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

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Cited authorities 5

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Author	Melissa Curley
DOI	http://doi.org/10.1111/j.1467-6478.2014.00667.x
Published date	01 June 2014
Date	01 June 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).

This literature

has included discussions of how various jurisdictions have amended and

prosecuted their extra-territorial offences, such as Australia,

the United

Kingdom,

and the United States,

and regional efforts to combat CST and

CSEC, such as in South-east Asia

and Europe.

However, the United

284

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.

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.

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.

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),

and the

International Covenant on Civil and Political Rights.

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

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,

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.

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.

The peak international body that works in the field of child

exploitation, ECPAT,

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.

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.'

ECPAT has called for greater use of extra-territorial offences to prosecute

foreign child sex offenders,

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.

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.

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.

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,

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

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

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.

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

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.

The literature on trafficking,

both in Cambodia, and in the Asia-Pacific region alone is vast,

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.

This

article utilizes the categories of `preferential' and `situational' offenders to

describe different types of offending patterns relating to CST,

while

recognizing that debate exists over the utility of additional categories.

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.

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.

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.

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.

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',

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'.

While she argues that new

`political will must be created in countries with a poor sex tourism record',

she concedes this is `usually the result of diplomatic incentives and pres-

sures'.

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.

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.'

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.

`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'.

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

± both in Cambodia

and other post-conflict

settings.

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',

and was

intended to foster more equal `ways of working and mutuality in respect for

identity, position, and role'.

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.

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.'

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

Since the mid-1990s, numerous foreign

nationals have been prosecuted both in Cambodia, and extra-territorially,

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.

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.

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.

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.

Furthermore, there appears to be an

increase in the percentage of sex workers' participation via independent and

indirect sex work.

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.

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.

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.

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'.

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.

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.

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)

(hereafter `Human Trafficking Law') and

296

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)

(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,

and

political interference in the judiciary.

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.

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.

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'.

Numerous reports confirm and provide a commentary on corruption,

which is widespread in various forms of public and private organizations.

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.

Foreigners typically have

access to greater resources to bribe officials in the system, and therefore

present a further potential barrier to a fair trial.

The lack of awareness and implementation of a child-friendly courts

system further exacerbates problems with the prosecution of sexual exploita-

tion offences.

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.

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,

and of civil plaintiffs

accepting extra-judicial compensation for withdrawing the complaint.

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.

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.

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.

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'.

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'.

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.

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'

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.

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.'

The implication for child sex tourists is that they can

now also avoid soliciting and grooming children in very public ways.

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.

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'

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.

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.

ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School

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.

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>.

ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School

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.

ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School

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.

ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School

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>.

ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School

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.

ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School

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.

ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School

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.

ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School

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Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
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Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see a list of all the documents that have cited the case.

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Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see the revised versions of legislation with amendments.

You can sign up for a trial and make the most of our service including these benefits.

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Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see any amendments made to the case.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see a visualisation of a case and its relationships to other cases. An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. You also get a useful overview of how the case was received.

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Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

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

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Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users