Coming Out of the Dark: Pursuing Access to Justice for Girl Children in Cases of Sexual Violence in ASEAN

The research titled “Coming Out of the Dark: Pursuing Access to Justice for Girl Children in Cases of Sexual Violence in ASEAN” was born out of the need to look into the issue of sexual violence against girl children in Southeast Asia. Central to the research is the girl child, especially from the marginalized groups. The research situates itself within the context of the ASEAN integration as the regional formation has become a “full-fledged politically cohesive, economically integrated, socially responsible Community.” According to the ASEAN, children in the region suffer from various forms of Violence Against Children (VAC): physical violence, sexual violence, mental violence, neglect or negligent treatment, and child labor. Many cases of VAC in the region remain undocumented. Violence against girl children – compounded by differential impact of disability, ethnicity, religion, and class, among others – is even more invisible.

The research highlights the question “why the girl child?” or “why particular attention to the marginalized girl children?”. While the research is not exhaustive, it aims to give a sense of the whole on the issue of access to justice in the context of sexual violence against girl children. The research sets out to undertake: (a) mapping of relevant policy frameworks, actors, and mechanisms promoting girl children’s rights and addressing sexual violence against girl children in ASEAN; (b) developing cases highlighting access to justice for sexual violence against girl children in marginalized sectors in ASEAN; and (c) developing recommendations to ASEAN to increase access to justice for women and girls, especially in cases of sexual violence.

The regional network called “Weaving Women’s Voices in Southeast Asia” (WEAVE) – composed of women’s organizations from Burma, Brunei, Cambodia, Indonesia, Philippines, and Thailand – contributed  to the study. The research is anchored on feminist action research, with the organizations undertaking case studies in their respective countries. The research team gathered primary and secondary data, with the latter drawn from desk review. The review looked into and situated the issue of sexual violence in the overarching discourse on sexuality and sexual rights while contextualizing girl-children’s sexuality. Relevant policy frameworks were mapped, as well as mechanisms promoting girl-children’s rights, particularly in relation to sexual violence against girl-children in the said countries. The WEAVE members conducted key informant interviews (KII) and focus group discussions (FGD) in developing the country case studies. The six country case studies on sexual violence against marginalized girl-children present the diverse, intricate, compounded, and intersectional issues on access to justice in cases of sexual violence against girl children and their families and support groups, within the specific contexts of their communities.

The research developed a framework on access to justice for girl children in the context of sexual violence, dubbed “The Girl Child and Her Best Interests, Sexuality, and Access to Justice in the Context of Sexual Violence.” The following are the elements of the framework: a) the girl child and the marginalized girl children; b) the best interests of the girl child and child participation; c) access to justice for the girl child; and d) sexual violence against the girl child, where sexual violence is situated in or against sexuality, thereby surfacing that violence and sexuality are inextricably linked. The framework is hinged on and privileges the plight of marginalized girl-children and their specific contexts.

The research reveals the following findings:

  • There is no specific definition of the girl-child in international human rights instruments, as well as in the ASEAN and the national legislations of the six countries covered in the research. The laws of the said countries mention the girl-child mostly in relation to her as a victim of crimes related to sexual violence and in relation to her need for protection.
  • There are varying definitions of the child in the domestic legislations of the six countries. Some definitions are found to be below the standards set by human rights instruments like the CRC, particularly with regard to the age that defines the child.
  • There are existing laws on or in relation to different forms of sexual violence. The following are the common forms of sexual violence across six countries: rape, trafficking, prostitution, and information and communication technology (ICT)-related violence. Most of the laws that cover sexual violence are either part of the countries’ Criminal and Penal Laws, or Domestic Violence laws.
  • In looking at sexual violence as defined in the laws, the following negative and discriminatory views are found: (a) rape as requiring penetration; (b) absence of clear definition of incest rape; (c) non-criminalization of marital rape of girls in some countries; (d) growing pervasiveness of ICT-related violence against women and girls (VAWG); (e) requirement of overt physical violence in order to prove the perpetration of sexual violence; and (f) sexual violence as a violation of the chastity of girls and women.
  • The law appears to have a protectionist view of girl-children. Common in the laws among the six countries is how the penalties imposed on the perpetrator get higher as the age of the victim gets lower. There is also a double standard in how sexual violence against girls is viewed. The laws on sexual violence impose a greater burden on girls to prove that sexual violence has been committed. In the process of proving the violation, girls are subjected to victim-blaming, as well as discriminatory, biased, and sexist views of them, such as losing their chastity upon the commission of the crime. This resonates with the lack of perspectives on affirmative sexuality in the laws. There appears to be inadequate recognition and discussion on the sexual development of children (particularly girl-children), both of which could provide an avenue for girls to express their views – including those related to sexuality – and to be informed about their sexual and reproductive health.
  • Although legal remedies are available in the six countries, barriers still exist especially among girls found in the marginalized sectors, making it difficult for girl-children to access the said remedies. Based on the country studies, these barriers include family shame, fear, religious norms, cultural practices, lack of knowledge on rights, distance of government offices, transportation costs, language, and fear of deportation (particularly for undocumented migrant girls), among others.
  • Despite the integration of Best Interests of the Child into the laws of the six countries, it is not clear if the concept of best interests takes into account the gender dimension. The country studies show that the justice system remains largely adult-centric, where the determination of the best interests of the child is granted to adults: parents or other relatives of the child, authorities handling the case, or community leaders. Apart from suggesting a scarcity of environments that enable the participation of marginalized girl-children, the country studies also depict an intimidating justice system that is not girl-friendly. There is thus a need for more data looking into girl-children’s decision-making in their cases, their critical visibility, and their meaningful and substantive participation in the overall process.
  • Throughout and beyond the process of accessing justice, the country studies and review of related literature reveal that marginalized girl-children undergo discrimination and a continuum of violence. This is seen in gender-based stereotyping, discriminatory practices, and victim-blaming. Stereotyping and discrimination involve: cultural practices that impose curfews and clothing restrictions on women; marrying the girl-child to the perpetrator; valuation of girls’ virginity; stereotypes of girl-child victims showing overt resistance and becoming impure, damaged, or broken after sexual abuse; and negative views of and violence against lesbian, bisexual, and transgender girls.
  • Sexual violence against girl-children is seen as a continuum, “connected to and brought about by unequal gender power relations enmeshed in society.” Continuum of violence against women and girls as seen in the country studies, is threefold – 1) the range of violence that women experience reflects an interconnectedness between harassment, violation, abuse and assault;” 2) girls are vulnerable to violence from a young age, until adulthood and old age; and (3) they suffer the impact of the violence across their lifespan. Both intersect with discrimination in private and public spheres, across political, economic, education, health, and other aspects.
  • The country studies point to the culture of impunity in sexual violence against girl-children that appears to be pervasive in the six countries. Impunity is manifested in how the legal system and society as a whole allow perpetrators to remain unpunished, and authorities unaccountable for their inefficiency and incompetence. Across the six countries, the cases highlight the government’s lack of attention to both the issue of sexual violence and the plight and interests of girl-children, signaling that these are not state priorities. Cases of sexual violence are further rendered invisible due to gender-insensitive legal systems that have no adequate remedies for marginalized girl-children. Though remedies may be available, these do not adequately address the distinct and specific needs of girl-children accessing justice. Remedies are also found to be inaccessible, given the exorbitant fees and costs that marginalized girl-children and their families cannot afford to pay. Gaps in the law and its enforcement remain due to lack of effective, competent, and gender-sensitive legal systems that will ensure protection of girl-children against sexual violence. If the culture of impunity continues to persist among the six countries, justice for girl-children would remain elusive.

The research recommends the prioritization of sexual violence against girl-children, especially marginalized girl-children, for urgent action in ASEAN and the six countries covered by this study. In light of the complex challenges involved, multi-sectoral cooperation and strategies are needed. National and regional governments, along with civil society organizations (CSO), should address sexual violence against girl-children. Among the recommended actions for both government and CSOs are research, policy reform, capacity building, and movement building.