Combating Child Sex Tourism in South‐east Asia: Law Enforcement Cooperation and Civil Society Partnerships

AuthorMelissa Curley
DOIhttp://doi.org/10.1111/j.1467-6478.2014.00667.x
Publication Date01 Jun 2014
JOURNAL OF LAW AND SOCIETY
VOLUME 41, NUMBER 2, JUNE 2014
ISSN: 0263-323X, pp. 283±314
Combating Child Sex Tourism in South-east Asia: Law
Enforcement Cooperation and Civil Society Partnerships
Melissa Curley*
Many states have enacted extra-territorial child sex tourism (CST)
offences. Despite the existence of these offences, some states, including
Australia and the United Kingdom, continue to privilege territorial
competence as the basis of criminal jurisdiction. However, many
destination countries for CST in South-east Asia lack the capacity to
support prosecutions in this crime. This article explores the utility of
partnerships between local and international law enforcement
agencies and NGOs to facilitate prosecution in the jurisdiction of the
offence. Through a case study of Cambodia, the article argues that
such partnership arrangements provide the resources and integration
required to enable sexual offences against children, by foreign
offenders, to be prosecuted. NGOs undertake complex strategies to
address the immediate needs of exploited children, while seeking to
maintain their capacity to influence government policy. The risks,
challenges, and sustainability of such partnerships are discussed,
along with wider implications for South-east Asia.
The sexual exploitation of children in the travel and tourism industry is a
global problem requiring a multi-jurisdictional response. A growing
academic and non-governmental organization (NGO) literature exists on
283
*School of Political Science and International Studies, University of
Queensland, St Lucia, QLD 4076, Australia
m.curley@uq.edu.au
With the usual caveats, the author would like to thank Kath Gelber, Nicole George,
Andreas Schloenhardt, and Jonathan Todres for their advice during this research project,
Jim McNicol and Matthew Cameron for research assistance, and the anonymous
reviewers for valuable feedback. I am indebted to the University of Queensland (UQ)
Strategic Research Fund and the UQ Promoting Women's Fellowship for research
funding and teaching relief during 2011±2012. I am also grateful to the law enforcement
officials, NGO staff, and academics that agreed to be interviewed, and thank them for
their time and feedback.
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the utility of extra-territorial offences in combating child sex tourism (CST)
and the commercial sexual exploitation of children (CSEC).
1
This literature
has included discussions of how various jurisdictions have amended and
prosecuted their extra-territorial offences, such as Australia,
2
the United
Kingdom,
3
and the United States,
4
and regional efforts to combat CST and
CSEC, such as in South-east Asia
5
and Europe.
6
However, the United
284
1
M. Brungs, `Abolishing Child Sex Tourism' (2002) 8 Aust. J. of Human Rights 101;
R. Shackel, `The Commercial Sexual Exploitation of Children: A Review of
Intern ationa l Legal R espons es' [199 9] Aust . Intern ationa l Law J. 91 ; K.
Breckenridge, `Justice Beyond Borders: A Comparison of Australian and US Child
Sex Tourism Laws' (2004) 13 Pacific Rim Law and Policy J. 405; N.L. Svensson,
`Extraterritorial Accountability: An Assessment of the Effectiveness of Child Sex
Tourism Laws' (2006) 28 Loyola of Los Angeles International and Comparative Law
Rev. 641; C. Beaulieu, Extraterritorial Laws: Why They Are Not Really Working and
How They Can Be Strengthened (2008); K. Fredette, `International Legislative Efforts
to Combat Child Sex Tourism: Evaluating the Council of Europe Convention on
Commercial Child Sexual exploitation' (2009) 32 Boston College International &
Comparative Law Rev. 1; D. Ireland-Piper, `Extraterritoriality and the Sexual
Conduct of Australians Overseas' (2011) 22(2) Bond Law Rev. 16; A.K. Johnson,
`International Child Sex Tourism: Enhancing the Legal Response in South East Asia'
(2011) 19 International J. of Children's Rights 55; ECPAT UK, Off the Radar:
Protecting Children from British Sex Offenders Who Travel (2011), at
www.ec pat.org .uk/sit es/def ault/fi les/of f_the_r adar_-_ protec ting_ch ildren_ from_
british_sex_offenders_who_travel.pdf>; J. McNicol and A. Schloenhardt, `Australia's
Child Sex Tourism Offences' (2012) 23 Current Issues in Criminal Justice 370.
2 Australia has extraterritorial laws criminalizing sexual offences committed by
Australian citizens or permanent residents with minors outside Australian territory:
Criminal Code (Cth of Australia) Div. 272. For commentary on these offences and
law reform in 2010, see Ireland-Piper, id., pp. 24±32; McNicol and Schloenhardt,
id., pp. 372±7.
3 The United Kingdom has a range of legislative tools to deter, investigate, and
prosecute British nationals abroad under the extraterritorial provisions of the Sexual
Offences Act 2003. The act was strengthened in August 2012 to close a loophole
allowing registered sex offenders to travel abroad for up to three days without
having to notify police. For commentary, see A. Khan, `Sexual Offences Act 2003'
(2004) 68 J. of Criminal Law 220; ECPAT UK, `British Child Sex Offenders
Abroad' (2012), at
british_child_sex_offenders_abroad_discussion_paper.pdf>.
4 Prosecutorial Remedies and Tools to End the Exploitation of Children Today
(PROTECT) Act, 117 Stat. 650 2003, 18 U.S.C. 2423 Supp. 2004. For commentary,
see S.K. Andrews, `US Domestic Prosecutions of American International Sex
Tourism: Efforts to Protect Children from Sexual Exploitation' (2004) 94 J. of
Criminal Law and Criminology 415.
5 Protection Project, International Child Sex Tourism: Scope of the Problem and
Comparative Case Studies (2007) 32±3, at
publications/international-child-sex-tourism/>; K.M. Cotter, `Combating Child Sex
Tourism in Southeast Asia' (2008) 37 Denver J. of International Law and Policy
493; S. Linton, `ASEAN States, Their Reservations to Human Rights Treaties and
the Proposed ASEAN Commission on Women and Children' (2008) 30 Human
Rights Q. 436; Johnson, op. cit., n. 1.
6 Fredette, op. cit., n. 1, p. 32±43.
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Kingdom and Australia continue to privilege territorial competence as the
basis of criminal jurisdiction, in conformity with traditional international
legal approaches to the issue.
7
Extra-territorial offences are thus utilized only
when the authorities of the state in which the offence occurs decide not to
prosecute offenders because they are unwilling or unable to do so, and where
there is sufficient evidence and resources to pursue extra-territorial prosecu-
tion.
8
Although not the focus of this article, extra-territorial CST cases are
complex and require high levels of cooperation between law enforcement
agencies in evidence collection.
9
A number of international treaties and instruments relate to the com-
mercial exploitation of children (including sexual and labour exploitation),
such as the Universal Declaration of Human Rights (UDHR),
10
and the
International Covenant on Civil and Political Rights.
11
While the UDHR is
not legally binding on states, the articles relating to liberty (3), slavery (4)
and degrading treatment (5), make sexual exploitation of children contrary to
the spirit of the UDHR. The United Nations Convention on the Rights of the
Child
12
and its optional protocols make specific reference to combating CST.
The Optional Protocol on the Rights of the Child on the Sale of Children,
Child Prostitution, and Child Pornography was ratified by the UN General
Assembly on 25 May 2000,
13
and requires that member states:
285
7 The position is well illustrated in the following passage from Bankovic v. Belgium
(2001) 44 EHRR SE5 (European Court of Human Rights) at paras. 59±60:
. . . from the standpoint of public international law, the jurisdictional competence
of a State is primarily territorial. While international law does not exclude a
State's exercise of jurisdiction extra-territorially, the suggested bases of such
jurisdiction . . . are, as a general rule, defined and limited by the sovereign
territorial rights of the other relevant States . . . a State's competence to exercise
jurisdiction over its own nationals abroad is subordinate to that State's and other
State's territorial competence . . .
8 For a critical legal perspective on extra-territoriality and nationality as the basis for
jurisdiction, see A. Chehtman, `The Extraterritorial Scope of the Right to Punish'
(2010) 29 Law and Philosophy 127. On extra-territoriality and its impact on the rule
of law see D. Ireland-Piper, `Extraterritorial Criminal Jurisdiction: Does the Long
Arm of the Law undermine the Rule of Law?' (2012) 13 Melbourne J. of
International Law 122.
9 Fredette, op. cit., n. 1, pp. 17±32. For case studies of recent prosecutions under
British extra-territorial law, see ECPAT UK, op. cit., n. 1. For commentary on
Australian extra-territorial prosecutions, see McNicol and Schloenhardt, op. cit., n.
1, pp. 384±8; Ireland-Piper, op. cit., n. 1, pp. 20, 25±6, 33±6.
10 Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. G.A.O.R. 3rd
sess., 183rd plen. mtg., U.N. Doc. A/810 (10 December 1948).
11 International Covenant on Civil and Political Rights, opened for signature 16
December 1966, 999 U.N.T.S. 171, entered into force 23 March 1976.
12 Convention on the Rights of the Child, opened for signature 20 November 1989,
1577 U.N.T.S. 3, entered into force 2 September 1990.
13 Optional Protocol to the Convention on the Rights of the Child on the Sale of
Children, Child Prostitution and Child Pornography, opened for signature 25 May
2000, 2171 U.N.T.S. 227, entered into force 18 January 2002.
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ensure that its domestic legislation allows the prosecution of its nationals for
crimes of chi ld sexual expl oitation rega rdless of whet her committe d
domestically or internationally.
14
The United Nations Special Rapporteur on the Sale of Children, Child
Prostitution and Child Pornography defines CST as `tourism organised with
the primary purpose of facilitating the effecting of a commercial sexual
relationship with a child' and it is a subset of the broader global sex
industry.
15
The peak international body that works in the field of child
exploitation, ECPAT,
16
notes in its definition of CST the disproportionate
levels of power and development between CST `destination' and `sending'
countries (the latter being the offender's country of citizenship). In destina-
tion countries, `poorer economic conditions, favourable exchange rates for
the traveller and relative anonymity' are key factors conditioning the
behaviour of offenders and the development of the sex tourism industry.
17
The Convention on the Rights of the Child identifies three primary elements
of commercial sexual exploitation of children (CSEC), namely: child
prostitution; child pornography; and the sale and trafficking of children for
sexual purposes. However, as Shackel notes, while these `elements are prima
facie distinct and separate . . . in reality, they are inextricable linked and
intertwined with one another.'
18
ECPAT has called for greater use of extra-territorial offences to prosecute
foreign child sex offenders,
19
and additional political and legal measures to
combat the problem. These include law reform, such as criminalizing
additional elements to include intent to travel to commit CST offences,
advertising and/or promoting child sex tours, and increased international
cooperation, such as exchange of information and increased cooperation
among law enforcement agencies; the development of national databases on
CSEC and sex offender registries; and the notification of a registered sex
offender's intent to travel.
20
The main focus of this article, however, is the opportunities and chal-
lenges inherent in cooperation among law enforcement agencies (local and
international) and civil society actors, using cooperation between Australian
and Cambodian law enforcement agencies, and Cambodian-based NGOs and
286
14 For a discussion of these instruments, see Svensson, op. cit., n. 1, p. 641.
15 J. Hall, `Sex Offenders and Child Sex Tourism: The Case for Passport Revocation'
(2011) 18 Virginia J. of Social Policy & Law 153, at 156.
16 ECPAT International is a global network of organizations and individuals working
together for the elimination of child prostitution, child pornography and the
traffic king of chi ldren for se xual purp oses, see http://w ww.ecpa t.net/EI /
index.asp>.
17 ECPAT International, `CSEC Terminology' (2013), at
csec_cst.asp>. See, also, D. Batstone, Not for Sale (2007) 21.
18 Shackel, op. cit., n. 1, p. 91.
19 Beaulieu, op. cit., n. 1, pp. 16±18.
20 id.
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international non-governmental organization (INGOs), as a case study.
Given that it is the Australian government's preference for Australian
nationals to be prosecuted in the country of the offence (as is also the
preference of the United Kingdom), it is pertinent to review cooperation
efforts on prosecutions in this crime type, to identify best practice,
challenges, and avenues for further collaborative research.
Less scholarship has focused on the nature and outcomes of the role
played by international law enforcement agencies and civil society actors as
partners in combating CST, despite the fact that they play a prominent role in
many South-east Asian jurisdictions in combating sexual crimes against
children.
21
Nor has the role they play in assisting prosecutions involving
child sexual exploitation in the jurisdiction of the offence (as opposed to the
alleged offender's jurisdiction of citizenship) received much scholarly
attention.
22
The article draws upon qualitative interviews and informal discussions
with international law enforcement officials and NGO staff conducted by the
author in Phnom Penh, Bangkok, and Canberra between 2011 and 2012,
23
and an extensive review and triangulation of relevant secondary sources
including documents from international organizations, NGOs and media
reports. The article aims, first, to analyse the role of law enforcement and
civil society cooperation in this crime type and, second, provide some
commentary about the pros and cons of civil society partnership in the area
of policing and surveillance in combating CST and CSEC.
Partnering with government departments in countries with `authoritarian'
or `authoritarian-like' features
24
presents NGOs with dilemmas. Both
immediate and longer-term questions relating to the sustainability of their
work, and the overall goal of their presence in the country, remain. Are they
merely doing the job the government should be doing, but does not? What
are the medium-term implications for advocacy when `partnership' causes
civil society actors and parts of the state apparatus to work closely together?
To illustrate such complexities, the case study focuses on cooperation
between Au stralian a nd Cambodia n law enforc ement agen cies, and
287
21
Child Wise, ASEAN Child-Sex Tourism Review (2007), at
ima ge s/s to rie s/ doc ume nt s/o nl ine _p ubl ic ati on s/A SEA N_ Tou ri sm_ Re vie w_
2007.pdf>; Child Wise, Travelling Child-Sex Offenders in South East Asia: A
Regional Review ± 2007/2008 (2009), at
documents/online_publications/ASEAN_Tourism_Review_2007.pdf>.
22 Exceptions include Fredette, op. cit., n. 1, pp. 24±6; Cotter, op. cit., n. 5, pp. 498±
504.
23 Interviews followed a semi-structured interview protocol which focused on: patterns
of offending, nature and types of cooperation between relevant stakeholders, views
on domestic and extraterritorial laws regarding sexual offences against minors,
avail able st atist ics, op portu nitie s and cha lleng es in par tners hip bet ween
stakeholders, and future issues and trends.
24 D.K. Emmerson, `ASEAN's ``Black Swans''' (2008) 19(3) J. of Democracy 70.
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Cambodian-based NGOs and INGOs. This approach is taken to improve the
focus and detail which could be given to one bilateral relationship in the
space available. While not generalizable to other jurisdictions, the analysis
highlights potential lessons for state/NGO partnerships in other contexts and
jurisdictions. The United Kingdom pursues the same approach as Australia
in its preference for citizens to be prosecuted in the country of the offence.
While this may have certain advantages, it has been criticized in the United
Kingdom by advocates that note low prosecutions, compared to the United
States and Australia.
25
The analysis of state/NGO partnership therefore, has some pertinence for
British or European initiatives that seek to partner with local NGOs, or base
police liaison officers in a country, as the Australian government has done. A
case for further comparative research, incorporating the experiences of
British, American and/or European law enforcement agencies active in this
crime type in South-east Asia, is outlined in the conclusion.
The article argues that partnership arrangements between international
and local law enforcement and NGOs can provide the resources and
integration required to bring sexual offences against children to court, where
they may otherwise not be. Expertise in the collection and analysis of
evidence, particularly digital files, and child witness statements, and their
presentation in court, are identified as areas requiring development. Despite
this, it is unclear that NGO partnership strategies either help or hinder
NGOs' capacity to advocate around child protection policies in the medium
to long term.
The scope and usage of terms is reviewed below. The article then reviews
debates in the literature on extra-territorial offences (relating to CST and
CSEC) and themes relating to civil society and partnerships with the state,
noting the potential pitfalls of `pro-engagement' partnerships. The focus is
on the issue of CST
26
and CSEC, and not on other aspects of the sex
industry, such as prostitution involving adults or debt bondage. The issue of
trafficking is discussed as it pertains to trafficking in children for the
purposes of sexual exploitation, and how the relevant domestic law is
utilized (or not) to charge foreign offenders.
27
The literature on trafficking,
both in Cambodia, and in the Asia-Pacific region alone is vast,
28
and is not
288
25 ECPAT UK, Return to Sender: British Sex Offenders Abroad (2008), at
www.ecpat.org.uk/sites/default/files/return_to_sender_2008.pdf>.
26 While the term `Child Sex Tourism' has been used for some time, the term `Child
Sex Exploitation in Travel and Tourism' is now preferred by a number of NGOs and
law enforcement organizations.
27 The discussion of trafficking of children for labour purposes is recognized, but
beyond the scope of the article: see M. Ford, L. Lyons, and W. van Schendel (eds.),
Labour Migration and Human Trafficking in Southeast Asia (2012).
28 A. Derks, R. Henke, and V. Ly, Review of a Decade of Research on Trafficking in
Persons in Cambodia (2006); E. Brown, The Ties that Bind: Migration and
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discussed at length. The article focuses on travelling sex offenders who
travel (or reside) outside their country of citizenship and commit sexual
offences against minors.
The definition and application of offender typologies to CST and CSEC
remain under debate by key stakeholders and in academic research.
29
This
article utilizes the categories of `preferential' and `situational' offenders to
describe different types of offending patterns relating to CST,
30
while
recognizing that debate exists over the utility of additional categories.
31
EXTRA-TERRITORIAL LAW AND INTERNATIONAL LAW
ENFORCEMENT COOPERATION
The existing literature on the effectiveness of combating CST and CSEC via
extra-territorial offences puts forward two important themes for this article.
First, it notes the difficulties (and impracticalities) inherent in using those
offences as the primary tool to deter and combat CST. Various scholars and
commentators have identified the challenges involved in bringing charges
related to CST offences in the jurisdiction of the offender's citizenship.
32
While extra-territorial offences are recognized as one (albeit important) part
289
Trafficking of Women and Girls for Sexual Exploitation in Cambodia (2007), at
w.humantraff icking.org/u ploads/publi cations/IOM_ trafficking_ report_
Aug07.pdf>; E. Brown, Out of Sight, Out of Mind? Child Domestic Workers and
Patterns of Trafficking in Cambodia (2007), at
TraffickingCambodiaCDW2007.pdf>; C. Keo, Human Trafficking in Cambodia
(2014) ; L. Sandy, `International Politics, Anti-Trafficking Measures and Sex Work
in Cambodia' in Ford et al., id., p. 41.
29 T.R. Panko and P.G. Babu, `Child Sex Tourism: Exploring the Issues' (2012) 25
Crim. Justice Studies 67, at 70±1.
30 While `preferential' offenders usually refer to paedophiles who have a preference to
abuse pre-pubescent children, `situational' offenders refer to those who engage in
sex with minors because the situation arises to do so: Svensson, op. cit., n. 1, p. 644.
The literature cautions, however, that not all paedophiles exclusively seek out
children, and not all preferential offenders can be classed as paedophiles. A further
category of `virgin seekers' has been mooted by some NGOs to differentiate those
offenders who want to have sex with virgins (usually girls) for reasons documented
as cultural and/or attitudes about contracting sexually transmitted diseases: see
Panko and Babu, id., pp. 70±1.
31 Feminist scholarship on this point is instructive, and has drawn attention to the
connection between childlike features, innocence, and submissiveness as attractive
features in prostitution and sex work, and the limitations of applying rigid offender
typologies: see H. Montgomery, `Buying Innocen ce: Child Sex Tourists in
Thailand' (2008) 29 Third World Q. 903, at 903.
32 Fredette, op. cit., n. 1, pp. 23±8; Svensson, op. cit., n. 1, pp. 659±62; Ireland-Piper,
op. cit., n. 1, pp. 19±22; McNicol and Schloenhardt, op. cit., n. 1, pp. 384±7;
Beaulieu, op. cit., no. 1, pp 8±13.
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of a spectrum of legal and socio-political measures, serious obstacles
remain.
33
As Svensson has argued:
[a]ttempting to prosecute an offender for crimes committed thousands of miles
away has inherent difficulties that will always be present regardless of the
degree of cooperation between destination and sending countries.
34
The second theme is that destination countries must take responsibility to
implement their existing laws around sexual offences against minors, while
recognizing the need for international resources to support them in doing so.
This is of greater relevance to this article, as less research has been published
on the challenges, best practice, and lessons learnt from actual cases of
partnership and cooperation between international law enforcement, national
police, and civil society actors in destination countries.
One exception is Cotter's research which explores how American and
Cambodian police cooperated in the cases of three United States nationals.
Her work focused on specific aspects of the United States extra-territorial
offences, and also on the role of the American media and NGO International
Justice Mission (IJM) in the arrest and prosecution of two child sex
offenders.
35
The research documents the role of bribery and corruption in
pre-trial proceedings in Cambodian courts, and the undercover work of IJM
in providing the initial evidence required for the arrest of the American,
Terry Smith. Although Cotter's case study of selected American sex
offenders illustrates that `the legal remedies against sex tourism can be
complex, incomplete and difficult to orchestrate',
36
and points to the need to
articulate global, national, and local law enforcement efforts, there is no
critical engagement with the role of NGOs.
Cotter suggests that `NGOs should fortify their international cooperative
action and organise their grassroots efforts'.
37
While she argues that new
`political will must be created in countries with a poor sex tourism record',
38
she concedes this is `usually the result of diplomatic incentives and pres-
sures'.
39
However, gaps exist in our understanding of how civil society
actors attempt to apply such advocacy pressure, what `success' is achieved,
or how such success is quantified and evaluated.
Many CST destination countries in South-east Asia have limited technical
290
33 For a more in-depth discussion of these issues, in relation to the Australian Crimes
Legislation Amendment (Sexual Offences against Children) Act 2010, see Ireland-
Piper, id., pp. 19±30; McNicol and Schloenhardt, id., pp. 372±8; Svensson, id., p.
664. For discussion of the United Kingdom's Sexual Offences Act, see Khan, op.
cit., n. 3, pp. 220±5.
34 Svensson, id.
35 These were the cases of Americans Donald Bakker and Terry Smith: see Cotter, op.
cit., n. 5, pp. 500±4.
36 id., p. 504
37 id., p. 505.
38 id., p. 512.
39 id.
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capacities and resources for law enforcement. Furthermore, problems
inherent in the criminal justice system may impede the way courts deal
with sexual crimes involving minors, as cultural and social attitudes towards
sex and sexualized gender relations play a role in how these crimes are
viewed within the community.
40
While destination countries must continue
to participate in the global effort to combat CST, by improving the content
and enforcement of their own legislation, as Svennson has argued, `govern-
ments of sending countries must add to these efforts by assisting the
prosecution efforts in destination countries.'
41
She goes further to suggest
that without such cooperation, successful prosecutions will be limited:
Improving inte rnational coope ration between po lice, prosecuto rs, non-
governmental organisations, and others is vital to effective prosecution.
Without an integrated effort between officers and prosecutors from both the
destination countries and the sending country, governments will have a diffi-
cult time obtaining the necessary evidence to move forward with a successful
prosecution.
42
`PARTNERSHIPS' BETWEEN CIVIL SOCIETY AND THE STATE
In the post-cold-war period, NGOs came to epitomize civil society and were
credited for their ability to contribute to peace building, democratization, and
development. NGOs at times became coterminous with the liberal agenda of
civil society, seen as closer to the local population, more efficient service
providers, and imbued with normati ve traits of `moral concern and
solidarity'.
43
Critiques of such normative assumptions about the role of
NGOs in civil society and their power to act in (and within) states has led to
a more contextualized view of their mandates and capacity to impact state
power and decision making
44
± both in Cambodia
45
and other post-conflict
settings.
46
291
40 For example, see the discussion about abuse of boys in Cambodia in A. Hilton, `I
Thought It Could Never Happen To Boys': Sexual Abuse & Exploitation of Boys in
Cambodia. An Exploratory Study (2008).
41 Svensson, op. cit., n. 1, p. 664.
42 id., pp. 661±2.
43 D. Dijkzeul, `Review Essay: Undermining Development: The Absence of Power
among Local NGOs in Africa edited by Sarah Michael' (2006) 37 Development and
Change 1137.
44 P. Wapner, `The State or Else! Statism's Resilience in NGO Studies' (2007) 9
International Studies Rev. 85.
45 C. Hughes, `Mystics and Militants: Democratic Reform in Cambodia' (2001) 38
International Politics 47.
46 A. Jeffrey, `The Geopolitical Framing of Localized Struggles: NGOs in Bosnia and
Herzegovina' (2007) 38 Development and Change 251.
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The contemporary reality of development `partnership' has likewise
evolved from its early roots in the 1970s `when it expressed the ideological
aspiration of international solidarity in the development cause',
47
and was
intended to foster more equal `ways of working and mutuality in respect for
identity, position, and role'.
48
However, in the 1990s, as policy changes in
international development aid saw increasing levels of funds flowing directly
to the NGO sector, good governance, democratization, accountability, and
efficiency became interlinked with NGOs' deliverables. This shift towards
democratization and building civil society at the same time brought NGOs
closer to the interests and operations of mainstream development, with more
access to the policy process than before.
49
However, as Mitlin, Hickey, and
Bebbington cautioned, it also brought challenges `concerning the capacity
and legitimacy of NGOs to act as pseudo-democratic representatives of ``the
poor'' and the risks of being associated with the process that may in
themselves undermine broader democratic norms.'
50
In the context of Cambodia, Rodan and Hughes suggest that the World
Bank's social accountability agenda has harnessed civil society organiza-
tions into partnership with government institutions to de velop social
accountability projects.
51
They argue, however, that this emphasis serves
the ideological agenda of Cambodia's dominant political party ± the
Cambodian People's Party ± rather than, for example, focusing on initiating
anti-corruption reform.
52
The point is that partnership arrangements, while
potentially delivering services and increasing accountability in some areas,
do not necessarily involve a migration of political authority away from
existing power holders towards citizens, which poses serious questions as to
the ability of development aid to support democratic consolidation. It also
raises wider questions about the role of third-party actors in governance and
regulatory arrangements.
Civil society involvement in the sexual exploitation of women and
children is common in South-east Asia.
53
Partnerships between NGOs and
international and local police have considerable potential to fill the gaps in
the `integrated effort' often required when victims seek an outcome through
the justice system. Alongside potential, however, comes risk. Through
292
47 A. Fowler, `Authentic NGDO Partnerships in the New Policy Agenda for
International Aid: Dead End or Light Ahead?' (1998) 29 Development and Change
137, at 140.
48 id., p. 141.
49 D. Mitlin, S. Hickey, and A. Bebbington, `Reclaiming Development? NGOs and the
Challenge of Alternatives' (2007) 35 World Development 1699, at 1708.
50 id.
51 G. Rodan and C. Hughes, `Ideological Coalitions and the International Promotion of
Social Accountability: The Philippines and Cambodia Compared' (2012) 56
International Studies Q. 367, at 375.
52 id.
53 H. Hoefinger, Sex, Love and Money in Cambodia (2013) 87±105.
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partnerships in this space, NGOs may participate in `police-like' activities,
and it is not clear how their relationship with the state may evolve, and
whether their advocacy capacity is compromised or enhanced.
Such partnerships are characterized by (amongst other things) formal
agreements made between state bureaucracies and NGOs, incorporation of
NGO functions into delivery of services, and state sanction for NGOs to
participate in or fulfil functions typically done by the state. These arrange-
ments, particularly in developing economies, provide capacity-building and
resourcing opportunities, and policy advice/advocacy assistance, to support
wider development goals. While advantageous, the main aspects of this
dilemma are that NGO activities, funded by foreign aid, may have negative
unintended consequences, such as diverting government revenue to other
areas, and preventing the state from taking responsibility for policy out-
comes and service provision in the medium term. Some NGOs work more
independently and do not engage formally with government agencies.
54
For NGOs working in child protection and CST ± where immediate harm
is occurring ± moral and ethical considerations may influence their decision
to partner with the government. It appears that `pro-engagement' partner-
ships with the state are seen as beneficial in the types of outcomes they can
achieve in the short term (due to bureaucratic approval and access to the state
administrative apparatus), while capacity building in human resource terms
is an aspirational medium-term objective.
55
Equating `civil society' in Cambodia with externally funded NGOs is
problematic. Civil society in Cambodia is a diverse combination of externally
funded organizations (many staffed by international and local personnel),
local NGOs with Cambodian leadership, Buddhist organizations, union and
labour group s, and local, com munity-base d organizati ons. Analytic al
distinctions thus need to be made to avoid the homogenization of their role.
Donor agendas and relations, ideological approaches to `development',
organizational mandate, and religious beliefs are examples of variables at
play in the sector.
56
Examples of this diversity are presented below, and a
commentary provided on its implications in the analysis section.
NGOs, both international and local, play a significant role in many
aspects of the prevention, protection, and prosecution aspects of CST in
293
54
A case in point is the A ustralian-ba sed NGO, The Grey Ma n, at
www.thegreyman.org/>. Its focus on rescuing children has come under significant
scrutiny since 2011 after it was accused of fabricating a rescue of children in Thailand
to improve donations via its website. See A. Drummond and A. Fraser, `AFP,
Thailand investigate claims of fake rescue of children from sex slavery' Australian, 9
January 2012, at
afp-thailan d-investigat e-claims-of-f ake-rescue-o f-children-f rom-sex-slave ry/story-
fn59nm2j-1226239371208>; L. Murdoch, `Rescue boss out over claims of fake
``victims''' Sydney Morning Herald, 26 March 2012, at
national/rescue-boss-out-over-claims-of-fake-victims-20120325-1vsox.html>.
55 Interview with Dr. Kim Sedara, Phnom Penh (12 September 2011).
56 Hughes, op. cit., n. 45.
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Cambodia. Specialist UN agencies such as the Office on Drugs and Crime
(UNODC), NGOs including ECPAT International (and its domestic variants
such as Child Wise Australia), stakeholders in the private sector (hotels, tuk
tuks), the Cambodian government, and other South-east Asian governments
have been working in partnership for over a decade in a range of areas.
57
The
following analysis focuses only on NGOs that have signed a memorandum
of understanding (MOU) with the government, in keeping with the focus on
formalized government/civil society and law enforcement cooperation.
58
CAMBODIA: BACKGROUND AND CONTEXT
In the 1990s, an influx of UN peacekeepers and foreign nationals working
for NGOs during Cambodia's democratic transition resulted in a boom in the
sex industry.
59
Two enabling factors are often noted in the available
literature. First, by 1992 around 23,000 people (13,000 overseas military
personnel and 7,000 others locally based) arrived in Cambodia, fuelling
demand for prostitutes, largely women and girls, within Cambodia and from
Vietnam. Second, many entrepreneurs invested in the sex industry following
radical economic liberalization.
60
Since the mid-1990s, numerous foreign
nationals have been prosecuted both in Cambodia, and extra-territorially,
61
for sexual offences involving minors and/or prostitution.
294
57 These include: raising awareness about CST through campaigns amongst potential
offenders and vulnerable groups such as homeless women and children; identifying
the supply and demand factors in CST in Cambodia; a code of conduct for
organizations involved in the tourism sector; cooperation between ASEAN countries
to counter sexual exploitation of children in tourism destinations. See C.M. Tepelus,
`Social Responsibility and Innovation on Trafficking and Child Sex Tourism:
Morphing of Practice into Sustainable Tourism Policies?' (2008) 8(2) Tourism and
Hospitality Research 98. Indu stry responses included awarenes s campaigns,
coordinated by local and international arms of ECPAT, and multi-stakeholder
innovations, such as The Code of Conduct for the Protection of Children from
Sexual Exploitation in Travel and Tourism (known as The Code), at
www.thecode.org/>. See, further, Protection Project, op. cit., n. 5, pp. 105±28; T.
Frederic and L. Matthews, Who are the Child Sex Tourists in Cambodia? (2006), at
childtraffick ing.com/Docs/ child_austra lia_06_cambodi a_1009.pdf>;
Child Wise, op. cit. (2009), n. 21.
58 Interview with Hagar representative, Phnom Penh (14 September 2011). NGOs such
as Hagar International and ECPAT Cambodia provide support to children in the
recovery phase aft er being rescued from s ituations of sexual e xploitation,
community awareness raising, and research.
59 Keo, op. cit., n. 28, p. 99.
60 L. Brown, Sex Slaves: The Trafficking of Women in Asia (2001); Keo, id.;
Hoefinger, op. cit., n. 53, pp. 85±7.
61 See Action Pour Les Enfants (APLE), Report on the cases investigated by APLE
Cam bod ia 20 01± 201 2 (20 13) 9 ; APL E, St ati sti cs (2 012 ), at htt p:/ /
www .ap lec amb odia .or g/i nde x.p hp? opt ion =com _co nte nt& vie w=a rti cle &id=
1540&Itemid=448>; Protection Project, op. cit., n. 5, pp. 105±30.
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1. Cambodia's `child sex' industry: patterns and evidence
Cambodia's sex industry soon became associated with `under-age sex
workers' and known as a destination for CST. Many studies conducted by
NGOs and INGOs during the 1990s were concerned with trafficking in
persons, and the means by which women and girls became involved in
prostitution. During the 1990s various attempts were made to estimate the
number of sex workers in Cambodia, and also to quantify the percentage of
women and girls who were trafficked. These varied widely over time, with
Keo noting that by 1994, there were an estimated 17,000 prostitutes in
Phnom Penh alone, with 30 per cent under the age of 18.
62
Figures and
generalization drawn from research since the early 1990s in relation to sex
trafficking and the sex industry in general are contentious. Data collection
methods varied considerably and are often considered unreliable and
ideologically driven.
63
By 2000, Cambodia was seen internationally to have a serious `child
prostitution' problem, with the area known as `Svay Park' becoming well
known for under-age prostitution, particularly of Vietnamese girls. In 2003, a
UNICEF survey estimated that 35 per cent of Cambodia's 55,000 sex
workers were under 16, with some as young as six.
64
There is some evidence
that pressure from Cambodian police and the activities of NGOs has resulted
in a reduction of under-age girls in sex work/prostitution in Cambodia. Keo
cites a 2008 study by the Cambodian Alliance for Combating HIV/AIDS,
which surveyed 1,115 `entertainment workers' and estimated that only 3.1
per cent were aged 17 and below.
65
Furthermore, there appears to be an
increase in the percentage of sex workers' participation via independent and
indirect sex work.
66
It is well recognized that Cambodia has a significant problem in relation
to societal attitudes towards sexual offences. While awareness of gender-
based violence against women and children has grown, state capacity,
resource levels, and political will to address it remain lacking.
67
There is
evidence to suggest that rape has been heavily under-reported, posing sig-
nificant problems for making statements about relative increases or declines
295
62 Keo, op. cit., n. 28, pp. 101±2.
63 Sandy, op. cit., n. 28, pp. 43±4; Keo, op. cit., n. 28, pp. 99±102.
64 Sandy, id., p. 43.
65 Keo, op. cit., n. 28, p. 101.
66 Indirect sex work is defined as providing sexual services for money and other
material benefits, in addition to the person's main employment. A 2008 study,
conducted by the Home and Community Care Programme in Phnom Penh,
estimated the numbers of sex workers in Cambodia at 17,000, with 75 per cent of
them working outside brothels as independent or indirect sex workers: Keo, id.
67 Amnesty International, Breaking the Silence ± Sexual Violence in Cambodia (2010),
at ; Hoefinger, op. cit.,
n. 53, pp. 11±13, 87±102.
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in sexual offences, whether involving adults or children.
68
However, recent
research on reported levels of trafficking and sexual exploitation demon-
strate concerning trends. Statistics compiled shows a worrying trend in (i)
the drop in age of trafficking victims, and (ii) the increase in reported cases
of rape and the percentage of children raped.
69
Disturbingly, the report notes
that `most rape victims were between 9 and 13 years old irrespective of year
(2007±2010)' and that `since 2007, the largest proportion of victims of rape
has been children and this proportion has grown over time'.
70
Despite this evidence, it is difficult to make generalized conclusions about
rape and incidence of rape over time, whether against children or adults,
because reliable longitudinal data is lacking.
71
While it is true that, since the
mid-2000s, evidence indicates a rise in the reporting of rapes involving
children, this could well be due to increased awareness-raising and support
activities carried out by NGOs. Thus, it is not clear that child rape is higher
than adult rape, just that adult women are less likely to report it. Further, it is
not clear that analysing available data on trafficking in persons for prostitu-
tion or rape in Cambodia provide any analytical purchase on the discussion
of CSEC or CST. While some research relating to Cambodia's criminal
justice response to sexual offences may be generalizable to all of these crime
types, the conflation of data may actually lead to unfounded and counter-
productive conclusions. While research on patterns of trafficking in persons
for forced prostitution (particula rly with an anti-trafficking mandate )
provides some insight into the phenomenon of child trafficking and CST,
they should not be conflated.
72
2. Legal framework for prosecution of CST and CSEC in Cambodia
Cambodia's laws regarding sexual activity with minors are contained in two
separate laws:
(i) The Law on the Suppression of Human Trafficking and Sexual
Exploitation (2008)
73
(hereafter `Human Trafficking Law') and
296
68
LICADHO, Rape and Indecent Assault (2004), at
reports/files/48Rape%20briefing%20report%202003%20English.pdf>.
69 ECPAT Cambodia, NGO Statistics: Database Report on Sexual Trafficking,
Exploitation and Rape in Cambodia (2010) 10, at
index.php?menuid=1&rp=116>. The report noted that `[d]ue to the low and
fluctuating numbers of overall sexual trafficking cases, trend analysis of age over
time is not recommended'.
70 id., pp. 38±40. It is also noted that for each year between 2007 and 2010, the large
majority of rape offenders were Khmer and from Cambodia.
71 Hoefinger, op. cit. n. 53, pp. 96±8.
72 For a discussion on the methodological problems involving research and data
collection on trafficking and prostitution, see Sandy, op. cit., n. 28, pp. 43±4.
73 Law on Suppression of Human Trafficking and Sexual Exploitation 2008 (Kingdom
of Cambodia, promulgated 15 February 2008).
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(ii) The Penal Code of the Kingdom of Cambodia (2009)
74
(hereafter `Penal
Code').
Offenders can be charged with primary offences of engaging in sexual
activity with a minor, or secondary offences of assisting others to do so. The
Penal Code prevails to the extent of any direct inconsistency between the
two laws (article 668). As a result, the Penal Code has superseded many of
the provisions of the Human Trafficking Law. The Australian national in the
case study presented below was charged under article 34 of the Human
Trafficking Law. Since the Penal Code was not invoked in the case study
below, it is not discussed in further detail.
Cambodia asserts jurisdiction for its child sex offences both territorially
and extra-territorially. The age of consent to penetrative sexual intercourse in
Cambodia is 15 years of age (Penal Code, article 239). A minor is defined in
both the Penal Code and the Human Trafficking Law as a person under 18
(consistent with the definitional requirements of the Convention on the
Rights of the Child). However, some offences only apply with respect to
minors under 15, and others treat being under 15 as an aggravating factor.
3. Challenges in the Cambodian criminal justice system
The Cambodian criminal justice system itself faces and poses a number of
serious challenge s to effectively prose cuting child sex touris ts. The
government has struggled to implement existing legislation due to a range
of interconnected factors. These include the limited availability of resources
in policing and legal arenas, lack of legal representation for victims,
emerging crime trends such as drug trafficking and youth violence,
75
and
political interference in the judiciary.
76
As noted by the report of the human
rights NGO, LICADHO:
The combination of poor facilities, low salaries, executive interference, lack of
education and training, and weak and poorly enforced legislation has created a
judicial system in which people have no confidence and which daily fails in its
duties and responsibilities.
77
In her analysis of the Cambodian criminal justice system and its capacity to
prosecute foreign child sex offenders, Paillard noted that the codification of
offences and procedure was unclear and incomplete, contributing to the poor
implementation of relevant laws. She points to procedural errors and
inaction, the widespread use of extra-judicial settlements to compensate the
297
74 Penal Code (Kingdom of Cambodia, promulgated 30 November 2009).
75 R. Broadhurst and T. Bouhours, `Policing in Cambodia: Legitimacy in the Making?'
(2008) 19(2) Policing and Society 1, at 11±14.
76 K. Un, `The Judicial System and Democratization in Post-Conflict Cambodia' in
Beyond Democracy in Cambodia: Political Reconstruction in a Post-Conflict
Society, eds. J. O
Èjendal and M. Lilja (2009) 70.
77 LICADHO, op. cit., n. 68, p. 10.
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victim or the victim's family, and corruption resulting in failures in sentence
enforcement as practical burdens on the criminal justice system.
78
Research
on crime and policing in Cambodia illustrates that corruption generates
distrust in state institutions and results in people being less willing to report
crimes, and have `seldom relied on the central state to manage conflict'.
79
Numerous reports confirm and provide a commentary on corruption,
which is widespread in various forms of public and private organizations.
80
Of particular concern is corruption in the criminal justice system. While
corruption is documented in the Cambodian National Police, when it comes
to prosecuting crimes, the court system is also criticized for its capacity to
engage in rent-seeking behaviour and extortion.
81
Foreigners typically have
access to greater resources to bribe officials in the system, and therefore
present a further potential barrier to a fair trial.
82
The lack of awareness and implementation of a child-friendly courts
system further exacerbates problems with the prosecution of sexual exploita-
tion offences.
83
Furthermore, grey areas surrounding the custody of children
rescued from exploitative situations have complicated NGO attempts to
bring legal proceedings, where the parent involved has tried to regain
custody of the child and tries to drop charges against alleged offenders,
usually because they have received money or gifts.
84
There are numerous
sources which refer to defendants charged with sex offences in Cambodia
`buying off' court officials or judges or other government officials to avoid
being charged or to obtain early release from prison,
85
and of civil plaintiffs
accepting extra-judicial compensation for withdrawing the complaint.
86
298
78 H. Paillard, Study on Cambodia's Criminal Justice System, with Focus on Prosecut-
ing Foreign Child Sex Offenders (2006) at .
79 Broadhurst and Bouhours, op. cit., n. 75, p. 8.
80 Transpare ncy In ternationa l, Cou ntry Profile : Cambodia (2 012), at ://
www.transparency.org/country#KHM>.
81 Un, op. cit., n. 76, pp. 81±9.
82 Cotter, op. cit., n. 5, pp. 501±4.
83 Amnesty International, op. cit., n. 67, p. 38.
84 Interview with Hagar Representative, Phnom Penh (12 September 2011). A recent
example arose during the trial in Phnom Penh of American James D'Agostino,
charged with purchasing child prostitutes in September 2011. The mother of one of
the alleged victims claimed her son was forced to make false accusations against
D'Agostino, by NGO APLE. APLE lawyer, Peng Maneth, said the parents failed to
cooperate in the trial because they `used to get money from the suspect': `Lawyer
fired, trial opens' Phnom Penh Post, 15 September 2011, 4.
85 For example, J. Brinkley, Cambodia's Curse: The Modern History of a Troubled
Land (2011) 229±32.
86 See, for example, the 2012 case reported by APLE of an Australian-Korean tourist.
The complaint to police, relating to the sexual assault of a 6-year-old girl, was
withdrawn following an extra-judicial compensation payment of US$2,000 to the
girl's mother. For further details of the case, see APLE, Newsletter: April±June
(2012), at //www.aplecambod ia.org/images/s tories/images/N ewsletter%20
April-June%202012.pdf>.
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4. Current trends in CST and CSEC: NGO and law enforcement responses
A sustained focus on the sexual exploitation of children via the anti-
trafficking agenda, and increased government action following Cambodia's
image as a `child sex tourism destination', appear to have yielded results
over time. Several sources suggests that minors are now less likely to be
found in brothels or in legal entertainment outlets, such as karaoke bars or
beer gardens, than before.
87
Further, according to an ECPAT report, an
increase in number of arrests for `debauchery' and `indecent acts' under the
relevant legislation rose from 8 in 2003 to 36 in 2009.
88
Of the 141 arrests on
these charges from 2003 to 2009, the ECPAT report showed 37 were
Cambodian men, and 19 from other Asian countries, with the remaining 85
arrests relating to Western men.
89
The report suggests that Western men are
over-represented in these figures, as former child sex-workers name local
Cambodian men as the `vast majority of clients'.
90
Additionally, Keo argues that although the penalties for procuring for
child prostitution were reduced in the 2008 Human Trafficking Law, the
particular articles related to child prostitution have had a deterrent effect
because the risk of arrest has outweighed the benefits. He cites the precise,
well-targeted nature of the laws which were easy to enforce, in comparison
to others, as a factor `explaining the dramatic fall in child prostitution'.
91
It
appears that `brokers' are now more prevalent in procuring child prostitution.
The NGO South East Asian Investigations into Social and Humanitarian
Activities (SISHA), outlined their experience as follows:
The market for children 14 and under is run predominately by brokers. So for
instance, a beer garden, karaoke joint, most restaurants, they all have the
numbers of brokers. And the brokers basically go to these establishments
saying: `Right if any of your customers want a virgin, if any of your customers
want 12 year old, 13 year old, you phone me basically.' So if they have a
customer who wants young children, they will phone these guys. And then the
girls will then get brought to the restaurant or wherever, and they see what is in
front of them, and if this is what they want, the girl is driven to a guest house
or to the customer's guest house. It's not so much in the public eye.
92
299
87 Interview with AFP Senior Liaison Officer Phnom Penh (12 September 2011) and
SISHA Representative (14 September 2011). This concurs with other research
conducted about general trends in sex work in Phnom Penh amongst indirect sex
workers after the 2008 global economic downturn: see International Labour
Organization (ILO), `Research Snapshot: Study of indirect sex workers from the
ga rm e nt i n du st r y' ( 20 1 0) , at h tt p: / /w w w. un . or g. k h/ at t ac hm e nt s /
338_ILO_research_IndirectSexWorkers_20100715.pdf>.
88 `Cambodia no longer a haven for Pedophiles' Newsweek, 16 November 2010, at
.
89 id.
90 id.
91 Keo, op. cit., n. 28, p. 101.
92 Interview with SISHA Representative, Eric Meldrum, Phnom Penh (14 September
2011).
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There are two important implications for this potential shift in the role of
minors in prostitution and sexual exploitation. First, it has meant that law
enforcement techniques have had to change in response to more clandestine
methods of organizing child prostitution. As Cambodian law does not
criminalize intent to commit sexual offences, the so called `buy-and-bust'
93
model of catching offenders is not used in Cambodia, as it has no value in
criminal prosecutions.
As a result, secondly, NGOs are focused on intelligence gathering from
insiders who could provide good information about locations of victims,
potential offenders, and the use of such intelligence for surveillance opera-
tions. If the evidence appears strong enough, the Cambodian police can be
notified if required and conduct raids and charge offenders if deemed
appropriate.
94
This type of surveillance work is, however, time-intensive for
law enforcement and, at best, only results in the arrest of the broker and one
or perhaps two offenders at any one time. As a SISHA representative
commented: `Just because it stopped in the brothels, it didn't go away, you
know people still want to have sex with children, unfortunately, and it's just
gone underground.'
95
The implication for child sex tourists is that they can
now also avoid soliciting and grooming children in very public ways.
96
It is difficult to estimate accurately the size of Cambodia's sex industry,
or the percentage of minors involved. Such predictions do not fully capture
the problem, as the large numbers of street children represent a highly
vulnerable group exposed to both potential preferential and situational
offending patterns.
97
While visible solicitation of street children by child sex
tourists (preferential offenders) may have declined, caution needs to be
exercised in concluding that demand (either from preferential or situational
offenders) has declined. One hypothesis is that sex work off site (in the
general prostitution industry) is now more likely to be negotiated between
the worker and the client, with a `bar fine'
98
being paid to the manager of the
bar in lieu of the worker's time. A second is that offenders seeking to
300
93 The tactic of law enforcement and NGO groups who `pose' as offenders to `buy' (to
seek out locations of victims who may be held against their will, trafficked or both)
and then `bust' those locations with police.
94 Meldrum interview op. cit., n. 92.
95 id.
96 For further commentary on the impact of NGO surveillance on online paedophile
forums, see ECPAT International, The Use of Information and Communication
Technologies in Connection with Cases of Child-Sex Tourism in East and Southeast
Asi a (20 10) 4 4, at htt p:/ /re sou rce s.e cpa t.n et/ EI/ Pub lic ati ons /Jo urn als /
ECPAT%20Journal_Mar2010_FINAL.pdf>.
97 See Frederic and Matthews, op. cit., n. 57; APLE, Survey on Street-Based Child
Sexual Exploitation in Cambodia: Overview of 7 Provinces (2006), at
www.aplecambodia.org/>.
98 The rate for this `bar fine' is negotiated between the sex worker and the client;
sources suggest the approximate rate is between US$5±20: interviews with NGO
workers, Phnom Penh (12±16 September 2011).
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sexually exploit children are now more likely to do so via the assistance of a
broker, than in the period from 1995±2005. These hypotheses require further
testing and research. Convicted sex offenders who continue to reside in
Cambodia, or those convicted abroad who then relocate to Cambodia, are of
ongoing concern.
99
PARTNERSHIPS BETWEEN THE STATE, INTERNATIONAL LAW
ENFORCEMENT, AND CIVIL SOCIETY
A number of international law enforcem ent agencies cooperate with
Cambodian authorities on CST. The Australian Federal Police (AFP) has a
senior liaison officer based in Phnom Penh who is tasked with liaising with
the Cambodian police to facilitate communication and conduct inquiries and
provide support when requested, and exchange intelligence.
100
The officer
also liaises on matters related to transnational organized crime, including
drug trafficking, trafficking in persons, migrant smuggling, and money
laundering. I n addition, the AF P provides suppo rt to a specializ ed
Transnational Organized Crime Team within the Cambodian police.
As noted by the AFP senior liaison officer in Phnom Penh, there is
information sharing and liaison between AFP and the Cambodian police on
matters involving Australians involved in CST or sexual offences, but the
decision to prosecute under Cambodian law lies with the Cambodian
prosecutor.
101
The role of the AFP in Cambodia is to provide assistance to
the Cambodian police to build capacity in policing, improve policing skills
in investigating matters, information sharing and liaison over cases, and
other assistance as required.
102
AFP officers have been called on by the
Cambodian police to assist in the collection of evidence for the trial of
Australian citizens charged under Cambodian law.
While the AFP liaises informally with NGOs working in CST, formal
arrangements with NGOs are made between the Cambodian government and
specific NGOs through MOUs. Intelligence sharing between the AFP and the
Cambodian police is legally limited to these parties, although MOUs allow
NGOs to collect evidence and conduct surveillance on behalf of the Cam-
bodian police. The AFP promote liaison relationships with a wide range of
stakeholders (such as travel industry groups, local or other international law
301
99 Discussion with C.S. Seila (APLE Country Director), Bangkok (3 April 2012). The
monitoring of convicted sex offenders from Britain travelling or relocating abroad
has also been canvassed by ECPAT UK, op. cit., n. 1., pp. 14±15.
100 T. Hunter (AFP Child Protection Operations), `Child Sex Tourism: An Australian
Perspective', Child Sex Tourism Symposium, Bangkok, 3 April 2012.
101 Interview with AFP Senior Liaison Officer, Phnom Penh (12 September 2011).
102 id. Such information sharing could also include the intent of persons registered on
the Australian National Child Offender Register (ANCOR) to travel to Cambodia.
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enforce ment agenc ies, gove rnment and n on-gover nment gro ups and
agencies) as the way to combat CST and the CSEC through partnership,
collaboration, and communication.
103
The section below analyses the cooperation between the Cambodian
police and the AFP, details the activities and modus operandi of three NGOs
that have signed official MOUs with the Cambodian government (in relation
to child protection and sexual exploitation). It then presents a case study of
NGO, AFP, and Cambodian police cooperation in the case of Michael John
Lines, an Australian citizen convicted in September 2010 for two counts of
procuring child prostitution under article 34 of the Human Trafficking Law.
The Lines case provides insight into a successful collaboration between
international and local law enforcement, and the role played by NGOs.
1. Civil society and the role of NGOs
The Cambodian government has entered into formal MOUs with NGOs in
CST and CSEC, to empower them to assist in identifying and prosecuting
offenders. NGOs may conduct surveillance of offenders and prepare dossiers
of evidence. The existence of these formal agreements is an indicator of the
level and degree of involvement of NGOs. Three NGOs, one of which was
directly involved in the prosecution of the Australian national discussed in
the case study, are briefly outlined here to illuminate the range of motivating
factors for their involvement, and methods of operation in this sphere. The
stated mission of the NGO, key areas of programming, and the adopted
model of engagement with government are noted.
(a) Action pour les enfants (APLE)
APLE is a child-protection and child-rights-based NGO and one of the most
well-known working in CST in Cambodia. It has no religious or political
affiliations and has a reputation for targeting `Western' child sex tourists,
although its mission is to provide assistance and protection to vulnerable
children and combat all forms of sexual abuse and exploitation. APLE has
signed three MOUs with the Cambodian government. The first, in 2003, was
signed with the Ministry of Foreign Affairs and International Cooperation to
establish its child rights project `PROTECT'; the second was signed in 2006
with the Ministry of Social Affairs, Veterans and Youth Rehabilitation to
`ensure adequate support for vulnerable and abused children in terms of
counselling, referral, social rehabilitation and reintegration'; and the third, in
2010, was signed with the Ministry of Interior to strengthen cooperation with
the Anti-Human Trafficking and Juvenile Protection Department of the
Cambodian police.
104
This most recent one is aimed at `ensuring proper and
302
103 id.
104 APLE (2011), at .
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effective law enforcement actions across the country' in the areas of child
sexual abuse and associated human trafficking.
105
Since starting operations in 2003, APLE has assisted in the arrest of 200
alleged offenders, of whom six were Australian. Topping the list of
nationalities represented was Cambodian (65), followed by American (31),
Vietnamese and French (19 each), and British (13). Japanese and Korean
nationalities comprise only three and two arrests noted respectively. APLE's
figures for convictions (charges not specified) between 2003 and 2011,
illustrate a spike in convictions in 2007, and 2010, with reductions in both
arrests and convictions in 2011.
106
According to APLE, of the 17 child sex
tourists arrested in 2010, most were Westerners, with the figure down from
27 arrests in 2009.
107
These figures lend some weight to the view that NGO
surveillance of Westerners has made overt grooming activities, particularly
with street children, more risky.
APLE is pro-engagement in its partnership approach to the Cambodian
government and actively recognizes the `importance of working collabora-
tively'.
108
It thus has utilized partnerships with various government agencies
to `ensure the provision of services to the most vulnerable children is done so
holistically'.
109
Positive partnership and results in declining arrests are
perceived to reflect favourably on the Cambodian police, as evidenced by
APLE's country director Samleang Seila attributing the drop in arrests of
foreign alleged paedophiles to `increased police efforts to prevent and punish
sex tourism'.
110
APLE has gradually expanded its operations out of Phnom
Penh to open offices in destinations known for sex tourism such as
Sihanoukville, Siem Riep, and Poitpet in early 2011. It has identified the
management of foreign convicted sex offenders, who return to reside
permanently in Cambodia, as a major concern.
111
Concerns are expressed,
however, about the focus on Western sex tourists overshadowing the issue of
local demand for sex with, and sexual violence against, children.
112
(b) South East Asia Investigations into Social and Humanitarian Activities
(SISHA)
SISHA is a registered Australian not-for profit organization that focuses on
justice and human rights protection for victims of human trafficking, sexual
and non sexual exploitation, bonded labour, rape and sexual assault of men,
303
105 id.
106 id.
107 id.
108 id.
109 id.
110 Cambodia Daily, 4 January 2011, 28.
111 C.S. Seila (APLE Country Director), `Presentation', Child Sex Tourism Sym-
posium, Bangkok, 3 April, 2012.
112 Cambodia Daily, op. cit., n. 110.
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women, and children through both proactive and reactive investigations.
113
Building capacity in the Cambodian police is a major focus of programming
through its criminal investigation training programmes, to investigate and
collect evidence to support domestic prosecutions, and the establishment of a
crisis support centre, to provide integrated legal, investigation, and health
services.
SISHA's partnership model appears pro-engagement, with an MOU
signed with the Ministry of Interior in February 2009 to assist the
Cambodian police with all cases of human exploitation, which includes
delivering criminal investigation training to police, as well as its own
evidence collection activities. A SISHA representative described the model
as `the way to work to go forward':
We definitely support them [the Cambodian police]. We work very closely
with the police. And we are quite pro-police if you like because we do like to
support them and most of them are there for the right reasons.
114
SISHA's programme focus aims to strengthen the Cambodian criminal
justice system's capacity to investigate and bring cases to the courts with
appropriate evidence, collected according to legal guidelines, as well as
providing support to victims.
115
Through their own network of informants
and intelligence sources, staff cooperate with the Cambodian police, particu-
larly the Anti-Human Trafficking Police and Juvenile Protection (AHTJP)
unit, to conduct raids on establishments. Its training programme targets
police officers in the criminal investigation department and the AHTJP, in
both rural and urban provinces.
(c) International Justice Mission (IJM)
IJM is a Christian-based human righ ts organization that focuses on
combating slavery, sexual exploitation, and other forms of violent oppres-
sion. Established in 1997 and headquartered in Washington DC, IJM's
mission is to seek justice for the oppressed and vulnerable, following
recognition that the poor's capacity to seek justice through weak criminal
justice systems in developing countries was an area requiring further
attention from the internati onal development community. IJM dr aws
inspiration from a passage from Isaiah (1:17), to seek justice for victims
of oppression: `Seek justice, rescue the oppressed, defend the orphan, plead
for the widow.'
116
Although a main focus of their work is on rescuing
304
113 SISHA (2011), at .
114 Meldrum interview, op. cit., n. 92.
115 SISHA also undertakes other programmes to raise awareness amongst at risk
populations such as the Youth Legal Rights Program and the Women's Legal Rights
Project, which aims to raise awareness amongst vulnerable and at-risk populations
on their legal rights, see: .
116 International Justice Mission (IJM), `Who We Are' (2012), at
who-we-are>.
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victims of trafficking, CST has featured in their work through their child
sexual exploitation focus, and with the recognition that foreign paedophiles
travel to Cambodia with the perception that poor children are easy targets.
117
IJM's programme in Cambodia is partly funded by the Asia Foundation,
which is itself funded by the United States Agency for International
Development (USAID). IJM police trainers train Cambodian police officers
in evidence collection and crime scene analysis, and have enabled a presence
in areas outside Phnom Penh, including Siem Riep, to facilitate quicker
response times to rescue victims.
118
IJM's partnership model with the government is pro-engagement and
believes that only by engagement and collaboration can faults be identified
in the legal system and structural change initiated. Seeking prosecution
throug h the local c rimina l justic e system i s central t o the IJM' s
`collaborative case work model' which mobilizes NGO human resources
(such as investigators, lawyers, and social workers) to intervene in specific
cases of abuse in partnership with state and local authorities through a four-
stage approach: first, victim relief; secondly, perpetrator accountability via
the local justice system; thirdly, victim aftercare; and fourthly, structural
transformation. IJM's view is that `collaboration is essential to obtain
convictions against individual perpetrators and to bring meaning to local
laws that are meaningless if not enforced.'
119
This brief description illustrates the diversity in NGO motivation for
partnering with the state in combating CST. However, all recognize that
local police represent the necessary arm of the state apparatus that must be
supported if legal avenues are to be pursued against offenders. They all hold
the view that prosecution of offenders is a necessary but not sufficient step in
combating CST. A case study is now presented to illustrate how cooperation
between APLE, the Cambodian police, and the AFP resulted in a successful
prosecution of an Australian citizen in Cambodia for procuring prostitution.
Of note is the level of human resources provided by APLE and the AFP in
terms of surveillance time and provision of technical expertise, respectively.
2. Case study: the case of Michael John Lines
The conviction of Michael John Lines in September 2010 for two counts of
procuring child pro stitution under art icle 34 of Cambodia's Hu man
Trafficking Law provides an insight into a successful collaboration between
international and local law enforcement, and the role played by NGOs in the
case.
305
117 IJM, `IJM Expands in Cambodia with New Siem Reap Office' (2010), at
www.ijmuk.org/node/158>.
118 id.
119 IJM, op. cit., n. 116.
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Lines was a 52-year-old dual Australian/New Zealand citizen who had
resided in Cambodia for 11 years, and operated an internet cafe. He had no
previous criminal history.
120
Lines came to the attention of the Cambodian
police via APLE which received information from the public. Samleang
Seila, director of APLE, said his organization `was told of Mr Lines' many
``engagements'' to young teenage girls' early in 2010, which then prompted
their investigation and surveillance in early March 2010, before taking the
case to the Cambodian police.
121
Lines was arrested by the Cambodian
police in a guest house in the province of Preah Sihanouk on 17 March 2010,
and charged with offences relating to procuring prostitution in relation to two
girls, aged 17 and 20, but who were 14 and 17 years old when the abuse
started occurring in 2007.
122
The Cambodian police then formally requested
the assistance of the AFP, who became involved in the case to assist in
collection and analysis of evidence for presentation at court. The offences of
procuring child prostitution are contained in the Human Trafficking Law,
noted previously. The offence considered here involves the offender
procuring sex from a minor by paying or providing gifts to the child, their
parents, or other goods of value. It carries a sentence of between two and five
years. It does not necessarily allege the victims are prostitutes.
Through his lawyer, Dun Vibol, Mr Lines stated that he was engaged to
the 17-year-old girl , and that they had lived toge ther for 5 years.
Furthermore, Mr Vibol claimed `that the charge against his client was
totally not right [sic] and the 20 year old girl, who claimed to be a baby sitter
for the 4 year old daughter Mr Lines had adopted, have lived together for 5
years.'
123
A search of Lines's house in Phnom Penh by Cambodian police
(accompanied by AFP officers) following his arrest recovered computers,
digital storage devices, and two locked safes.
124
The safes were opened by a
locksmith and contained four laptops, five memory cards, two external hard
drives, and some DVDs, some of which contained child exploitation
material.
125
The 17-year-old girl present with Lines at the time of his arrest provided a
formal statement to the Cambodian police that she had been a victim of
306
120 D. Brotherton (AFP), `Travelling Sex Offenders', Child Sex Tourism Symposium,
Bangkok, 3 April 2012.
121 K. Sovuthy, `Foreign Men Suspected of Sex with Minors' Cambodia Daily, 20±21
March 2010, at
art icl e&i d=1 29 2:m arc h-2 0-2 1-2 010 -3- for ei gn- men -su spe cte d-o f-s ex -wi th-
minors&catid=103:2010&Itemid=461>.
122 id. Two other associates, a male New Zealand citizen and a male United States
citizen, were also arrested with Lines, but later released without charge.
123 `Newly-Arrested Paedophile Charged with Child Sex Crime' Cambodia Daily, 22
March 2010, at
view=a rticle& id=1293 :march -22-201 0-newly -arres ted-ped ophile- charge d-with-
child-sex-crime&catid=103:2010&Itemid=514>.
124 Brotherton, op. cit., n. 120.
125 id.
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sexual abuse for the previous three years. She stated that she had resided
with Lines in Phnom Penh for a number of years and was his fianceÂ, but slept
down stairs with the children, an adopted daughter (aged between 3 and 4)
and a young girl (approximately 17) who Lines said was the young child's
babysitter.
126
She also stated that Lines often filmed them when they had
sexual intercourse. Her statement was later recanted when interviewed by the
AFP child protection officer.
127
The AFP provided specialist support to the Cambodian police in the areas
of IT analysis and child witness testimony, with Australian-based officers
travelling to Cambodia to assist in the investigation. An AFP IT specialist
provided technical support and analysis for the recovery of evidence on
computer devices found during the search of Lines's residence in Phnom
Penh. The computers files recovered were encrypted, and with no domestic
legislation to compel the accused to divulge it, the AFP IT specialist
retrieved thousands of digital files and partially recovered files relating to the
alleged offences. This evidence was presented in court in AFP Federal
Officer witness statements, which were provided to the AFP post in
Cambodia and translated into Khmer for presentation in court. The evidence
also included explicit emails written by Lines and correspondence with other
associates. It was the first time such detailed, technical evidence on digital
material had been presented to a Cambodian court.
128
Specialist AFP child
protection officer support was also provided to interview the alleged victims
according to procedures for child witness testimony involving sexual
offences, and to assist in the presentation of this evidence in court.
At trial, Lines appeared before three judges, and was represented by a
lawyer, while the two victims were represented initially by an advocacy
lawyer supplied by APLE. The APLE advocacy lawyer was subsequently
replaced with a colleague of the defence counsel.
129
The victims recanted
their original evidence, saying they were made under duress by the Cam-
bodian police, although this allegation was questioned by one of the trial
judges who stated that they had provided previous evidence against Lines to
the investigating judge, without threats or intimidation by Cambodian police
officers.
130
Lines was con victed of two cou nts of procurin g child
prostitution and sentenced to four years imprisonment in Prey Sar Prison
in Phnom Penh.
307
126 id.
127 id.
128 id.
129 id.
130 id.
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ANALYSING PARTNERSHIPS
The Lines case highlights the succ esses that can be achieved with
collaborative partnerships between international law enforcement, local
police, and NGOs in combating CSEC and CST. The following section
comments on aspects of the Lines case, and relates them to debates noted
above. These are:
(i) role of NGOs in surveillance and facilitating formal local police
investigations;
(ii) police and judicial capacity; and
(iii) transparency and accountability during trial process.
Two wider areas of potential concern are then canvassed:
(iv) sustainability of capacity building; and,
(v) medium-term implications of partnership with the state.
The analysis suggests that countries that privilege territorial competence as
the basis of criminal jurisdiction (such as Australia and the United
Kingdom), need to provide adequate support to local police in destination-
country jurisdictions in cases against their nationals regarding CST. This is
particularly so where police and judicial capacity is limited in areas pertinent
to cases involving sexual crimes against children.
1. NGOs in surveillance and facilitating formal local police investigations
The Lines case highlights the central role NGOs play in receiving and
reporting evidence to local police, and gathering sufficient evidence for local
police to act upon. They can play an important role in preventing defendants
or their associates from derailing a case that has already gone to court. APLE
and other NGOs often `speak out' if victims recant their evidence, through
suspected buy-off or pressure from the defendant or their associates. As
noted above, Cotter's discussion emphasized the role played by IJM
surveillance in the case of the American, Terry Smith.
131
Similarly, in the
Lines case APLE gathered sufficient evidence to convince Cambodian police
officers to pursue the case further. As AFP officers can only become
involved through an official request from the Cambodian police, local
investigation of cases is vital if foreign assistance is to be requested and then
extended.
308
131 Cotter, op. cit., n. 5, pp. 501±4. M. Aiken et al., `Child Abuse Material and the
Internet: Cyberpsychology of Online Child Related Sex Offending', paper at
Twenty-ninth Meeting of Interpol Specialist Group on Crimes Against Children
(2011) , at ://www. interpo l.int/C rime-a reas/Cr imes-a gainst- childr en/Sex-
offenders>.
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2. Law enforcement and judicial capacity with digital evidence
Specifically in the Lines case, the collection and presentation of digital
evidence at court was a crucial part of the prosecution's case. The Cambodian
police did not have the technical capacity to analyse complex encrypted
digital material, and the case illustrated that trial judges had limited exposure
to the presentation of such material in court.
132
Evidence suggests that CST is connected to the production of pornog-
raphy, both for commercial reproduction and/or to record the act for the
offender's use.
133
The retrieval and presentation of digital evidence in court
will likely be important in building cases involving sexual crimes against
children, including child-abuse material. The Lines cases highlighted the
lack of technical capacity of the Cambodian police force to retrieve and
organize digital files for presentation in court ± and identifies potential areas
for future capacity building and technical training in prosecuting CST and
pornography-related offences.
This experience is likely to be representative of other police forces in
South-east Asia, such as Laos, Myanmar, East Timor, and Vietnam. Over
time, the building of local capacity in gathering and presenting computer-
related material will be essential in building cases involving offences related
to sexual abuse, sexual assault, and pornography. Technical skills in de-
encrypti ng computer fi les, catalo guing and org anizing evi dence for
presentation in court, and necessary hardware are areas for future capacity
building and resource allocation.
3. Transparency and accountability during trial process
As noted by the AFP's Australian-based National Coordinator of Child
Protection, whilst international cooperation is not a cure for the limitations
within the Cambodian system, it adds a layer of accountability.
134
With
numerous reports of alleged foreign sex offenders bribing officials or making
extra-judicial compensation payments, the involvement of international law
enforcement in a case also adds `the pressure of international scrutiny and an
expectation of transparency that should not be underestimated as a tool.'
135
Whilst their impact is difficult to quantify, the presence of international
law enforcement agencies in Cambodia, such as the AFP and other agencies
such as the United States Federal Bureau of Investigation (FBI) and United
Kingdom's Serious Organized Crime Agency (SOCA), provide opportunities
309
132 Brotherton, op. cit., n. 120.
133 ECPAT International, op. cit., n. 96, pp. 28±37.
134 Interview with T. Hunter, Detective Superintendent, National Coordinator Child
Protection, High Tech Crime Operations, AFP, Canberra (26 October 2012) and
email correspondence (28 November 2012).
135 id.
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for advocacy and sharing of approaches to sexual offences against children
with local police counterparts. Joint operations can also have utility in wider
regional or global anti-CSEC operations. During the Cambodian police/AFP
investigation of Lines, for example, a further Australian associate was
identified which has resulted in additional investigations
136
regarding sex-
offender methodologies and how these were used in Cambodia. Evidence
was also obtained to support a United States prosecution against an
American citizen arrested in Cambodia for child sex offences.
137
Despite
these positives, a number of emerging areas of concern can be identified.
4. Sustainability and capacity building
Cooperation between the Cambodian police and NGOs specifically in the
policing arena is an important mechanism through which Cambodian
officers can potentially gain capacity to investigate sexual crimes involving
minors, whether the offender is a foreign national or Cambodian national.
Low pay and lack of training, education, and resources are common themes
when analysing the capacity of the government bureaucracy in Cambodia.
SISHA and NGOs like them working in this space recognize that lower-
ranking police officers get paid US$100 per month and lack even basic
resources (for example, money for petrol) to travel to areas to investigate
cases. SISHA notes that the central government does not provide many if
any resources for the police to investigate crimes, and often police have to
pay from their own salaries if they are to conduct investigations.
138
In this
context, the support of NGOs such as SISHA, which provides technical and
monetary support to facilitate police investigations, are significant. Without
this type of civil society intervention, the numbers of cases brought to the
courts would likely drop.
Given limited resources and training, Cambodian police face major
challenges in surveillance and intelligence gathering to build cases for the
prosecution of CST offences, alongside combating other major crime types.
The mobilization of AFP resources, where requested, supports capability-
building opportunities in the process of local law enforcement, such as
experience with presenting evidence involving child witness statements,
timing and physical evidence, and proving the age of the victim/s. In sum,
the prosecution of foreign child sex offenders in the domestic courts can
potentially support the capacity building of local law enforcement, and
310
136 This included the AFP Child Protection Team utilizing the Australian Crime
Commission (ACC) examination and other coercive powers, as CST meets the scope
of the ACC authorization and determination order that authorizes a special
investigation/intelligence operation.
137 Brotherton, op. cit., n. 120.
138 Meldrum interview, op. cit, n. 92, and follow-up email correspondence (27 August
2013).
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School
highlight gaps where expertise is lacking. Cooperation between the AFP and
the Cambodian police provides medium-term opportunities for officers in the
Cambodian Transnational Crime Team to gain experience in investigation
and gathering evidence relating to the sexual exploitation of minors. This is
also one of the reasons that the NGO IJM pushes for domestic prosecution
where possible.
There is a lack of available evidence, however, on whether and how
capacity building is facilitated where sexual crimes are involved. While
training programmes are broadly accepted as advantageous, better research
is required to identify and incorporate these outcomes into existing legal and
policy debates on combating CST and CSEC.
Demonstrating that child sexual exploitation will not be tolerated by
Cambodian courts will help to address over time the pull factor that means
that destinations such as Cambodia are deemed `desirable' by foreign child
sex tourists because of `inadequate legislation and law enforcement'.
139
This
is a difficult task, which will inevitably have setbacks and be faced with the
valid criticism that widespread corruption debilitates efforts to strengthen the
criminal justice system in multi-faceted ways.
140
Tackling the issue of sexual
violence and exploitation of children by Cambodian men is a further related
challenge. As noted by Phil Robertson, deputy director of Human Rights
Watch's Asia division: `Western pedophiles are the low-hanging fruit. Now
they [the government] should come climb up the tree to catch local sexual
abusers of children.'
141
5. State±NGO partnerships: medium-term implications and moral dilemmas
In combating CST and CSEC, destination governments must take the
responsibility to protect their citizens and improve underlying causal factors,
such as gender-based violence, or impunity and corruption in the criminal
justice system. St ates with extra-ter ritorial offences th at nonetheless
privilege territorial competence as the basis of criminal jurisdiction, whose
nationals commit sexual crimes abroad, must also share the responsibility by
providing resources and support for prosecutions of their nationals brought in
destination countries. For their part, NGOs must also examine and evaluate
their choices about how best to balance their goals to combat CST and CSEC
in the short term, while retaining some capacity to advocate views which
may conflict with the government's agenda.
311
139 Frederic and Matthews, op. cit., n. 57, p. 8.
140 For commentary on the utility of overseas development aid to policing and the `rule
of law' in Cambodia, see Broadhurst and Bouhours, op. cit., n. 75, p. 14; S. Ear,
`Does Aid Dependence Worsen Governance?' (2007) 10 International Public
Management J. 259, at 273±4.
141 Newsweek, op. cit., n. 88.
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The level and nature of NGO partnership with the Cambodian government
in this space can be seen as a double-edged sword. On the one hand, imme-
diate benefits can be gained through programmes run by SISHA, APLE, and
IJM which actively facilitate the operation of the rule of law ± in the face of
the state's unwillingness or inability to do so. The SISHA Representative
expressed it as `the way to work to move forward'.
142
Some caution needs to be shown, however, in the activity of NGOs in this
space. On the policing side, the AFP's National Coordinator of Child
Protection identifies the risk of NGOs working outside formal arrangements
with the government as counterproductive, cautioning: `Some NGOs claim
to investigate but more often than not, only endanger children by acting as
agent provocateurs and collecting ``evidence'' which would not be accepted
even in a Cambodian court.'
143
He goes on to flag the implications of
breach ing MOU gu idelin es sugge sting tha t: `Work ing outs ide [the
guidelines] only serves to lessen their impact and may impact on the ability
of, or willingness of, the Cambodian National Police to address the issue.'
144
The NGOs analysed in this article have chosen to combat CST and CSEC
via formal arrangements with the Cambodian government where they can
have an immediate impact, while aiming to exert influence through
relationships built around mutual benefit and trust. The challenge for NGOs
is evaluating their impact on government action in the field. The risk is that
government revenue is diverted due to NGO activity in this space. NGOs'
choice to work with the Cambodian government is supported to some degree
by the idea that it supports the consolidation of the rule of law. That is,
providing assistance and training to police is linked to improved criminal
justice outcomes in the long run. However, by entering formal arrangements,
NGOs also commit themselves to engagement and inclusion in state
processes, which may limit choices in other advocacy or programming areas.
Where capacity and resources are limited, NGOs must make choices
about how best to pursue their short- and medium-term goals. In seeking to
improve children's rights, and access to the justice system, NGOs like IJM,
SISHA, and APLE have chosen to partner with the government, in order to
improve the capacity of front-line police staff to arrest and gather evidence
against offenders. Unlike examples of social accountability in poverty
reduction and decentralization projects, the article suggests child protection
programmes present NGOs with moral and ethical catalysts to align with the
state.
Furthermore, because their programmes aim to improve criminal justice
responses to CST and CSEC, partnering with the police is a necessary
feature in their partnership arrangements. In the medium term, however,
312
142 Meldrum interview, op, cit., n. 92.
143 Hunter, op. cit., n. 134.
144 id.
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School
whether their capacity to advocate, particularly on issues where they
disagree with government policies, will be improved or otherwise, warrants
further research. Such debates can contribute to the evaluation of partnership
arrangements with law enforcement in this crime type and others such as
trafficking in persons or gender-based violence, and to wider discussions on
their implications for participatory governance in democratizing, post-
conflict states.
IMPLICATIONS FOR SOUTH-EAST ASIA
Complex push factors are at the root of the supply of children in South-east
Asia into situations where they can be sexually exploited by resident foreign
nationals and travelling sex offenders. Technological advancements and
increased mobility of international and regional tourists in South-east Asia
present new challenges in the child-protection area. The rise in the avail-
ability of infor mational and commu nication techno logies poses new
opportunities for offenders to access minors abroad.
145
The rise in reported
cases of so-called `cyber-sex' in Cebu in the Philippines is but one
example.
146
This article does not argue that criminal proceedings should be prioritized
over community awareness raising or prevention activities, or that offenders
should not be extradited and prosecuted under relevant extra-territorial
offences in sending countries. Rather, criminal prosecution should form only
one avenue to combat CST and CSEC, with community awareness raising,
prevention activities, and poverty-reduction strategies forming long-term
solutions. `Upstr eaming' responses to c hild vulnerability are key to
addressing the supply of children into South-east Asia's sex industry, but
remain difficult and complex to achieve.
147
Awareness raising in poor rural communities and the provision of
alternat ive employm ent and incom e-generat ion scheme s, particul arly
targeted at women (to tackle the sale of children), alongside poverty allevia-
tion and better provision of pub lic health are key.
148
Medium-term
313
145 Regarding online `child sex shows' and the role of Australian offenders within it,
see D. Oakes and I. Gridneff, `Task force targets children ``shoppers''' Sydney
Morning Her ald, 18 Novemb er 2012, at p://www.sm h.com.au/n ational/
taskforce-targets-children-shoppers-20121117-29iv7.html>.
146 A.V. Mayol. `Education Campaign Launched Against Child Cyberporn in Cebu'
Cebu Daily New s, 14 August 2011 , at sinfo.inqui rer.net/413 51/
education-campaign-launched-against-child-cyberporn-in-cebu>.
147 J. Todres, `Widening our Lens: Incorporating Essential Perspectives in the Fight
Against Human Trafficking' (2011) 33 Michigan J. of International Law 53.
148 Experiences from the AusAID Funded `Project Childhood', which is designed to
improve the prevention and prosecution of child sex tourism crimes in four Mekong
countries, will be useful in building the knowledge base on best practice in
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School
improvements in destination states' capacity to address CSEC and CST are
unlikely unless sufficient political will directs support and attention to
relevant areas of the police and judici ary. Whether and how NGO
partnership strategies help or hinder their capacity to advocate on child
protection policies remains to be seen, and should form the basis of future
research.
On a broader scale, the article has also canvassed the issue of the role of
third-party actors in regulation and governance in developing countries,
where the potential negative impacts for democratic consolidation has
already been noted by Rodan and Hughes in the context of South-east
Asia.
149
The Cambodia case study highlighted that in developing countries,
where law enforcement capacity and the rule of law are still being
strengthened, the role of civil society actors can support judicial processes
and provide access to justice for abused children and their families. Further,
it suggests that child-protection programmes present NGOs with moral and
ethical catalysts to align with the state. Where sexual crimes are occurring
against minors, partnership arrangements support local police efforts, and
create pathways for resource allocation that support immediate action.
While it is hoped capacity building and training with police, and increased
awareness of CST cases in the judiciary will improve the criminal justice
response over time, more research and evidence is required to validate these
objectives. Further comparative research, incorporating the experiences of
partnership models utilized by Australian, United Kingdom, United States
and/or European law enforcement agencies active in this crime type in
South-east Asia, would be highly desirable.
314
prevention strategies. World Vision is the implementing partner for the prevention
pillar, with Interpol implementing the prosecution pillar: see World Vision, Project
Child hood ± Pre ventio n Pilla r (2012) , at ://ww w.wvas iapac ific.o rg/
childsafetourism/>; INTERPOL, Sex Offenders (2013), at
int/Crime-areas/Crimes-against-children/Sex-offenders>.
149 Rodan and Hughes, op. cit., n. 51.
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