How To Prosecute Sexual Assaults at Sea?

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A reported sexual assault case aboard a Mediterranean cruise ship last week highlighted that legal ambiguity in International Law pertaining to sexual assaults in a cruise ship. You can be virtually left unprotected at sea as it shows in this case, a Spanish judge released the detained suspect after the ship docked in Valencia, writes Elisabeth Malkin in an article published in New York Times.

The judge declared that Spain had no jurisdiction in the case because the alleged crime was said to have taken place in international waters, according to a report by the Spanish newspaper Levante.

The Problem of Jurisdiction of Prosecution

“There’s no cut-and-dried rule,” said Frederick Kenney, the director of legal affairs and external relations for the International Maritime Organization, a United Nations agency responsible for global shipping safety.

“There is no international law that covers this situation at the moment,” he said.

Maritime law establishes that a ship is subject to the laws of the country whose flag it flies. But for tax reasons and other legal advantages, few cruise ships are flagged with the countries of their home port, or even their corporate headquarters.

Problems in this case

  • In the Spanish case, the suspect was detained aboard the MSC Divina, which flies a Panamanian flag and is in theory subject to Panama’s laws.
  • In practice, the country may not have the resources to investigate crimes that take place far from its shores.
  • But other laws in place should have protected the victim, said Aleksandra Ivankovic, the deputy director of Victim Support Europe, a victims’ rights organization.

Istanbul Convention of Violence Against Women

“Even assuming that the Spanish judge made a lawful decision in accordance with Spanish law, from the perspective of human rights guarantees, her rights as a victim of a terrible crime were not respected,” Ms. Ivankovic said.

The Istanbul Convention on violence against women, a European treaty, should apply to the case, she said.

The reported sexual assault aboard the MSC Divina involved a 17-year-old victim from the United Kingdom, according to Levante; the 18-year-old suspect was Italian. The victim reported the assault early in the morning of April 11 while the ship was sailing between Palma de Mallorca and Valencia.

The Istanbul Convention states that countries have jurisdiction when one of their citizens or residents commits a crime defined by the treaty.

In addition, European Union countries have agreements that allow a suspect to be held in one country and transferred to another for prosecution, Mr. Kenney said. “Why that avenue was not employed is unclear to me,” he said.

Why can’t it be implemented?

Still, Ms. Ivankovic warned that the Istanbul Convention and other European human rights protections, which are more broadly written than national laws, are not easy to implement.

Robin Roothans, a spokesman for MSC Cruises, said the company reported a “case of alleged sexual misconduct” by a passenger to law enforcement authorities in Spain who boarded the ship when it arrived in Valencia.

“The suspect was handed over to the authorities in Valencia,” he wrote in an email, adding that the company had assisted investigating authorities. MSC Cruises is a division of the global shipping firm MSC Group, which is based in Geneva.

Onus on the company

Ross A. Klein, a professor at Memorial University of Newfoundland who studies the cruise industry, said the company should have known that Spain had no jurisdiction over the crime.

“There is nothing stopping the British police or the Italian police from the investigation,” he said. “The cruise line invited the Spanish police; it was a choice.”

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Beyond Europe, there are other legal tools allowing countries to investigate crimes committed aboard cruise ships.

Can Jurisdiction Be Exerted?

“Jurisdiction can be exerted, if it’s chosen to be exerted, by any number of different parties,” Dr. Klein said.

Under United States law, the F.B.I. can choose to investigate cases involving American citizens, even when the cruise ship does not dock in United States ports, Dr. Klein said. The law provides passengers with the right to call the F.B.I. directly.

“Passengers don’t realize this,” he said. “They have no idea.”

Even when the United States has asserted jurisdiction, there are many questions about what happens next.

“We have had so many discussions with the F.B.I. and the Coast Guard once a crime occurs,” said Jamie Barnett, the president of the International Cruise Victims Association. “If I spoke to 100 different F.B.I. field agents, I would get 100 different responses. It’s so murky.”

And citizens of countries that do not assert jurisdiction have less recourse.

The Judge’s Outlook

Martyn Griffiths, a spokesman for the Cruise Lines International Association, the industry’s main trade association, placed the blame on the Spanish judge, arguing that the ship’s captain had followed maritime law in reporting the crime to law enforcement at the next port.

“We were quite surprised. In Spain they have a low tolerance for crimes like this,” he said. “It was a very literal interpretation of the law.”

Independent Police Force Onboard?

Victims’ rights advocates argue that cruise ships need an independent police force aboard to protect passengers because the cruise line’s security is concerned with limiting the company’s possible liability.

“We are up against a very powerful industry,” said Kendall Carver, the chairman of the victims’ association, whose daughter Merrian disappeared from an Alaskan cruise in 2004.

Under a 2010 United States law, cruise lines must report crimes committed on their ships to the F.B.I., and the results are published by the Department of Transportation.

Those statistics show that sexual assault is among the crimes that are most frequently reported.

But Mr. Carver said the raw data reported by the cruise lines, which he obtained for 2011 under the Freedom of Information Act, was higher than the public figures. A 2013 report by the Government Accountability Office also questioned whether the data offered a full picture of crime aboard cruise ships.

Dr. Klein said his study of the data found that about 20 percent of victims of sexual assault aboard cruise ships were under the age of 18.

“The protection you have as a cruise passenger is limited at best,” Dr. Klein said. “The further you get from your home country the more limited it is.”

“At this point, it’s anarchic,” he added. “It’s hit or miss.”

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Source: New York Times

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