings, outside of the home, school and community. The above three global trends related to impact, invisibility and acceptance acutely relate to this setting and will be addressed in two case studies from Argentina and Russia.
International Legislation on Violence Against Children
Non-governmental organizations, government institutions, as well as international organizations have all recognized the necessity of addressing the issue of violence against children. In the CRC, violence against children is specifically mentioned as well as indirectly addressed in multiple articles. Most importantly, Article 19 states:
1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
Article 34 protects children from sexual exploitation and sexual abuse; Article 39 addresses physical and psychological recovery and social reintegration of children who are victims of any form of neglect, exploitation, or abuse; and Article 37 ensures that children shall not be subject to torture or other inhuman treatment. Then, there are mentions in Articles 28, 3, 32, and 40 concerning school discipline, the best interests of the child, harmful work, and the child’s sense of dignity and worth, respectively, that are all directly or indirectly related to violence towards children. Therefore when children are the subjects of violence, they are not just victims or considerations; they are people whose rights have been violated and taken away.
Apart from the aforementioned articles addressing violence towards children, General Comment No. 8 of the CRC was formulated in 2006, specifically concerning the use of corporal punishment against children. It is titled “The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment.” After many years and much silence, people have realized the damage done to children and society by violence in the form of punishment. The United Nations states that the impetus for the creation of the general comment was the widely accepted existence of various forms of corporal punishment, which it believes are harmful to the human dignity and physical integrity of the child. They also note in particular that it needs to be eliminated in the family, schools and other settings, which would presumably include other institutional settings. Distinguishing physical actions used to protect from punitive use of force to cause pain, the UN accepts that “the law in all States, explicitly or implicitly, allows for the use of non-punitive and necessary force to protect people.”
Beyond the comprehensive 2006 UN study mentioned earlier in this paper, the extent of the problem is further substantiated by the prevalence of other national and international organizations with goals of raising awareness and preventing incidences of violence towards children. For example, the International Society for the Prevention on Child Abuse and Neglect (ISPCAN) aims to “prevent cruelty to children in every nation, in every form: physical abuse, sexual abuse, neglect, street children, child fatalities, child prostitution, children of war, emotional abuse and child labor,” while the Child Rights Information Network (CRIN) explains that violence towards children is a global epidemic and a daily reality for children, who “may be beaten, sexually assaulted, tortured, and even killed.” There is no doubt that although we may view children as innocent, playful beings, they are not given the kind of protection that they require and the rights to which they have full claim.
Apart from the issue of rights, the World Health Organization (WHO), for example, views violence towards children as a major health issue and states:
Violence against infants and younger children is a major risk factor for psychiatric disorders and suicide, and has lifelong sequelae including depression, anxiety disorders, smoking, alcohol and drug abuse, aggression and violence towards others, risky sexual behaviours and post traumatic stress disorders. Preventing violence against children therefore contributes to preventing a much broader range of noncommunicable diseases.
Controversies and Debates
While the almost universal ratification of the CRC should suggest a similarly extensive fight against violence against children in individual states, this is not always the case. To understand the complexity of tacking this issue we briefly refer here to two interrelated existing debates and controversies.
Firstly, there is a debate on where and when state intervention is required to tackle situations of violence in the family home. In many societies there is a clear line drawn between the family and state domain and intervention in cases of domestic violence are therefore limited. A recent attempt in Australia by the state to intervene and tackle relatively high rates of sexual child abuse in aboriginal communities was protested by the community as “an occupation of our lands by the military, the police and by the bureaucrats.” The appropriate extent of state intervention is a debate which touches on questions of family and community autonomy, the welfare of the child and the historical and cultural context.
Secondly, it is not widely understood that violence against children is unacceptable whatever the circumstances. Corporal punishment of children is still perceived as a legitimate disciplinary measure. It can be argued that such violence is advocated in religious texts and that there is a necessity for these procedures in order to discipline or to punish according to what has been prescribed in religious laws. As noted in General Comment No. 8, "Freedom of religious belief is upheld for everyone in the International Covenant on Civil and Political Rights (art. 18), but practice of a religion or belief must be consistent with respect for others' human dignity and physical integrity." It goes on to note that while having the freedom to practice one's religion is a human right, punishments of extreme violence that are encouraged by religious values are clearly a violation of human rights as described in the CRC and by the Human Rights Committee, among others.
Furthermore, children’s rights as presented in the CRC are not always entirely adaptable to the national legal frameworks within a country. In many cases, children’s rights contradict family laws regarding punishment, privacy, etc. Often, family matters are left to the family and/or community to resolve; judicial authorities are not usually present in private affairs, and likewise, the police do not generally intervene. There is a line drawn between private and public matters, with laws tending to deal with public matters, whereas private matters are left to custom and tradition. This makes it difficult for the CRC to blend easily with national laws in countries where tradition prevails and the state is left out of what are considered private affairs. However, when a country is signatory to the CRC, it must find a way to integrate children’s rights into the national legislature; otherwise the phenomenon of violence against children will persist in the name of cultural relativity and the unwillingness of the state to pave the way for a new culture of respect for children’s rights.
Section 2: Case Study 1
Violence Against Children in Juvenile Justice Systems in Argentina (Anita Wahi)
Argentina has suffered a long, traumatic history of dictatorships, economic crises, and political corruption. It is still confronting social challenges and has proven that it has the courage to learn from its past. With organizations like Abuelas de Plaza de Mayo, Asamblea Permanente de los Derechos Humanos, HIJOS, as well as countless others, Argentines are aware of the rights they possess and have an excellent reputation in holding leaders accountable for their actions. So, in the realm of children’s rights, the same should be true. Below we look at some of the legislation and the reality of children in Argentina in regards to violence in juvenile justice systems.
International Treaties and Declarations
In Latin America in general and in Argentina specifically, numerous declarations have been signed and ratified to suggest that the issue of violence against children is a fundamental concern of society and that steps are being taken toward its eradication. In particular, the Buenos Aires Declaration on Violence Against Children and Adolescents makes clear that:
Millions of children on [the] continent live in fear of being victims of violence at home, in schools and on the streets. Physical and psychological violence aimed at children include extrajudicial executions, torture, inhuman or degrading treatment or punishment, corporal punishment even within the family, sexual abuse and exploitation, and trafficking in persons.
A worrying social tolerance towards violence against children…results in…the repeated proposals to reduce the age of criminal responsibility; and in sentencing to life imprisonment or the death penalty for crimes committed by people under the age of 18.
Argentina is no exception to the culture of tolerance of such violence, especially given a recent history in which the dictatorship disappeared not only members of the political opposition, scholars, and ordinary men and women, but also children.
As a member of the OAS, Argentina is a contributor to the Advisory Opinion of the Inter-American Court of Human Rights on the Juridical Condition and Human Rights of the Child (2001), which deems that states “are under the obligation … to adopt all positive measures required to ensure protection of children against mistreatment, whether in their relations with public authorities, or in relations among individuals or with non-governmental entities.” The Inter-American Court was asked to review the laws concerning the treatment of children while in state institutions as a result of the vast discretionary power of states to interpret such matters, described in Articles 8, 19, and 25 of the American Convention. This document certifies the requirement by states like Argentina to ensure that children are not physically harmed while in the care of juvenile justice systems.
Today, enshrined in Argentina’s own Constitution, in paragraph 22 of Article 75, is the Convention on the Rights of the Child, which, as stated earlier, speaks explicitly and implicitly on the protection of children against violence, by default including the context of juvenile justice centers. This includes the protection from corporal punishment as described in General Comment No. 8. Furthermore, Argentina’s own Law 26.061 on the Integral Protection of the Rights of Girls, Boys, and Adolescents discusses minimum guarantees of rights in judicial or administrative proceedings in conjunction with the rights described in the Convention on the Rights of the Child, the National Constitution, and international treaties related to the theme. Thus, acts of violence perpetrated against children while in the juvenile justice system are illegal, according to national laws of Argentina. However, interpretation of the CRC and other treaties has proven to vary, and controversies such as the ones described earlier do occur, application of the Convention takes on a distinct form in each circumstance. A hierarchy for applicability was also described in this legislation, which essentially left the planning and execution of the policies relating to children to the provinces rather than the federal government. We will see later how the provinces have applied the law, through an overview of the actual state of violence in juvenile justice systems in Argentina.
Since the type of action most closely related to violence in state institutions is corporal punishment, here we look at the presence or lack of laws regarding such activity. In 2008, Argentina abolished the death penalty, so no child, no matter the crime, can be killed as punishment under federal law in Argentina. However, according to the Global Initiative to End All Corporal Punishment of Children, the lack of prohibition of corporal punishment leaves it lawful in not only the home and in schools, but as a disciplinary measure for children in the justice system. It is worth noting, at the same time, that in Argentina corporal punishment is unlawful as a sentence for crime, even for children.
Regarding sexual violence, the Instituto Americano del Niño says that sexual violence is not only a result of risk factors but also a result of the absence of individual, family, community, and socio-cultural protecting mechanisms. These socio-cultural mechanisms take the form of laws, which the state government, as leader of society, must implement. In Articles 119, 120, and 124 of the Penal Code of Argentina, sexual abuse of minors is of primary concern. Finally, Law No. 3820 provides for the holistic protection of children and adolescents in Argentina.
Children in the Juvenile Justice System in Argentina
According to UNICEF, “the family and State institutions are the main settings where Latin American children and adolescents experience violence.” This is no surprise, given the culture of tolerance to violence mentioned earlier. Paulo Sergio Pinheiro, the Independent Expert in charge of the UN Study on Violence against Children, has stated that in Latin America, the values and attitudes of the family and the state are based on authoritarian values closely linked with violence. To give a number to this violence, statistics done by INDEC-Unicef in Argentina shows that in 2000 over 10% of deaths in children aged 15 to 17 were caused by aggressions (with another 10% caused by suicide), while the total percentage of deaths by aggressions in children under 18 years of age was 1.3. Furthermore, INDEC recorded the incidence of poverty in Argentina in 2003, which was growing, to affect “73.5 percent of children under 14, 41.2 percent of whom lived in extreme poverty, while 64.2 percent of adolescents between the ages of 15 and 18 were poor, and 30.8 percent of that proportion were destitute.” As mentioned earlier, although violence transcends class, poverty still has an inordinate impact on the prevalence of violence against children, as we will see below.
As of December 2007, there were a total of 6,294 children, adolescents, and youth believed to be in violation of law, of whom 71% were in penal programs and 29% in detention/prison centers. This number includes some youth up to age 20, as the age of “minor” differs between some provinces, and it does not include children who were condemned as adults for their crimes. In actuality, the number is probably higher than noted. All centers and programs are state-operated; none are private. Through a study done by UNICEF in coordination with the National Secretariat of Childhood, Adolescence, and Family (SENAF) of Argentina, the right of children to decent treatment, among other conditions, was assessed in these institutions. What they found was that in all institutions, closed or open, many circumstances were apparent, including among them mistreatment and physical punishment. Since the study did not focus on violence in particular, it stated that there were situations present in many of the centers that contributed to mistreatment and physical violence, such as overcrowding and unspecialized staff. One beneficial feature of the institutions is that some of the ones studied are subject to external control or monitoring by provincial judicial powers or governmental human rights organizations, but that number is only at 53% of all institutions studied.
Of the number of children who are in state detention centers, 90% are male, leaving 11 boys to each girl in detention centers in Argentina. This raises questions about the number of sexual abuses that occur in the centers not only from other minors but from staff as well. Since the majority of victims of sexual violence remain silent about it during their childhood and adolescence, we cannot know its frequency even with statistics. UNDP’s 2005 Human Development Report listed Buenos Aires as one of the top five cities for sexual assault against women, with girls also understood to be victims (and boys as well). Gender adds an entirely new dimension to the concept of violence against children, considering that women are another hugely disadvantaged group almost everywhere in the world.
In about 33% of the detention centers, daily staff is comprised of security forces, who are not necessarily trained or specialized in dealing with children and adolescents. Furthermore, in all institutions, the number of staff persons who are professionals specialized in dealing with children fall into the category of “other,” which also includes administrative personnel, teachers, and cooks, all of whom form about 32% of the staff in the centers. The number of professionals such as social workers and psychologists who work in the centers is likely to be very low, with these places tending to rely on security forces who are more prone to use violence as disciplinary measures instead. (See Table 1 for more information.)
While the numbers on violence in the current juvenile justice system in Argentina are not readily available, one can infer by the overall number of violent incidences leading to death in children as well as the prevalence of a culture of tolerance towards violence that the rate of violence in such institutions is high. The lack of specialized staff, as well, in such institutions points to a lack of training and etiquette in handling children which would also often lead to cases of violence. Furthermore, the UN Study on Violence notes that:
Children in detention are frequently subjected to violence by staff, including as a form of control or punishment, often for minor infractions. In at least 77 countries corporal and other violent punishments are accepted as legal disciplinary measures in penal institutions. Children may be beaten, caned, painfully restrained, and subjected to humiliating treatment such as being stripped naked and caned in front of other detainees. Girls in detention facilities are at particular risk of physical and sexual abuse, mainly when supervised by male staff.
Argentina, lacking national laws that prohibit corporal punishment, although having incorporated international declarations and treaties which do prohibit such actions, is no exception to the phenomenon mentioned here.
Staff in juvenile centers
Según Tareas Desempeñadas
Otros Recursos Humanos
Source: Adolescentes en el sistema penal, UNICEF-SENAF, Cuadro 6, Capítulo 2, Pág. 46.
Section 3: Case Study II
Violence Against Children in Russian Orphanages (Amanda Winston)
This case study examines violence against children in Russia’s state institutions, mandated to care for orphans and social orphans. Russia was chosen as a case study to analyze institutional violence against children for four primary reasons: Russia is an emerging economy which may provide indicators as to whether economic growth is conducive to an improvement in social services provided by the government; secondly, it has a particularly high percentage of children in state institutions in comparison with other states; and thirdly, Russia has a history of harsh institutional life whether that be in the form of prisons, psychiatric hospitals or children’s homes. Finally, the case of Russia illustrates the deep rooted connection between child poverty and child rights. Children in Russia's state institutions enter these facilities with minimum to no resources and are condemned to a childhood of both abject poverty and absence of their human rights. This dual vulnerability cannot be divorced from the violence they experience in state institutions.
Russia has two systems of institutions for abandoned children. The primary state institution for children aged four to eighteen who have been diagnosed as retarded is called the internat. Other abandoned children who escape the diagnosis of mental retardation are placed in a dyetskii dom (state children’s home). Russia in its previous incarnation as the Soviet Union wielded state institutions as a part of the state’s control over its citizens and state psychological facilities which housed dissidents and those who were deemed a threat to the fabric of Communist society were particularly notorious. The internati of the Russian Federation are part of a culture of institutionalization which views those in its care as external to society or even as a threat to its very existence.
High levels of violent abuse against children in Russia’s orphanages were brought to light for the first time to the international community via a Human Rights Watch report written in 1998. This report, which remains the most comprehensive report to date on the situation, received much attention from international agencies and donors as well as emerging children’s rights and advocacy organizations which were springing up in the relatively liberal years of the Yeltsin administration. The report details a range of human rights abuses against children including the following examples of violence;
· Severe neglect sometimes to the point of death
· Beatings by institutional staff
· Sexual abuse
· Degrading punishment
The report focused on the fact that a majority of abandoned children suffer a systematic designation of disability from birth which is a violation of human rights law. Once diagnosed as being uneducable they are automatically assigned to an invisible existence. High levels of violence against children who have been officially identified as unable to participate in society should not be surprising – they are not regarded as citizens and therefore are not regarded as having rights.
In recent years, the situation is believed to have slightly improved though attempts to reverse the high percentages of abandonment have mostly failed. There are still an estimated 700,000 abandoned children in Russia of whom 188,000 live in orphanages.
Due to some impressive collaborative work in the late 1990s by women legislators in the Duma, legislative protection for children and women has improved. However, the internati and deitskii domi remain closed institutions where legislation has made little impact. Violence against children in Russia’s orphanages is one of a few social issues still addressed by child advocacy groups and investigative journalism, even in a time when critique of government policies is waning due to a government clampdown on NGOs and media. A television documentary produced in 2008 estimates that 40,000 children in orphanages are the victims of violence perpetrated by adults in institutions. The documentary sites cases of abuse in internati including beating, neglect (hunger, lack of clothing) and spells of time imprisoned in cells.
Following on from the Human Rights report in 1998, the most recent comprehensive review was undertaken by the Russian general prosecutor’s office in 2006. The report revealed that the state was not meeting its obligation to provide social support for orphans. Along with a litany of cases of neglect and abuse in the internati (such as inadequate clothing, crumbling buildings and insufficient food), the report specifically documented physical violence against children in institutions for mentally disabled children. The 2006 state investigation found that some institutions allocate as little as 30 kopeks a day (a little over a US cent) each day for child’s care. The internati in Putin’s Russia remained critically underfunded and employees are underpaid. The situation since 2004 when funding responsibilities moved from the federation to the regions, leaving many internati with funding holes that can only be filled by additional federal funds. While low wages are not an excuse for abuse, if Russia wants to improve the situation in internati it should look to investing in its staff. A number of civil society organizations have recognized this and provide training programs for staff of internati but a state effort is required if this is to have system-wide impact. Moreover, a lack of accountability and corruption impact the quality of care provided to children and the availability of adoption to Russian families. Inspection must be announced prior to the date of the visit and the institutions themselves maintain very limited access to outside.
One of the positive developments over the past decade is the opening of 2,000 foster care centers based out of orphanages, to effectively place orphans with families and to ensure children remain with their families where possible. A concerted effort by the National Foundation for the Prevention of Cruelty to Children (NFPCC) funded by IREX has taken the lead in child abandonment protection services in partnership with the Ministry of Health and Social Development. They have also engaged in advocacy, for example by fighting a federal law passed in April 2008 “on Guardianship and Custody” that poses a threat to the development of a viable foster care system.
However, increased numbers of domestic adoptions thanks to the work of such organizations such as the NFPCC has not dramatically reduced the rate of abandonment and the issue needs to be tackled both through the aggressive promotion of fostering and adoption, the identification of mothers at risk of abandoning their children, education about the rights of those with disabilities and additional concerted efforts to make state institutions accountable for the violence that children continue to experience while in their care.
It should be formally stated here that violence against children in state institutions in the Russian federation does not plague every facility. There are numerous examples of internati and deitskii domi which strive to provide a decent life for the children in their care, with extremely limited resources. This does not, however, negate the fact that systematic violence against children remains a part of the institutionalization of children in Russia today and that effective policy is critical to ensuring that it comes to an end.
Section 4: Conclusion
Policy recommendations for tackling violence against children in Argentina’s juvenile justice system and Russia’s state orphanages
As mentioned earlier, the primary focus of this paper is the violence which children are subject to in the framework of institutions. Institutional violence against children which occurs in the care and justice systems warrants a specific chapter in the 2006 United Nations report. The report recommends action in the following areas:
· Prioritizing reducing the rates of institutionalization by supporting family preservation and community-based alternatives
· Reduce the numbers of children entering justice systems by decriminalizing “status offences”
· Regularly reassess placements by reviewing the reasons for a child’s placement in care or detention facilities
· Ensure that children in institutions are aware of their rights
· Ensure effective monitoring and regular access to care and justice institutions
While most of the above are relevant for alleviating the violence in the cases described, there are three additional policy measures we propose based on the case studies of Argentina and Russia. Firstly, there is a need to address the question of staffing and care provision, which would be beneficial to both the juvenile justice system in Argentina and the internati in Russia. This would include allocations of federal resources to training professionals and staffing institutions appropriately. It would also mean providing more specialized staff: people who are trained to work with children, rather than simply relying mainly on security personnel, as noted in the Argentina case study. Secondly, greater independent oversight is required with consequences for facilities which do not protect the children in their charge. The lack of transparency facilitates higher numbers of violent incidents, and a better system of accountability must be determined. Thirdly, in both countries, increased responsibility at the regional level and reduced federal financial and programmatic input has adversely affected care institutions for children at risk. Federal governments in both countries need to take greater responsibility in reducing levels of violence in these institutions via additional legislative measures and/or their robust implementation across the regions.
At the time of writing, the global economic situation was at best fragile and cuts in social services were expected in Russia in the coming months. Lack of financial resources cannot be the reason for intervention to protect children from violence in state care and national priorities may need to be changed in order to make a difference in the lives of children who have no alternatives. Furthermore, there must be alternatives to the types of “care” that children in these countries find themselves in, with justice systems promoting other forms of behavioral correction and housing and taking the lead in changing the culture of tolerance towards violence, especially towards children.
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