PANAMA: OBJECTION TO THE INCLUSION OF PORNOGRAPHY

UNCLAS PANAMA 000163 E.O. 12958: N/A TAGS: EIND ELAB ETRD PHUM SOCI KTIP PM SUBJECT: PANAMA: OBJECTION TO THE INCLUSION OF PORNOGRAPHY ON TVPRA DRAFT LIST REF: A. PANAMA 89 ¶B. 2/24/09 EMAIL FROM DOL/ILAB CHARITA CASTRO TO POLCOUNS BRIAN NARANJO -------------- SUMMARY -------------- ¶1. (SBU) Post appreciates the opportunity to review the documents used by DOL to determine whether a "significant incidence" of child labor is used in Panama to produce pornography, but is troubled by the conclusions drawn from these sources. Of the two sources that post was able to obtain, one was almost seven years old and reported only five cases of minors involved in the production of pornography. The other source reported 22 investigations of child pornography cases during the reporting period, but included no details as to whether the reported incidents involved the production of pornography or its use or distribution, all of which are criminalized under Panamanian law. Post urges DOL to reconsider its finding of a "significant incidence" of child labor in the production of pornography in Panama. As stated in REFTEL A, none of post's NGO or government interlocutors on labor issues, including child labor issues, believe that the inclusion of pornography is credible or indeed that this matter constitutes a significant problem in Panama. ¶2. (SBU) Inclusion of pornography on the list of goods produced by child labor or forced labor in violation of international standards (the "List") will put the Embassy in the untenable position of having to diplomatically defend a decision that is neither understood by post nor supported by a single player in the field, including our natural allies in the NGO community and the extensive UN entities that have their regional headquarters here in Panama. Simply put, this Embassy would be severely limited in its ability to effectively or credibly advance the diplomacy to support a DOL finding that there is a "significant incidence" of child labor in the production of pornography in Panama, let alone advance an effective diplomatic strategy to address what problems do exist. The designation that there is a "significant incidence" of child labor used in Panama to produce pornography will result in explosively salacious press reporting, undermine notable efforts being made by the GOP to combat trafficking in persons, and prove to be an unwarranted irritant in our bilateral relations with the GOP. -------------- Use of the Guidelines -------------- ¶3. (U) Of the sources cited by DOL, post was able to obtain the 2002 report entitled "The Commercial Sexual Exploitation of Girls, Boys and Adolescents in Panama" and Panama's Country Report on Human Rights Practices for 2007, but was unable to obtain the other two ILO/IPEC documents prior to this response. At this time, post can therefore make only a limited analysis under the criterion established in the guidelines set forth in the Federal Register (the "Guidelines"),as encouraged by DOL. Under the Guidelines, post takes issue with both of the cited sources. -------------- No Significant Incidence of Child Labor -------------- ¶4. (SBU) DOL relies on a 2002 report entitled "The Commercial Sexual Exploitation of Girls, Boys and Adolescents in Panama" to find a significant incidence of child labor used in pornography in Panama. Post finds this finding highly problematic since, according to the report, a total of five minors, one male and four females, had posed naked for photos or videos during the reporting period. Aside from the mention of these five cases, there was no other information relating to child pornography included in the report. Post does not consider this to be a "significant incidence" that child labor was used in the production of pornography in Panama by any reasonable measure. Indeed, post is of the opinion that this document serves to support its finding that there is not a significant incidence of child labor being used in the production of pornography in Panama. Moreover, the report is nearly seven years old. Post is not aware of the numbers cited in the other two ILO/IPEC studies but is in the process of obtaining those documents and will provide a response SEPTEL. ¶5. (SBU) Panama's Country Report on Human Rights Practices for 2007 reported only that 22 cases of child pornography had been investigated by Panama's Sex Crimes Unit during the reporting period. No additional information of any kind was provided regarding the details of these cases. The production, use and dissemination of child pornography are criminalized under Panama's Penal Code. The GOP provided no details regarding whether these investigations involved the production, use or dissemination of child pornography, and it cannot be assumed by the DOL that all of these cases, or even the majority, involved production. The probative value of this evidence is limited, especially in light of the lack of corroboration by dedicated actors in the field. If the numbers relied upon by DOL are sufficient to be interpreted as a "substantial incidence" of child pornography, it is curious that more countries were not included on the list. -------------- Extent of Corroboration -------------- ¶6. (SBU) Of the four cited sources, three are ILO/IPEC studies. Post does not have access to two of these documents, but is in the process of obtaining them from ILO/IPEC representatives in Panama. If these two additional ILO/IPEC documents corroborate the findings in "The Commercial Sexual Exploitation of Girls, Boys and Adolescents in Panama," it cannot reasonably be asserted that there is a "significant incidence" of child labor used in the production of pornography in Panama. In an interview, representatives of the ILO office in Panama specifically reported that they were not aware of the production of child pornography as a problem in Panama, and anecdotally cited hearing of two or three cases in the last few years, one of which involved an American citizen in the Bocas del Toro region. Indeed, the ILO representative corroborated the numbers in the 2002 report relied upon by DOL that cited only five cases for the year. Interviews with representatives of UNICEF, the Ministry of Labor, the Committee for the Eradication of Child Labor and the Protection of Adolescent Workers (CETIPPAT) and the NGO Casa Esperanza ("House of Hope") reported similarly that they were not aware of the use of child labor in the production of pornography in Panama outside of a few limited, isolated cases. Casa Esperanza is a well-funded and well-regarded NGO that provided outreach to 5,000 working children in 2008 and had a presence throughout the country, including in 40 communities in the indigenous regions. -------------- Outdated Information -------------- ¶7. (U) The guidelines state that "information older than seven years will generally not be considered" in determining what goods are included on the List. Two of the four sources cited by DOL were published in 2002. Both of these sources are now nearly seven years old; at the time of publication of the List, the information in these sources will be eight years old. -------------- Initiatives to Combat Child Pornography -------------- ¶8. (U) Under the Guidelines, evidence of government or third party initiatives that are effective in significantly reducing the use of child labor in the production of pornography will be considered by the DOL in determining whether to include a good or country on the List. Post asserts that the incidence of the use of child labor in the production of pornography is already low, and would like to cite several measures recently taken by Panama intended to prevent any increases in such practices: -- Panama enacted a new Penal Code reform package that went into effect in May, 2008, under Law 26. The new law specifically prohibited trafficking in persons for sexual exploitation, both internally and transnationally. Article 181 of the new law prohibited the creation, exhibition or distribution of child pornography, punishable by 5 to 10 years in prison; this penalty increased to 10 to 15 years if the victim was under the age of 14. Article 182 prohibited the possession of child pornography, punishable by 3 to 5 years in prison. -- Panama's Labor Code protected children from commercial sexual exploitation. In general, minors under 18 years of age were prohibited from engaging in work that by its nature or conditions threatened morality. Executive Decree 19 was enacted on June 12, 2006 and incorporated into Panamanian law an official list of worst forms of child labor, as required by Article 4 of ILO Convention No. 182. The worst forms of child labor specified in the decree included work involving sexual abuse or exposure to immoral acts. Article 5 of Decree 19 granted power to the appropriate authorities to identify and sanction violators. Engaging a minor in a worst form of child labor was a crime under the Penal Code. Under Article 215D of law 38, employment of a minor in conditions dangerous to health, safety or morality was punishable by a sentence of two to six years in prison. -- Panama was a party to the following international conventions: Convention on the Rights of Children (1989), approved under Law 15, November 6, 1990; Interamerican Convention on Trafficking in Minors (1994),approved under Law 37, June 25, 1998; ILO Convention 182 on the Worst Forms of Child Labor (1999),approved under Law 18, June 15, 2000; Protocol to Prevent, Repress and Sanction Trafficking in Persons, Especially Women and Children (2000),approved under Law 23, 2004; and the Optional Protocol of the Convention on Children's Rights With Regard to the Sale of Children, Child Pornography and the Use of Children in Pornography (2000), approved under Law 47, December 13, 2000. -- The Ministry of Social Development ("MIDES") provided shelter and other services to minor victims of commercial sexual exploitation by using its own shelters and the shelters of NGOs that it subsidized. MIDES provided funding to 43 children's shelters operated by NGOs in seven provinces in 2008, and a budget of USD 600,000 was earmarked for this purpose for 2009. A new emergency shelter specifically for minor victims of trafficking was being built at GOP emergency housing facility Creo en Milagros ("I Believe in Miracles"), funded by a trafficking in persons grant provided by the USG. The Puertas Abiertas ("Open Doors") shelter, also subsidized by MIDES, was specifically used for minor trafficking victims. It provided specialized treatment to minor victims of commercial sexual exploitation, including psychological support and legal assistance, and through its comprehensive program entitled "Tu Dignidad Valor" (Your Dignity has Value). This shelter reported providing services to six minor victims of commercial sexual exploitation in 2008 and 101 victims of sexual abuse. -- A Panama City program known as "toque de noche" (touch the night),picked up unaccompanied minors after 9 p.m. and took them to shelters where appropriate. -- The GOP conducted public awareness campaigns disseminated through television, radio and newspapers, billboards in Panama City and at the Tocumen International Airport, and in movie theaters and on lottery tickets. These campaigns included the following messages: "Commercial Sexual Exploitation is a Crime Punished with Prison Time" and "The Exploiter is the Guilty One." The National Commission for the Prevention of Crimes of Commercial Sexual Exploitation("CONAPREDES"),MIDES, the National Council for Journalism and ILO/IPEC disseminated 60,000 copies of a TIP awareness-raising circular in El Siglo newspaper, with the main slogan "Play it Smart. Commercial Sexual Exploitation is a Crime. Report it." CONAPREDES, the Ministry of Education and ILO/IPEC created a poster aimed at students with the slogan "Breaking the Silence," that included a hotline number and urged them to report commercial sexual exploitation. The Ministry of Government and Justice collaborated with ILO/IPEC to produce a video entitled "The Role of the National Police in Facing Commercial Sexual Exploitation of Girls, Boys and Adolescents" and also engaged in a campaign using posters placed in strategic places. According to the GOP, the purpose of these campaigns was to sensitize the population and to create a culture of intolerance to these crimes. -- In June, the GOP introduced its "National Plan for the Prevention and Elimination of Sexual and Commercial Exploitation of Children and Adolescents, 2008-2010" (the "National Plan"),that set national goals and provided a blueprint for the inter-agency coordination of efforts against commercial sexual exploitation. -- CONAPREDES was created in 2008 to combat commercial sexual exploitation and was headed by the Attorney General and included representative members from MIDES, and the Ministries of Government and Justice, Education, Health, and Finance. The presiding magistrate of the Supreme Court of Childhood and Adolescence was a member, as well as the National Assembly's President of the Committee on Women, Children's Rights, Youth and Family; the Director of the Technical and Judicial Police; the coordinator of the Executive Branch; and representatives from the Ombudsman's Office, the National Council of Childhood and Adolescence and the Lawyer's Guild. On November 1, CONAPREDES opened a technical office staffed with 3 full-time employees to implement the National Plan. CONAPREDES signed a work plan with UNICEF to develop metrics in order to quantifiably measure the success of the National Plan. CONAPREDES was in the process of creating a "Coalition Table" to include Panama's national defense, security and police organizations. -- An information network was created between the Attorney General's designated trafficking in persons prosecutors to facilitate the sharing of data between prosecutors and other agencies in order to assist in the investigation and ultimate prosecution of crimes involving the commercial sexual exploitation of children and adults. This effort was much facilitated by the USG's donation on January 29, 2009 of computers and related equipment valuing USD 125,000. -- MIDES worked to implement its Protocol for the Attention of Minor Victims of Sexual Commercial Exploitation, originally published in October of 2007. The protocol called for the coordination of public and private institutions in order to detect commercial sexual exploitation of children, to provide immediate intervention and protection, to facilitate investigation and to provide social services to the victim. -- MIDES, through its Directorate of Children's Affairs and Adoptions, engaged in the second phase of a program initiated in 2006 entitled "Direct Attention to Boys, Girls and Adolescent Victims of Commercial Sexual Exploitation in the Jurisdictions of Tocumen, 24 of December and Las Mananitas". This program was carried out in coordination with NGO Casa Esperanza and was supported by funds from ILO. In 2008, the program assisted 37 minor victims of commercial sexual exploitation in these neighborhoods, and prevented the exploitation of 60 minors at risk. Under the program, at least 30 parents were provided with resources to assist and protect the minors in their care. The current phase of the program will continue until October 2009. -- Panama continued to implement its National Plan for the Eradication of Child Labor and the Protection of Adolescent Workers for 2007 to 2011. The program was administered through the Committee for the Eradication of Child Labor and the Protection of Adolescent Workers (CETIPPAT). In April 2008, CETIPPAT initiated prevention and eradication programs in Panama City and Colon. These programs were funded entirely from the GOP general budget in the amount of USD 1.22 million. Under the program, child workers and their families were located and provided with a variety of scholarships, training and social services in an effort to lower the likelihood of the targeted child returning to the work force. In 2008, 2,500 children participated in the program. Though aimed at combating child labor in general, under the program MIDES was able to locate and provide assistance to children engaged in commercial sexual activities. UNICEF will perform an evaluation of the program that will be made publicly available in March 2009. -------------- Concern Regarding Removal From the List -------------- ¶9. (SBU) Post is concerned that, once put on the List, pornography will remain on the List for a protracted period despite the fact that the cited information is dated or scant. Under the Guidelines, removal can occur in two ways: (i) if relevant information is obtained through ongoing monitoring by DOL; or (ii) outside the DOL's own active monitoring, if information is provided by a third party that demonstrates "that there is no significant incidence of child labor or forced labor in the production of the particular good in the country in question." Post is concerned that a lack of information on the use of child labor in the production of pornography coming from Panama will lead to it erroneously staying on the List for an indeterminate period. Silence - a silence generated by the inability to prove a negative, particularly in absolute terms - will not likely remove pornography from the list. Unless a further study is performed that shows fewer numbers than the limited and ambiguous numbers currently being reported, DOL will not be able to make a finding that motivates removal. Likewise, in light of the current dearth of information, unless an entity or individual is somehow able to provide information proving the virtual non-existence of child labor being used in the production of pornography in Panama to the satisfaction of DOL, post is concerned that Panama will stay on the List indefinitely. Post strongly recommends against including pornography produced by child labor on the List as post believes that doing so will undermine both the ability of post to work with the GOP to combat trafficking in persons and the credibility of the reporting process as a whole, leaving the USG ill-equipped to defend adequately or explain credibly its decision, alienate natural USG allies on labor matters in the NGO and international organization communities, and constitute an unwarranted and unnecessary political irritant in our bilateral relations with the GOP. STEPHENSON