On January 20, 2018, Act No. 21,057 that regulates video-recorded interviews and other protective measures for minors who are victims of sexual abuse was enacted, evidencing the successful collaboration between the powers of the government, institutions of the justice system and organized civil society.
The challenge of protecting the rights of children does not end with the approval and enactment of this Act. This is the reason why Fundación Amparo y Justicia is committed to continuing to contribute to its proper implementation through training, technical advice, dissemination and awareness-raising activities. In this context, since 2018, the foundation has participated in the Subcomisión Técnica de Implementación de la Ley Nº 21.057 (Technical Sub-Commission for the Implementation of Act No. 21,057), which was created by mandate of the Comisión de Coordinación del Sistema de Justicia Penal (Commission for the Coordination of the Criminal Justice System). This committee is coordinated by the Ministry of Justice and Human Rights and attended by representatives of the Public Prosecutor’s Office, the Ministry of the Interior and Public Security, the Judicial Branch, the Public Defender’s Office, Carabineros de Chile and Policía de Investigaciones.
Similar to the first version of this book, this edition describes recommendations and best practices based on national and international evidence. It is divided into seven chapters. The first chapter refers to the participation of child victims of sexual offenses in the criminal process, their rights and the complexities faced by the justice system in this regard. It also describes the main findings of the study of their testimonies. The second chapter deals with the investigative interview itself, explaining its definition, characteristics and benefits, as well as the specific elements needed to plan, carry out, and evaluate it. The third chapter addresses technological and infrastructural aspects that need to be considered for proper video-recorded investigative interviewing. The fourth chapter elaborates on the main findings and recommendations regarding the interviewer and their training process, as well as the protocols and best practices for conducting the investigative interview. The fifth chapter reviews different models that exist at the international level for the use of these video-recorded interviews in court hearings. Chapter six describes other safeguards for the taking of children’s testimony in the judicial process, including intermediation and early testimony. Finally, the last chapter describes the procedures included in Act No. 21,057, which regulates video-recorded interviews and other protective measures for minors who are victims of sexual abuse. It also provides an easy-to-understand summary of the Act’s provisions, its regulations and the protocols for inter-institutional action and coordination.
The hope is that this second edition will continue to serve as a support and guide for the training of officials in the criminal justice system who must interact with children, as well as for anyone else who might be interested in studying this subject in greater depth.
BACKGROUND
I. The participation of child victims in criminal proceedings
1. Vulnerable victims and secondary victimization
Starting in the 20th century, on the eve of the birth and subsequent development of victimology, progress began to be made regarding the “neutralization of victims” in criminal proceedings. At the time, the State, the sole entity in charge of criminal prosecution, gave crime victims a marginal role in the process, focused only on reporting crimes and being witnesses for the proceedings (Baca, Echeburúa and Tamarit, 2006; Hassemer, 1984).
Movements in different countries began to promote changes to make victims visible in criminal proceedings. This included the creation of public policies and social protective services, as well as compensation programs for certain groups of people (Fattah, 1992; Marchiori, 2004; Walklate, 2007).
In the second half of the twentieth century, the “rediscovery of the victim” emerged in great part of the legislation of criminal procedure, recognizing the special role of the victim in the criminal justice process. As a result, their rights began to be recognized, while care and compensation programs were initiated in their favor (Ferreiro, 2005). Likewise, various international instruments were agreed upon3 , which individualized the concept of victim, established the minimum standards for their participation in the criminal justice system, and identified the rights that should be recognized by the States.
One such instrument that stands out to this day is the Declaration of Fundamental Principles of Justice for Victims of Crime and Abuse of Power, adopted by the United Nations General Assembly on November 29, 1985. This agreement provides a concept of victim that is used to date: “persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power” (UN, 1985. Section A. 1.). The term victim also includes “the immediate family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization” (UN, 1985. Section A. 2.).
In addition to this, the Declaration points out a number of rights to be respected:
Access to justice and fair treatment, including the adaptation of judicial procedures to their needs, mainly through the provision of complete and timely information; allowing their opinions and concerns to be presented; and adopting measures to minimize inconvenience to victims, protect their privacy and ensure their safety4.
Restitution from the offender or third parties responsible for their behavior.
Compensation from the State in cases where it is not adequately provided by the offender.
Material, medical, psychological and social assistance.
Thanks to the progress made in the study of victims, some groups of people have been identified as being at greater risk of having their rights violated5, and are therefore more likely to be passive subjects of crime or to perceive their respective victimization more intensely6. People in these groups are usually referred to as “victims in especially vulnerable conditions”. Children fall into this category because they need special protection and care due to their lack of physical and mental maturity, as indicated in the Declaration of the Rights of the Child.
From a legal perspective, a human group is considered vulnerable when they lack protection and cannot fully enjoy their human rights, rather than because of an intrinsic situation (Núñez, 2012). In this manner, age would make children a particularly vulnerable group due to their legal invisibility and high degree of dependency (DHES, 2014).
Similarly, studies have shown the negative impact that victims may experience from the actions or omissions of third parties intervening after the crime has been committed. This inadequate response to the needs of the victims results in a second victimizing experience, known as secondary victimization. This can cause a deepening of the negative effects of the crime or cause new repercussions, whether psychological, emotional, social, patrimonial, among others. In fact, it is believed that the effects of this type of victimization may be even more negative than those caused by the crime itself (Beristain, 1994; Gutiérrez de Piñeres, Colonel and Pérez, 2009; UN, 1999).
The clearest evidence of this phenomenon can be found in criminal justice processes, which is known as institutional secondary victimization. As García-Pablos de Molina states, this “covers the personal costs derived from the intervention of the legal system, which, paradoxically, increases the victim’s suffering” (2003, p. 145). In fact, as noted in the UN Manual of Justice for Victims of Crime and Abuse of Power (1999), this type of secondary victimization can lead to the complete denial of their human rights, since their experiences as victims of crime are not recognized.
Given their age and level of