Jailed for False Allegations of Sex outside Marriage – the Roxanne Hiller case

Introduction:

The concepts of a fair trial, innocent until proven guilty and equality before the law are obvious and basic legal rights expected by most Western countries. The legal system is there to protect and defend our basic human rights. We deem fairness before the law as a right, but sadly, as many foreigners are discovering, this is a privilege that ends as soon we leave our shores. The frightening nightmare of judicial injustice, discrimination, and harassment is the reality of the UAE legal system that found Roxanne Hillier trapped in a foreign prison.

(i) Outline of Facts:

Imagine that you have been offered the “dream job” in a beautiful part of the world where clear blue waters, mountains and a warm country were mixed into one. This would seem like the perfect opportunity, right? Well for a young 21 year old woman from South Africa, this was a dream come true that lasted a short 6 months.

Roxanne Hillier started working as a Dive Rescuer in the natural deep water port of Korr Forkan, in the Sharjah region of the United Arab Emirates (UAE). On 16th May 2009 whilst Roxanne was asleep in a bedroom upstairs from where she worked in the dive centre, police raided the building. At the time Roxanne’s bathroom in the guest apartment (where she stayed) had been undergoing tile repairs, due to a burst water pipe and was unusable. She had a long and hard day of diving with a difficult diver and was exhausted, thus decided to stay over at the dive centre whilst repairs were carried out. Awoken by loud noises and shouting in Arabic, Roxanne didn’t know what was happening. Subsequently, the police broke the door (that was locked from the inside) and entered her room.   She was arrested and forcibly taken to the local hospital to undergo an invasive medical examination. Roxanne was ordered to lift her skirt and only then did she become aware of what she was being tested for. This frightening ordeal left Roxanne in tears and feeling humiliated.

It was alleged that Roxanne had an affair with her Emirati boss “MH”, and was also accused of being in the same room alone with him, a crime against the local Sharjah laws. Under UAE law adultery and pre-marital sex carry a jail sentence. In Sharjah unrelated men and women are not allowed to be alone.

After her medical examination, Roxanne was subjected to unjust questioning with a lot of shouting in Arabic, a language Roxanne didn’t understand. Although the questions were asked in English, she was not sure what was being written down as it was all in Arabic. After continuous mental torture and the police refusing to accept “NO” as answers, Roxanne, now both scared and tired, decided to just answer “yes” with the hope that they would let her go.  She signed a confession written entirely in Arabic under duress, feeling intimidated and confused under the circumstances. Roxanne was not allowed to make a phone call or get a lawyer until after signing the confession.  The following day Roxanne told the prosecution that she was retracting her confession, however the case continued. During her court proceedings, Roxanne was kept in detention and refused bail four times by the prosecutor and the court.

Both Roxanne and “MH” were convicted and sentenced to different imprisonments. Roxanne received an imprisonment term of 3 months, whilst “MH” had 6 months. The explanation (for the different sentences) given to her father, was that he got a longer term because he was married and she is single.  ”She is very lucky” her father was told.  However in June, “MH” was acquitted of his charges, whilst her conviction was upheld.  It took the support and hard work of Roxanne’s family, and friends to get her released 21 days short of the full 3 month term. During Roxanne’s ordeal, family stayed close and kept in touch; a Facebook support page and petition was set up with friends lobbying for her release, while the South African and British media focused on her case.

Roxanne Hillier was convicted in a foreign country for a crime that she did not commit. The authorities in UAE found Roxanne to be guilty based on hearsay and no evidence. The medical examination was conclusive and revealed her innocence, and yet she was still imprisoned by the UAE despite unfounded accusations from a person alleged to be a disgruntled businessman. This young woman was subjected to humiliation, invasive medical procedures, and wrongful imprisonment.

On July 23rd, Roxanne was released from her imprisonment and her deportation order, lifted by the Ruler of Sharjah on a pardon. After her release, Roxanne joined extended family in Pretoria and was relieved to be reunited.

Throughout the ordeal, Freddie Hillier had tried to establish and maintain communication with the South African Consulate. Initially the SA Consulate was extremely slow in their efforts to help Roxanne.  Instead of helping Roxanne, their Political Consul, Mr. Mahadeo defamed Roxanne’s character in the SA press.  However once the media started focusing on the case and the main opposition party (The Democratic Alliance) raised parliamentary questions about the lack of assistance by the SA government, so too did the SA Consulate get involved on June 11th.

In an interview with Carte Blanche, Roxanne described that she felt abandoned when the SA Consulate did not initially support her.

Freddie is disappointed in how the SA consulate has treated his daughter’s case. Understandably he is upset about Mr Mahadeo’s statement to the press after Roxanne’s arrest, supporting her guilty conviction stating that the evidence against Roxanne was overwhelming and that the medical tests were positive. Freddie had asked for a formal retraction of the statement, as he believed it has tarnished his daughter’s reputation.

After Roxanne’s release, the SA consulate’s best effort at an apology has been a four lined letter apologising for the “inconvenience and harm” made by their statements. Freddie refused to accept the apology, finding it insufficient, as he wants a full retraction of the statements as untrue and an apology published in the same newspaper that carried Mahadeo’s initial statements. Now Roxanne and her family are considering legal action against the SA consulate.

(ii) Background on Sharjah Legal System:

Sharjah is one of the seven Emirates in the UAE. At the pinnacle of its legal system is the Constitution of the United Arab Emirates 1971. Sharjah law has its foundations in Islamic law and Article 7 of the Constitution declares that Islamic Shari’a shall be a principal source of legislation. Although the Sharjah Courts Law 1971 created civil courts to hear commercial and labor disputes, there is no other legislation to regulate Shar’ia courts. The courts have limited jurisdiction to hear criminal matters, so many criminal cases are still brought before the ruler in person.

(iii) Problems in the UAE Legal System:

As foreigners, it is not our place to judge their legal system or use our values and beliefs to criticize its underlying principles. However as the barriers between countries have dropped, International Law and Human Rights are now to be upheld without geographical boundaries.  What must be exposed is the denial of Human Rights that are disguised through legal loopholes within the UAE system. The law, as a social construct cannot be divorced from its relationship with power, and it is indeed used as tool for power and corruption. Those below the law are powerless and must accept the fate decided for them.  An underlying problem is the lack of respect for the rule of law in a domestic sense and that International Law in the UAE lacks legitimacy. And since International Law is the only limitation on power that the States have consented, its lack of legitimacy means that there are very few constraints on these highly-militarized states.

(iv) Law on Decency and Public Conduct:

Sharjah has a strict adherence to Islamic law and custom. In 2001 a law, “Decency and Public Conduct Rules and Objectives”, was passed outlawing immodest dress and the consorting of unmarried couples. The law’s objectives were to:

“Protect public values and decency and provide a peaceful atmosphere for residents and tourists, in accordance with the UAE Federal Constitution,” Aleh Ali Al Mutawa (Acting Commander-in-chief of the Sharjah Police).

However, the brevity of the guidelines leaves too much scope for interpretation and provides an ‘umbrella’ to make virtually any behavior possible to deem indecent.

Although women do walk along the streets with companions and there is an equal mix of western and Muslim clothing, the severity of this law should not be understated. It will be used and abused when those implementing the law so desire.

Further, the sanctions and consequences of a violation of the guidelines are not provided. There is a wide discretion left to the police to enforce the guidelines, and a wide scope for the judiciary to find a person guilty of an offence, without satisfying defined legal tests. Ignorance of the law is no excuse in any jurisdiction but it is difficult to respect the law, when the law itself is unclear and inconsistent.

The law is an easy mechanism and a vehicle to criminalise foreigners for conduct they have no means of knowing will be deemed unlawful.

(v) How the Legal System Failed Roxanne Hillier:

The Roxanne Hillier case is a clear example that mere accusations can, and will put you in jail. Lack of sustentative evidence is immaterial and the concept of a fair trial is non-existent.

1. Mere Accusations:

The charges against Ms. Hillier were not based on fact but were assumptions. The Police, on the mistaken belief that she had engaged in sexual relations with her employer arrested her.

This mistaken belief led to the accusation and criminal charges that placed her in jail. For such an occurrence to happen in Western jurisdictions, there are legal tests, namely ‘reasonable suspicion’ and underlying policy to respect the private life and personal freedom of the accused.

Adherence to an arrest warrant is one such requirement to ensure procedural fairness and avoid unnecessary intrusion. Apparently, no such requirement exists in Sharjah.

The interference with personal liberty and privacy that occurs in an arrest, like that of Ms. Hillier, are significant. It is counter-intuitive to allow such violation based only on an accusation, but this is what happens. The legal consequences are massive. It means that any person, regardless of whether or not they are guilty, may, at any time be subject to such intrusion and jail whenever they are accused of a crime under Sharjah law.

When mere accusations are enough to put someone in jail, disgruntled friends and associates can abuse this power.  In a system with no burden of proof or evidentiary requirements, anyone has the power to have another imprisoned at any time.

2. Evidence not required:

As seen with Ms. Hillier, a person can be arrested and charged for a crime based only on an accusation. What is even more frightening is that they can then be convicted of that crime without any evidence.

In a Western system, strict evidentiary burdens and laws regarding the admissibility of evidence apply. Evidence is the most crucial part of a case, particularly a criminal matter. Our law protects us from being convicted unless there is substantive, reliable and legally obtained evidence.   Furthermore, the presumption of innocence provides additional protection to those who are in fact innocent, as an accused will only be convicted if they are proven guilty.

The only evidence present in the case of Ms. Hillier was the swabs taken, through invasive medical tests, to determine whether she had had sexual relations. The test results were returned negative. However, she was still convicted of the alleged offence, based on the initial accusation.

This is more frightening. The Sharjah legal system allows not only for a conviction without evidence, but will find a person guilty when there is evidence disproving the alleged charge.

Although the Qur’an itself is merciless for the ‘shameful’ and ‘evil’ deed of adultery – “The woman and the man guilty of adultery or fornication—flog each of them with hundred stripes: Let no compassion move you in their case, in a matter prescribed by God, if ye believe in God and the last day” (Qur’an 24:2), it does require proof in the form of ‘four witnesses’. Those who bring a charge against chaste women without four witnesses are “wicked transgressors” and must have their evidence rejected (Qur’an 24:4).

Thus, despite any justification on Islamic principles to Roxanne Hillier’s horrible treatment because of her suspected crime of adultery, the way in which her case was decided without evidence clearly contradicts the Qur’an and is an example of selective use and manipulation of religious laws.

3. Unreliable Confession:

The other so called ‘evidence’ in the Hillier case is her apparent confessions to the alleged crimes. The police were shouting at Ms. Hillier in Arabic. She did not understand them.  She was overwhelmed, under stress and extremely scared. Under these conditions she had no choice but to sign a confession, in Arabic, which she also did not understand. Other than three questions asked in English; ‘Did you have sex with him?’, ‘Are you married?’, and ‘Were you alone in the room with him?’ (all of which she answered ‘No’), no attempt was made to formally question Ms. Hillier and inform her of the charges against her.

Under our legal system this would constitute a confession under duress or lack of due process. However, her confession was accepted and the case went ahead despite her later retracting it when she was able to understand the charges.

Under Sharjah law, no protection is given to those accused of crimes. The police are free from legal constraints. They may, and do, use any method (other than torture which is outlawed) to obtain a confession, just like they bullied and harassed Ms. Hillier to falsely confess.

Furthermore, this confession is legally valid and there is no limitation on the admissibility of evidence, regardless of how it is obtained.

4. Discrimination in the Law:

There was clearly discrimination, based either on sex or nationality, in the case of Ms. Hillier. Her co-accused was acquitted due to lack of evidence. It does, however, raise the question of whether the legal system itself promotes discrimination, or whether a manipulation of the law allows discrimination.

(vi) Involvement of the Embassy:

What is disappointing is the lack of support that Ms. Hillier received from the SA Embassy.  The standard response of an Embassy is “we can’t interfere in the legal process of another country”.  While this may indeed be a limitation, the Embassies are in a position to influence the outcome of an investigation, writing letters to official and recommending a course of action. The Hillier’s received no initial guidance and had to find their own lawyer.

(vii) Inhumane treatment:

Unfortunately for Ms. Hillier and many others, the overarching safeguard of human rights is not observed in the Sharjah legal system. She was subjected to the frightening invasion of police while she was sleeping, and invasive medical tests which left her feeling violated and embarrassed. She was charged, locked in jail and convicted of crimes she never committed.

Roxanne was held in the Criminal Detention Centre, as her mother had requested to keep her from being sent to the notorious Sharjah Central Prison.  The CDC was very clean and although the food was too spicy for her, she was eventually allowed to buy food.  She slept on a concrete base with just four small blankets, used as, blanket mattress, pillow, etc.  Roxanne was handcuffed whenever transported to court and once to the dentist. Ina was also eventually allowed to visit Roxanne daily, as opposed to the initial 15 minutes, twice weekly.

Her human dignity was violated and the Sharjah legal system allowed it.  It allowed it all and offered no justice, no fairness and no means for Ms. Hillier to have her case objectively assessed. As a vulnerable and innocent female foreigner, she was forced to endure inhumane and unjust treatment, powerless whilst she awaited the court to decide her fate.

Despite having been released and returned to her family, Roxanne will take a long time to process the experience and recover from the ordeal.