“‘Joe Wood is dead, but it took him two hours to die,’” Troy Hayden of Phoenix’s KSAZ-TV and an eyewitness to the execution of Joe Wood was quoted as saying in a July 23 NPR story. “‘And to watch a man lay there for an hour and 40 minutes gulping air, I can liken it to, if you catch a fish and throw it on the shore, the way the fish opens and closes its mouth.’”
“The Arizona Department of Corrections began the execution of Joseph Rudolph Wood III at 1:52 p.m. At 1:57 p.m. ADC reported that Mr. Wood was sedated, but at 2:02 he began to breathe. At 2:03 his mouth moved. Mr. Wood has continued to breathe since that time. He has been gasping and snorting for more than an hour. At 3:02 p.m. At that time, staff rechecked for sedation. He is still alive. This execution has violated Mr. Wood’s Eighth Amendment right to be executed in the absence of cruel and unusual punishment,” stated the emergency motion filed by Wood’s attorney to stay the execution on the grounds that it violated Woods’ constitutional rights. The motion called for reviving Woods, but he died within an hour of the papers being filed.
States’ experiments with new, untested lethal injection protocols are real-life — or real-death — demonstrations of what can go wrong when governments are allowed to execute people using untested and dubious execution methods. “The experiment using midazolam combined with hydromorphone to carry out an execution failed today in Arizona,” said Dale Baich, one of Wood’s attorney, in the NPR report. “It took Joseph Wood two hours to die, and he gasped and struggled to breath for about an hour and forty minutes. We will renew our efforts to get information about the manufacturer of drugs as well as how Arizona came up with the experimental formula of drugs it used today.”
The United States’ commitment to those who flee to our shores seeking protection from persecution on account of their beliefs or identities is at the core of who we are as Americans. This promise was formalized when the United States committed itself to the Refugee Convention and Protocol and, in turn, when it enacted the 1980 Refugee Act. That system allows people who have a well-founded fear of persecution on account of race, religion, nationality, political opinion, or particular social group.
Keeping fraud out of the asylum system is essential to ensure that bona fide asylum seekers receive the protection they need. As Eleanor Acer, director of the Refugee Protection Program at Human Rights First, testified today, “A strong asylum and immigration system that adjudicates cases in a fair and timely manner and includes effective tools for fighting abuse, is essential both for ensuring the integrity of the U.S. immigration process as well as for protecting refugees from return to places of persecution. If individuals or groups are defrauding the asylum system, it hurts everyone, and steps should be taken to counter those abuses and punish the perpetrators. U.S. authorities have a range of effective tools to address abuses.”
But a strong, robust, and properly resourced asylum protection system combined with a reformed immigration system that grants opportunities to workers and timely reunites families – not more barriers to protection – is the answer to combatting fraud. There is a real need for Congress to direct more resources to our immigration court system, which now has just 249 judges nationwide.
While several witnesses at today’s hearing recounted cases of fraud, they offered no solutions beyond interdiction and detention – strategies that are designed not to protect refugees but instead to keep them from making their claims for protection in the first place.
We can see the failure of this deterrence approach. Today, asylum seekers are arbitrarily detained and jailed upon entry, penalizing and deterring them from seeking asylum in the United States. The system charged with adjudicating asylum claims is under-resourced, leaving some people waiting behind bars for weeks or months while immigration officials determine whether they have “credible fear” and will get a chance to ask for asylum in the United States or they will be summarily deported. Nonetheless, asylum seekers continue to ask for our protection.
The Advocates for Human Rights began working with asylum seekers soon after the Refugee Act took effect. In the three decades that followed, we have represented asylum seekers as they struggled to establish not only their claims for protection but their credibility. We see their tears – tears of pain as they recount the horrors they fled and of relief when they are granted asylum. They’re telling the truth.
In Morocco, a 15 year old girl experienced constant harassment and threats from a 35 year old man in her town. He waited for her each day outside of her school and on several occasions told her, “I will force you to marry me.” One day, he abducted and raped her at knifepoint. The victim made a complaint to the gendarmes, who arrested the man. In his statement to the police, the rapist admitted his crime, declaring that he did it “because it was the only way I would be able to marry her.” In order to avoid scandal, the victim dropped out of school and married him. “I am raped now every day,” she told members of the local association that works with women survivors of domestic violence.
This tragic story is one of many included in a joint submission The Advocates for Human Rights and our Moroccan partner Mobilising for Rights Associates (MRA) made recently to the United Nations’ Committee on the Rights of the Child. The submission draws attention to the serious human rights violations resulting from the application of Article 475 of the Moroccan Penal Code, which provides that whoever “abducts or deceives” a minor, without using violence, threat or fraud, can escape prosecution and imprisonment if (i) the abductor marries the victim, and (ii) those persons who have a right to request annulment of the marriage do not file a complaint.
Organizations and news reports from Morocco indicate that Article 475 has been applied in cases of sexual abuse of minors in order to preserve the “honor” of the victim and her family. Notably, this issue has received widespread coverage following the 2012 suicide of Amina Filali, a sixteen year-old girl who killed herself after being forced to marry a man – ten years older than her – who had raped her. Additional news reports confirm that the use of Article 475 continues. Further, associations working at the local level in Morocco report that girls married under Article 475 continue to suffer rape and domestic violence after the marriage.
Information from our Moroccan partners illustrates the extent of the problems with the application of Article 475. One local association that works with women reported that, of 11 cases involving rape of a minor that they handled in 2013, Article 475 was raised in 6 cases; the age of the victims ranged from 14-17, while the age of the rapists ranged from 23-28. In one case, a 14 year old girl was raped by her 28 year old cousin, and she became pregnant as a result. She sought help from the association to file a criminal complaint, and there were several court hearings. DNA testing established that the accused was the rapist. Under Article 475, the two families agreed on a temporary marriage between the rapist and the victim to avoid shame, with a predetermined divorce date after one month of marriage.
Associations working at the local level in Morocco report that the young victims experience tremendous pressure to abandon criminal prosecution and agree to the application of Article 475 from law enforcement, justice system personnel, as well as the families of the perpetrators. Even their own families pressure them to agree to marriage under Article 475 in order to avoid shame. Because all sexual relations outside of marriage are illegal under the Moroccan Penal Code, victims also fear prosecution and imprisonment under Penal Code Article 490. In fact, one Moroccan association reported several cases of rape victims who filed complaints to initiate criminal prosecution but were prosecuted themselves under Article 490.
In one instance, a 15 year old girl was raped by a 25 year old man. She became pregnant as a result of the rape, which is considered proof of illicit sexual relations. She did not want to file a criminal complaint because she feared prosecution under Article 490, so she fled her home and sought shelter through a local Moroccan association. The rapist’s family made threats against the victim’s mother, however, and she was pressured to not file a criminal complaint and to marry the rapist under Article 475 instead.
Article 475 must be understood in the context of early marriage in Morocco. While the legal age of marriage for both men and women is now 18 in Morocco,the Family Code allows the marriage of minors when “justified” and after substantial control by the Family Affairs judge.Both the number of petitions for authorization to marry minors and the approval rate are high and increasing. In 2007, 10.03% of marriages were of minors, and 86.8% of the 33,596 petitions were authorized. In 2011, the rate had risen to 11.99% of all marriages and 89.56% of 46,927 petitions for authorization to marry a minor were granted. 33.58% of petitions in 2011 were for minors ages 14-16. The overwhelming majority of the minor spouses, 99.31%, were girls. The Family Code provides no threshold minimum age below which authorization to marry may never be granted. Local NGOs report marriages of girls as young as thirteen, fourteen and fifteen.
In practice, judges often issue authorizations based on their own cursory visual examination of the minor girl’s physical appearance and determination that she is capable of assuming “marital responsibilities,” rather than resorting to the required expertise. Reasons advanced by judges for authorizing underage marriage include saving family honor, avoiding scandal, protecting the girl’s chastity and preventing her from debauchery. Some even cite marriage as a solution to poverty. At times judges do not even substantiate their decisions in writing. Corruption among public actors and the ease by which medical certificates attesting to the minor girl’s “maturity” can be obtained are also factors allowing circumvention of the law.
Although bills have been introduced in the Moroccan Parliament that would amend or abrogate Article 475, no final action has been taken on them to date. In addition, in spite of the reality of early and forced marriage for young Moroccan girls, the Moroccan Government has made statements in recent United Nations submissions that Article 475 does not apply to, and has not been applied in, cases of sexual abuse of minors. For example, in response to the most recent concluding observations of the Committee Against Torture, the Moroccan Government stated that Article 475 does not apply in cases of sexual abuse and that there is no statutory text in Morocco that exempts the “perpetrator of child rape from punishment when he makes the child concerned his wife, because anyone who commits rape is punished in all instances, even when he marries the victim of rape.” The Moroccan Government further stated that Article 475 “is not applicable to rape but rather to the crime of the abduction of a minor who leaves the parental home to be with someone and agrees to marry him.”
In other words, in the Moroccan Government’s view and in contrast to the many reports originating from Morocco, Article 475 is intended to address situations involving marriage without the consent of the family where the prosecution for abduction of a minor can be dropped if the victim’s family withdraws the complaint to “maintain good family relations and to protect the make-up of the family if arresting the husband could lead his minor wife to lose any chance of a normal life.”
On January 8, 2014, the Committee on Justice, Legislation and Human Rights in on of the Parliament’s chambers voted to abolish paragraph 2 of Art. 475. While this is a positive step, the Moroccan government must go further to protect the rights of women and girls. Given the factual situation on the ground in Morocco and the clear violations of Morocco’s obligations under the Convention on the Rights of the Child, the Moroccan government must:
Amend Morocco’s Penal Code to abolish the Article 475 provision that allows a perpetrator of rape to escape prosecution by marrying his victim.
Amend Morocco’s Penal Code and Penal Procedure Code to facilitate procedures for bringing sexual abuse and rape of minors cases, including eliminating discriminatory legal provisions that require proof of actual physical injury and place heavy burdens of proof solely on the victim.
Amend Morocco’s Penal Code to abolish criminal prosecutions under Article 490 for “illicit sexual relations.”
Develop and implement a plan for educating the judiciary and public that criminal proceedings against rapists will not be terminated if they marry their victims and that Article 475 is not to be applied in cases of sexual abuse and rape of minors.
Penalize all acts to encourage, pressure, or threaten minors to marry, whether by public or private actors.
Amend Morocco’s Family Code to establish clear and objective criteria under which judicial authorizations for the marriage of minors may be granted in only exceptional cases, and in all events establish a threshold minimum age under which authorization to marry may never be granted.
In addition, we recommend that the UN Committee on the Rights of the Child further investigate the issue of marriage of minor girls, as well as the role Article 475 plays in instances of sexual abuse involving minors.
Dahir n° 1-59-413 du 28 joumada II 1382 (26 novembre 1962) portant approbation du texte du code pénal, as amended, (« Penal Code »), Art. 475: 1) Quiconque, sans violences, menaces ou fraudes, enlève ou détourne, ou tente d’enlever ou de détourner, un mineur de moins de dix-huit ans (Article modifié par l’article premier de la loi n° 24-03 modifiant et complétant le code pénal, précitée), est puni de l’emprisonnement d’un à cinq ans et d’une amende de 200 (cf. supra note correspondant à l’article 111) à 500 dirhams. 2) Lorsqu’une mineure nubile ainsi enlevée ou détournée a épousé son ravisseur, celui-ci ne peut être poursuivi que sur la plainte des personnes ayant qualité pour demander l’annulation du mariage et ne peut être condamné qu’après que cette annulation du mariage a été prononcée.
Written Communications to MRA and The Advocates for Human Rights from Moroccan NGOs (5 December 2013). In the same Written Communications, another association from a different region reported that Article 475 was raised in 3 of 5 rape cases that they handled where the victim was a minor. A third association reported their experience that in 6 cases where Article 475 was raised since 2011, the average age difference between the victim and the rapist was 10 years (with victims ranging in age from 14-17 and rapists from 23-28). Id.
Id. Note that these numbers are consistent with information from the local level. One local association that works with MRA reported that from January to November 2013, the First Instance Court in Khemisset granted 325 of 442 petitions for authorization to marry minors. Written Communications to MRA and The Advocates for Human Rights from Moroccan NGOs (5 December 2013).
Ligue démocratique de défense des droits des femmes (LDDF), Droits des femmes et code de la famille après 4 ans d’application(2007).
Interviews with Local Morocco NGOs, (May 2012 – December 2013).
Abdellah Ounnir, Les justiciables dans le circuit judiciaire relatif au contentieux de la famille, inLe Code de la famille: Perceptions et pratique judiciaire, pp. 89-139 (Morocco: Friedrich Ebert Stiftung, 2007);Démocratique des Femmes du Maroc(ADFM), Implementation of the CEDAW Convention: Non-Governmental Organisations’ Shadow Report to the Third and the Fourth Periodic Report of the Moroccan Government(Nov. 2007).
In January 2013, the Justice Minister made a statement to the effect that he would not oppose proposed modifications to 475. A bill (sponsored by MPs) to modify and complete article 475 was adopted by the Council of the 2nd Chamber of Parliament and transferred to the relevant Committee on legislation within that Chamber for review on January 29, 2013. This bill would increase the penalties, eliminate the 2nd paragraph of 475, and reinforces the link between 475 and the later sexual abuse of minors articles in the Penal Code. A second bill (sponsored by MPs) presented in the 1st Chamber would eliminate the 2nd paragraph of 475 (among other modifications to the articles on sexual abuse), but the version adopted by the legislation committee had eliminated these reforms. Another bill (sponsored by MPs) for a VAW law in 1st chamber that would cancel 475 among its 35 articles was transferred for review to the legislation committee in February 2013. The current status of these three bills is unknown and it is unclear what subsequent steps if any have been taken on these three bills. A proposed VAW bill submitted by the Family Minister to the Government Council (and tabled) did not contain any modifications to Article 475. See http://www.medias24.com/POLITIQUE/5975-Benkirane-desavoue-Bassima-Hakkaoui.html. Most recently, on January 8, 2014, the Committee on Justice, Legislation and Human Rights in on of the Parliament’s chambers voted to abolish paragraph 2 of Art. 475. http://www.aujourdhui.ma/maroc-actualite/societe/viol-des-mineures-au-maroc-une-loi-debattue-au-parlement-107202.htmlwww.yabiladi.com%2Farticles%2Fdetails%2F22289%2Fviols-mineures-deputes-annulent-l-alinea.html&h=1AQFFOSTM
U.N. Committee Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Information Received From the Government of Morocco in Response to the Concluding Observations of the Committee Against Torture, para. 111, CAT/C/MAR/CO/4/Add.1(9 September 2013).
U.N. Committee Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Information Received From the Government of Morocco in Response to the Concluding Observations of the Committee Against Torture, para. 112, CAT/C/MAR/CO/4/Add.1(9 September 2013).
Minnesota passed the Safe Harbor for Sexually Exploited Youth Act in 2011, laying the groundwork for a victim-centered response to sexually exploited children and those at risk of sexual exploitation. The Advocates for Human Rights knew when we drafted the Safe Harbor Act that it marked a sea change in how sexually exploited youth are treated in Minnesota by identifying these kids as victims of crimes, rather than criminal perpetrators.
What we didn’t imagine was how quickly real change would happen.
We now rightly (albeit not often enough) question the assumptions that permit prostitution to exist: that prostitution is a consensual transaction between willing participants and that men have a right to have sex. These assumptions were put so succinctly by Michael Smirconish in his 2011 syndicated column pushing for the legalization of prostitution (or what he calls “fleeting, consensual physical companionship”) when he asked “what’s the difference between passing a cosmo down the bar and handing over a Ben Franklin when the aim is to get someone in the sack?” “Aren’t the Quasimodos among us entitled to a little happiness?” he goes on to ask.
When I read that column I wanted to scream. Or cry. Prostitution isn’t sex between consenting adults. It is the exploitation of women and children for the profit of the pimp and the pleasure of the john.
But we are making progress. The language of human trafficking has had a powerful impact. In just few short years, Minnesotans have fundamentally changed how we think about prostitution.
Today we no longer hear juvenile prosecutors ask “how will we get her to testify if we can’t threaten her with juvenile delinquency prostitution charges?” Instead, as last week’s Star Tribune feature on the issue of sex trafficking illustrated, police and county attorneys tout the benefits of treating prostituted children as crime victims in securing convictions against human traffickers.
In 2011 objections to including 16 and 17 year olds in Safe Harbors’ protection against prosecution, largely out of fear that the girls who “voluntarily” engage in prostitution could escape punishment, were deeply entrenched 2011. Those objections had essentially evaporated by the 2013 legislative session.
And soon we may have federal legislation that requires states to adopt Safe Harbor models if they wish to continue receiving certain federal funding. Earlier this month, Senator Amy Klobuchar and Representative Erik Paulsen each introduced bi-partisan legislation that encourages Safe Harbor nationwide. Both bills are known as the Stop Exploitation Through Trafficking Act and were introduced as S. 1733 and H.R. 3610.
When introducing their legislation, both Senator Klobuchar and Representative Paulsen said the Stop Exploitation Through Trafficking Act is modeled after Minnesota’s “safe harbor” laws which help ensure minors who are sold for sex aren’t prosecuted as defendants, but rather are treated as victims.
We have a long way to go in the fight against human trafficking. First and foremost, we need to recognize that pimp-controlled prostitution is by its nature coercive, violent and in every way lives up to the definition of human trafficking.
But thanks to Minnesota’s vision, we are on the right path.
January is National Slavery and Human Trafficking Prevention Month. Human trafficking, including sex trafficking, is modern-day slavery, and now is the perfect time to address, speak out, and change attitudes and legislation surrounding human trafficking.
The dialogue around sex trafficking is radically changing.
In 2011 The Advocates led the effort to gain passage in the Minnesota legislature of the landmark “Safe Harbor Act,” landmark legislation that redefined sexually-exploited girls under 16 as victims in need of support, rather than as delinquents needing punishment. The bill did not include girls who were 16 and 17, but they became part of later efforts.
Follow-up legislation, Safe Harbor 2013, was enacted last May, extending Safe Harbor provisions to ALL sexually exploited youth in Minnesota under age 18. Additionally the new provisions secured funding for a statewide director of child sex trafficking prevention; new regional positions to connect sexually-exploited youth with shelter, support and services; training law enforcement, prosecutors and others who encounter sexually exploited youth; as well as Safe Harbor housing and shelter.
“The conversation in 2013 was so different than in 2011,” said The Advocates’ advocacy director, Michele Garnett McKenzie, in a feature article in the January edition of the Minnesota Women’s Press. “In 2011, people were still trying to wrap their head around the idea of the girl as victim, not delinquent.” Thinking about girls as victims is becoming more common.
Another approach: holding buyers accountable. Last year’s bipartisan End Human Trafficking Act would recognize under federal law that people who “obtain, patronize, or solicit” prostituted children are guilty of the crime of human trafficking.
What’s next? Watch for our blog in honor of National Human Trafficking Awareness Day (January 11th), which will further discuss the newly introduced “federal Safe Harbors legislation,” the Stop Exploitation Through Trafficking Act.
By: Ashley Monk, The Advocates’ development and communications assistant
Anti-LGBTI laws passed last week by the governments of Nigeria and Uganda threaten the lives and human rights of people living, working, and visiting those countries. Not only are the lives of LGBTI persons at stake, but their friends, family, teachers, colleagues, health practitioners, and human rights defenders could face fines or imprisonment for failure to report homosexual conduct to authorities.
The Nigerian Same-Sex Marriage Prohibition Bill goes beyond banning same-sex marriage; it criminalizes LGTBI people by jailing them for public displays of affection, and it calls for imprisonment of any same-sex marriage wedding attendees. The bill also bans all LGBTI organizations, and threatens anyone advocating for LGBTI rights with jail time.
The Ugandan Anti-Homosexuality Bill, which originally imposed a death sentence on LGBTI persons in some cases, calls for life imprisonment for “aggravated homosexuality.”
The recent passage of these anti-LGBTI laws reflects a broad trend across the world, including the countries of Russia, India, Cameroon, Liberia, Burundi, and South Sudan, where LGBTI persons and human rights defenders who work on their behalf increasingly face discrimination, violence, criminal prosecution, and persecution, including death.
All human beings are inherently entitled to dignity and equal enjoyment of their universally recognized human rights and freedoms; therefore, governments that pass laws that discriminate on the basis of actual and perceived sexual orientation and gender identity fail to uphold their human rights obligations with respect to sexual minorities and human rights defenders who serve and support people who are LGBTI.
The Advocates for Human Rights urges President Goodluck Jonathan to veto the Nigerian Same-Sex Marriage Prohibition Bill. The bill currently awaits either a signature or veto. You can urge President Jonathan to veto the bill and uphold human rights by signing a petition here.
The Advocates for Human Rights also urges President Yoweri Museveni to veto the Ugandan Anti-Homosexuality Bill. In order for the bill to become law, President Museveni must sign it within 30 days. You can urge President Museveni to veto the bill and uphold human rights by signing a petition here.
By: Ashley Monk, The Advocates’ development and communications assistant