"Most of the boys are homeless and
range in age from 10 to 14. Some are shoe shine boys and others, beggars. One
day I had 7 boys staying with me . . . I am having a wonderful time with them
sexually. Some of them are very interesting. There is never a dull moment. Last
night, four boys spent the night and I like all four of them. I am not paying
them very much money, more or less providing them with a place to stay and
play. I am paying them 2000 Riel if they do nothing. I pay $1 U.S. if they give
me a massage and $2 U.S. if they give me anything extra."
-E-mail
excerpt from a teacher sharing information on sex tourism in Cambodia and
intercepted by Cambodian police
By Nancy LeClair
Department of Justice Canada
Child sex tourism is the commercial sexual
exploitation of children by persons who travel from their own country to
another to engage in sex with children. Child sex tourists may be married or
single, male or female, wealthy or middle class, employed as professionals or
labourers. They may have planned their travel specifically around their intent
to sexually abuse a child or they may act impulsively on what they view as a
novel experience that will never be discovered so far from home.
The full extent of the problem is unknown.
However, we do know that children are being trafficked for sexual purposes in
West Africa, Central America, the Caribbean, South Asia, East Asia and Eastern
Europe. The popularity of such destinations can change. As prevention and
protection efforts are stepped up in one country, another neighbouring country
will emerge as a popular sex tourism destination. An example of this is the
emerging popularity of Cambodia as a result of increased efforts within
Thailand against sex tourists.
As indicated previously, child sex tourists
come from all walks of life and from most countries, Canada included. While
there is currently only one Canadian who has been convicted of child sex
tourism within our borders, Canadian sex tourists can and have been charged and
convicted in the country in which the act occurred.
In December 1991, Canada ratified the
Convention on the Rights of the Child, committing to "undertake to protect
the child from all forms of sex exploitation and sexual abuse."
In November 2001, Canada signed the
Optional Protocol to the Convention on the Rights of the Child on the Sale of
Children, Child Prostitution and Child Pornography, which compels states to
establish their jurisdiction over child sexual offences when the offence is
committed on their territory or when the alleged offender is a national of that
state or a person who normally resides in that territory.
In addition, Canada enacted
extraterritorial legislation in 1997 allowing it to prosecute Canadians who
sexually exploit children in foreign countries. This legislation was changed
slightly in 2002 by removing a precondition that the government of the country
in which the offence occurred request a Canadian prosecution.
Air Canada has agreed to show an in-flight film to specific destination
countries about child sex tourism, its impact on the victims and how sex
tourists can be charged in Canada. This initiative was supported by the
National Child Exploitation Coordination Centre of the RCMP.
This legislation (section 7, 4.1) was an
enormous step forward for those wanting to prosecute Canadians who commit child
sexual offences abroad. Prior to this legislation, Canadian judges lacked the
jurisdiction to try a child exploitation case in which the crime occurred in
another country. It was up to the receiving country to investigate and try the
Canadians. While cases exist in which Canadians have been successfully
investigated and tried abroad, in many of these countries, there are conditions
that make it difficult to investigate and prosecute foreigners committing these
acts in their country. The conditions include the perpetuation of attitudes and
values that view children as economic commodities, corruption, limited law
enforcement resources, poverty, illiteracy and inadequate educational systems.
The introduction of this legislation allows
Canada to prosecute Canadians who commit these offences abroad when the foreign
country is either unable or unwilling.
To date, there has been only one conviction
of a Canadian under section 7(4.1) of the Criminal Code: the case of R. v.
Bakker.
Donald Bakker drew the attention of police
in Vancouver when a prostitute brought in a video recording of Bakker sexually
assaulting her. In the course of their investigation, the police uncovered
videotapes of Bakker having sex with children between the ages of 7 and 12 in
Cambodia.
The investigation took over a year and
involved evidence gathered domestically as well as internationally. The
investigation also required assistance from outside agencies such as World
Vision in Cambodia, the Cambodian National Police, the International Justice
Mission and the RCMP foreign liaison office in Bangkok, Thailand.
Four of his victims in Cambodia were found and
removed from the sex trade industry. Bakker, who had videotaped evidence of his
violent exploits against Canadian women and Cambodian children, pleaded guilty
to the charges and was sentenced to 10 years.
Convictions
|
|
France:
one conviction of a French citizen since its extraterritorial legislation
came into effect in the early 1990s. Five cases brought to court. United
Kingdom: four convictions since 1996: one under the UK’s first piece of
extraterritorial legislation enacted in 1996 and three under legislation
enacted in 1997. United
States: 14 convictions against American citizens for sexual offences
committed or attempted abroad. More than 6,000 arrested under Operation
Predator targeting a wide range of sexual crimes against children. Canada:one conviction of a Canadian citizen under
extraterritorial legislation enacted in 1997 and modified in 2002. Source: ECPAT International, Bangkok,
Thailand, 2005. |
Many hope that the publicity surrounding
this case and the 10-year sentence will act as a deterrent to others who might
consider engaging in sexual tourism. Before this case, many Canadians did not
know that child sex tourism is a chargeable offence in Canada.
In addition to government press releases about
this crime, the private sector has become engaged in this issue.
Air Canada has agreed to show an in-flight
film to specific destination countries about child sex tourism, its impact on
the victims and how sex tourists can be charged in Canada. This initiative was
supported by the National Child Exploitation Coordination Centre of the RCMP.
Child sex tourists are also found through
inter-agency assistance.
John Seljan, an 86-year-old wheelchair
bound man from the United States, was arrested under the U.S. Protect Act as he
tried to board a flight to the Philippines where he planned to have sex with
two Philippine girls, aged 9 and 12. U.S.
Immigration and Customs Enforcement
launched an investigation after customs inspectors discovered correspondence to
the girls that revealed Seljan’s plans.
Seljan alleged that sex with children in
the Philippines was culturally acceptable.
The U.S. Protect Act, which was ratified in
2003 and combats U.S. child sex tourism, enables child sex tour operators and
anyone involved in aiding these illicit acts to be held accountable-including
businesses that host a child sex tourism website.
Seljan was convicted on numerous counts and
faces a minimum of 10 years and a maximum of 270 years in prison.
The first problem is finding these crimes,
which occur a long distance from Canadian law enforcement agencies. Even once
the police are aware of a suspect in a child sex tourism investigation, these
investigations are often difficult, time consuming and expensive. The victims,
witnesses and evidence are often located in another country; victims and
witnesses are often reluctant to come forward; and there is sometimes a
different language, and different legal and law enforcement systems that have
to be considered. The logistics of conducting such an investigation are very
daunting.
However, despite the obstacles of these
investigations, it is likely that more charges will occur in Canada under
section 7(4.1). There is a willingness on the part of government and law
enforcement agencies to protect all children from sexual exploitation. With the
efforts and resources of government, law enforcement and non-government
agencies, convictions like Bakker’s will no longer be an anomaly.
RCMP Gazette Vol.
67, Issue 4 2005 by Nancy LeClair
Canadian Legislation
|
(4.1) Notwithstanding anything in this
Act or any other Act, every one who, outside Canada, commits an act or
omission that if committed in Canada would be an offence against section 151,
152, 153, 155 or 159, subsection 160(2) or (3), section 163.1, 170, 171 or
173 or subsection 212(4) shall be deemed to commit that act or omission in
Canada if the person who commits the act or omission is a Canadian citizen or
a permanent resident within the meaning of subsection 2(1) of the Immigration
and Refugee Protection Act. (4.2) [Repealed, 2002, c. 13, s. 3] |
|
|
|
Consent of
Attorney General |
(4.3) Proceedings with respect to an act
or omission deemed to have been committed in Canada under subsection (4.1)
may only be instituted with the consent of the Attorney General. |
|
|
Jurisdiction |
(5) Where a person is alleged to have
committed an act or omission that is an offence by virtue of this section,
proceedings in respect of that offence may, whether or not that person is in
Canada, be commenced in any territorial division in Canada and the accused
may be tried and punished in respect of that offence in the same manner as if
the offence had been committed in that territorial division. |
|
|
Appearance
of accused at trial |
(5.1) For greater certainty, the
provisions of this Act relating to (a)
requirements that an accused appear at and be present during proceedings, and (b)
the exceptions to those requirements, apply to proceedings commenced in any
territorial division pursuant to subsection (5). |
|
|
Where
previously tried outside Canada |
(6) Where a person is alleged to have
committed an act or omission that is an offence by virtue of this section and
that person has been tried and dealt with outside Canada in respect of the
offence in such a manner that, if that person had been tried and dealt with
in Canada, he would be able to plead autrefois
acquit, autrefois convict or pardon,
that person shall be deemed to have been so tried and dealt with in Canada. |
|
|
If accused
not Canadian citizen |
(7) If the accused is not a Canadian
citizen, no proceedings in respect of which courts have jurisdiction by
virtue of this section shall be continued unless the consent of the Attorney
General of Canada is obtained not later than eight days after the proceedings
are commenced. |
|
An
Evaluation of Canada’s Child Sex Tourism Legislation Under
International Law
by
Melissa
Ferens
The Victims and Offenders
Obtaining accurate statistical information showing the true extent of child prostitution around the globe has proved to be difficult.5 Estimates for the number of child prostitutes in Asia alone hover around one million.6 In addition, organizations such as UNICEF and ECPAT (End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes) estimate that 500,000 child prostitutes exist in Brazil and thousands more are exploited in Latin America and Africa. Recently, UNICEF expressed alarm over the hundreds of thousands of women and children trafficked into the South Asian sex trade and domestic service industry each year, equating the situation to a ‘modern-day slavery.’
There are undoubtedly many causes of child prostitution and trafficking, but the most noted cause is extreme poverty. Oftentimes, parents in rural villages willingly sell their child into prostitution, and may be falsely led to believe that their child will be placed into a legitimate job. As a result, the child endures a form of debt bondage, and is forced to remain in the sex industry until the debt is paid off, which usually is impossible to do. Other commonly noted causes include escape from abusive family situations, the vulnerability of children orphaned by war or AIDS, and the desire for material wealth.
Of course the demand for child prostitution would not exist but for the offenders. A distinction can be made between pedophile tourists who travel with the intent to abuse children, and tourists who happen to take advantage of the opportunity when it arises (also called “situational” sex tourists). Assistance in seeking out underage prostitutes may be facilitated by tourist agencies which promote commercially organized sex tours. In addition, the internet provides unlimited opportunities for pedophile tourists to share information on where to find underage prostitutes, and to provide one another with encouragement and advice. Another type of offender consists of individuals who abuse Canadian children when both the offender and the child are outside Canadian territory.
Canada’s
Extraterritorial Legislation
The application of Canadian criminal law is limited statutorily to those offences committed in Canada by s. 6(2) of the Criminal Code, unless the jurisdiction is extended by federal law. In 1997, Canada passed legislation under Bill C-27 that extraterritorially extended the Criminal Code to enable the prosecution of citizens and permanent residents for a number of sexual crimes committed against children in foreign jurisdictions. Prior to 1997 Canada had not asserted any such jurisdiction over any sexual offences, but has always asserted jurisdiction on a nationality basis for other serious offences, such as torture, hijacking and offences related to aircraft, and terrorism offences.
However, the Criminal Code amendments enacted in 1997 came under heavy criticism because a request from another country’s government or an overseas consular officer was required before Canada would initiate proceedings. In the first attempted prosecution under this law, a teacher escaped prosecution after he allegedly sexually assaulted a 17 year old student while on a school trip in Costa Rica. The Costa Rican government would not request prosecution, as the offence with which the accused was charged was not against the law in Costa Rica because of the victim‘s age. This requirement of a foreign government’s consent was later dropped under Bill C-51 for Canada’s new ET legislation in 1999.
Under Canada’s current ET legislation, it is an offence to either engage in crimes related to child prostitution or other forms of child exploitation while abroad. Section 7(4.1) of the Criminal Code deems a number of sexual exploitation offences to have been committed in Canada when the offence is committed in another jurisdiction, including sexual interference (s. 151), sexual exploitation (s. 153) and making, distributing, selling or possessing child pornography. Additionally, an offence recently added to the Criminal Code [section 212(4)] prohibits an individual to “obtain for consideration, or communicate with anyone for the purpose of obtaining for consideration” the sexual services of someone under the age of 18 years.” Therefore, Canada’s sex tourism legislation targets offenders in both the commercial and non-commercial contexts of child sexual abuse and exploitation.
Unlike the other Criminal Code offences which extraterritorially extend Canada’s jurisdiction, a Canadian sexual offender in another jurisdiction does not commit any element of the offence within Canada, and the consequences of the offence remain entirely within another jurisdiction.
Whenever a destination country apprehends an accused within its territory, that country’s right to charge and prosecute the accused should take precedence, unless that country agrees to extradite the accused to face charges in his own country. Such an approach is ideal in light of the reality that evidence-gathering in foreign countries can prove to be difficult and requires co-operation with foreign law enforcement officials.
Conflicts of laws between two nations are resolved by the concept of double jeopardy. Once a Canadian accused is convicted or acquitted in a foreign jurisdiction, the Supreme Court has held that the concept of double jeopardy applies between two nations. Therefore, a Canadian charged with a sexual offence under s. 7(4.1) could plead autrefois acquit or autrefois convict if another jurisdiction has already acquitted or convicted the accused under their own criminal law system. A plea of autrefois acquit requires that two conditions be met: (1) the matter must be the same (in whole or in part) and (2) the accused could have been convicted at the first trial of the offence with which he is now charged in Canada. However, if the charges are different in nature, either plea is not available.
1) International Commitments to Prevent and Punish Child Sex Tourism
UN Convention on the Rights of the Child
The UN Convention on the Rights of the Child [CRC] was adopted by the UN in 1989 and is the first legally binding international agreement that explicitly protects children from sexual abuse and exploitation. The CRC has been ratified by 191 countries including Canada. State obligations regarding the sexual exploitation of children are outlined in article 34 of the Convention. Article 34 reads:
States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes states Parties shall in particular take all appropriate national, bilateral, and multilateral measures to prevent:
(a) the inducement or coercion of a child to engage in any unlawful sexual activity;
(b) the exploitative use of children in prostitution or other unlawful sexual practices;
(c) the exploitative use of children in pornographic performances and materials.45 [emphasis added]
Other key provisions in the CRC include article 19, which requires countries to pass laws against the sexual exploitation of children, including laws to prevent parents from indenturing their children into the sex industry. Articles 19 and 39 require governments to establish appropriate social programs for rescuing child victims of sexual exploitation and aid in their rehabilitation.46
World Congress against the Commercial Sexual Exploitation of Children
In 1996, delegates from 122 countries including Canada assembled at the World Congress against the Commercial Sexual Exploitation of Children in Stockholm, Sweden. The Congress resulted in the establishment of a Declaration and Agenda for Action, which was signed by all 122 nations in attendance. By signing the Agenda, countries committed themselves to develop laws against the sexual exploitation of children, including extraterritorial legislation. All states were called upon to:
Criminalize the commercial sexual exploitation of children, as well as other forms of sexual exploitation of children, and condemn and penalize all those offenders involved, whether local or foreign, while ensuring that the child victims of this practice are not penalized.
However, the preamble of the Agenda indicates that its function was to form a ‘global partnership’ between governments, non-governmental organizations and ‘other concerned organizations and individuals worldwide.’ The language of the preamble suggests that the purpose of the Agenda was to call attention to the issue of sexual exploitation while fostering an international spirit of co-operation. Therefore, the Agenda appears to have been created as a document of international consensus rather than a legally binding instrument of international law.
UN Optional Protocol to the Convention on the Rights of the Child
The Optional Protocol to the CRC entered into force in January 2002 and has been ratified by 67 countries as of November 2003. The preamble express “deep concern” over the practice of sex tourism, with the recognition that children are especially vulnerable. Article 1, the key provision to the Option Protocol, reads:
Each State Party shall ensure that, as a minimum, the following acts and activities are fully covered under its criminal or penal law, whether such offences are committed domestically or transnationally51 or on an individual or organized basis:
(a) In the context of sale of children as defined in article 2:
(i) Offering, delivering or accepting, by whatever means, a child for the purpose of:
a. Sexual exploitation of the child; …
(b) Offering, obtaining, procuring or providing a child for child prostitution, as defined in article 2;
(c) Producing, distributing, disseminating, importing, exporting, offering, selling or possessing for the above purposes child pornography as defined in article 2.
The key provision authorizing extraterritorial legislation permits state parties to “take such measures as may be necessary” to establish jurisdiction over the above offences, where the alleged offender is a national or habitual resident of that state, or where the victim is a national of that state.
Canada remains a signatory to the Optional Protocol, and has yet to ratify it. However, by becoming a signatory, Canada has expressed its intent to be bound to the treaty. Notably, the Optional Protocol does not mandate states to establish extraterritorial legislation. For the popular tourist destination countries where child prostitution flourishes, mandating extraterritorial application of their own prescriptive jurisdiction would be nonsensical and unworkable . However, the failure of Canada and other developed nations to establish extraterritorial legislation would be contrary to the treaty’s purpose of preventing child sex tourism and other forms of child sexual exploitation.
United States
SEC. 105. PENALTIES AGAINST SEX
TOURISM.
(a) IN GENERAL.—Section 2423 of title 18, United States Code,
is amended by striking subsection (b) and
inserting the following:
Effective date.
28 USC 994 note.
PUBL021
117 STAT. 654 PUBLIC
LAW 108–21—APR. 30, 2003
‘‘(b) TRAVEL WITH INTENT TO ENGAGE IN ILLICIT SEXUAL CONDUCT.—
A person who travels in interstate commerce
or travels
into the United States, or a United States
citizen or an alien
admitted for permanent residence in the United
States who travels
in foreign commerce, for the purpose of
engaging in any illicit
sexual conduct with another person shall be fined
under this title
or imprisoned not more than 30 years, or
both.
‘‘(c) ENGAGING IN ILLICIT SEXUAL CONDUCT IN FOREIGN
PLACES.—Any United States
citizen or alien admitted for permanent
residence who travels in foreign commerce, and
engages in any
illicit sexual conduct with another person shall
be fined under
this title or imprisoned not more than 30
years, or both.
‘‘(d) ANCILLARY OFFENSES.—Whoever, for the purpose of
commercial advantage or private financial gain,
arranges, induces,
procures, or facilitates the travel of a person
knowing that such
a person is traveling in interstate commerce
or foreign commerce
for the purpose of engaging in illicit sexual
conduct shall be fined
under this title, imprisoned not more than 30
years, or both.
‘‘(e) ATTEMPT AND CONSPIRACY.—Whoever attempts or conspires
to violate subsection (a), (b), (c), or (d)
shall be punishable in
the same manner as a completed violation of
that subsection.
‘‘(f) DEFINITION.—As
used in this section, the term ‘illicit sexual
conduct’ means (1) a sexual act (as defined in
section 2246) with
a person under 18 years of age that would be
in violation of
chapter 109A if the sexual act occurred in the
special maritime
and territorial jurisdiction of the United
States; or (2) any commercial
sex act (as defined in section 1591) with a
person under 18
years of age.
‘‘(g) DEFENSE.—In
a prosecution under this section based on
illicit sexual conduct as defined in subsection
(f)(2), it is a defense,
which the defendant must establish by a
preponderance of the
evidence, that the defendant reasonably believed
that the person
with whom the defendant engaged in the
commercial sex act had
attained the age of 18 years.’’.
(b) CONFORMING AMENDMENT.—Section 2423(a) of title 18,
United States Code,
is amended by striking ‘‘or attempts to do
so,’’.