The Right to Bail in Cases Involving Sexual Offences against Children

This post was originally prepared for use in the internal publications of the Ethiopian Human Rights Commission in an effort to strengthen the engagement of the Commission in protecting and promoting the rights of victims of sexual offences while at the same time ensuring the due process rights of the accused. However, it never got to see the light of day for reasons unrelated to its content. Now that we are done with the adoption of a criminal justice administration policy and taking up the revision of the criminal procedure code, it may be time to give it another try.

Children are the most vulnerable individuals in our society; they are also the most precious commodity that the world has and have a right to be protected from all forms of abuse

2  Trends in the Prevalence of Sexual Offences against Children

Sexual offences, especially those against children, are among the least reported offences in countries like Ethiopia. This has to do with the private nature of the settings in which the offences take place, the relationship of vulnerability between the victims and perpetrators, cultural tolerance of some forms of sexual violence against children, inaccessibility of the formal legal system to child victims and their families and other structural causes. Whatever the case, it is impossible to draw a comprehensive picture of the prevalence of sexual offences against children in Ethiopia.

However, a number of limited studies focusing on specific groups of children or geographically defined areas reveal a grim picture. The results of these studies indicate the prevalence of all forms of sexual offences, especially rape, sexual harassment, abduction, child prostitution, trafficking in children for sexual purposes and early marriage, in Ethiopia. What is more worrying is the possibility that the incidence of sexual offences against children are on the increase. While this may partly be explained by increased media attention to the rights of children, some of the available data actually points to an increase in the rate. For instance, analysis of the crime rate in Ethiopia between 1995 and 2000 based on INTERPOL data showed a general decline in crime, especially violent crimes. On the other hand, the rate for rape increased substantially during the same period.

Source: San Diego State University 2008

The apparent increase in the incidence of sexual offences against children is supported by the available official law enforcement statistics indicating sexual outrage and rape as the most prevalent offences. Despite the presumable low levels of reporting, sexual outrage constituted 70.85%, 76.15%, 71.3%, and 77.91% of annually reported crimes between September 1999 and 2003 while rape constituted 38.48%, 39.12%, 36.63%,  and 43.82%.

These statistics, however, do not give the real picture in terms of enforcement of the existing law for very few of the reported cases are successfully prosecuted. Studies focusing on child victims of trafficking for sexual exploitation and street children, who are identified as the most vulnerable groups, revealed that less than half of the cases reported to the police or an estimated one-fifth of all incidents are successfully prosecuted. The major causes identified for such low levels of prosecution include threats and harassment by perpetrators and fear of the perpetrators. Another study based on cases decided in the City Courts and statistical data obtained from Federal First instance Courts has also identified the following problems in the prosecution of sexual offences against children:

• Many people accused of sexual offences are released on bail for a very lesser amount of money when compared to the gravity of the offences; and,
• Many of the cases on sexual offences are closed because the accused fail to appear before the court once they are released on bail.

These and other findings have raised some critical issues in relation to the implementation of the right to be released on bail in cases involving sexual offences against children.

3     The Right to Bail under Ethiopian Law

The right to bail, i.e. the rights of persons accused (but not yet convicted) of a crime not to be denied reasonable bail without just cause, is a procedural right having its basis in one of the most fundamental principles of human rights and the administration of criminal justice – presumption of innocence. This principle, which holds that everyone who has been charged shall be presumed innocent until proved guilty according to law, has been recognized in the UDHR and ICCPR as well as other international human rights standards. Article 11/1 of the Universal Declaration of Human Rights (UDHR) reads:

“Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense”. Similarly, Article 14/2 of the International Covenant on Civil and Political Rights (ICCPR) states that “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law”.

These provisions have also been restated under articles 17 (Right to Liberty); 19 (Right of Persons Arrested) and 20 (Rights of Persons Accused) of the FDRE Constitution. Article 19/6 reads: “Persons arrested have the right to be released on bail. In exceptional circumstances prescribed by law, the court may deny bail or demand adequate guarantee for the conditional release of the arrested person”. Similarly, Article 20/3, on the rights of persons accused reads: “During proceedings accused persons have the right to be presumed innocent until proved guilty according to law”. The principle of the presumption of innocence, as affirmed by Article 20/3 of the FDRE Constitution, entails a basic entitlement to be granted reasonable bail unless there is "just cause" to do otherwise and places the burden of proof squarely on the prosecution.

Under the Ethiopian Criminal Procedure Code the exceptions to the general rule of entitlement to pre-trial liberty are provided for under articles 63 and 67 of the Code while the assessment of the amount of bail bond is covered under article 69. Article 63 provides that any accused person may be released on bail where the offence with which he is charged does not carry the death penalty or rigorous imprisonment for fifteen years or more or where there is no possibility of the person in respect of whom the offence was committed dying. On the other hand, article 67 enumerates grounds to dismiss an application for bail.  The grounds are: where the applicant is of such nature that it is unlikely that he will comply with the conditions laid down in the bail bond; the applicant is likely to commit other offences if set at liberty; or, the applicant is likely to interfere with witnesses or tamper with evidence. Once the accused has been granted bail, the amount of bail bond is to be determined as per under Article 69/2 directing the Court to consider: the seriousness of the charge; the likelihood of the accused's appearance; the danger to public order which his release may occasion; and the resources of the accused and his guarantors.

4     Consideration of Proposed Changes

The provisions of the Criminal Procedure Code read together imply that refusal of bail application is an exception. However, the Code also sets down both objective and subjective criteria for the denial of bail. The objective criteria set out under Article 63/1 summarily deny bail based on the penalties attached to the offences. Here, the Court is required to verify the nature of the offences and corresponding penalties under the Criminal Code to determine whether the accused is entitled to bail or not. The subjective criteria under article 67, on the other hand, give the Court the discretion to grant or deny applications to be released on bail based on its appreciation of the circumstances of the accused as well as the nature of the offence. Courts also have discretionary power in the assessment of bail bond under Article 69 of the Criminal Procedure Code. In exercising these discretionary powers, the Court is expected to base its decisions on evidence of just cause submitted by the Public Prosecutor bearing the burden of proof as well as opposing submissions by the accused.

In practice, however, child protection organizations complain that the courts seldom use their discretion to allow or refuse application of bail under article 67 of the Criminal Procedure Code. Judges reportedly favor the objective circumstances rather than subjective judgment of the potential risks to the safety and security of the victims and the general public. Furthermore, the organizations claim that courts often do not recognize the seriousness of sexual crimes against children and set bail at very low levels resulting in high rates non-appearance of the suspects and the closure of files.

In response to the reported gaps in law and practice, a number of legislative measures are proposed. The more extensive among these are:

–      Legislative denial of bail: an amendment that denies bail to all defendants suspected of committing sexual offences against children

–      High amount bond: schedule which fixes the maximum and minimum amount the defendant has to depots to be released on bail;

–      Transferring the burden of proof to the accused: the court must order that the accused be detained in custody unless the accused can satisfy the court that it is in the interests of justice that he or she be released on bail; and

All of these proposals involve changes in legislation presumably due to ongoing review of the Criminal Procedure Code.

4.1    Proposal I: Legislative Denial of Bail

The first and apparently boldest proposal advocates for the denial of bail in all cases involving sexual offences against children in a manner that would preclude law enforcement and judicial discretion in releasing suspects on bail and improve the possibility of successful prosecution as well as protect the child victim from intimidation by the accused. These recommendations are based mainly on three major considerations: prevention of sexual violence against children, protection of child victims from intimidation, and assumptions on recidivist behavior among sexual offenders.

First, some child rights advocates recommend denial of bail as a general preventive measure intended to deter potential perpetrators of sexual offences against children. Alarmed by trends in the nature and reported incidence of the offences, these parties argue that the vulnerability of children in general warrants the primacy of their protection over the rights of the accused. Accordingly, legislative denial of bail is expected to arrest the incidence of sexual offences against children by increasing the seriousness of the offences in the eyes of the law.

The second approach, on the other hand, proposes the same legislative measure for more specific reasons relating to the protection of child victims of sexual offences from further victimization and/or intimidation. Citing findings identifying family members and relatives living in the same household as the recurrent perpetrators of sexual violence against children, they argue that releasing the accused on bail is tantamount to putting the child victim in the situation of vulnerability underlying the commission of the offence. Alternatively, the protection of child victims, often the only witnesses to sexual offences, is raised in defending this position. All in all, the concern here is about the safety and protection of the child victim by preempting further contact with the accused.

The other major rationale for proposals to preclude the release of persons suspected of sexual offences against children starts with appreciation of the offence as resulting from psycho-social impairment on the part of the suspect. Partly informed by incidence of re-offending among perpetrators, the proponents of this proposal presume recidivist behavior and call for denial of bail where the accused has a previous record of a sexual offence against children. Legislative denial is thus recommended as a mechanism to protect other children from similar offences by the accused.

4.2   Proposal II: Legislative Determination of Conditions for Bail

The second proposal focuses on the assessment of bail bond and recommends legislative determination of the amount through a schedule setting the minimum amount of guarantees required in cases involving sexual offences against children. Though to a lesser extent, such a measure decreases the likelihood of release on bail by limiting the discretion of law enforcement officials and judges like the first proposal. Presumably, the legislature is expected to set high enough bail

The major rationale for legislative determination of bail include ensuring regularity in judicial practice, and precluding cases where bail is set too low to prevent non-appearance of the accused. Based on evidence of irregularity in the amount of bail bond and high rates of non-appearance, the proponents of this view argue that the legislature should respond to the gaps in practice through laws setting bail at amounts commensurate with the seriousness of offences and setting onerous conditions for release on bail.

Arguably, existing rates of prosecution, which are reportedly very low in cases of sexual offences against children, could theoretically be improved if such legislative measures are taken. If the bail bond is set high enough many among the accused are likely to be unable to post bail and would remain in custody in the pre-trial and trial stages, i.e., until the Court makes a determination on guilt. Though this is a purpose more properly served by the substantive law, i.e. the Criminal Code, rather than criminal procedure, the very fact that the conditions of bail are onerous is likely to have some deterrent effect.

On the other hand, legislative determination of the conditions of bail may be found objectionable on various grounds. At a very fundamental level, onerous conditions of bail would practically preclude bail in effect resulting in a procedural limitation on the rights of the accused. This is likely to be seen as a blanket limitation of the rights of the accused and exceeding the purpose of bail bond, i.e. ensuring the appearance of the accused and protect the public from possible criminal offences. Moreover, such legislative action may be construed as contrary to one of the core purposes of criminal procedure law, i.e. protecting the rights of the accused within the criminal justice system.

Another major objection to the legislative determination of conditions of bail, except in exceptional circumstances, emanates from the implications for judicial discretion. Typically the assessment of bail bond is a matter left to the judiciary, and for good reason. As noted above in relation to denial of bail, decisions on the assessment of bail involve a delicate balancing act between the rights of the accused to be presumed innocent and for the protection of personal liberty on the one hand and the efficiency of the justice system and protection of the public on the other. In this process, the court entertaining the case is in the most appropriate position to appreciate specific factors related to the personality of the accused and the commission of the offence. In contrast, the legislature can only provide for a minimum amount of bail bond applicable to all cases irrespective of the circumstances of the case. If promulgated as proposed, such a law would not even distinguish among specific offences since sexual offences against children may take various forms. Moreover, one has to take into account the definition of serious offences has already been determined by the legislature through higher penalties in the Criminal Code.

4.3   Proposal III: Transferring the burden of proof to the accused

The third proposal considered here involves the transfer of burden of proof in relation to the granting or denial of bail from the prosecution to the accused. Normally, the accused would be released on bail unless the prosecution can show that such release is likely to result in non-appearance or further criminal conduct. The proponents of this view recommend changes in the applicable standards to those precluding release on bail unless the accused could convince the Court on appearance and good conduct for the duration of liberty.

The proposals to shift the burden of proof to persons accused of sexual offences against children may be objectionable for stronger reasons. At the outset, since these proposals would make release on bail the exception rather than the rule, any such law would be a violation of the express provisions of the FDRE Constitution. In effect, the adoption of this proposal, if implemented, would be tantamount to requiring suspects to prove their innocence in reference to every accusation. In addition to the practical challenges of proving a negative, such a requirement would violate constitutionally recognized rights in relation to presumption of innocence, the right to remain silent, not to be forced to testify against oneself, fair trial, and a horde of other procedural safeguards.

Thus, although the presumption of innocence does not automatically preclude consideration of the nature of the offence in the assessment of bail bond on a case by case basis, the wholesale setting of proscriptive amounts in cases involving sexual offences against children is very unlikely to pass the tests of “just cause”.

5     Conclusions

Since bail is granted to avoid punishing accused persons before conviction, decisions on bail should strike a balance between, on one side, the interests of justice (that the accused should stand trial) and, on the other, the right to freedom of liberty and presumption of innocence of the accused. In other words, pre‑trial detention is only justified where it is established that the accused will not appear for trial or would represent a danger to public safety if released. A bail application is thus exclusively concerned with governing future conduct during the interim period awaiting trial and does not involve a finding of guilt as to past conduct. Thus, the nature of the ‘alleged’offence should only be considered in the decision to grant or deny bail or assessing the amount of bail bond to the extent that it affects the conduct of the accused pending a determination on guilt. In other words, recommendations for denial of bail assessment of bail bond based on the identity of the victim rather than the accused in cases involving sexual offences against a child would be inconsistent with procedural safeguards recognized within international child rights instruments as well as the FDRE Constitution. Thus, while it is indeed important that the child victim is protected, making denial of bail mandatory or setting procedural obstacles to release on bail in each and every case would unduly restrict the rights of the accused. Such a rule would also significantly curtail the discretion of the Courts to handle each case as per their appreciation of the facts.

Generally, this writer believes that other modalities for the protection of the victim without intruding on the rights of the accused should be considered in addressing the identified problems. Ideally, non-legislative solutions such as restraint orders to avoid contact with the victim or removal of the accused from a common residence would be more consistent with the human rights framework and easier to implement. These additional measures could also be applied as a condition for bail the violation of which would then be “just cause” for detention during investigation or trial, especially where the victim is expected to testify as a prosecution witness.