July 14, 2008

IX. Criminal Cases Against Domestic Workers

The court decision was that if you have unwanted sex and have babies you are imprisoned for one-and-a-half years; that was the charge for me. I don't exactly know what has happened [to my employer who raped me], but I think he was arrested and [he] paid a bribe.
Amanthi K., returned domestic worker, Katunayake, Sri Lanka, November 1, 2006

Saudi Arabia's criminal justice system can also be a serious problem for migrant domestic workers. Some find themselves facing spurious charges of theft or witchcraft from their employers against whom they may have lodged complaints of mistreatment, or discriminatory and harsh morality laws that criminalize mingling with unrelated men and engaging in consensual sexual relationships. Domestic workers who have been victims of rape or sexual harassment may also be subject to prosecution for immoral conduct, adultery, or fornication. Punishments for this range of crimes include imprisonment, lashes, and, in some cases, death. Within the justice system, they are likely to experience uneven or severely delayed access to interpretation, legal aid, and access to their consulates.

Migrant domestic workers confront these issues within the broader context of a criminal justice system wracked with problems. Saudi Arabia does not have a written penal code. Judges often do not follow procedural rules, and issue arbitrary sentences that vary widely. Many judges do not provide written verdicts, even in death penalty cases.[211]

Procedural Violations

We receive diplomatic notices about our nationals who are charged and in jail only about 20 percent of the time, and this is erratic, often with up to three months' delay.
Embassy official L from a labor-sending country, Riyadh, March 8, 2008

Saudi Arabia regularly violates international standards of due process and fairness, and domestic workers charged with crimes may be unable to obtain an interpreter, legal counsel, or access to their consular officials when arrested, detained, or on trial.

Human Rights Watch interviewed diplomatic officials from six labor-sending countries who all reported that it often takes several months to learn about arrests, criminal proceedings, convictions, and deportation of their nationals, often at points too late to provide legal assistance or to advocate for the rights of the accused. Saudi protocol dictates that notification of arrests and other criminal proceedings, as well as requests to visit detained nationals, pass through the Ministry of Foreign Affairs (MOFA), and this requirement causes delays.[212]

Most officials from foreign missions must develop other strategies for finding out about and assisting detained nationals. For example, some cultivate personal contacts in police stations and prisons. As one official said, "If we wait for the Ministry of Foreign Affairs, [in the meantime, the Saudi authorities] will extract a confession, there will be no proper translator and it will be in broken Arabic. There needs to be direct communication between the [investigations] side and the embassy."[213] Officials from the Indonesian and Sri Lankan embassies told Human Rights Watch that they suspect many more of their nationals have been arrested and convicted of crimes, but they do not have any further information.[214]

Saudi authorities interviewed by Human Rights Watch told us that they comply with these procedures in a timely way. The minister of foreign affairs said, "We at the Ministry of Foreign Affairs inform the embassy immediately."[215] However, the officials from labor-sending countries said that such notifications and permissions are grossly delayed, and sometimes nonexistent. One official said, "It is a long time before we are notified. Yesterday we received notice from Foreign Affairs about several deaths of [our nationals] whose bodies we repatriated several months ago. We found out [earlier] from their families."[216] Another official said, "We don't get to speak to them [our nationals] before their case is tried. [In some cases] we can't talk to [our nationals], we see them through a window. If she has her passport, they may repatriate her without our knowledge."[217]

These practices violate Saudi Arabia's criminal procedure code, which stipulates, "Anyone who is arrested or detained shall have the right to call whomever he likes to inform him of his arrest," and that, "Each defendant has the right to have a representative or attorney to defend him during investigation and trial."[218] Current practices also violate Saudi Arabia's international obligations under the Vienna Convention on Consular Affairs, which mandates that consular officials have access and the ability to freely communicate with their nationals, and reciprocally, for foreign nationals to have access and communication with officials from their consulate.[219] Saudi Arabia has an obligation to inform detained foreigners about their right to contact their consulate, and to permit consular officials to visit the detainee and to arrange for his or her legal representation.[220] The UN Committee on the Convention Against Torture, to which Saudi Arabia is a party, has reminded the government that it has obligations as part of the safeguards against prohibited treatment of detainees to "ensure, in practice, that persons detained in custody are able to exercise prompt access to legal and medical expertise of choice, to family members and, in the case of foreign nationals, to consular personnel" (emphasis added).[221]

Another practice that obstructs fair trials is poor access to written judgments. Human Rights Watch spoke to embassy officials and lawyers representing domestic workers in criminal cases who were unable to obtain written judgments in cases of convictions, impeding their ability to file and prepare appeals. In the cases where they do get information, several diplomats explained they have trouble understanding the documents: "They transliterate into Arabic and we can't figure it out. Sometimes the information from Foreign Affairs is hard to understand, both names and exact places."[222]

Domestic workers must rely on ad hoc arrangements for interpretation in police stations and court proceedings and often have no legal counsel. In some cases, the Saudi government or the worker's embassy offers an interpreter; in other cases, the worker must rely on her rudimentary Arabic or doesn't understand the proceedings at all. Furthermore, according to an official from the Saudi Ministry of Interior, "The law does not say that we have to wait for a lawyer to show up before we start interrogation."[223]

In a case that garnered protests from groups around the world, a Saudi court convicted Rizana Nafeek, a 19-year-old Sri Lankan domestic worker of killing the baby in her care, and sentenced her to death. Nafeek did not have interpretation when the police extracted her confession, which she later retracted, and she did not have legal counsel in the two years during her trial. Nafeek, who was 17 at the time, was an inexperienced domestic worker who claims the baby choked on milk and died. Nafeek's case was still under appeal as of June 2008.

Countercharges of Theft, Witchcraft, or False Allegations

I was running in the street without knowing where to go, and without wearing an abaya. I went without the abaya because I was afraid that if I took it, they would accuse me of stealing and cut off my fingers.
-Journey L., Filipina domestic worker, Riyadh, December 4, 2006

A common problem is that domestic workers who have run away from their employers or who file complaints may face spurious countercharges of theft or witchcraft from their employers.[224] An official from a labor-sending country told us, "The police being Muslims, they will believe other Muslims, and those of the same nationality. [But] we are seeing something very encouraging. The police are becoming accustomed to these trumped up charges ... that is a big improvement from the past."[225] Despite attitude shifts among some police, the threat of countercharges remains a serious problem, however. An official handling labor issues for his embassy said it is difficult for workers to claim unpaid wages, as "a worker may be afraid of telling the truth [about her wages] because of the threat of countercharges. [T]he worker tends to forego the claim."[226]

Nurifah M. described to us her experience after she ran away from her employer and sought refuge at the Indonesian consulate: "After that, the employer made a report claiming that I stole 60,000 riyals (US$15,600) and gold. The police called the consulate that I have to go to the police station. I have no money. If I did have money, I would not have come to the consulate. If I had money, I would have run away to my country."[227] In Nurifah M.'s case, the police concluded that she had not stolen any money, but despite a subpoena to the employers and multiple visits to their home, Nurifah M. has not been able to recover her lost wages.

In other cases, domestic workers with criminal complaints against their employers may be subject to intensive scrutiny and charged with making false allegations. Nour Miyati, described in the section on forced labor, was sentenced to 79 lashes for making false allegations against her employer despite the female employer's confession to committing abuse and the extensive medical treatment Nour Miyati required for injuries sustained from beatings and starvation. A Riyadh court overturned the sentence against Nour Miyati in April 2006. More than three years after the original case was filed in March 2005, the court dropped the charges against the female employer in May 2008.

Workers who run away may also face sanctions for breaking their contracts and leaving their employers, therefore violating immigration rules. In 2007 a court in Ha'il sentenced two Sri Lankan domestic workers to 45-day jail terms and 70 lashes each for running away from their employers, while two Sri Lankan men, convicted of assisting them, received sentences of three months in prison and 200 lashes each.[228]

Witchcraft cases

As briefly mentioned in the section on physical violence, seven members of a Saudi family who employed four Indonesian domestic workers beat them in early August 2007 after accusing them of practicing "black magic" on the family's teenage son. Siti Tarwiyah Slamet, 32, and Susmiyati Abdul Fulan, 28, died from their injuries. Ruminih Surtim, 25, and Tari Tarsim, 27, were receiving treatment in the Intensive Care Unit of Riyadh Medical Complex when Saudi authorities removed them from the hospital, detained them for interrogations about their alleged "witchcraft," and initially denied them access to officials from the Indonesian embassy.[229]

The Indonesian embassy is trying to explore legal options for domestic workers already convicted of witchcraft. For example, they are working on the case of a domestic worker in Gassim who initially received the death penalty for a conviction of witchcraft and had her sentence reduced to 10 years' imprisonment.[230] In two witchcraft cases involving Indonesian domestic workers in Hofuf, the embassy is aware that they have been found guilty, but does not know the sentence as they have not been able to secure copies of the judgments.[231]

Charges of witchcraft are arbitrary and flout international human rights standards. The crime of witchcraft is not defined by Saudi law and there is no common understanding of what types of activities constitute witchcraft, presenting enormous challenges to defendants. In interviews with Human Rights Watch, former and current officials from the Ministry of Justice were unable to clarify the exact definition of witchcraft, although they asserted it results in the endangerment of life.[232] Employers often target activities that may be a result of differing cultural practices, such as carrying an amulet, as proof of witchcraft. An embassy official from a labor-sending country said, "These cases are very hard, and it is complicated. They will be accused of some small thing, like carrying a photo in their purse, or if their hair falls off [in the food],"[233] and this will be seen as evidence of attempting witchcraft.

"Moral" Crimes

Usually we send them home quietly. The police also don't want to pursue these cases. We have several cases this year of women detained for adultery or fornication. Usually around five months. They may also get physical punishment.
-Embassy official A from labor-sending country, Riyadh, November 29, 2006

Adultery, fornication, prostitution, and being in the presence of unrelated men are among the most common reasons a domestic worker is convicted and imprisoned in Saudi Arabia.[234]The punishments are severe. For example, in a sample of cases analyzed by Human Rights Watch, Sri Lankan domestic workers convicted of prostitution received prison sentences of 18 months and between 60 and 490 lashes.[235] An embassy official noted that those accused of prostitution were often simply found in the company of unrelated male acquaintances, with no further evidence of sexual activity.[236]

While some domestic workers are acquainted with the laws in Saudi Arabia, others have little information. Most domestic workers come from countries where being in the presence of unrelated men is not criminalized, and they may not fully be aware of the consequences. In some cases, domestic workers must put themselves at risk when relying on assistance from unrelated male migrants to escape abusive employers.

Human Rights Watch documented cases in which Saudi courts convicted domestic workers of "moral" crimes, often in situations where they had no control. For example, Bethari R. was sentenced along with her employer to lashes for his entrance into the women-only section of her workplace. Arriving in Saudi Arabia as a tailor, Bethari R.'s employers forced her to perform extensive housecleaning and childcare duties and to work long hours. Her employers also had a history of conflict with the religious police. Bethari R. had no ability to transfer employment or negotiate her work responsibilities. She said, "They shouted at me. The female employer was very arrogant. She treated us like slaves. The beauty parlor was closed by the mutawwa' (religious police) several times. I did not want to be involved with this."[237]

During the trial, all parties had a different version of events with no conclusive evidence. The judge sentenced the male employer to 11 months' imprisonment and 200 public lashings. The judge did not address Bethari R.'s allegation that her employer raped her. He blamed Bethari R. for not complaining about the employer's entrance into the women's section and for working late hours, sentencing her to 70 lashes and deportation.[238] At the time we spoke to her the Indonesian embassy was trying to appeal the punishment.

The criminalization of mingling with unrelated persons of the opposite sex and consensual sexual relations flout international standards protecting rights to liberty and privacy. In addition, evidentiary standards discriminate against women, whose testimony is valued at half that of men's. According to Sharia, the only guaranteed way to obtain a rape conviction is if the accused confesses or there are four adult male witnesses to the act of penetration. Otherwise, the courts have no consistent standards of proof for rape. As a result, courts sometimes view a woman's allegations of rape as an admission of illicit sex, making sexual assault victims susceptible to prosecution themselves. The evidentiary standards to prove rape are difficult to meet especially as domestic workers are isolated in private homes where there may be no witnesses, and because they might not be able to leave the house to seek forensic examinations that could serve as evidence.

Women who became pregnant as the result of either rape or voluntary sexual relationships are at risk of prosecution given that their pregnancy is considered evidence of illicit sexual relations outside of marriage. For example, we learned in March 2008 of a Nepalese domestic worker who alleges the son of her employer raped her. She was imprisoned after giving birth to her baby and was awaiting trial at the time.[239]

One embassy official said that in the previous six months he had handled four to five pregnancy cases and that many pregnant domestic workers end up in Malaz prison.[240] Officials from labor-sending countries handling complaints said that, sometimes, Saudi police cooperate with them and do not press charges against women who are pregnant. One embassy official said, "But those who give birth must go to jail."[241]

Amanthi K. became pregnant after her employer raped her. She was sentenced to nine months in prison for adultery in 2006 and said, "The [judge] told me, 'You have come here to work and you have committed a crime.' I said that the boss has committed a crime and not me. Later on I was admitted to the hospital and after giving birth we [my daughter and I] ended up in prison."[242] Amanthi K. reported that there was an interpreter between Arabic and Sinhala, but that she had no lawyer. The Saudi authorities did not provide her with an opportunity to notify the Sri Lankan mission about her case and she had no contact or assistance from them during her ordeal.

Officials from labor-sending countries told Human Rights Watch they usually advised women workers not to pursue cases of sexual harassment or assault unless there was irrefutable evidence. Most felt it was not worth the risk given the stringent evidentiary requirements, the lengthy time required for criminal cases to be resolved, and the risk of prosecution for adultery and other "moral" crimes. One official said, "Out of 40 cases of sexual abuse or harassment, those that filed a complaint was around four."[243] Another official said,

Sometimes, to some ladies, we say, you have been abused, I don't have the capacity to keep you in a shelter for one to two years. I cannot encourage my staff or my ladies to go forward. Who can provide the witnesses? This is required under Sharia. These are the implications, so we're afraid to pursue these cases.[244]

[211] Human Rights Watch, Precarious Justice; Human Rights Watch, Adults Before Their Time.

[212] Human Rights Watch interview with Prince Sa'ud al-Faisal, minister of foreign affairs, Riyadh, December 2, 2006: "There is an order from the cabinet that if any foreigner is arrested, the Ministry of Foreign Affairs should be informed."

[213] Human Rights Watch interview with embassy official C from a labor-sending country, Riyadh, December 4, 2006.

[214] Human Rights Watch interviews with embassy officials from Sri Lanka and Indonesia, Riyadh, March 2008.

[215] Human Rights Watch interview with Prince Sa'ud al-Faisal, December 2, 2006.

[216] Human Rights Watch interview with embassy official B from a labor-sending country, Riyadh, December 3, 2006.

[217] Human Rights Watch interview with embassy official J from a labor-sending country, December 13, 2006.

[218] National Society for Human Rights, First Report on the Situation of Human Rights in the Kingdom of Saudi Arabia (Riyadh: NSHR, 2007), p. 11.

[219] Vienna Convention on Consular Relations, adopted April 24, 1963, 596 U.N.T.S.261, entered into force March 19, 1967, art. 36. states, "[I]f he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. The said authorities shall inform the person concerned without delay of his rights under this subparagraph; [C]onsular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement."

[220] Ibid.

[221]Conclusions and recommendations of the Committee against Torture : Saudi Arabia, June 12, 2002, CAT/C/CR/28/5, para. 8(h).

[222] Human Rights Watch interview with embassy officials C and J from labor-sending countries, Riyadh, December 4 and 13, 2006.

[223] Human Rights Watch interview with Shaikh Al Abdallah, head, Department of Prosecutions and Investigations, Ministry of Interior, November 29, 2006.

[224] Human Rights Watch interview with embassy official B from a labor-sending country, Riyadh, December 3, 2006.

[225] Human Rights Watch interview with embassy official L from a labor-sending country, Riyadh, March 8, 2008.

[226] Human Rights Watch interview with embassy official P from a labor-sending country, Riyadh, March 8, 2008.

[227] Human Rights Watch interview with Nurifah M., Indonesian domestic worker, Jeddah, December 11, 2006.

[228] Mariam Al Hakeem, "Runaway maids face jail and flogging," Gulf News, April 5, 2007.

[229] "Saudi Arabia: Migrant Domestics Killed by Employers," Human Rights Watch news release. After protracted negotiations, the women were cleared of the charges and Ruminih Surtim received 30,000 riyals ($7,800) and Tari Tarsim received 15,000 riyals ($3,900) as compensation, Human Rights Watch interview with Indonesian embassy official who requested anonymity, Riyadh, March 10, 2008.

[230] Human Rights Watch interview with Nasser Al-Dandani, lawyer, Embassy of Indonesia, Riyadh, March 10, 2008.

[231] Ibid.

[232] Human Rights Watch interview with M.R. Abdulhameed Al-Galiga, consultant, Ministry of Justice, M.R. Deefallh Al-Onzu, researcher, Ministry of Justice, and D.R. Naser Al-Shahrani, department of investigations and prosecutions, Riyadh, March 12, 2008.

[233] Human Rights Watch interview with embassy official M from a labor-sending country, Riyadh, March 10, 2008.

[234] Human Rights Watch interviews with officials B and E from labor-sending countries, Jeddah and Riyadh, December 3 and 9, 2006, and embassy official J from a labor-sending country, Riyadh, March 11, 2008; and "Details of Sri Lankan Female Prisoners/Detainees," written communication from official who requested anonymity, Sri Lanka Ministry of Foreign Affairs, Colombo, Sri Lanka, November 20, 2006.

[235] "Details of Sri Lankan Female Prisoners/Detainees." An official from another labor-sending country said that typical punishments ranged from 50 to 250 lashes for cases involving "moral" crimes. Human Rights watch interview with embassy official H from a labor-sending country, Riyadh, March 8, 2008.

[236] Human Rights Watch interview with Nasser Al-Dandani, March 11, 2008.

[237] Human Rights Watch interview with Bethari R., Indonesian tailor forced to perform domestic work, Riyadh, March 11, 2008.

[238] Judgment from Qubba Public Court, 15/8/1428, and Human Rights Watch interview with Nasser Al-Dandani, March 11, 2008.

[239] Human Rights Watch interview with a source who requested anonymity, Riyadh, March 2008.

[240] Human Rights Watch interview with embassy official J from a labor-sending country, Riyadh, March 10, 2008.

[241] Human Rights Watch interview with embassy official M from a labor-sending country, Riyadh, March 10, 2008.

[242] Human Rights Watch interview with Amanthi K., returned domestic worker, Katunayake, Sri Lanka, November 1, 2006.

[243] Human Rights Watch interview with embassy official B from a labor-sending country, Riyadh, December 3, 2006.

[244] Human Rights Watch interview with embassy official J from a labor-sending country, Riyadh, December 13, 2006.