The rights of the child when a parent is sentenced to the death penalty or executed

The rights of children of parents sentenced to the death penalty or subject to execution are seldom discussed and have largely been neglected. It is crucial that we bring the child’s perspective into these reflections
In recent years, we have seen some promising developments at the global level: in September 2013, the Human Rights Council of the United Nations held an important panel discussion on the rights of children of parents sentenced to the death penalty or executed, and the topic has been given special attention in the reports of the Secretary-General on the question of death penalty. The Committee on the Rights of the Child has addressed it in reviewing States parties’ reports on national implementation of the Convention on the Rights of the Child. The topic has also been raised in the Universal Periodic Review process.

Several international and regional human rights instruments prohibit the use of capital punishment, promote its abolition and strictly limit its use to punish the “most serious crimes”. Some 160 States have abolished or introduced a moratorium on the death penalty either in law or practice, and some have suspended its enforcement.

Despite a general trend away from the use of capital punishment, in some countries there is lack of transparency surrounding executions and at times data regarding the use of the death penalty is classified as a state secret. Needless to say, it is even more difficult to obtain information about the children and families affected by the execution of a parent. Improved data collection and sound research are urgently needed in this area.

According to available studies, the death penalty disproportionately affects the poor and persons from ethnic, racial and religious minorities. The stigma faced by children whose parent has been sentenced to death may thus be compounded by multiple other forms of discrimination.

Indeed, the protection of the rights of the child enshrined in the Convention on the Rights of the Child is a very distant dream for these children: their best interest is not duly taken into account and protected (article 3); their right to freedom from violence is not safeguarded (article 19); their right to special protection and assistance when State action causes a child to be deprived of his or her family environment is not given due attention (article 20); and the right to an adequate standard of living for the child’s physical, mental, spiritual, moral and social development is not fulfilled either (article 27(1)).

To a child, the loss of a parent is deeply traumatic in any circumstances. But, unlike a parent’s death from natural causes, when it results from a State-sanctioned execution, it is especially confusing and frightening. Children find it hard to understand and explain their situation and are tempted to go into denial it and hide their feelings. These children need compassionate support and accurate information about the situation of their parent on an on-going basis and in an age-appropriate way. Experience shows that family and peer support, as well as assistance by community-based and civil society organizations, can be an effective and helpful intervention.

Children with a parent facing the death penalty may feel invaded by anger and a deep sense of uncertainty. The process from trial to imprisonment, perhaps with multiple stages and appeals, is exhausting both for those convicted and their children. These children experience high levels of stress and anxiety as the execution is announced, delayed and appealed. Traumatized and with low self-esteem, they suffer from constant nightmares or loss of sleep, and eating disorders; they lose concentration and interest in school, as well as the desire to engage in recreation or play. Some feel pressed to become economically active if the breadwinner of the family is in prison or has been executed. In these situations, post-traumatic stress disorder, aggressive behavior and self-harm often go hand in hand. Overall, children endure this experience in deep loneliness and hopelessness. These children have truly been left behind.

Following a capital sentence, adults of the family may need to focus their energy and resources on preventing the execution and the child may not receive the support that he or she needs. Unresolved grief and trauma following the execution can make it hard for these children to themselves become good parents later in life and the death penalty ends up having a lasting intergenerational impact.

While data is limited, UNODC statistics show that between 40 and 70 per cent of homicides of women are committed by an intimate partner/family member. This indicates that a significant number of children are affected as a result of both the crime and the conviction. Where the death penalty applies, these children are effectively made orphans by the State. In some cases of domestic violence, children may also be required to stand as witnesses in court and as a result they develop a deep sense of guilt as their testimony may contribute to a death sentence for their own parent.

In addition, the serious stigma associated with persons sentenced to death often makes it difficult to find foster parents or alternative caregivers for the child. This further exacerbates the pain and in turn increases the risk of the child becoming homeless and ending up living on the street, at risk of violence and exploitation, and manipulated into a criminal path. Girls in these situations are at particular risk of sexual violence. At the same time, relatives may not have financial resources to take care of the child, and in cases where both the offender and the victim are child’s parents, families may be riven by the homicide and the child left to rely on his or her own resources.

Visiting a parent in prison is often frightening; strip searches and shouting staff make children feel anxious and terrified, as if they were placed in jail too. Oftentimes, they have to travel long distances to come to the prison but the time spent together with their parent is too brief. Children would like to have more time with their parent and to meet in a supportive and child-friendly environment, and to be treated with respect by correctional staff. Sometimes visits are not allowed frequently enough and care givers may be reluctant to accompany the child to the prison.

The execution of a parent − the provider and protective figure in a child’s life − may cause a considerable internal conflict for the child and lead to a complex later relationship with the State and the community. This is even more likely in situations where the death penalty is applied for non-fatal offences. Children may understand that a parent has done wrong and needs to be held accountable. But they are unable to understand and accept that the State deliberately plans to kill their parent. This may trigger a lack of trust in legislators, law enforcement and the judiciary, and reflect in their behavior and integration into society later in life.

It is also important to recall that death penalty does not only touch families within one country. Children whose parents are sentenced to death in a country that is not their home, may face less stigma and enjoy more public and community support in their own communities. However, they have no experience or expectation of the death penalty and for this reason the shock they are enduring may be even stronger.

Daunting as the reality of children whose parents have been sentenced to death may be, it is not inevitable. And there are cases where the impact of a death sentence on children’s wellbeing has been used to successfully argue for a non-capital sentence. Change is possible, and three steps are particularly important to make it happen:

Firstly, the sentencing of a parent to the death penalty or its execution compromises the enjoyment of a wide spectrum of children’s rights but it can be prevented, as we are reminded by the adoption, almost thirty years ago, of the Second Optional Protocol to the International Covenant on Civil and Political Rights. Let us push for a wide ratification and effective implementation of this treaty, which is now in force in 84 countries.

Secondly, more research on the situation of children of parents facing the death penalty is urgently needed. But available evidence is already sufficiently sound and convincing to recognize the urgency of ensuring a protective environment for these children; of preventing discrimination and stigma against them; and of providing the services and the recovery and reintegration measures they urgently require.

Thirdly, it is important to recall that still today there are children who are subject to the death penalty. This is contrary to the Convention on the Rights of the Child and other international human rights standards which ban the imposition of capital punishment for offences committed by persons below 18 years of age, regardless of their age at the time of trial, sentencing or execution of the sanction. It is imperative to ensure that such a fundamental provision of the Convention on the Rights of the Child is respected and fully implemented in all countries.

Working together at the international, regional and national levels, a paradigm shift can be achieved! Safeguarding the rights of children everywhere and at all times is within reach, and this will help to secure safe, just and peaceful societies for all.

OSCE Press release - Greater protection needed for children of parents sentenced to death or executed, ODIHR Director and UN Special Representative say on World Day against the Death Penalty

Martra Santos Pais

New York, 10 October 2017