Recent Resources for Feminists
NI 472 - May, 2014
A forensic examination of the persistent problem of trafficking vulnerable people for their organs, and what it would take to stamp it out
By Nancy Scheper-Hughes
Men from Baseco, a slum in the port area of Manila, the Philippines, show their scars from kidney sales in a photograph from 1999. (Pat Roque/AP/Press Association Images)
The slide on the screen showed several skinny, dark Filipino men lined up, displaying their sacred wound, the kidney scar, long as a sabre slice across their convex torsos. More than 150 representatives of scientific and medical bodies from 78 countries stared solemnly at the photo during the Istanbul Summit of 2008, the defining moment in the global recognition of human trafficking for ‘fresh’ kidneys. ‘Is this why we began as transplant surgeons?’ one of the convenors, US surgeon Francis Delmonico, asked. ‘Are we comfortable with this? Is this fair? Do we want to participate in this?’
The man sitting next to me, a Hindu surgeon in white robes, reminiscent of Hippocrates, was moved. When I asked what he was thinking, he replied: ‘This is too late. Kidney selling is no longer a strange or exotic act. It is normal, everyday, and entrenched. We in the South can agree that it is a tragic turn of events, but the demand comes from outside.’
In the early 1980s a new form of human trafficking, a global trade in kidneys from living persons to supply the needs and demands of ‘transplant tourists’, emerged in the Middle East, Latin America and Asia. The first scientific report on the phenomenon, published in The Lancet in 1990, documented the transplant odysseys of 131 renal patients from three dialysis units in the United Arab Emirates and Oman. They travelled with their private doctors to Bombay (now Mumbai), India, where they were transplanted with kidneys from living ‘suppliers’ organized by local brokers trolling slums and shantytowns. The sellers were paid between $2,000 and $3,000 for a ‘spare’ organ. On return, these transplant tourists suffered an alarming rate of post-operative complications and mortalities resulting from mismatched organs, and infections including HIV and Hepatitis C. There was no data on, or discussion of, the possible adverse effects on the kidney sellers, who were still an invisible population of anonymous supplier bodies, similar to deceased donors.
In 1997, I co-founded Organs Watch, specifically to draw attention to the then invisible population of kidney ‘suppliers’. 1 Today human trafficking for organs is a small, vibrant and extremely lucrative business that involves some 50 nations. 2
No cadavers wanted
In the summer of 2009 I received a phone call that unnerved me.
‘Are you the Organs Lady?’ a young man I’ll call Jim Deal* asked me with a slight tremor in his voice.
‘Perhaps,’ I replied. ‘How can I help you?’
‘I just found out that my kidneys are failing and my doctor wants me to start dialysis immediately.’
‘Well, I can’t attach myself to a machine three days a week. I’ve just started a new company and I can’t lose a minute. I need a kidney now. Where can I go to get one? I have the resources. Money is not an object.’
My suggestions to ask his relatives (which included several siblings) were rejected – they were all busy with their careers and families. Would he be willing to take the ‘Steve Jobs option’, registering in multiple transplant centres in different regions of the US, increasing the possibility that his number would be called – Bingo!
The demand for organs outstrips supply
Advances in medicine that keep us alive longer, coupled with rising levels of type-2 diabetes and heart disease, mean that the pool of patients waiting for organs is growing. In any given year, fewer than 1 in 10 waiting for a donor organ will receive one.
At the same time, there are fewer organs from young, healthy people – who make the best deceased donors – due to the life-saving influence of car seat belts. Prolonged end-of-life medical care can also mean fewer usable organs upon death.
Nevertheless, the WHO believes national self-sufficiency through deceased donor organs is possible – efforts to retrieve usable organs from the deceased need to be maximized. Progress in stem cell research, the creation of workable artificial organs and xenotransplantation could help towards meeting the demand in the future.
‘No cadavers,’ Jim said. It would have to be a kidney purchased from a living stranger. Could I recommend a surgeon or a broker who could help? Given his family genealogy, which included a grandparent from Iran, I told Jim that he might be in luck. Iran had the only legalized and regulated kidney selling programme, but it was reserved for Iranian citizens and diaspora.
‘I’m not going to go to Iran, if that’s what you are saying,’ Jim countered. ‘I want First World medicine.’
There was no use trying to convince Jim that Iran had ‘First World’ surgeons. Some weeks later he called to tell me that his family had found several local, willing kidney providers online through Craigslist. He chose the least expensive ‘option’: a kidney from 19-year-old community college student Ji-Hun*, an immigrant from South Korea who could not afford his tuition, books, room and board, and who feared deportation if he dropped out.
The deal was secured for $20,000. The night before the transplant, two very nervous Korean brothers met with Jim’s relatives in an upscale suburb of Los Angeles to count the kidney loot in crisp one hundred dollar bills. An armed guard oversaw the encounter. The seller requested half in advance. The family refused, but they agreed to hand over the money to the seller’s older brother as soon as both parties were under anaesthesia but before they knew the outcome of the organ transfer.
By the time I arrived at the famous ‘hospital for the Hollywood stars’ in Beverly Hills, the surgery was over and Jim was out of the recovery room and surrounded by well-wishers. His private room was festive with flowers, gifts, smiles and prayers for Jim’s recovery. Nurses popped their heads in and out to see if everything was going well.
Nicolae, a father of three children, suffers from chronic hypertension. He fears he will not see them grow up.(Nancy Scheper-Hughes)
It took some sleuthing to locate Ji-Hun, who was tucked away in a corner room several flights above the regular post-op recovery rooms. He was a delicate young man, weighing no more than 55 kilos. He was doubled over with pain, and blushed with shame when I introduced myself to him as an informal ‘kidney donor’ advocate. The nurses tittered anxiously when I presented my calling card with its Organs Watch logo. They told me that Ji-Hun would be released that same day, although he had not yet seen a doctor following his kidney removal. He was worried about returning to his one-room bedsitter apartment in a dodgy section of Los Angeles. Before leaving the hospital Ji-Hun gave me his cell-phone number.
A few days later Ji-Hun reported that he was still in bed, immobilized with pain, and unable to eat, urinate or defecate. His older brother, a surly young man who worked as a dish washer in a fast-food restaurant, was angry with him. He had no medical insurance, and the $20,000, which had been handed over to his brother in a public toilet on the surgical ward, was already all but gone after settling unpaid bills along with student tuition and remittances for their parents in Korea. After a few brief calls, Ji-Hun’s phone went dead.
Jim, anxious about disclosure, emigrated to another country and on last report was married and able to work. The head of the surgical staff of the complicit hospital refused to discuss the case, citing patient confidentiality. The consulting nephrologist who worked shifts at the private hospital contacted me to say that he had seen many other instances of bartered kidneys, but was loath to be a ‘whistleblower’.
Vladiumir, recruited at 18, died from post-surgical infection and kidney failure on return from botched surgery in Turkey. (Nancy Scheper-Hughes)
While most illicit kidney transplants take place in the so-called developing world – India, Pakistan, Bangladesh, Egypt, the Philippines, and more recently Central Asia and Central America – future transactions are likely to resemble the above story. Facilitated by the internet, organ ‘suppliers’ will be drawn locally from the large pool of new immigrants, refugees and undocumented workers. The transplants will be arranged in private hospitals where the transactions are reported as altruistic, emotionally related donations.
That is the future. For now, transplant tours are more usual. They can bring together actors from as many as four or five different countries, with a buyer from one place, the brokers from two other countries, the mobile surgeons travelling from one nation to another where the kidney operations actually take place. In these instances, and the case of a private clinic in Kosovo is perhaps the best example (see ‘The Medicus affair’), the participants appear and disappear quickly, with the guilty parties, including the surgeons, taking with them any incriminating data. When the police finally arrive at the scene, they discover the bloody remains of a black-market clinic, with traces of forensic evidence, but the key players long since disappeared.
Over the course of more than 17 years of dogged field research, my Organs Watch colleagues and I had realized that we were not dealing with a question of medical ethics. Rather, we had gained entry into the world of international organized crime. Following fieldwork in Turkey, Moldova, the US, Israel, Brazil, Argentina, the Philippines and South Africa, it became apparent that organ brokers were human traffickers involved in cut-throat deals that were enforced with violence, if needed. Many of the ‘kidney hunters’ who seek out new candidates in poor localities are former sellers, recruited by crime bosses.
The transplant and organ procurement traffic is far-flung, sophisticated and extremely lucrative. Although trafficking in human organs is illegal in almost every nation, the specifics of the laws differ, making prosecutions that can involve three or more nations a judicial nightmare. In some countries it is illegal to sell a kidney but not to purchase one. In others it is illegal to buy and sell within the country but not to buy and/or sell abroad.
Viorel is furious because his kidney was removed under duress. Both he and Vladiumir were operated upon by the prolific Turkish outlaw surgeon Yusuf Sonmez. (Nancy Scheper-Hughes)
Organ trafficking made its début as a much-contested add-on to the 2000 United Nations Palermo Protocol on Human Trafficking, which recognizes that even willing participants in underworld illicit kidney schemes can be counted as victims. Indeed, most are coerced by need, not physical threats or force. Some even pay significant amounts of money to be trafficked.
As it is covert behaviour, it is difficult to know with any degree of certainty how many people are actually trafficked for their kidneys, but a conservative estimate, based on original research by Organs Watch, is that at least 10,000 kidneys are sold each year. Human trafficking for organs is a relatively small and contained problem, one that could be dealt with efficiently with the political will to do so.
Unlike other forms of trafficking that unite people from shady backgrounds, the organ trade involves those at the highest – or at least middle-class – levels of society: surgeons, doctors, laboratory technicians, travel agents, as well as criminals and outcasts from the lowest.
Transplant professionals are reluctant to ‘name and shame’ those of their colleagues involved in the trade, thereby creating a screen that conceals and even protects the human traffickers who supply the surgeons. And because trafficking living donors for organs is a traffic in ‘goods’ (life-saving ‘fresh kidneys’) not traffic in ‘bads’ (drugs or guns) there is reluctance, even on the part of the justice system, to recognize the ‘collateral damage’ it inflicts on vulnerable bodies – and the harm to society and the profession of medicine itself.
Organ brokers are the linchpins of these criminal networks, which handle an onerous feat of logistics. They co-ordinate three key populations: (1) kidney patients willing to travel great distances and face considerable risk and insecurity; (2) kidney sellers recruited and trafficked from the urban slums and collapsed villages of the poor world; (3) outlaw surgeons willing to break the law and violate professional codes of ethics. Well-connected brokers have access to the necessary infrastructure such as hospitals, transplant centres and medical insurance companies, as well as to local kidney hunters, and brutal enforcers who make sure that ‘willing’ sellers actually get up on the operating table once they realize what the operation actually entails. They can count on both government indifference and police protection.
Unlike other forms of trafficking that unite people from shady backgrounds, the organ trade involves those at the highest levels of society, like surgeons
The complicit medical professionals perform expert teamwork – technicians in the blood and tissue laboratories, dual surgical teams working in tandem, nephrologists and post-operative nurses.
There are ‘transplant tour agencies’ that can organize travel, passports and visas.
In the Middle East and in the US, religious organizations, charitable trusts and patient advocacy groups are often fronts for such international networks.
Life in Baseco, Manila, an area which provides easy pickings for kidney hunters. (Ben Lewis / Alamy)
Tactics of persuasion
Some brokers in Moldova used underhand tactics that had already been honed in recruiting naïve Moldovan women into sex work. They offered the opportunity of work abroad to unemployed youth, or household heads in debt or in need of cash to support sick spouses or children.
On arrival, the young men were kept in safe houses, had their passports confiscated, and were reduced to total dependency on the brokers (women were exceptions, see ‘My heart weeps inside me’). A few days later, the brokers would break the news that it was not painting or ironing trousers that was needed from the illegal ‘guest workers’ but their kidneys. Those who refused outright were threatened or beaten. One young man, Vladimir*, explained the stark ‘choice’ that faced him in Istanbul: ‘If I hadn’t given up my kidney to that dog of a surgeon, my body would be floating somewhere in the Bosphorus Strait.’
Nancy Scheper-Hughes with Alberty Alfonso da Silva, who was recruited from a Brazilian slum to provide an organ to an American woman from New York City. (Nancy Scheper-Hughes)
Most brokers, however, offer themselves as altruistic intermediaries promising a better life to donors and recipients. The commonest scenario is of vulnerable individuals easily recruited and convinced to participate in the trade. The pressures are subtle; the coercion hidden.
In Baseco, a dockside slum and notorious ‘kidney-ville’ in Manila, brokers recruit young men (and a small number of women) who are distant kin, related by blood or marriage or informal fosterage.
Ray Arcella, a famous broker from the area, could often be seen with his arm slung loosely around the shoulders of his young recruits, some of whom referred to Ray as their uncle or their godfather. Ray’s less than avuncular advice to his many ‘cousins’ and ‘nephews’ was that kidney selling was the best way of helping out one’s family – since mechanized containers had rendered dock work, once Baseco’s main source of employment, obsolete.
Brokers will hire local kidney hunters – often former sellers – to do the dirty work of recruiting their neighbours and extended family members. In these seemingly consensual transactions, controlling behaviour, fraud and manipulation are well hidden.
Kidney sellers are predictably poor and vulnerable: the displaced, the disgraced or the dispossessed. They are the debtors, ex-prisoners or mental patients, the stranded Eastern European peasants, the Turkish junk dealers, Palestinian refugees, runaway soldiers from Iraq and Afghanistan, Afro-Brazilians from the favelas and slums of northeast Brazil, and Andean Indians.
Most enter willingly into a ‘transaction’ in which they agree to the terms, which are verbal, but only realize later how they have been deceived, defrauded or cheated. Few are informed enough to give consent. They do not understand the seriousness of the surgery, the conditions under which they will be detained before and after the operation, or what they are likely to face with respect to the discomfort or immediate inability to resume their normally physically demanding jobs.
Some in the slums of Manila, as in the slums of Brazil, were underage teens who were counselled by brokers to fabricate names and add a few years to their age to make them ‘acceptable’ to the surgeons. Many of those trafficked deny the ‘sale’, saying that what they were paid was too small to constitute a sale for something as ‘priceless’ as a non-renewable body part. In these unconventional transactions, the boundaries between gift, commodity and theft are decidedly blurred.
‘If I hadn’t given up my kidney to that dog of a surgeon, my body would be floating somewhere in the sea’
Male kidney sellers tend to minimize the trauma they experienced to protect their pride. But their reserve often crumbles under gentle but probing questioning of how their lives have been affected. Some male sellers in Moldova denied that they were ‘trafficked’ because the language of trafficking made them sound like female ‘prostitutes’, a stigma they could not live with. Others become obsessed with the kidney sale and attribute all the misfortunes that occurred before or since to that one act of ‘stupidity’.
Among a group of 40 Moldovan kidney sellers we followed from 2001 to 2009, there were deaths from suicide, failure of the remaining kidney, and even from battering by angry villagers who felt that the sellers had disgraced their village. Some were banished from their homes and disappeared.
The brokers, who may be transplant surgeons, or organized crime figures, co-ordinate transplant tour junkets that bring together relatively affluent kidney patients from Japan, Italy, Israel, Canada, Taiwan, the United States and Saudi Arabia with the impoverished sellers of healthy organs.
Transplant brokers and organ traffickers are ever more sophisticated, changing their modus operandi, realizing that their engagements with public and private hospitals in foreign locations are severely time-limited. Israeli brokers, for example, recently confided that they either have to pay to gain access to deceased donor pools in Russia or Latin America (Colombia, Peru and Panama in particular), or they have to set up new temporary sites and locations (Cyprus, Azerbaijan and Costa Rica) for facilitating illicit transplants quickly and for a short period of time, already anticipating police, government and/or international interventions. They are always prepared to move quickly to new locations where they have established links to clandestine transplant units, some of them no more sophisticated than a walk-in medical clinic or a rented ward in a public hospital.
Map routes of the organ trade. (Organ Watch)
Transplant tourists are a varied but determined and risk-taking population, willing to travel to ‘parts unknown’ to purchase a stranger’s kidney. They pay for a package deal; they do not know – nor do they want to know – the exact price that will be paid to the person who will deliver their fresh kidney. They do want to know whether the purchased organ will come from a healthy person, an educated person, a person of acceptable race and ethnicity. (Ethnicity matters to them because it might signify a ‘closer’ or a ‘better’ match.) They want a kidney that has not had to work hard for a living, and they want their surgeon to make sure they get access to the seller’s healthiest kidney.
There is a preference for male donors between the ages of 20-30 years. Transplant tourists are asked to pay a great deal of money – normally somewhere between $100,000 and $180,000 – of which the sellers receive a mere fraction.
Some buyers refuse kidneys from women, expressing a kind of old-fashioned chivalry, others an old-fashioned sexism. Men are by far the greatest purchasers.
In 2010, I was paid a visit by a sixty-something man from southern California who insisted on setting me straight on certain matters. David* wanted me to know what it felt like to be in his shoes. ‘Dialysis is like a living death,’ he said. ‘You get cataracts, problems in your gut, you can hardly eat. You lose your libido, you lose the ability to relieve yourself until finally you stop urinating altogether. You lose your energy, you become anaemic, and you are cold all the time. You get deeply depressed.’
He was put into contact with a surgeon and his broker in Tel Aviv, who required him to settle the entire package – $150,000 – in advance for a transplant at an undisclosed location. Putting his fate in their hands, David travelled to Israel, and following cursory medical exams, he flew with the Israeli surgeon and his broker on to Istanbul where they picked up a second surgeon. ‘One takes out and the other puts in,’ was the simple explanation. Only in Istanbul was David told that his transplant would take place in Kosovo, a country he knew nothing about. The day before flying there, the broker announced that police had broken into the Medicus Clinic in Pristina, and that the planned transplant there was now unavailable. However, he was willing to offer, at a cut-price rate, another option that had opened up in Baku, Azerbaijan. And that is where David finally received his kidney, from a seller from Central Asia.
Kidney transplants by numbers. (WHO, Organs Watch)
The new generation
Following the Istanbul Summit in 2008, the Declaration of Istanbul Custodian Group was instituted. For the last eight years, it has been working closely with The Transplantation Society, the World Health Organization (WHO), and a vast network of transplant professionals to negotiate with public health and other government officials to create new laws to encourage deceased donor programmes, promote transplant self-sufficiency within nations, and discourage transplant tourism. It has also exerted pressure on hospitals to stop sheltering the outlier surgeons who perform transplants involving foreign patients and trafficked kidney suppliers.
But illicit transplant trafficking schemes remain robust, exceedingly mobile, resilient and generally one step ahead of the game.
The new generation of organ traffickers is also more ruthless. During the Beijing Olympics, brokers had their supply cut off after foreign access to organs harvested from executed Chinese prisoners was shut down. Undeterred, they began to pursue transplants from living donors, some of them trafficked Vietnamese, others naïve villagers in parts of China where blood-selling programmes had groomed people to accept kidney selling as another possibility.
The sites of illicit transplants have expanded within Asia, the Middle East, Central Asia, Eastern Europe, Central and Latin America, Europe and the United States. As for the recruitment of kidney sellers, they can be found in almost any nation. One crisis after another has supplied the market with countless political and economic refugees who fall like ripe, low-hanging fruit into the hands of the human traffickers.
South African Police Captain Louis Helberg, who cracked open the Netcare case and confiscated the Saint Augustine Hospital transplant files. (Nancy Scheper-Hughes)
Prosecutions are difficult. In most instances a few culprits, usually lower-ranking brokers and kidney sellers, are convicted. The surgeons, without whom no organ trafficking crimes can be facilitated, and the hospital administrators often escape, pleading ignorance.
The famous Netcare case in Durban, South Africa, is a case in point. A total of 109 illicit transplants were performed at Saint Augustine’s Hospital, including five in which the donors were minors. A police sting resulted in several plea bargains from various brokers and their accomplices. Netcare, the largest medical corporation in South Africa, pleaded guilty to having facilitated the transplants. The immediate result was the plummeting of Netcare stocks.
The four surgeons and two transplant co-ordinators who were indicted held fast to their not-guilty plea. Their defence was that they had been deceived by the company and its lawyers, who had stated these international surgeries were legal. In December 2012, they were given a permanent stay of prosecution and the state was ordered to pay their legal costs. It is fair to state that rogue transplant surgeons operate with considerable immunity. This is unfortunate because they constitute the primary link in the transplant-trafficking business.
A victimless crime?
Because human trafficking for organs is seen to benefit some very sick people at the expense of other, less visible or dispensable people, some prosecutors and judges have treated it as a victimless crime.
When New Jersey federal agents caught Levy Izhak Rosenbaum, a hyperactive international kidney trafficker who had sold transplant packages for upwards of $180,000, the FBI had no idea what a ‘kidney salesman’ was. The prosecutors could not believe that prestigious US hospitals and surgeons had been complicit with the scheme, or that the trafficked sellers had been deceived and at times coerced. The federal case ended in a plea bargain in 2011 in which Rosenbaum admitted guilt for just three incidents of brokering kidneys for payment, although he acknowledged having been in the business for over a decade.
At the sentencing in July 2012, the judge was impressed by the powerful show of support from the transplant patients who arrived to praise the trafficker and beg that he be shown mercy. The one kidney-selling victim, Elhan Quick, presented as a surprise witness by the prosecution, was a young black Israeli, who had been recruited to travel to a hospital in Minnesota to sell his kidney to a 70-year-old man from Brooklyn. Although Mr Cohen had 11 adult children, not one was disposed to donate a life-saving organ to their father. They were, however, willing to pay $20,000 to a stranger.
Quick testified that he agreed to the donation because he was unemployed at the time, alienated from his community and hoped to do a meritorious act that would improve his social standing. On arrival at the transplant unit, however, he had misgivings and asked his ‘minder’, Ito, the Israeli enforcer for the trafficking network, if he could get out of the deal as he had changed his mind. These were the last words he uttered before going under anaesthesia.
His testimony had no impact. The judge concluded that it was a sorry case. She hated to send Rosenbaum to a low-security prison in New Jersey for two-and-a-half years as she was convinced that deep down he was a ‘good man’. She argued that Elhan Quick had not been defrauded; he was paid what he was promised. ‘Everyone,’ she said, ‘got something out of this deal.’
Highest rates of donation from deceased persons (per million population), 2012. Source: GODT
Closing down the networks
Convicted brokers and their kidney hunters are easily replaced by other criminals – the rewards of their crimes ensure that. Prosecuting transplant professionals, on the other hand, would definitely interrupt the networks. Professional sanctions – such as loss of licence to practice – could be very effective. Outlaw surgeons and their colleagues co-operate within a code of silence equal to that of the Vatican. International bodies like the UN and the EU need to take concerted action on the legal framework in order to prosecute these international crimes.
Prosecutors look kindly on kidney buyers because they are sick and looking to save their lives. But buyers have no qualms about taking a kidney from deprived persons without any medical insurance, any future, and sometimes no home. They have to be made accountable.
Until we can revolutionize the practice of transplantation, a case needs to be made for a more modest medicine that realizes our lives are not limitless. This is a difficult message to convey when transplant patient advocacy groups and religious organizations have sprung up demanding unobstructed access to transplants and to the life-saving ‘spare’ organs of ‘the other’, as if this were a moral crusade.
The kidney is the blood diamond of our times. The organ trade is one of the more egregious examples of late capitalism where poor bodies are on the market in the service of rich bodies.
Nancy Scheper-Hughes is Professor of Medical Anthropology at the University of California, Berkeley, and an activist in many social movements. Her classic 1993 study Death without Weeping: the Violence of Everyday Life in Brazil was the basis, 20 years ago, for an edition of New Internationalist.
* Names marked by an asterisk are pseudonyms.
1. Organs Watch was co-founded with Lawrence Cohen. They are both professors of medical anthropology at the University of California, Berkeley, who had made initial anthropological forays into the various sites where illicit transplant operations were arranged. Over the years they have been joined by a number of independent medical human rights activists from the countries in which they have worked.
2. As identified by Organs Watch, WHO, The UN Office on Drugs and Crime and the Declaration of Istanbul Custodian Group.
Sunday April 6, 2014
Jury convinced by expert evidence on "freeze fright" response in rape victimsBy Katrina Marson
Doctors report that half of all rape victims report that they experienced a freeze reaction in the course of their assault. (Andrew Quilty)
History was made in the nation’s capital this past fortnight when, armed with one Victorian precedent, a prosecutor successfully argued to lead a very particular kind of evidence in a sexual assault trial. For the first time, an ACT court heard expert evidence from a doctor specialising in medical and forensic sexual health about the feeling of paralysis that approximately half of rape victims report experiencing during the course of their assault. Finally, the oft-discounted "freeze fright" reaction that victims of rape have reported time and time again was afforded legitimacy.
The court heard from a doctor with extensive experience in forensic medicine and specialist expertise in sexual health. The doctor gave evidence that the freeze fright reaction has been documented in approximately half of rape cases decade after decade since the 1970s. The doctor explained that the parasympathetic nervous system, which is part of the autonomic nervous system and not under our voluntary control, can "kick in a way that ... can give us the sense of being immobile and not being able to move". She also dispelled the suggestion that a person’s psychological make-up was a relevant factor affecting how a person responds to a traumatic situation. "Whilst we might expect where we use our brain, our cognitive functions to make a decision about how to respond, the autonomic nervous system is so strong that [it] overrides actual responses." The jury delivered a guilty verdict early last week.
The doctor’s evidence was that half of all rape victims report that they experienced a freeze reaction in the course of their assault: unable to move, unable to resist, unable to cry out. Half is not a minor proportion. So how many courts have heard rape victims give evidence that he or she could not move while being assaulted? How many friends, family members, public commentators have asked of a rape victim who froze: "Why didn’t you resist or try to get away?" Certainly, many jurors have wondered the same. Indeed, historically that question has been put in cross-examination to many victims of sexual assault with the implication being that the victim must have consented.
For a long time, the law and the public consciousness had failed to recognise that submission is not consent. While that has changed in recent years, there does seem to remain a demand for evidence of resistance to prove the absence of consent. Now we have a precedent allowing for expert evidence to be led in a criminal trial that a reaction absent of resistance is common. Now, based in the legitimacy afforded to scientific or expert opinion, we have "proof" that a freeze reaction does not necessarily indicate consent.
How disappointing that the voice of victims has not been heard before this: that victims are not permitted to be experts on their own reaction, or that their account is not sufficient proof of their state of mind. It is disappointing that an awareness of this as a "legitimate" reaction has not been a part of the public consciousness to a greater degree.
As the majority of sexual assault trials involve female victims, this is symptomatic of the silencing of the female experience. The female voice, politically and in the public sphere, still often falls on deaf ears. The criminal court room is an institution which has long been guilty of excluding the female experience from its understanding of human behaviour. The "ordinary person" recognised by the law is often, in fact, an ordinary man. Yet the public consciousness plays a significant role also, as all sex crime trials in the ACT must be heard by a jury. If a woman’s experience does not accord with the general public consensus (in turn informed by a predominantly male perspective) it has often been dismissed or discounted.
The recent Skype case in the ACT and the Steubenville rape case in America are but two examples of this. Both involved a group of young men who engaged in an enterprise to humiliate and degrade a young woman. In the first, the woman was unaware that the consensual sex she was engaging in was being broadcast via Skype to a group of her male counterparts in the Australian Defence Force Academy. In the latter, a young woman was sexually assaulted and images of that assault were disseminated via social media. Both are instances where the aftermath saw the condemnation of the woman and the lament for the lost futures of the offenders. The women’s experiences in both cases were vehemently repugned by the public and the institutions around them.
While the law and the public consciousness have come a long way in accommodating the female experience, I live in hope that one day the voice of a woman who reports her experience will be afforded validity without requiring the support of an "expert" opinion. Yet herein lies the rub: given the legitimacy we as the public place on forensic expertise, this may indeed be a good way to get there.
Katrina Marson is a lawyer in the ACT. The views expressed here are those of the author alone.
Monday April 7, 2014
Fright freeze precedent will change consent in ACT rape trialsBy Michael Inman/Courts reporter for The Canberra Times.
(Julian Kingma) A Crown prosecutor, dressed in wig and gown, strode into a Canberra courtroom late last month carrying a precedent from Victoria.
The precedent, for the first time in the ACT, allowed an expert to tell a jury it is not uncommon for rape victims to ''freeze'' during an attack.
That evidence not only proved crucial in convicting a man of rape, but made history by changing the way consent will be interpreted in Canberra courtrooms.
The victim of the crime reported she froze during the assault, unable to move or respond.
The expert, Sarah Martin, director of Canberra's Sexual Health Centre, told jurors studies had shown partial or full paralysis was suffered by about 50 per cent of victims of sexual assault.
Dr Martin said the sensation could be attributed to the nervous system's automatic reaction when faced with danger.
''A trauma response or a fright response, a freeze fright response, combines both extreme fear and a sense of being unable to get away and a sense of being unable to move or respond.''
Canberra lawyer Katrina Marson, writing in an opinion piece on the issue, said that historically, rape victims were legally required to prove physical resistance in order to show they had not consented.
Ms Marson said while the law had changed there seemed to remain a misconception within the community, and therefore among jurors, that if a victim did not physically fight back or run away, particularly in sexual assaults, it meant in some way they had consented.
The precedent to lead expert evidence on the matter would hopefully help change community attitudes towards victims who had ''frozen'', she said.
But Canberra University legal academic Patricia Easteal said the legal shifts had not stopped defence counsel using a lack of fight or physical resistance as a ''dirty trick'' to discredit victims and suggest they had consented.
Professor Easteal said many in the community continued to unconsciously and consciously adhere to a lot of the mythology of a ''good rape'' versus a ''bad rape''.
''A good rape involves resistance: she fought back, so she got hurt and these injuries are evidence,'' Professor Easteal said.
''If she just shut down, she didn't get additional injuries, so it's not a good rape.''
Professor Easteal said crimes against women had undergone massive reforms in recent years, including in areas of sexual assault and family violence.
But the rape law expert said there was a ''huge gap'' between the black letter of the law of the reform and how it was actually implemented and practiced in the courtroom.
''The law is written in shades of grey … [it] is open to interpretation and it gives barristers plenty of leeway to argue because she didn't fight back then there must have been consent.''
Canberra Rape Crisis Centre chief executive Chrystina Stanford said the ACT precedent had been a positive step forward in clarifying the law for sexual assault.
She said part of the struggle with prosecutions had been juries were asked to be trauma experts.
''Which simply can't be the case - it takes expert evidence or prosecutors to raises awareness of juries so they are better informed to make decisions around sexual assault cases,'' Ms Stanford said.
''The better educated juries can be, better outcomes will be inevitable in sexual assault cases.''
The knowledge could also be used to re-empower the victim, Ms Stanford said.
Statistics estimate that only about 10 per cent of sexual assaults are ever reported to police.
The common reaction of victims of sexual assault was to blame themselves and feel an overwhelming sense of shame, Ms Stanford said.
Ms Stanford said the challenge for organisations like the CRCC was to help victims overcome those emotions and help them realise they were a victim of a crime.
Ms Stanford said she hoped future reforms would introduce a new legal test for the accused to prove they had gained consent, rather than the victim showing they had not agreed to sexual activity.
''It would be an amazing shift. Rather than the victim feel like they're on trial, instead have the accused on trial to prove that what they did was legal.''
Support is available for victims of sexual assault by calling Canberra Rape Crisis Centre on 6247 2525 or visit crcc.org.au.
Pakistan ~ April 13, 2014
Away from urban centres: Karis are still accused, humiliated, sold for honour, and killed
By Sher Ali Khalti
“Help me father, help me mother, help me my gracious God,” cried the helpless girl in the presence of the whole village, but no one was ready to help her. “I am not Kari (name given to a woman of ‘loose morals’ in tribal culture). I am loyal to my husband; I know and respect my culture,’’ she was saying.
She was running to save her life when a man came and hit her again and again with an axe. She shrieked with pain and died within minutes.
The scene described above does not belong to a horror movie. This is reality and the incident happened in a village in tehsil Rojhan, South Punjab earlier this year and is mentioned in an FIR. This woman Meer Bibi belonged to caste Jatoi, married to Khayali Lallani. She was murdered by her own husband. He blamed his wife for illicit relations with her cousin Chhero s/o Naukar. Nobody verified the accusation.
It is a custom that the husband cannot be wrong. If he says his wife is Kari, no one can challenge him as per society’s rules and customs.
An FIR No.45/14, serial No.25232, date 10.3.2014 was lodged by the police under section 302/311 PPC against Khayali Lallani. The state became complainant to discourage compromise between the two parties. ASP Rojhan Shabir Ahmed Sethar told TNS, “The killer had no sign of repentance on his face; he admitted with pride that he had declared his own wife Kari and killed her.”
The ASP said it was the first time that he had registered a case where the complainant is the state. Otherwise, usually it’s the heirs who become complainants. After some time, they forgive the killers who are then released. This encourages this practice.
A common practice is that a person declared Kara has to give his sister in marriage to the person whose wife is declared Kari. The Kara has to pay a fine to the tune of Rupees one lakh to the husband of Kari. The Kari is killed but if she survives the matter goes in jirga.
Karis are sold and married in other provinces.
The Human Rights Commission of Pakistan (HRCP) has an overall estimate of such cases in Pakistan which says 1265 women were killed in the name of Karo Kari from 2009 to 2013. This data is based on the number of reported cases. Many cases go unreported.
HRCP reports say Karis were killed by firearms or sharp instruments. Some have been reported to be poisoned. They say the murders are pre-planned and are not sudden reactions prompted by ghairat. Women are always killed and men are not.
Husain Naqi, veteran journalist and human rights activist with HRCP, says “Karo Kari or Kala Kali is being practiced in South Punjab and Sindh. NGOs, civil society, media and judiciary have played their role against this inhuman custom. Still such incidents occur in huge numbers at places where the literacy rate is abysmally low. NGOs must conduct workshops and enhance awareness among the people to discourage this crime.”
A person who holds jirga in South Punjab, Balochistan, Sindh and KP told TNS on condition of anonymity that jirga is the most primitive legal institution. “Society is built on the basic unit of family. Sanctity of marital relation is based on the concept of honour. Woman plays a pivotal role in maintaining that. Jirga is the only integrating force which stabilises family and respect for each other.”
He says whoever violates this basic discipline must pass through the same process of agony which he or she has inflicted on the whole society. “If state can take revenge from the accused, why can’t jirga play the same role on a small scale,” he asks.
He says jirga is more acceptable “because it is a product of society while state is an artificial structure which commands with sheer naked force. Jirga is respected because it upholds longstanding customs.”
According to lawyers, Article 9 of the Constitution guarantees that no person should be deprived of life or liberty, save in accordance with law. Karo Kari is not in accordance with law. The victim of Karo Kari is not given the right to defend in accordance with the judicial system of Pakistan.
Similarly, Article 25 of the Constitution grants equality to citizens. A woman in any big city of Pakistan cannot be humiliated or punished as Kari while the women in faraway rural areas do not enjoy the liberty, security of life and certainty in law. They also say that if the state becomes a complainant in all Karo Kari murders, they can be stopped.
Fareeda Shaheed, Executive Director Shirkat Gah Women Resource Centre who has been visiting Rajanpur often to investigate Karo Kari cases, tells TNS the practice of killing in the name of Karo Kari, Kala Kali and honour is going on in all four provinces of Pakistan. But the situation in district Rajanpur is very alarming. She says she has faced threats each time she went to Rajanpur.
She further says that a Kari belonging to South Punjab is sold in Balochistan so that she is totally cut off from her relatives. If she belongs to Sindh she is sold in KP, while the Kara has to leave his area for one year. “The relatives of Kara try to settle the case. This process is called Khaer or Haer in local language. Only after that, Kara can return.”
“In Sindh when women committees were made at taluka and district level by the government, such incidents decreased. These committees were made to monitor police stations. FIRs were lodged under the pressure of these committees,” she says, adding that Karo Kari is an attitude which must change. How does honour lie in this practice, she asks.
USA ~ Wednesday April 16 2014
The War Within
More than 80,000 accusations of sexual assault have been made by active-duty members of the U.S. military since 2006. Only a small fraction of perpetrators are convicted, and most victims find the process fails them in many ways. With reports on the rise, more and more social workers are having to confront issues unique to the military.
How Common is Sexual Assault in the Military?
Nearly 80,000: Sexual assaults reported by active-duty military members between 2006 and 2012
34%: Increase in sexual assaults (both officially reported and not) between 2010 and 2012
Active duty members experiencing unwanted sexual contact by year
2006: 34,2001. 8% of men6. 8% of women
2010: 19,3000. 9% of men4. 4% of women
2012: 26,0001. 2% of men6. 1% of women
Assault Usually Goes Unreported
26,000: Service members who experienced unwanted sexual contact in 2012
3,374 Sexual assaults officially reported to the Department of Defense in 2012
238 Individuals convicted of sexual assault in 2012
Restricted vs. unrestricted reporting (1)
Within the military, there are two ways victims can report sexual assault:
Restricted: Confidential reporting where legal action is not sought and the victim seeks medical treatment and/or counseling.
Unrestricted: Victims seek medical treatment and/or counseling and will explore legal options.
Types of official reports made by year
2005 2006 2007 2008 2009 2010 2011 2012
Unrestricted reports 2,0472 2772 0852 2652 5162 4102 4392 558
Restricted reports 327 670 603 643 714 748 753 816
A Look at the Victims
Though most assaults will go unreported, thousands of service members still are telling their stories.
Gender of victims (2012) in unrestricted reports
Age group of victim
Age 16-19 18%
Age 20-24 51%
Age 25-34 25%
Age 35-49 4%
Age 50 and older <1%
Age not available <1%
Type of offenses reported
Aggravated sexual assault and sexual assault 28%
Abusive and wrongful sexual contact 35%
Nonconsensual sodomy 6%
Aggravated sexual contact 4%
Indecent assault <1%
Top reasons for sexual assault going unreported:
70% Did not want anyone to know
66% Felt uncomfortable making a report
51% Did not think the report would be kept confidential
Failing the Victims?
How satisfied were sexual assault victims with the services they received after reporting the crimes?
Rate of victims reporting they were satisfied:
Sexual assault advocacy61%
Medical care 49%
Overall reporting process 35%
Length of investigation 33%
Informative process 26%
Wednesday 9 April 2014
India's missing girls: fears grow over rising levels of foeticide
Skewed gender ratio caused by killing of thousands of girls has given rise to a system of bride-buying and trafficking
By KumKum Dasgupta
Foeticide in India is driven by the fear of high wedding and dowry costs and an often inadequate response from authorities. (Narinder Nanu/AFP/Getty Images)
In a village in India's eastern state of Bihar, a baby girl is born. Her father, desperate for a boy, drowns the infant in a vat of milk in front of his neighbours.
Thankfully, this is not a true story. It is the plot of the film Matrubhoomi: A Nation Without Women
, which Time magazine named as one of the 10 best films of 2003.
Set in 2050, the film imagines the long-term social effects of foeticide and infanticide. It conjures up bleak, male-only villages where residents engage in illegal activities such as human trafficking, gender violence and bride-buying. And while male-only villages are not a reality in India, rampant foeticide is – especially in the north, where the crime is tearing at the social fabric of the region.
In Jind, a prosperous, agricultural district in Haryana, the situation is so dire that a local group says it has written to the BJP prime ministerial candidate, Narendra Modi, Congress vice-president Rahul Gandhi and even the AAP leader, Arvind Kejriwal, from Haryana, urging them to act. Bachelors there are also using the general election, which began this week, to demand that politicians find them brides in exchange for their votes (Scroll down to read)
The bahu-dilao-vote lo
(brides-for-votes) slogan was coined by the Jind-based Kunwara Union (Unmarried Youth Organisation), which was founded five years ago by social activist Pawan Kumar. "We not only want politicians to eradicate unemployment and female foeticide, but also find ways to get bachelors married," says Kumar.
While census data shows that India's overall gender ratio is improving, its child gender ratio is on the decline: between 1991 and 2011, the country's female-male gender ratio rose from 927:1,000 to 940:1,000, but its child gender ratio fell from 945:1,000 to 914: 1,000.
Jind, however, still lags behind. In 2001, the sex ratio in this district, which is a two-hour drive from Delhi, was 852:1,000; by 2011, it had risen to 871:1,000. Overall, Haryana has the worst sex ratio in India at 861:1,000. Despite its economic status, the capital is scarcely doing better: the gender ratio in Delhi stands at 866 females per 1,000 males.
More worryingly, the
latest annual health survey data from the census office shows that in many of India's least-developed states – Uttar Pradesh, Bihar, Rajasthan, Madhya Pradesh, Odisha, Jharkhand, Chhattisgarh, Uttarakhand and Assam – girls are disappearing not so much from foeticide as from infanticide. It is reflected in the substantial fall in the gender ratio in the 0-4 age group in several districts across nine states. As many of these are India's most populous states, this amounts to the killing of hundreds of thousands of very young girls.
Although the Pre-Conception and Pre-Natal Diagnostic Techniques Act was passed in 1994 to bring an end to foeticide, there is growing concern about its effectiveness. There are numerous reasons why it still goes unchecked: sometimes district health officers are unaware of the provisions of the act; sometimes families and doctors collude in the practice, and records from ultrasound clinics are rarely scrutinised by health officials.
In January, the supreme court was sufficiently worried by foeticide rates that it ordered states to report on the implementation of the law. Poor health communication strategies could also explain the prevalence of the practice. "During training of local level health workers, I have seen that they fail to distinguish between abortion and female foeticide," says Roki Kumar, an activist with Breakthrough, an NGO that works in Harayana.
While foeticide is driven mainly by the fear of high wedding and dowry costs, it is exacerbated by the preference for sons as family sizes shrink, and by an often inadequate response from the authorities.
In certain states – in direct contravention of the law – hoardings advise parents against having girls, warning: "Pay now, save later".The skewed gender ratio has given rise to a system of bride-buying in the affected states: although girls and young women are lured into marriage by promises of a happy and secure life, once purchased they can be exploited, denied basic rights, put to work as maids and, in many cases, abandoned.
Marriage to "imported brides" makes caste, language and culture immaterial as long as money is paid to the girl's family and a male child is born. Most of them come from poverty-ridden villages of Assam, West Bengal, Jharkhand, Bihar and Orissa, and are sold because their families need the money.
Despite the prevalence of the dowry system in the north Indian states, some men are more than ready to pay for a wife.
Fortunately, some states are trying to act. In Rajasthan, Shikshit Rojgar Kendra Prabandhak Samiti, an NGO, is working with the government to identify ultrasound clinics that offer tests to determine gender. Under the joint sting operations, pregnant women visit clinics and then report staff who break the law to officials.Worthy actions, no doubt, but individual efforts cannot change the overall situation: India urgently needs a proper and more focused series of initiatives if it is to transform the status of its women.
CHANDIGARH: Can an unmarried man demand a bride from a candidate ahead of Lok Sabha elections? You can in Haryana, a state with the lowest sex ratio in the country - 877 women per 1,000 men.
The gender imbalance caused by female foeticide has become so acute that members of these unions and elders in many villages say they will raise the issue when politicians arrive for poll meetings. "The villagers will raise this issue, though in a lighter vein," said Sunil Jaglan, sarpanch of Bibipur village in Jind.
The "bahu dilao-vote pao" slogan came from the Kunwara Union, set up in Jind in 2009 by Pawan Kumar, now its chairman. "The government must not only attack female foeticide but also find jobs for young men in Haryana. Unemployment is also a factor for us not getting brides," he said. The union had even organized a protest march five years ago to demand brides.
Senior INLD leader and Kalayat assembly segment MLA Rampal Majra said, "We may have to deal with this issue once campaigning begins. The government should generate more jobs for youths and make a serious effort to curb female foeticide."
However, Congress Lok Sabha candidate from Hisar Sampat Singh said, "Former chief minister Om Prakash Chautala would often woo voters with promises of conjugal bliss to unmarried men. But, we believe this is a social issue and can be resolved only with awareness."
According to Shyam Sunder, secretary of the Red Cross Society of Yamunanagar, each of the 7,000-odd villages in Haryana has 150 to 200 youths who are 25-plus and unmarried. Twenty is considered the ideal age for marriage in rural Haryana.
Pune-based NGO Drishti Stree Adhyayan Prabodhan Kendra, which surveyed 56,520 residents in 92 villages of Haryana in 2010, had found that 13.5% men in the age group of 25-29 were unmarried.
The government claims many gender sensitivity schemes have been launched but women activists like Jagmati Sangwan feel that a mass movement is required to save the girl child in Haryana.
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