Manfred Petersen, attorney:
"Examining child witnesses is always risky."
What kind of cases do you mostly deal with?
Cases in which men are being prosecuted for having had sexual relations with boys. These could have been boys they had met casually, or they could have been boys with whom they entertained a relationship over a long period of time.
How old are the boys you are talking about?
From 7 to nearly 15 - the typical age is about 12 or 13.
What is your role?
The counsel for defence is somebody you can consult for advice, somebody who can give you information about your rights as a suspect in a criminal procedure. The counsel for defence discusses the case with the accused and is his defender at the trial. Of course, it is important to have an attorney acquainted with the praxis in this field. For me it is of utmost importance first to talk with the accused and to get his version of the case. And for the rest, to get the information necessary to judge the affair - the accused's personal attitude, for example.
What importance does his personal attitude have for the outcome of the case?
A major one. For we are dealing with relations that are considered criminal but that involve deep human problems which we cannot quickly solve. Therefore, it is my opinion that imposing unsuspended sentences is questionable in this kind of case.
A complaint is lodged only rather seldom. What restrains people from reporting these cases to the police?
We may assume that many parents do not like to report these incidents. It is obviously a serious burden for a child to undergo examination.
How is the investigation carried out?
The suspect is arrested and brought to the police station for questioning. Once a suspect is accused, he is informed that he is not obliged to make a statement and that he is entitled to the presence of counsel for his defence. It is surprising that so many waive this right for the presence of defence counsel during examination. Many attorneys think, as I do, that the police emphasise, perhaps too strongly, that the accused will have to pay the costs for such assistance.
You think that the police would rather not have an attorney present?
Yes. The police generally think that it will be easier for them to obtain the statement they want if there is nobody present whom the suspect can ask for advice.
What methods are used to get a statement?
The suspect is questioned - and this should happen in the proper manner. But often the police are rather severe with the suspect if they have some evidence and the suspect denies having committed an offence. They often tell a suspect that he will most likely be put in preventive detention if he does not confess.
I have heard that the police have threatened paedophiles that their families or employers would be informed about what they have done.
That they are threatened with preventive detention as a means of pressure I have heard about. But I have never come across an example of what you have just said. That would be quite illegal. If I heard of such a case I would file a complaint, as this is not an acceptable way of carrying out an investigation. Threatening a suspect is not allowed.
Wouldn't it be difficult to prove?
It would be difficult to find a police officer who would admit to having employed such threats if he had done so.
What could one do to protect oneself against this kind of treatment?
One can have an attorney present at the examination.
Is the questioning less severe if an attorney is present?
Certainly. It is not the task of the attorney to tell the suspect what he should declare. The attorney is present to discuss the affair and to evaluate statements, and to explain to his client what the consequences may be of making various kinds of statements. The attorney is entitled to advise the suspect not to make a statement if he thinks that would be best for him at this stage of the investigation.
Is preventive detention generally employed?
Yes, it is very commonly used, if the police think there is a risk that the accused may try to influence the child or other witnesses to change their statements. There is also a section in the penal code which permits the detention of an accused person if there is a risk that he will commit new offences.
How long can a suspect be held under preventive detention?
Generally, until the sentence is pronounced.
Is the child also questioned?
Yes. The police are the first to question the child. Usually the social authorities are allowed to be present. Sometimes the parents are also there. In my opinion questioning children as witnesses is very risky. A child may feel himself under pressure. Children's statements can be very diffuse, especially when they are very young and in cases where a long period of time has elapsed since the events they are being questioned about took place.
What can the police do to make the questioning as considerate as possible?
See that it is carried out by an experienced police officer. For the rest it is mainly women detectives who carry out these examinations. It is dangerous when police officers with no special experience or training in questioning children perform them. It would be an excellent idea if there was some special training given in examining children. Inviting a psychologist to supervise these examinations should also be considered. I once tried to get a psychologist experienced as a professional witness to be present at the hearing of a child. The child in this case was 7-8 years old. But my request was rejected.
In what kind of cases is a professional witness psychologist employed?
In Denmark they are rarely used.
Could the parents demand the presence of a psychologist?
No. The parents are allowed to be present, but this in itself may also put stress upon the child. Sometimes the police examination is recorded on tape. The tape can then be played at the trial. I think it would be best if this was always done. Even if a written report of the examination is made, it is not verbatim and it can be difficult for the child to read through the report and understand it.
What other steps can be employed in the investigation?
The police may question persons who might have some knowledge about what happened. Moreover, they will often search the home of the suspect to try to find incriminating material in the form of pictures or letters.
They are very interested in porno magazines. They cannot be used as proof, but if the suspect says that he has not the slightest interest in children and they find porno magazines with pictures of children this will of course be incriminating.
Do you have the impression that the police have a certain moral attitude in these cases, or are they just doing their duty?
I cannot remember ever having discussed moral questions with a police officer, but generally most policemen seem to think that such an offence is something horrible, that it is very serious and should be punished severely. We can say that the tribunals have a more nuanced view. This is also shown by the number of probationary sentences given.
Do you have any opinions about the reaction of the parents in this kind of affair?
Parents react strongly. They are very shocked. This is perhaps a natural
reaction, but it is important to inform the parents that these kinds of sexual
contacts do not necessarily harm the child. For usually in most of these cases
the relationship is entirely consensual - there are so many examples of positive
relations, and yet they are nevertheless still punishable. There have been many
cases in which the child would have liked to continue the relationship, especially where the child is close to the age of consent. In
these cases the age of consent of 15 is unsatisfactory because a relationship is
labelled criminal when it is not necessary so. It was therefore proposed to
lower the age of consent to 14 years.
I do not know if I have enough background to decide what age of consent would be best, but I have no hesitation in saying that am convinced that 14 would be acceptable. I even believe that in many cases a still lower age would be proper.
In Holland, the praxis is normally not to prosecute such relations if the child is over 12 years old, save when there is a question of assault or other adverse circumstances.
This seems a reasonable approach to the problem.
Do you believe this could also be introduced in Denmark?
Yes, I think this could very well be introduced. If the age of consent is fluid we'll have problems, but also in other areas we have a provision where it is left to the judge's discretion whether an offence has been committed or not. It is ultimately up to the court to decide whether the contact had been entirely voluntary, so that the accused would be acquitted in those cases in which there was no assault.
Could you give us a brief sketch of the criminal procedure?
During the trial?
If the accused pleads guilty or something similar the case proceeds as follows. Only the accused makes a statement. If he was prosecuted for ten contacts with a child and admits to five of them, the prosecution will perhaps restrict itself to these five. If there is a statement which the police think acceptable, the accusation can be made without an official act of accusation. In such cases the case may be decided by the judges alone, without calling a jury.
This means that he then is judged exclusively upon his own statement?
Yes. If, on the other hand, he denies his guilt, accusation must be brought by a written act drawn up by the public prosecutor, the accused and several witnesses. First the accused makes a statement. After this the witnesses are heard. Other forms of evidence may be introduced - pictures, letters, etc. The prosecutor speaks after the evidence has been introduced. Then the council for the defence speaks and the accused is allowed to have the last word, as in every criminal case. The court makes its decision based on what was put forward during the trial.
How severe is the punishment in most of these cases?
This depends on several things. For example, the child's age is taken into
consideration. Whether the child is younger than twelve or between twelve and
fifteen. They take into consideration what actually happened, whether there was
some act resembling intercourse - in other words, whether there was insertion of
the penis in the child's anus or vagina. Also whether there was a single act,
or whether there were more than one child involved and a number of contacts.
They might also take the man's personal situation into consideration - whether
he lived an orderly life, whether this was his first appearance before the
courts, had he been sentenced before, etc.
If he is a first-time offender, the sentence will be under probation in a large number of cases. If the man has already been sentenced for similar offences, he probably can count on an unconditional sentence of four months to one year of imprisonment.
What rights has an accused during examination and during the trial?
He is under no obligation to make a statement. You cannot be punished for making a false statement in your own case, in contrast to the witnesses, who are criminally responsible. Moreover, one is entitled to supervise the procedure. The accused may be removed from the courtroom while the child is being examined, but he has the right to be informed of the child's statement. And he is also entitled to have the last word.
How do you think the child experiences this whole procedure?
I think it is a very heavy burden for a child to pass through the legal machinery and to make a statement to the police. I even believe we may say it is at least as big a burden for the child to have to do this as the sexual relation itself, particularly if we are dealing with entirely consensual contacts.
Is it difficult for children to understand why their friend is being sent to prison?
I do not talk with the children, but I do indeed believe that many of them have a hard time understanding why their friend must be imprisoned. I know cases in which the relationship was resumed after the case was finished.
Does the boy ever keep up contact with the paedophile during the period he is detained in prison?
Yes, there are examples of that.