link between the right to be heard and the child’s best interests. Indeed, these two principles are interdependent. The proper application of the child’s best interest principle requires respect for the full exercise of his or her right to be heard. In turn, the full exercise of their right to be heard includes the necessary assessment and determination of their best interests. Actors in the criminal justice system should keep both of these rights in mind when interpreting the rules and procedures for the participation of children in justice processes (Committee on the Rights of the Child, 2009; Troncoso and Puyol, 2014).
The Committee on the Rights of the Child (2009 and 2013), in its general comments, states that justice processes should be accessible and appropriate for children, and provides some guidelines in this regard:
All necessary measures need to be taken to guarantee children’s right to be heard, while, at the same time, ensuring their full protection. The potential negative consequences of failing to take their protection into account need to be considered, particularly in cases where the child has been a victim of a criminal offense.
Information and appropriate advice must be provided in a timely manner to children and their parents by the judicial system or other competent authorities.
It is recognized that expressing their opinions is not an obligation. The child may not exercise this right if he or she so wishes.
Children who have been victims of crime should be treated with sensitivity and tact throughout the legal process, considering their special situation, needs, age, gender or any physical impairment.
Judicial interventions should be of preventive nature, whenever possible, and should be part of a coordinated and integrated approach between the different sectors. It is recommended that the different disciplines work together to be able to listen to and properly understand the child, according to their particular needs.
The principle of expediency must be applied in all actions.
With regard to interviews, care should be taken not to intervene more than strictly necessary, especially in cases where events that might cause the child harm are being investigated.
It is preferred that children are not interviewed in public hearings, but rather in private interactions.
There must be a concern for the environment and infrastructure in which the child’s participation in the proceedings will take place, such as the courtrooms. This requires providing adequate spaces for interventions, avoiding places that are intimidating, hostile, excessively formal or inappropriate.
A specialized justice system should be established, where appropriate, which might involve the creation of specialized units in the police, courts and prosecutor’s office, so that all children are able to participate equally and fairly.
All adults who intervene with children need specialized training on children’s rights and needs in order to facilitate proper child participation.
Justice processes have been designed by and for adults. Therefore, the States’ obligation is to adjust them based on the specific characteristics of children, by promoting, among other actions, special protective measures (Cardona, 2013; IACHR, 2002; UN, 2005). This does not imply an effect on the equality and non-discrimination guarantees of the rest of the participants, but rather a distinction in the treatment of children, in order to compensate for the inequalities that prevent their proper access to justice.
The idea is that the asymmetry which is present in the inter-subjective traumatic relationship that he or she experienced in his or her environment should be compensated with the intervention of the law. It does not seek to modify the state of things, but to establish a framework of vindication for the minor so that he or she can put his or her experience into words (Castro, 2009, p. 184).
Regarding the tension that might arise between the rights of the accused and those of the child victim, all conflicting interests must be considered. This is not simple, since every decision must be based on the guarantees set out in domestic regulations and international conventions, but it is an imperative for legislators and courts, as Beloff says:
If one adds standards of protection and child protection principles ―in particular a very problematic but critical one here is the child’s best interests― the balance seems to be tipped in favor of the young victim (2009, p. 26).
Only if the above points are considered can children be treated as subjects with full rights, which is a prerequisite for the proper implementation and exercise of their guarantees (Ibero-American Judicial Summit, 2014). The role of the State is to ensure that these rights are respected and, in this way, ensure the proper administration of justice.
3. The experience of child victims of sexual abuse in the justice system
Half of the children in the world ―more than one billion― experience some form of violence each year (Hillis, Mercy, Amobi and Kress, 2016). This is extremely worrying, since abuse (in a broad sense) can profoundly affect a child’s cognitive, socio-economic and even physical development (Malloy, La Rooy, Lamb and Katz, 2011).
Regarding sexual violence, the latest UNICEF report (2017), which compiles information from the most recent national surveys on violence against children, concludes that worldwide around 15 million adolescent girls aged 15 to 19 have experienced forced sex in their lifetime12 . Of the 46 countries with available data, there are significant variations at the national level in the proportion of women who were exposed to some form of sexual violence during their childhood, ranging from less than 1% to 24.8%, the average being 5% (UNICEF, 2019).
In Chile, according to the First National Survey on the Poly-victimization of Children (Consejo Nacional de la Infancia, 2018), 26% of those surveyed, corresponding to 19,684 children aged 12 to 17, reported having suffered at least some type of sexual victimization13 during their lives, and 17% in the last year (20% women and 14% men). Likewise, according to data from the Public Prosecutor’s Office (2020), between 2015 and 2019, the reported annual average of child victims of sexual assault was approximately of 19,00014, with an increase from 14,959 in 2015 to 24,593 in 2019.
One of the greatest challenges faced by the justice system when dealing with a sex crime is the lack of background information available for the investigation and the subsequent resolution of the case. For example, it is common for no physical signs of abuse to appear in the medical examination, either because there were no injuries due to the way the crime was committed or because the injuries had already healed over time. On the other hand, the examination might have been performed with an inadequate technique or by a doctor without enough specialized experience, among other factors (Adams, Farst and Kellogg, 2018; JUFEJUS, ADC and UNICEF, 2013; Lanning, 2002; Lewy, Cyr and Dion, 2015; Randell, 2011)15. The general rule is that the only evidence available to prove or refute the occurrence of the facts and the participation of the accused is the victim’s testimony. Their account is essential for finding evidence to corroborate the reported facts, to uncover other possible criminal acts and to order protective measures. This is why obtaining and preserving their testimony is critical (Burrows and Powell, 2014; Johnson and Shelley, 2014; Lyon, 2014; Pipe, Orbach, Lamb, Abbott and Stewart, 2013).
Although an increasing number of countries have been incorporating special protective measures for victims, the historical dependence of the criminal justice process on victims’ accounts has turned them into tools for investigation, rather than persons with rights (Berlinerblau, 2009). As a result, they continue to be exposed to an excessive number of interviews, many of which are not conducted protecting their dignity or psychological integrity. Studies
