WOMEN AND CHILDREN AS VICTIMS OF CRIME

CHRONOX MANEK, ESQ

PUBLIC SOLICITOR OF PAPUA NEW GUINEA.

ACKNOWLEDGMENT

I would like to take this opportunity to place on record my sincere gratitude and thank you to the ACPF and the ACPF India Charter for inviting me to come to come beautiful country and participate in this World Conference.

I also wish to acknowledge the contributions of one Dr. Lawrence Kalinoe, an academic at the University of Papua New Guinea Law Faculty who has willingly agreed for me to recite some of his recent work in the area of Women and Children in general law enforcement in this paper.

INTRODUCTION

Law and Order forms one of the critical issues affecting Papua New Guinea (PNG). This, has come about due mainly to the transition from the old traditional ways to the current modern way of life and the somewhat neglect by institutions from the domestic family home to government establishments to properly prepare for and adapt to the transition.

The impact of crime has been considerable which has seen and continues to see many deaths, injuries, theft of and damages to property, obstruction to government and business operations and emotional wounds, living within this described crime scenario are the very vulnerable group namely, women and children.

In this paper, I will discuss the current situation in PNG, practical difficulties encountered, proposed reforms and conclude,

CURRENT POSITION

The PNG National Constitution in it's Preamble declared as it's NO.1 Goal in the National Goals and Directive Principles under the banner of Integral Human Development to be to strengthen family as the basic unit of our society and to ensure that all children are wanted and cared for.

Another recognition of this vulnerable group on a larger scale is given under Article 18 A of the Draft Pacific Charter of Human Rights where it provides that;

It is requirement under Article 2 of the said Convention (CEDAW) for countries to amend any national laws, either statute law, common law or customary laws that discriminate either directly or indirectly against women.

Article 16 of CEDAW makes further provision for the improvement in the status of women with the family and generally at family law.

In the light of these developments, PNG has both and international and domestic obligations to legally address any imbalance in gender inequality and to treat women and children (as the vulnerable group in society) with respect and dignity.

Despite these expressions, recognition and prominence given to women and children under the National Constitution and related international and domestic legislation crime continues to visit them regularly both outside and within their homes

(Outside Homes)

All too often we see on television, hear on the radio and read in news media of a person being murdered, robbed, raped and assaulted. Quiet often the victim is either a woman or child.

Violence related crime usually take place in areas where it is isolated, in the night time or at anytime when the perpetrators are consumed by alcohol and drugs such as marijuana. Women and children fall victims to crime when they least expect it.

Crimes of this nature had led to a stage whereby the community could not take it anymore and when led by women leaders, they petitioned the Government in 1991 to re-introduce the death penalty and called for hasher punishment on criminals including castrations of rapist.

The Government reacted by re-introducing the death penalty for wilful murders and called for hasher partialities to be imposed by courts in respect to crimes with violence.

The courts have similarly taken heed of the cries of this vulnerable group and gave strong warning that sentences for violence related crimes will increase depending on the circumstances of each case.

To date, death sentences have been pronounced in two wilful murder cases but none of these have been executed.

The first death penalty case arose in 1995 where the victim was raped and the deceased went in pursuit of the victim who was his daughter and wa5 shot and killed by the accused. The case was successfully challenged by way of an appeal to Supreme Court against conviction and the prisoner was acquitted and the matter remitted back to the

On re-trial the accused was acquitted.

The second death penalty case involved the murder of a mother in retaliation over the murder of two men from the next village by the deceased village people. The deceased was an innocent victim.

The case was appealed to the Supreme Court against both conviction and sentence on behalf of three convicted persons. The appeal has been prosecuted and is awaiting court decision.

(Inside Homes)

Apart from intrusions by outsiders, crimes that are committed in-house are by no strangers, hence, making it very difficult to know that the crime is being committed.

These sorts of crimes against women and children arise from complete breach of trust from guardians and custodians upon women and innocent children. Crimes such as incest sodomy and unlawful canal knowledge are being perpetrated within the homes and the victims are usually threatened not to report the matter for fear of assault, removal from the house, cancellation of his or her school program or for the sole reason of being shy to report the crime.

The only time such instances come to be known are when the child eventual] y fans pregnant (i.e. female child), medical report if admitted to the hospital for some difficulties or complaints in the body functions or continued strict control by the perpetrator on the movements of the victim. Too often when the matter is eventually exposed it would be too late to rescue the occasion.

The other from of crime committed in-house is "domestic violence". Domestic violence is defined for this purpose as physical violence between marriage partners, whether by custom on under the Marriage Act or are simply living together as if they are married.

In 1982 the Government of PNG tasked the Law Reform Commission (Commission) to investigate and report en domestic violence in the country.

The Commission undertook an extensive nation-wide research and consultation and found domestic violence as a complex social problem, which had and continues to have harmful effects not only on the victims but also on the family, community and the entire society. It was and is therefore a public and not a private matter for the domestic home as is perceived by many.

It found that the problem was widespread and that certain amount of domestic violence was/is accepted as normal in some parts of the country, with bride price seen as justifying a husband痴 right to assault has wife.

However, Schedule 2.1 of the PNG National Constitution specifically states that custom cannot be accepted and applied as law if it is inconsistent with existing statute law or is considered to be repulsive or, repugnant to accepted norms and values of wider PNG society.

Several cases have gone before the Superior Courts of the country where it deliberated upon and found some of these customs to be unacceptable in that they contradicted existing laws including the Constitution or that they were repugnant to acceptable norms and values of the country generally.

In this connection, the late Chief Justice of PNC in 1982 in the case entitled The State vs. Nerius (unreported) N397 pronounced that the custom of certain Bailing Community in E.N.B.P (PNG), where in a rape case, the accused (two Bailing men), pleaded custom and said that by their custom they were entitled to rape the victim at 'playback for an earlier rape committed by men from the victims family or relation on a female relative of theirs (i.e. 'payback rape' custom) as being repugnant.

His Honour expressed his disapproval of the custom in the following terms;

The Commission's Interim Report on Domestic Violence, published in 1987, was widely circulated and favourably received which paved way for the Final Report which was published in 1992 and received popular reception.

In the Final Report, the Commission made several recommendations, which I attach towards the end of this paper as Appendix 1.

PRACTICAL DIFFICULTIES

When women and children fall victims to crime, they are put through a rigorous process with tremendous stress, anxiety, restlessness, uncertainty and the most feared of all fear and insecurity.

Whether or not they (women and children) exposed the crime that has or had visited them and the perpetrators is often a very difficult decision to make. The difficulty stems out from the sense of being ridiculed, not being believed, mocked at, stigma to be e attached (particularly in cases a sexual nature) and insecurity. There are no properly sectioned institutions to address the victims rehabilitation and or for that matter witness protection program.

Whoever raises his or her hand to report the crime and it's perpetrator has to be strong to go through the formal count process from the police to the lower courts through to the committal court and eventually to higher courts.

Most if not all would be their first time to go through the formal criminal court process. The environment and the people they win see throughout the process will be like visiting a new planet in that the language used, clothes worn, the rituals of acknowledging the commencement of court by bowing and the swearing on the bible, to talk only on what you saw and heard and not 'hearsay's' etc. are but all new to them.

Examples of these difficulties can be seen from the discussions of the following two cases.

Recently, a twelve-year-old female rape victim could not give evidence against an accused person when she came to the National Court and the matter was disposed of by way of a 'NOLLE PROSEQUT i.e. prosecution decided that the matter will not be prosecuted, The reason why the evidence could not be adduced from the victim was because she just could not talk. There was a public outcry in the media of the accused person getting away due to the processes of court that the victims had to go though. However, just two weeks after the above case was dealt with the prosecution were able to

These two cases go to demonstrate the difficulties and the uncertain nature of things that can happen and happens in PNC.

To assist in appreciating these difficulties, I have attached as Appendix 2 a brief Flow Chart of the criminal justice process in PNG

PROPOSED LAW REFORMS IN CRIMINAL LAW AND THE LAWS OF EVIDENCE AFFECTING WOMEN.

Because of the difficulties highlighted above facing women as victims of crime and with the recommendations by the Commission and other similar bodies, there is currently), work being done in the area of criminal law and the law of evidence affecting women. These areas include reforms in the law on rape, incest, and the rules of evidence on comparability and is intended to be introduced in the National Parliament.

1. Reform in the law on Rape

There are two areas of reform on this subject, firstly, it is intended that the provision on rape, Section 347 of the Criminal Code which provides that "A person who has carnal knowledge of a woman or girl, not being his wife-

will be amended by repealing the words 'not being his wife' in the definition of rape so as to allow for marital rape.

Secondly, there will be a creation of new offences of 'aggravated rape' and 'attempted aggravated rape'. Aggravated rape would cover pack rape and rape committed with the use of any weapon, including firearm, whether real or reflective of.

The Working Committee on the draft legislation has strongly insisted on the penalty of life imprisonment without parole for aggravated rape.

2. Incest

The law on incest, i.e. Sections 223 (incest by man) and 224 (incest by woman) of the Criminal Code will be amended to cover and include persons other than lineal descendants, for example, step and foster parents and children.

3. Rules of Evidence on Competency and Comparability

Specific rules of evidence requiring consent of a spouse to be (] obtained before giving evidence will also be repealed so that a spouse can both be a competent and comparable witness.

LEGAL DEVELOPMENTS CONCERNlNG CHILDREN

There are in the Criminal Code of PNG specific provisions to cater for children in the area of crime and criminal law. The following are some of the provisions;

The alleged breach of these provisions will usually go through the normal criminal justice process, which can be seen in Appendix 1.

PROPOSED LAW REFORMS AFFECTING CHILDREN

In August 1997, a group of concerned individual on child abuse gathered for a workshop in Port Moresby (capital of PNG) and found that the existing legislation affecting children were outdated and not in line with world trend and community expectations.

This workshop gave rise to the creation of a Committee who organised the first ever-National Convention of Child Sexual Abuse, Paedophilia and Child Sex Tourism, in 1998, whose aim was to raise awareness. This Convention also endorsed the need to immediately review of legislation concerning children. AS a result of this convention, a group called "People Against Child Exploitation-PNG". (PACE-PNG) was established.

PACE-PNG aims to do the following;

CONCLUSION

There is no easy road for PNG to address and remedy the problem on women and children falling victims to crime. Despite it being an international issue, It is so deeply rooted to the cultural upbringing and the sudden transition from the old traditional life style to the new and modern way of life. Everyone in the country will have to make adjustments to accommodate today's challenges in order to realise a peaceful and caring environment.

The efforts that are being undertaken both by concerned Government Institutions and Non Governmental Organisations in the area of Women and Children to address the continued violation of their rights and freedoms that they should enjoy under our laws must be encouraged.

In our endeavours to achieve this and a peaceful and prosperous society, the sense of respect for one another must be taught at home, in schools and institutions and practised by everyone particularly from the leadership and elders for the younger generation to see, follow and adapt to make a better change for a better future.