Paedophiles that slip through the net
Spain needs to set tougher measures for sex offenders to prevent another Mari Luz killing.Santiago del Valle, who allegedly murdered a five-year-old girl named Mari Luz Cortés in Huelva last month, was not the only convicted paedophile who is walking around free.
In 2007, the provincial court of Seville sentenced a man identified only as M. to 14 years in prison for repeatedly abusing his own daughter. The Supreme Court rejected his appeal on 8 November, but M. never set foot inside the penitentiary because he vanished from the village where he lived, although a few neighbours claim to have seen him.
Ignacio Fernández de la Mata, a lawyer who represented the victim, is still waiting to be notified about M.'s imprisonment for sexually abusing his daughter for six years - from the time she turned eight.
"Four days ago he was still a free man. I don't understand why, but that's the way it is," he said. "I wasn't at all surprised by the Mari Luz case. The system does not work, there is a shortage of courthouses and resources."
Deputy prime minister María Teresa Fernández de la Vega on Friday admitted that the justice system failed Mari Luz.
But M.'s situation, as well as that of another convicted paedophile in Lleida who went missing over a year ago, proves that the system is failing too often for comfort.
Last Friday, Seville's courts stated that delays in implementing prison sentences are no exception, blaming the situation on insufficient resources.
There is something truly astonishing about Santiago del Valle's record. Each courthouse that he walked into worked like an isolated island, as if it had no connection with the rest of the legal system; a place where the repeat offender kept appearing as if it were the first time.
Is it really possible for a judge in Gijón to not know immediately whether a colleague in Tarragona has taken any measures against a paedophilia suspect? Can he not simply press a button and access a suspect's record? The answer is no.
"In 2008 we cannot allow a judge from Almería who is going to rule over the fate of a suspect to do so without knowing what another judge has ruled," says Antonio García Martínez, a judge at the Superior Court of Justice of the Basque Country and spokesman for the Professional Judges' Association. "We need a system that enables us to instantly know what is going on with specific people and cases."
Communications have developed faster than the courts. The only records that a judge can access immediately are those cases where there is a final verdict. That is why, when a second Seville judge convicted Del Valle in 2004 for sexual abuse, he did not treat him as a repeat offender. The 2002 sentence for abusing his own daughter was not included in the records because it had been appealed before the provincial court, which took three years to hand down its verdict.
A centralised database containing all legal sentences relating to a case would prevent offenders such as Santiago del Valle from staying out of prison. The matter raises other issues as well, such as the right to privacy.
"The rights of a person can always be forgotten and we have to weigh them against each other," says the dean of the lawyers' association of Ceuta, Isabel Valriberas. "On balance, I think that potential damage to minors is a more important issue than privacy rights. Besides, it wouldn't go against privacy rights since it is judges who are accessing that kind of information; taxpayers' information is not public either, yet the tax agency knows about it."
But it is one thing to create a database for judges, attorneys and law enforcement agencies, and another to create a public record of paedophilia offenders, as some people are demanding. The legal profession, in general, defends only the first possibility.
"It would have to be a database with restricted access for people with a legitimate interest," says Jaime Tapia, a spokesman for the progressive judge association Jueces para la Democracia.
Gabriela Brazo, a spokeswoman for another legal group called Unión Progresista de Fiscales agrees: "Making these lists public would go against the Constitution. Records have to comply with certain legal requirements to prevent a violation of privacy rights."
How such matters are handled in other countries is observed with some misgivings. In the United States, every sex offender who is released from prison must register with the state police. Most records are open to the public but there are private databases where anyone can check to see whether they have a person with a history of sex offenses as their neighbour.
Britain also has a police-operated database listing everyone who has served a sentence for sex offences. Such people are classified according to their risk of relapsing. Viewing such a list is more difficult than in the United States, but employers have access to it in order to prevent paedophiles from being employed in jobs where there are children present, such as teaching.
In Colombia, the idea of erecting fences and hanging photographs of people convicted for raping minors has been discarded. For a while, two giant screens in a Bogotá park showed digital images of sexual offenders, but a court had them removed on the grounds that it was unconstitutional.
Sexual abuse of children can take place anywhere, according to Save the Children, a non-profit group. "It can happen at home, in parks, inside cars, at school, at camp and even at protection centres," says Félix López, who has written the most comprehensive study on child abuse in Spain. "It's a significant institutional problem even if politicians and the administration are unwilling to tackle the issue."
According to López's investigation, 23 percent of girls and 15 percent of boys suffer from some form of sexual abuse before they turn 17. But few cases - two out of 10 at the most - reach the courts. The report reveals that around 30 percent of the victims never tell anyone because they fear other people's reaction and feel guilt and shame.
The death of Mari Luz has led some people to demand harsher punishment for this type of sex offender. But legal experts warn against getting carried away by emotions when it comes to debating a change to the Penal Code.
"I don't support asking for reforms every time there is a murder," says Bravo. "The Penal Code did not fail, it was the justice system that failed."
Meanwhile, Enrique López, the spokesman for the General Council of the Judiciary, says that life imprisonment would not go against the constitution as long as there were periodical revisions of each case.
"We need to gauge not just whether someone is guilty, but also take into account the danger of relapse," says López. "Until we accept this fact, we will not be making the right decisions."
But this is an isolated opinion. Most judges appear to defend Spain's current system in which offenders are not given life sentences for sexual offences. "A sentence has to have an end date," says Judge Jaime Tapia. "You cannot keep someone in jail all their life for a crime they committed 20 years ago."
At present, it does not look like the government is going to press for any changes in the law. Deputy prime minister María Teresa Fernández de la Vega said recently that it is not the right moment to debate tougher legislation. But several experts agree that some reform is necessary.
"There are certain realities we must face such as the fact that there are personality types and criminal pathologies that are without a cure," says judge García Martínez.
"If there is a percentage of sexual delinquents who cannot be changed, what do we do when they serve their term and return to society? This is the question our laws still cannot answer."
[El Pais / Tereixa Constenla / Expatica]