When judges do not investigate because the minor cannot identify the aggressor

BarcelonaA victim's testimony is key to investigating any crime and identifying the suspect, so much so that it can be sufficient evidence for a conviction. However, what happens when the victim is a child and, due to their age, cannot offer a testimony as clear and detailed as an adult? Especially in crimes that are often committed in secret, such as sexual assaults, it is more difficult to determine the perpetrator. In this regard, several Catalan lawyers report that cases of this type often end up closed before the judicial investigation begins, not due to a lack of evidence but because the perpetrator cannot be identified.

This is what recently happened to a five-year-old student at a private school in Sant Cugat del Vallès. The girl told her family that a teacher had physically and sexually assaulted her. The complaint was closed as soon as it reached the court because the police investigation failed to identify the boy the girl was referring to. The topic was closed with a single page and two very brief paragraphs, without even a minimal Judicial investigation.

Lawyer Sonia Ricondo, from the Némesis law firm, which represents the girl's parents, laments a "common automatism" in cases of sexual and physical violence against children. "When there is no account with a chronology similar to what an adult could provide, it is systematically filed away," she warns.

At the start of the school year in September, the girl insisted she did not want to go to school. One day she revealed that a boy, who had also been a summer camp monitor, had banged her head against the wall and had also groped her. The school removed the young man as a precautionary measure, contacted the Mossos d'Esquadra (Spanish police), and began an internal investigation, but without referring the case to the Juvenile Prosecutor's Office. The girl pointed out one of the counselors from among the 10 photographs the school provided to the family, but a report from the school confirmed that the boy and girl had not met at the same times the student indicated.

After two weeks, the Mossos d'Esquadra concluded that they did not have sufficient evidence regarding any of the counselors, and they also encountered the difficulties of drawing conclusions from the testimony of a child of only five years old. Regarding this case, the Department of Education has simply responded that the Inspectorate has been monitoring the case and has been in contact with the school management.

Closed due to lack of suspects

Once the Mossos d'Esquadra sent the case to the 4th Investigative Court in Rubí, it was immediately closed because there was no suspect to focus the investigation on. Ricondo has already asked the judge to reopen the case and order the Mossos d'Esquadra to investigate further to identify the monitor. The family feels "helpless" because they have not had guarantees and that there have been errors at the beginning of the investigation that "have had a domino effect" on the entire process. "I get the impression they think it's not real," laments the mother, who hopes the case will be reopened.

"Unfortunately, we are encountering cases like this. Normally, there are difficulties in identifying the perpetrator and little proactivity from the court and the Mossos d'Esquadra in investigating," adds Montserrat Solé, from Carla Vall's office, who laments the "hasty closings" of some cases that were based on certain "magistrates" or certain files. Solé regrets that this "ends up translating into greater demands" on the complainants—or their families when they are minors—to "offer evidence" or even "spend money on an investigator" to find the perpetrator "without any guarantees of whether it will be pursued judicially."

Also with adults

This situation not only occurs with minors but also with adults. Criminal lawyer Noemí Martí explains that, although some cases are initially dismissed directly "due to unknown perpetrator," the Provincial Court usually reopens the cases later because "it provides more protection." Furthermore, Martí asserts that this can occur with any crime, not just sexual assault, and gives the example of a case she took involving a beating: she was knocked down three times, and the Provincial Court reopened it all three times. Lawyer Natàlia Frigola agrees, adding that investigations are usually only extended in cases of serious crimes, and believes this should be the case when there is a suspicion of sexual assault against a minor.

Lawyer Xavier Campà, who chairs the Child and Adolescent Law Section at the Barcelona Bar Association (ICAB), also argues that the investigation should be further investigated before dismissing a case. "The law specifies the reasons why a case may or may not be closed due to a lack of identification of the perpetrator, but all avenues must have been exhausted. It's not that uncommon; in a crime committed on the street, it's much more difficult to identify the person than in a school," she assesses.

"If the judge receives it without any indication of who did it, they must close it by law," counters Tarragona Court magistrate Maria del Prado Escoda. In fact, "the Mossos d'Esquadra shouldn't send it to court until they have sufficient evidence of authorship," she adds, but understands that, "when the incidents are serious, they send it to confirm whether it should be closed."

"It's terrible, but sometimes you can't get more information; no matter how much fear it generates, we can't keep the case open. You can't do terrible things," the magistrate maintains, referring to the rights of the accused. He also says that certain indications are required for a judge to order investigative measures that could restrict rights, such as wiretapping or DNA testing. "You have to have a minimum level of suspicion. We can't judicially investigate all family members. The police perhaps can, but in a more subtle way. It's the same as if we were accusing all the monitors... as much as it hurts; because, what if it were someone else?" he concludes.

"If it's reopened, he won't remember as many details."

But for Ricondo, if the case is reopened and the parents and child are required to testify, many months will have been lost. "Because she's such a young child, she won't remember many details," she laments, referring to the court's decision not to take statements from any witnesses, including the minor, before closing the case. Mireia Forner, a psychologist and doctor in psychiatry at Sant Pau Hospital, also warns that, when the witnesses are children, "it's even more important to be quick" when taking their statements.

"The passage of time can change some aspects of their perception and explain the facts differently," warns Forner, who therefore believes the best option is to record the child's statement as soon as possible and retain it as pre-constituted evidence. This, she adds, prevents minors from experiencing the anguish of knowing they will have to testify later, and is also a way to avoid re-victimizing them by having to explain the assault several times to different professionals.