1. Introduction
In 1995 Papua New Guinea ratified the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). In so doing, the Government of Papua New Guinea made a commitment to ensure that the women of Papua New Guinea would not be denied their enjoyment of human rights because of gender-based discrimination. Part of this commitment includes an obligation to act with due diligence to ensure that gender-based violence against women is prevented, investigated and punished, whether the perpetrator is a State official or a private individual, and that reparation is provided to victims. A decade later, Amnesty International spoke to women throughout the country still waiting for the government to deliver on that commitment.
Although recent, comprehensive data does not exist, all available evidence and Amnesty International’s own research indicate that violence against women in the home and the community is pervasive, and in some regions affects most women’s lives. The threat of gender-based violence, particularly sexual violence, impacts on women’s ability to move freely in the community, to use public transport, to access health and education services, and to travel to market or to the workplace. The threat and the reality of gender-based violence increase women’s vulnerability to the HIV/AIDS epidemic. The threat and the reality of gender-based violence mean that fear permeates many women’s existence – with the home a place of risk and not refuge. The threat and the reality of gender-based violence continue to damage the physical and mental health of women across the country who live with permanent injuries and scars, both seen and unseen.
The issue of violence against women is not new to the agenda in Papua New Guinea. Since the ground breaking research, awareness raising and legislative and policy analysis conducted under the auspices of the Law Reform Commission in the 1980s and early 1990s, there have been numerous public statements, policy papers, conferences and workshops on the subject. None the less, when Amnesty International visited three provinces of Papua New Guinea in October 2005 and spoke to women’s organisations, church groups, health care professionals, government welfare officers, police, lawyers and women generally, the organisation discovered that in reality the State is doing very little to promote and fulfil the realisation of women’s rights or to protect women from human rights abuses. In fact, State agents themselves are often directly implicated in perpetrating violence against women.
Amnesty International found that police and other government agencies were quick to proclaim that violence against women was a problem of enormous proportions in Papua New Guinea and were keen to share, with dismay, the latest horror story from the media about a murdered wife or gang-raped teenager. Violence against women was discussed as an inevitability, a problem which would be solved only in the very long term, if at all. However, very few government agencies demonstrated a proper understanding of their own obligations towards women in this context and most were unable to offer any evidence of sustained activity they were undertaking which might bring about a decrease in gender-based violence either in the short or long term.
None of this is a revelation to the many local women and women’s organisations within Papua New Guinea who are on the frontline of the struggle to stop violence against women. This includes women and organisations who provide temporary shelter for women escaping abusive partners, who offer para-legal advice to women attempting to obtain maintenance orders, who provide counselling, support and advice to victims of gender-based violence, who conduct training on human rights, HIV/AIDS, healthcare, small business and many subjects in between, who lobby the police to investigate incidents of sexual violence and violence within the home and who provide medical assistance to the battered, bruised and broken. When asked by Amnesty International whether they believed violence against women was wrong, and indeed a crime, these women answered with an emphatic "yes". When asked whether they believed adequate attention, funds and resources have been dedicated towards promoting respect for women’s rights, protecting women from gender-based violence and providing redress, in all its forms, to women who are victims of violence, they answered with an emphatic "no". They are adamant that while the economic, social and cultural context of Papua New Guinea must inform efforts to prevent, investigate and punish violence against women, and to provide reparations to survivors and families, reference to this context should not serve as a source of excuses for the government’s failure to meet its obligations to women.
Most of the women Amnesty International met do not regard themselves as human rights defenders, not least of all because they unfamiliar with the term. However, it is clear that they are motivated by a desire to promote and protect human rights. Amnesty International observed that in order to fill the vacuum left by dysfunctional government agencies, these women and the organisations they represent provide what services they can with the resources available. With no statutory mandate or secure funding, often their activities can only be ad hoc and intermittent. Further, in the absence of cooperation from the police and with no power themselves to investigate, arrest, bring to trial or punish perpetrators, by necessity, their efforts are primarily directed towards restoring temporary ‘peace’ to families and communities which have been divided by violence, even at the expense of pursuing justice. They know the State is failing them and female victims but have little time for concerted advocacy. Moreover, they are commonly confined to the periphery of important decision making processes and struggle to have an appropriate sense of urgency and importance attributed to the issues they seek to raise.
International standards acknowledge the expertise of women’s rights organizations and call on governments to work in cooperation with them.(1) This does not mean that women’s organizations should be left to fill the gaps when the State has failed to meet its obligations, but rather that the State should seek the advice, input and criticism of women’s organizations and work in partnership with them to ensure that it meets its obligations under international human rights law.
Recent history has proven in Papua New Guinea that an acknowledgement of the problem and the passing of time alone will not bring about a decrease in violence against women nor overcome the barriers to women’s enjoyment of their human rights. Without monitoring and scrutiny of the government’s efforts to meet its obligations under CEDAW; and without campaigning for accountability and reform when the government has failed to live up to those obligations, institutional inertia and excuses will prevail.
Against that background, in this report Amnesty International recommends general and specific measures the Government of Papua New Guinea should adopt to meet its obligation to prevent, investigate and punish gender-based violence against women and to provide redress to victims. Many of the recommendations have been made before but have not been acted upon. For that reason Amnesty International also makes recommendations about improvements the State should make to systems of accountability. Moreover the organization calls for support from the international community to be given to women and women’s organizations in Papua New Guinea to assist them in adopting a rights based approach to their work, in understanding the State’s obligations under domestic and international law and in devising targeted, sustained advocacy strategies designed to improve compliance with those obligations.
2. Background
Papua New Guinea is situated north of Australia in the Coral Sea. It is comprised of the eastern half of the island of New Guinea and approximately 600 other islands. With a population of around 5.7 million, Papua New Guinea is the largest country in the South Pacific, both in terms of land area and population size. Its borders encompass varied and rugged terrain and the majority of the country is not accessible by road. Even between most major town centres there are no roads, and those which do exist are often in disrepair or vulnerable to attack by armed robbers.
It is difficult to generalise about the people and culture of Papua New Guinea. Over 800 languages are spoken and traditions and customs vary greatly across the country. The people of New Guinea and the adjacent islands traditionally lived in small, self regulating communities and, prior to colonization in the late nineteenth century, were not aligned with or subject to any overarching system of laws and governance. Although these communities sometimes interacted for the purposes of trade, inter-marriage and warfare, they remained largely insular.
In preparation for independence from Australia in 1975, and since that time, emphasis has been placed on forging a shared sense of national identity amongst the peoples of Papua New Guinea. Nonetheless, the primary allegiance and identity of most Papua New Guineas remains defined by their local, kin-based group, referred to as one’s "wantoks".(2) This is not surprising in circumstances where the government and the machinery of modern statehood remain irrelevant to most people’s lives. Eighty five percent of Papua New Guineans live in rural areas, subsisting on agriculture, forestry, and fishing. They have little contact with or access to the police or the formal justice system and are largely beyond the reach of government services, including education and healthcare. In fact, the largest service provider in Papua New Guinea is not the State, but the Christian church. The strain on overstretched, under-resourced government services has been further exacerbated by rapid population growth, with the size of the population almost tripling since independence.
In the 2005 UNDP Human Development Index Papua New Guinea was ranked 137 from 177 countries and is the lowest ranked of any South Pacific country. A snapshot of development statistics indicates a relatively dire situation: life expectancy is just over 55 years; average adult literacy is just above 57 per cent with female adult literacy just below 51 percent; in 2002 only 5 percent of those who left school found employment in the formal sector; and Transparency International ranked Papua New Guinea 130 of 145 countries on its corruption scale, with 145 being the most corrupt.
Crime and lawlessness is perhaps the most highly publicised problem facing Papua New Guinea and it has earned the country a costly reputation for being unsafe for travel and investment. Although reliable crime statistics are not available, there is little doubt that Papua New Guinea faces an epidemic of serious violent crime, which includes robbery and armed robbery, murder, gang rape, home invasion, armed highway robbery, tribal fighting, election-related violence, and violence relating to resource development projects. Fraud, corruption and "white collar crime" are also prevalent in Papua New Guinea and undermine the ability of relevant State institutions to address the country’s violent crime problem.
The causes of crime are complex, numerous and much discussed. Alcohol, drugs and the relatively recent introduction of the cash economy, with its attendant "materialism", to traditional ways of living and surviving have created an enormous strain on communities. This in turn has led to the weakening or subversion of traditional mechanisms of dispute resolution and social control. Migration to urban centres, fuelled by rural poverty, has further undermined the norms and relationships of mutual obligation which previously guided and restrained peoples’ behaviour. The weak central State has been unable to proffer a functional alternative regulatory system to fill the vacuum. At the same time, new tensions and divisions have been created by uneven development and distribution of resources. Crime and violence offer an opportunity to secure an income and a share of resources in an environment where legitimate avenues for asserting rights or obtaining economic advancement are largely unavailable.
Against this background women face gender-based discrimination and violence. Traditional patriarchal customs, often distorted by changed circumstances, are invoked to justify gender discrimination and subordination. Meanwhile, the protections which at least sometimes used to accompany those customs have been eroded.(3) The formal justice system offers the promise of equality, protection and redress but in practice is remote, inaccessible and ineffective. Women are as at risk of gender-based discrimination and violence as ever.
The HIV/AIDS Epidemic
Papua New Guinea is currently facing a major HIV epidemic. Estimates of the number of people infected range upwards from 80,000, representing approximately two per cent of the population. There is a reported annual increase of 15-30% in numbers infected. Girls and women are infected at a younger age than boys and men, so twice as many women are infected as men in the 15 – 29 year age group. Girls between 15 and 19 have the highest rate of HIV/AIDS in the country.(4) Gender inequities and the prevalence and social acceptability of violence against women, manifest in high levels of sexual violence within the home and community, have been identified amongst the major factors contributing to the rapid spread of the HIV/AIDS.(5)
3. What is Known About Violence Against Women in PNG?
When Amnesty International spoke to gatherings of women in the Western Highlands(6), the overwhelming majority of women indicated they had experienced intimate partner violence. In fact, most women appeared puzzled to be asked whether they had ever been subjected to violence by their partners, as though such an obvious fact ought to be assumed. Women at a community meeting in Angoram, East Sepik Province offered a similar response. It is no surprise therefore that healthcare and welfare service providers conveyed a sense of being overwhelmed by levels of violence against women, notwithstanding they believed only a tiny minority of cases came to their attention.
There is a general consensus that gender-based violence against women is widespread and pervasive in Papua New Guinea, however, the exact dimensions of the problem are simply not known.
3.1 Available Data in Papua New Guinea
With respect to intimate partner violence, the most commonly cited data is based on research conducted by the Law Reform Commission between 1982 and 1986, and is primarily derived from a questionnaire survey completed by 1,191 men and 1,203 women, focus groups discussions, and hospital and police studies. The research covered urban elites, people living in urban squatter settlements and rural villagers from 16 of the country’s 20 provinces. The research found that on average two thirds of women had been hit by their partners. Although the survey revealed little variation between socio-economic groups, there was considerable variation between provinces. Almost one hundred percent of women in two highland provinces (Chimbu and Western Highlands) reported that they had been hit by their partners, while in one coastal province (Oro) and one island province (West New Britain) the figures were closer to fifty percent.(7)
Anecdotal evidence suggests that rates of intimate partner violence are unlikely to have decreased in the intervening decades, and some women’s organisations fear they may have risen. However, it is impossible to comment confidently one way or the other, particularly with respect to any particular region or group within society.
Information on rates and patterns of sexual violence, both within the family and the community, is similarly limited. The most commonly cited data is based on research conducted by the Papua New Guinea Medical Research Institute in 1993 which found that 55 per cent of women interviewed said they had been forced into sex against their will, mostly by men known to them. Half of the married women involved in the survey said that their husbands had used beatings or threats to force them into sex. Men who participated in the same study described gang rape as a common practice and approximately 60 per cent of men interviewed indicated they had participated in rape of this sort before.(8) In the Papua New Guinean government’s very frank initial report to the Committee on the Rights of the Child, it was stated that "young women all over the country are at high risk of rape, gang rape and other forms of violent sexual assault."(9) In the same report, preliminary research was referred to which found that 30 per cent of girls and women in one urban settlement had been victims of sexual violence.(10)
The police gather statistics on crimes which are reported to them. However, there is considerable doubt about the reliability of those statistics. A working group commissioned by the government to conduct a review of the Royal Papua New Guinea Constabulary (RPNGC) found that:
"many members do not have a Police Note Book or pencils, pens and biros. Consequently no attempt has been made to keep any form of records. Members occasionally use a piece of paper if some is available, but record keeping is almost non-existent."(11)
At any rate, police statistics do not provide much insight into the true extent of violence against women in Papua New Guinea because so few crimes, particularly crimes involving gender-based violence, are reported. For example, police records indicate that there were 856 rape cases reported to police across the country in 2005 and 998 cases reported in 2004.(12) For a population of approximately 5.6 million people this is a concerning number, and yet this undoubtedly represents only a small fraction of the actual number of rapes which occurred during the period. Many crimes committed in Papua New Guinea, including murder, do not come to police attention because of the geographic isolation of communities, the police to population ratio, a lack of public confidence in the police and a preference amongst many members of the community to resolve matters outside the formal justice system.(13)
In the case of rape, the fear and shame often experienced by victims create additional barriers to reporting. For example, a community nurse in the Western Highlands told Amnesty International that women are reluctant to report a case of rape if there is only one perpetrator, rather than a group of men, because in the circumstances there may be more doubt about whether or not the victim had consented to sexual intercourse. Women who are sexually assaulted while intoxicated or engaged in social activities which might attract family disapproval, such as attending a dance or nightclub or going to a boyfriend’s house, are also unlikely to report for fear that, even if believed, they will in part be blamed for the assault.(14) Women in the sex industry, who are often particularly vulnerable to gender-based violence, have indicated that even if they report sexual offences to police their complaints are not recorded because many police take the view that women in the sex industry "cannot be raped" or refuse to record or take action on their reports without first receiving sexual favours in return.(15) In such circumstances, it is hardly surprising that women do not report.
The additional problem with police statistics is that they are categorised according to the section of the Criminal Code or related law which has been breached. There are no specific domestic violence offences under the penal code and statistics recording reported assaults and other offences of violence against the person are not disaggregated to show how many involve violence between intimate partners or within the family.
Some other agencies, including hospitals, government welfare offices and NGOs who provide counselling and other forms of assistance to victims of gender-based violence are also engaged in data collection. However, Amnesty International observed that this data collection was often ad hoc and dependent on who was on duty on a particular day. Even if recorded, information was not necessary collated or shared with other agencies for the purposes of compiling statistics or informing planning.
Amnesty International also found that the data collected by these agencies was often at odds with assumptions about the prevalence of violence against women and in fact suggested a relatively small number of cases. This is in part because most agencies only recorded the immediate problem a client presented with and/or sought assistance for, such as a custody or maintenance dispute, a medical ailment or a request for a HIV/AIDS test. Their records did not reflect pro-active questioning of clients about their experiences of gender-based violence.
Moreover, the data collected by these agencies was not designed to capture levels of violence against women. Rather, it recorded how many women and girls were able to access the services the agency provided, such as counselling. Amnesty International observed that the relatively small number of cases of violence against women recorded in agency statistics reflected a general lack of community awareness about the availability of services and difficulties in accessing those services. It also reflected the fact that in practice, as a result of staffing and resource constraints, many agencies were not able to consistently and continuously offer the services which in theory they provided.
3.2 Steps to Improve Data Collection
In 2001 a report was commissioned by the Family Violence Action Committee (now the Family and Sexual Violence Action Committee, FSVAC)(16) to provide an overview of available information on the nature, extent and causes of family and sexual violence in Papua New Guinea and of the initiatives undertaken in response. The report found:
The FSAVC has taken some steps towards the achievement of these goals. A standard data collection instrument was developed and distributed and was being trialled with NGOs who provide services to victims of violence against women when Amnesty International visited. Strong doubts have been expressed about whether the uptake of the instrument will be effective amongst staff within government agencies, who already have multiple forms to complete and who are unlikely voluntarily to complete an additional form.(19) However, the prospect of this standard instrument being adopted by NGOs, at least within those provinces where NGO networks are reasonably strong, appears better. A number of NGOs told Amnesty International that they now collect and send information about their work and cases to the FSVAC. This in itself is an important development, given that there has historically been a reluctance amongst agencies, both government and non-government, to share information and contacts. In the past, where statistics and information have been gathered by agencies they have often been used, at most, to report to donors, and rarely for the purpose of broader research or to support advocacy on matters of policy.
In January 2006, the FSVAC released a break down of information on the first 79 cases of family and sexual violence reported to the FSVAC by member agencies. Almost all reported cases occurred in the home. Physical violence was the most common form of violence recorded, with head injuries being the most common injury inflicted. Eighteen per cent of the assaults recorded were sexual assaults, with "persistent sexual abuse" recorded as the most common form of sexual violence.(20)
Another initiative which the FSVAC is hopeful can be undertaken with the support of the National Research Institute in 2006 is a repeat of the Law Reform Commission survey of the early 1980s, referred to above. It is proposed that the scope of the survey would be broadened to capture information not just concerning intimate partner violence, but also violence towards children and sexual violence more generally. For reasons discussed below, the importance of gathering this base-line data cannot be overestimated.
3.3 Why Data Collection Matters
The compilation of data on the nature, extent and causes of violence against women is not merely a matter of academic interest. Without understanding when, how and why violence against women occurs it is not possible to formulate an effective response. Likewise without ongoing monitoring of the efficacy of measures adopted to address violence against women, it is not possible to understand the impact, if any, of those measures. For this reason the UN Committee on the Elimination of Discrimination Against Women has said that states should encourage the compilation of statistics of this sort.(21) Likewise the UN Declaration on the Elimination of Violence Against Women and the Beijing Platform for Action also call on states to promote research and the compilation of data and statistics and to make public that information.(22)
As discussed above, at present Papua New Guinea is not meeting these standards.
Inadequacies in data collection have long been identified as a barrier to effective program planning in Papua New Guinea. It is not a problem unique to the issue of violence against women. The geographic isolation of many communities, poor communications infrastructure and the limited reach of government service provision, has meant that statistical data within Papua New Guinea has often been incomplete and unreliable. Even the registration of births and deaths is far from uniform.
Papua New Guinea is a country which encompasses great diversity. The structure, traditions and beliefs of communities are markedly different across the country. Likewise, lifestyles vary greatly between urban settlements and rural villages; and between areas where mining and logging activities have brought royalty payments and an influx of labour and undeveloped areas where a subsistence lifestyle continues largely uninterrupted. This diversity means that it is not possible to generalise in any simplistic way about the nature, causes and consequences of violence against women across Papua New Guinea. It also heightens the need for accurate data to support meaningful and targeted responses to violence against women which take account of different circumstances across the country.
Data collection and compilation can be an expensive exercise. Nonetheless, in a country like Papua New Guinea with limited State resources, it is particularly important to ensure that funds which are directed towards addressing violence against women are allocated as effectively as possible. Amnesty International was told many times by police officers, government welfare officers, government employees in the law and justice sector and NGOs that more funds were required to conduct "more training" or "more awareness raising". However, very rarely were those interviewed by Amnesty International able to provide information on how target audiences had been chosen for previous training or awareness raising or how past activities had helped in any way to decrease levels of violence against women or improve access to redress for victims of violence. The absence of this sort of information has the potential to result in the duplication or misdirection of resources and funds. It also contributes to the view that violence against women is a monolithic and insurmountable problem within Papua New Guinea, a characterisation which in turn contributes to institutional inertia and excuses.
4. Where and How do Women Experience Violence?
In speaking to women’s organisations(23) and gatherings of women in Papua New Guinea(24) Amnesty International heard from and about women who had experienced grave gender-based violence in a number of forms: a woman who had been burnt with a hot iron by her neighbours on suspicion of practicing witchcraft; a woman who had been placed alive in a grave and covered in grass because she was HIV-positive; a woman who had been raped by a group of men while walking alone in an area where tribal fighting was underway and then later severely beaten by her husband for the shame she had caused him; an eight year old school girl who had been raped by her teacher; and numerous women who had lacerations, scars, missing teeth, bruises and broken bones inflicted upon them by angry or drunken partners, often using bush knives or other conveniently located implements.
The following is only an incomplete snapshot of the type of gender-based violence women experience in Papua New Guinea. Every day the local media delivers new stories of women being subjected to violence and exploitation. The purpose of Amnesty International’s visit to Papua New Guinea, however, was not to collect a litany of horror stories but rather to explore how the State and civil society are responding to gender-based violence against women. The following summary of where and how women experience such violence is therefore not intended to be a comprehensive exploration of the scope and nature of violence against women in Papua New Guinea. It is included to provide the context for an examination of the adequacy and effectiveness of State attempts to respond to violence against women.
4.1 International Definitions of Violence Against Women
The UN Declaration on the Elimination of Violence Against Women states in Article 1:
"The term ‘violence against women’ means any act of gender-based violence that results in, or is likely to result in physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life."
It further states in Article 2:
"Violence against women shall be understood to encompass, but not be limited to, the following:
(a) Physical, sexual or psychological violence occurring within the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation;
(b) Physical, sexual or psychological violence occurring within the community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;
(c) Physical, sexual or psychological violence condoned by the State wherever it occurs."
The UN Committee on the Elimination of Discrimination against Women(25) stated that gender-based violence against women is violence "directed against a woman because she is a woman or that affects women disproportionately." According to Article 1(j) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa:
"‘Violence against women’ means all acts perpetrated against women which cause or could cause them physical, sexual, psychological, and economic harm, including the threat to take such acts; or to undertake the imposition of arbitrary restrictions on or deprivation of fundamental freedoms in private or public life, in peace time and during situations of armed conflicts or of war;"(26)
According to Article 1 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women,
"For the purposes of this Convention, violence against women shall be understood as any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or the private sphere."(27)
4.2 Domestic Violence(28)
Intimate Partner Violence(29)
Intimate partner violence, commonly referred to in Papua New Guinea as "wife bashing", is perhaps the most common form of domestic violence, and violence against women more generally. In some regions, particularly in the Highland areas, it is regarded as an inevitable dimension of domestic relationships and violence is considered by many to be a valid way for men to assert authority over partners who are deemed lazy, insubordinate or argumentative. Amnesty International observed that in some communities, although there was debate about the degree of violence that was acceptable between spouses or about the types of behaviour which might legitimately warrant a violent response, there did not appear to be any discussion about whether violence per se towards women within the home was acceptable. People expressed disapproval, although not necessarily supported by any action, towards men who they considered, severely and/or frequently beat their partners and towards men who beat their partners without cause, perhaps under the influence of drugs and alcohol. However, a more generalized "zero tolerance" opposition to violence against women in the home was rarely expressed by individuals in the communities that Amnesty International visited.
Intimate partner violence in Papua New Guinea commonly includes verbal abuse, kicking, punching, burning and cutting with bush knives. Women are also sometimes locked in their homes to prevent them from returning to their families or accessing other help. The injuries women suffer can be, and often are, serious, which accounts for why 80 – 90 per cent of injuries in women presenting to health facilities are reportedly a result of domestic violence.(30) Hospital and health care clinic staff(31) reported that they frequently treat injuries such as broken arms, facial bruises and fractures, kick marks on the back and lacerations caused by bush knives. In the most serious cases, women are killed by their partners. A member of the hospital staff in Wewak told Amnesty International that she often warns women who present with serious injuries that ‘next time’ they face a real risk of being killed, because the nature and/or severity of their injuries is such that it is more a matter of luck than intent whether their partner’s abuse results in death.
It is not uncommon for women to be brought to a health care facility by the partner who inflicted the injuries. Although regret may be expressed over the seriousness of the damage inflicted, these men often appear to have little shame for what they have done.(32)
Sexual Violence in Intimate Relationships
Sexual violence is also a common form of intimate partner violence in Papua New Guinea. Rape within marriage was criminalised in Papua New Guinea in 2003. This important and welcome legislative change, however, has not yet provided the impetus for social and cultural change. Many men still regard it as their prerogative to have sexual relations with their partner whenever they choose, without their wife’s views coming into play. Often traditional practices related to marriage, such as the payment of bride price, have encouraged the belief that men ‘own’ their wives. In their modern form, customs like bride price and the practice of polygamy, have provided men, who have access to cash and resources, with a license to be promiscuous and violent, often without accruing any longer term obligations to provide for the women and girls they effectively ‘purchase' or for the children born of the union.
A lack of sexual autonomy has made women increasingly vulnerable to HIV/AIDS. Even those women who are reached by HIV/AIDS awareness and education campaigns are rarely in a position to act on the information they receive. Women repeatedly told Amnesty International that if they refused sexual intercourse with their partners or insisted on condom use they would face violence and/or desertion by their partners. One woman in Angoram reported that simply having condoms could invite suspicion of infidelity and therefore a beating, particularly if a husband felt that not all the condoms used could be accounted for.(33)
Women at highest risk of infection, that is those whose partners have multiple wives or travel to other regions for work, often felt in the weakest position to refuse or place conditions on sexual intercourse with their partner. A woman involved in HIV/AIDS testing, care and awareness raising in Banz told Amnesty International that when women seek a HIV/AIDS test it is often because they understand that their husbands’ behaviour places them at risk. These women explain to her that they think they might require a test because their husbands have other partners or travel for work along the Highlands highway to the coastal port of Lae. When she inquires about condom use, she told Amnesty International, these women uniformly answer that they have no control over whether, when and how they have sex with their partners.
Women as Perpetrators – Violence Against Husbands?
A view commonly expressed to Amnesty International was that women in Papua New Guinea also frequently resort to or provoke violence in disputes within the family, and that this ought not be overlooked. It is true that some men in Papua New Guinea are also subjected to violence from their female partners and Amnesty International emphasises that men should be protected, in law and in practice, against intimate partner violence just as women should be, without discrimination either way. However, surveys, hospital records and police statistics indicate that this type of violence is both less common and less likely to result in serious injury. Surveys also indicate that women use violence more frequently in self-defence than in attack.(34)
Anecdotal evidence suggests that violence frequently occurs in Papua New Guinea in the context of disputes about allegations of infidelity or (often related) financial concerns. Women often initiate and actively pursue these disputes with their partners and may repeatedly return to the same subject notwithstanding that their partners may have reacted violently to related discussions in the past.(35) In many respects, this in itself is a manifestation of women’s general lack of status, autonomy and choice within Papua New Guinean society. At any rate, although women may not always be passive, silent victims of intimate partner violence, it does not change the evidence, such as it is, that it is men who most commonly resort to violence in the context of domestic disputes and who most commonly inflict physical injuries on their partners. It also remains the case that women experience very high level of violence, from men.
Women as Perpetrators - Violence Between Co-Wives
There is another form of domestic violence which involves women as perpetrators, which is violence between co-wives or between a man’s wife and his girlfriend. Anecdotal evidence suggests violence of this kind is increasingly common. Hospital staff and welfare workers reported that they frequently deal with women whose injuries, including stab wounds, have been inflicted by other women with whom they share a common partner. Similarly, on a visit to the women’s section of the Port Moresby prison Amnesty International spoke to two women serving sentences for murder and attempted murder for knife attacks on their husbands’ other partners. Amnesty International was told by prison staff that approximately one third of the female prison population was serving sentences for crimes relating to attacks on women with whom they share a partner.(36)
At women’s gatherings in the Western Highlands and East Sepik, Amnesty International observed that women were frequently more interested in discussing concerns relating to disputes with their husbands’ other partners than in discussing concerns relating to the use of violence against them by their male partners. When given the opportunity to seek legal advice from a local lawyer accompanying Amnesty International, women, almost without exception, sought legal advice on how they could stop their husband seeing another woman before they sought advice on how they could prevent their husband from using violence against them. When questioned, these women, sometimes with still visible injuries inflicted by their husbands, would explain that their survival and their children’s survival was contingent on their husbands’ ongoing support. They therefore regarded another woman competing against them for a share of his resources as a greater and more serious threat to their survival than beatings and other abuse from their husband. Such assessments of relative prioritisation should not be mistaken for women tolerating or accepting violence from men.
4.3 Sexual Violence
Rape and Gang Rape
According to UNICEF:
"Rape [in Papua New Guinea] has become a major threat to social stability and economic development and seriously impedes the full and active participation of women and girls. Rape and sexual assault have reached epidemic levels, but the vast majority of cases are not reported."(37)
According to the Government of Papua New Guinea:
"Young women all over the country are at high risk of rape, gang rape and other forms of violent sexual assault, and the attendant fear accompanies them in many aspects of their daily life in urban and rural settings. It severely limits their rights to freedom and to assembly and their right to participate equally alongside young men in all forms of social, political and economic life."(38)
In light of an increase in sexual violence, the police in the town of Lae advised women to arm themselves for protection:
"This is so that when you are attacked, you can use the knife to protect yourself and maybe leave a mark on them so that it can help the police to identify them." …. "I'm appealing to parents not to let your daughters travel by themselves anywhere. Make sure that they are accompanied by a male relative or go in a group." (39)
Quotes like these indicate just how serious the scourge of sexual violence is in Papua New Guinea. Sexual violence has become such a common occurrence in parts of the country that fear of rape and gang rape(40) severely circumscribes the freedom of movement of women and girls. High profile cases, such as the gang rape of 12 school girls abducted by armed men from their Highland’s boarding school,(41)and the rape of a teenage student lured from a bus stop in Lae and then held by a group of men and repeatedly raped over the course of three days,(42) have led many people to believe that women and girls simply are not safe in Papua New Guinea. It is no surprise therefore that vulnerability to rape, sexual and verbal harassment from drunken youths and sexual abuse by teachers have all been identified amongst major causes for non-enrolment or school drop out of girls.(43)
A lot of this sexual violence is fuelled by drug and alcohol use and is opportunistic in the sense that victims are chosen by circumstance, with perpetrators seizing the chance to rape women who are alone or to whom they have unexpected access. However, research has revealed that other factors which are used to justify rape include the urge to ‘teach educated or liberated women a lesson’, the desire to punish a woman who has previously turned down the perpetrator’s sexual advances, the acceptability of a man sharing his partner with friends, and, in the context of tribal fighting, the urge to punish or shame members of another family or clan.(44)
Sexual Violence in the Family
As noted in section three, surveys indicate that the majority of women who are raped in Papua New Guinea know their attacker, often it is their husband or partner or a family member. Young girls appear to be particularly vulnerable to sexual violence within the home with research revealing incest and sexual abuse by, amongst others, cousin brothers, step brothers, adoptive brothers, brothers in law, step fathers, adoptive fathers, uncles or elderly close family friends.(45) A policeman with the Sexual Offences Squad in Port Moresby told Amnesty International that, although the Squad used to deal more with stranger rape, nowadays the perpetrator is usually known to the victim. He reported that the most common age category for victims was now six months to ten years and that the vast majority of victims were girls.
Girls, particularly those who do not live with or are not supported by their natural parents, are at increased risk of sexual violence because they are often dependent on male relatives or patrons for food, shelter, school fees and other basic necessities.
"So-called ‘adopted’ children are raised by people other than their natural parents. There are many thousands of children currently living under these ad hoc and informal adoption arrangements in PNG. Adopted female children are very much at risk in their homes, particularly when offending ‘adopted’ fathers, cousins, uncles or brothers feel confident that the girl is unlikely to report a sexual offence against them, or that even if she/he did, the family is most likely to conceal the offence …. Reporting to the police is a shame-filled last resort."(46)
Amnesty International spoke to working mothers in Port Moresby who said they were preoccupied with concerns about the safety of their daughters left in the settlements with neighbours or extended family while they were at work. A nurse in Port Moresby told Amnesty International about a colleague, a single mother, who gently quizzed her young daughter daily on return from work to ascertain if she had been subjected to sexual abuse in her absence.
These are not the isolated views of a few over-protective mothers, they reflect heightened community fear over what is regarded as a dramatic increase in sexual violence within the family environment.(47) According to Ume Wainetti, the Program Coordinator of the FSVAC, the cases currently grabbing newspaper headlines and stirring up debate are just the tip of the iceberg. However, she has posited that what appears as a recent increase in sexual violence, may in fact be just an increase in reporting as a result of awareness raising initiatives.(48)
Transactional Sex
Another factor which exacerbates women’s risk of being subjected to sexual violence is that many women and girls find themselves in circumstances where they must trade sex for survival. In the context of desperate poverty and limited employment opportunities, informal sex work done to make ends meet has become common practice in Papua New Guinea, where women and girls provide sex in exchange for money, food and shelter for themselves and their families.(49) A recent survey found that two in three women aged between 15 and 24 and two in five older women accept cash or gifts in exchange for sex.(50)
In these circumstances women and girls lose further control over when and how they have sexual intercourse, putting them at increased risk of HIV/AIDS and sexual violence. Life for women and girls engaged in sex industry in Papua New Guinea is highly perilous, with the risk of gang rape and other forms of violence ever present and with protection from State agencies rarely forthcoming.
Some husbands in Papua New Guinea regard their wives as a commodity that they can ‘rent’ to others for sexual services in order to raise funds. It has been reported that:
"In many cases, a woman enters the sex trade when her husband offers her to another man, an arrangement that quickly proceeds to formal pimping. Many men are living off the sexual services of their wives, through which they gain access to cash and other resources that are otherwise unavailable to them."(51)
Others sell their sisters and daughters in the same way. A recent UNICEF commissioned study found that commercial sexual exploitation of children, primarily girls, is a common phenomena in Papua New Guinea. Amongst the most common examples of commercial sexual exploitation of girls found in the study were:
· "When girls are raped by a family member or a member of their adoptive family or guardians’ family, but get no support from family, guardians or police to prosecute, they are sometimes trapped into a situation of repeated rape and forced prostitution by the original rapist. The rapist becomes their pimp. In such cases it is common for the victimization to be sustained through the threat of reporting to parents (where they do not know and are not involved) or serious physical violence, with reference to guns, hiring of gangs etc. · Girls who manage to escape and run away from a rapist in or associated with their home must find people and a place where they can get food and shelter. It is not unusual for a girl to be taken in by another household, even by a close girlfriend, only to be victimized again; either raped/and or forced to sell sex in order to contribute to the basic costs of that household. The perpetrator in such cases is often a brother, or husband of the girl or woman who took the child in. Victimisation is sustained and kept secret by threats to throw the girl out of the house and onto the streets, report to the neighbours and community or to teachers (if the girl is still at school) that she is a ‘prostitute’. · When a girl escapes rape or another form of sexual abuse at home, the friends who take her in might already be selling sex themselves and once settled in that household, the girl will be under some pressure to conform."(52)
4.4 State Violence - Police as Perpetrators
Police Rape and Sexual Abuse
Although tasked with protecting women from violence, it is now well documented that members of the Royal Papua New Guinea Constabulary (RPNGC) are themselves often perpetrators of violence against women.
A 2005 Human Rights Watch Report documented extensive human rights violations perpetrated by police against women and children. Girls, in particular, appeared to be targeted by police for rape and sexual abuse.
"In interviews with Human Rights Watch, girls and women told us about rapes, including pack rape, in police stations, vehicles, barracks, and other locations. In some cases, police carried out rapes in front of witnesses. Witnesses described seeing police rape girls and women vaginally and orally, sometimes using objects such as beer bottles. Girls and women who are street vendors, sex workers, and victims reporting crimes to police, as well as boys and men who engage in homosexual conduct, appear to be especially targeted."(53)
In response to the Human Rights Watch report, the then Minister for Internal Security, Bire Kimisopa, conceded: "I'm aware of instances of female offenders in custody being raped. That's something, you know, we're not proud of. That's something we need to eradicate within the PNG police force now."(54)
A Government of Papua New Guinea sponsored review of policing conducted in 2004 found:
"Discipline is in a state of almost total collapse. There is widespread misuse and abuse of Police powers throughout the country. Reports to the Committee include:
· rape or sexual assault, in some cases in police stations or cells."(55) Human rights violations against women by the police are not a recent phenomenon in Papua New Guinea. Dysfunctional oversight and accountability mechanisms have fostered police impunity and have allowed patterns of abuse to persist over years. A consultation with police and women in the sex industry conducted in Port Moresby in the mid-nineties revealed similar abuses to those documented in the Human Rights Watch report almost a decade later:
" In the context of police work, both the sex workers and police have reported repeated situations in which known sex workers would be taken out of cars, drinking venues, or off the street, ordered into the police cars and taken to a police station, the police barracks, or to an uninhabited section of the city, and raped by a number of men in tandem. Practices were reported, such as calling other police on their radios and announcing that they had a 'public toilet' and inviting them to come to a particular location and join in. At the barracks, younger policemen were initiated into the practice within the police sub-culture of Port Moresby."(56)
Women attempting to report crimes also face sexual harassment and rape. In a 2004 survey of community perceptions of the police, many women claimed that they feared reporting crimes because they were afraid of being asked to do sexual favours before their complaints would be acted upon, or in the worst case, they feared being raped.(57) In response to allegations that police sometimes sexually harass and rape female complainants, a policeman in the Western Highlands told Amnesty International: "I’ve heard stories, I’m sure .. I mean I know it happens." A general duties policewoman in Port Moresby told Amnesty International: "It’s like a habit. I won’t hide it, it does happen." She explained that "all the women in the station work from eight to four pm and it is in the nights when things happen." Only 5.6% of the RPNGC are women, therefore at most police stations there are no or very few police women on duty at any particular time. At night it is even less common to find policewomen on duty because family commitments and their own safety concerns dictate that women generally only work office hours.
Policewomen have also claimed that they are frequent victims of sexual harassment by other members of the RPNGC. Although an internal complaints process is in place, it has been reported that policewoman fear using this process lest a complaint invites retaliation or a charge of insubordination from their superiors.(58)
Domestic Violence within the Police Service
The ability of the RPNGC to offer women protection and appropriately investigate their allegations of gender-based violence is compromised when domestic violence within their own ranks is not only prevalent but is tolerated. A policewoman working for the Welfare Unit of the RPNGC in Port Moresby told Amnesty International that "the situation has gone beyond the limit. There are workshops on domestic violence, alcohol abuse and conflict resolution but they have little effect." The Welfare Unit of the RPNGC handles complaints of domestic violence from policemen’s wives. However, this policewoman told Amnesty International that attempts to discipline or charge police officers in relation to assaults on their wives were consistently frustrated, with a carton of beer sent to the relevant officer in charge often sufficient to ensure that no action is taken. An NGO staff member involved in providing a workshop on violence against women to policemen’s wives in Port Moresby told Amnesty International that the women who attended revealed that domestic violence was the norm in the police barracks. The private lives of police officers impact on their professional lives. Women in Papua New Guinea are entitled to ask, if police officers are willing to turn a blind eye to intimate partner violence within the police barracks or themselves use violence against their partners, how likely are they to investigate allegations of intimate partner violence received from the general public or to charge and, where appropriate, arrest perpetrators.
4.5 Violence Against Women in the Community
Violence against women in Papua New Guinea occurs against a backdrop of high levels of general violence in the community. Women suffer disproportionately as both the direct and indirect victims of this violence.(59)
Violent Crime
As discussed in Section 2 above ( "background"), violent crime represents a serious threat to the welfare and development of many communities, both urban and rural, in Papua New Guinea. In the major urban centres people experience a palpable fear of crime, particularly women, who are aware that they are viewed as easier targets. The shadow cast by high levels of violent crime, and the fact that it is often accompanied by sexual violence, inhibits women from moving freely in public. It serves to isolate women in their homes, limit their participation in public life, and entrench their subordinate status by restricting their ability to access education and employment opportunities. Two female police officers told Amnesty International, for example, that they could not work at night because they could not get to and from work safely and that, even during the day, they did not consider it safe to travel on the bus wearing their police uniform. A church organisation running clinics in settlements on the outskirts of Port Moresby told Amnesty International that they had been forced to temporarily close one of their clinics and withdraw their staff because of continual threats to female nurses walking from the road to the clinic. These are just two of many examples told to Amnesty International.
A further pertinent, negative side effect of violent crime is the impact it has on notions of masculinity. Criminal gangs, which play a formative role in the lives of many young men, often reinforce concepts of masculinity which promote violence as a means of asserting authority and which subsequently encourage male bonding around gang rape and other forms of violence against women.(60)
Violence as a Means of Dispute Resolution or "pay back"
With traditional mechanisms for conflict resolution weakened and little public faith in the formal justice system, recourse to violence is common in Papua New Guinea when disputes arise in schools, the workplace and in the course of wider community life.(61) This has resulted in a degree of tolerance for violence in the community and the legitimisation of the use of violence as a valid tool for resolving disputes, including within the home.
Moreover, some traditional approaches to dealing with perceived wrongs sanction the use of retributive violence or "pay back" to address grievances.(62)
There is one way particular way this affects women which warrants special mention. Often when a person within a community falls ill or dies unexpectedly, the community suspects that a curse or spell has been cast. The alleged sorcerer is identified, interrogated, tortured and often murdered in "pay back" for the harm they are thought to have inflicted. The methods of torture used included beating (often with barbed wire), breaking bones, burning with red hot metal, raping, hanging over fire, cutting body parts slowly, amputating and pulling behind vehicles. If treatments of this kind do not result in death, often the victim is then killed by being thrown over a cliff, into a river or cave; burned alive in a house fire; buried alive; beheaded; hanged; choked to death, starved; axed or electrocuted; suffocated with smoke; forced to drink petrol or hot liquid, stoned or shot.(63)
The victim is often elderly, with little influence and power in the community. Although both men and women are targeted, women are reportedly six times more likely to suffer violence in this way.(64) Few of these cases are reported to police because the attacks are generally sanctioned by the community or because people are afraid that if they speak out they too may be targeted.
Tribal Fighting
In the Highlands regions, "pay back" for perceived wrongs can lead to protracted and deadly conflicts between clans, referred to as tribal fighting. In 2005, local media reported tribal fighting in at least six provinces. Fatality rates over the course of a fight can exceed 100 lives. A Law and Order Summit in Enga province found, for example, that 501 people had been killed in armed clashes between ethnic groups in the 12 months to August 2003. Establishing reliable fatality figures, however, is difficult if not impossible. The number of rapes and other offences committed is even less likely to be recorded.
Amnesty International met with a group of women forced to flee their homes in an area affected by tribal fighting in the Western Highlands. They reported that, although the fighting largely takes place between men, the negative impact on women’s lives is severe. Women are targeted by rival groups for rape and gang rape as a means of shaming or provoking the enemy and are sometimes abducted for that purpose. Their houses and gardens are burned and they are forced to flee at short notice. They are displaced from their homes and have to rely on the support of extended kin-groups. They are unable to travel to and tend their gardens and are thus unable to provide food for their families. Their displacement and dependency puts them at increased risk of violence and exploitation from those on whom they are forced to rely for shelter and food. Where a community is forced to relocate to another group’s lands for an extended period, women may be required to marry into the host community as a sign of gratitude. As a result of tribal fighting, health care, education and police services in the effected area are often disrupted, sometimes for extended periods, further isolating women from any prospect of assistance, protection or redress.
In the context of tribal fighting, it has also been reported that women are sometimes sold in exchange for guns or offered in return for the services of hired gunmen.(65)
5. What is the State Response to Violence Against Women?
5.1 International Human Rights Standards and the State’s Obligations
States’ obligations under international law are not limited to ensuring that their agents do not commit acts of violence against women; States must also take effective steps to prevent, investigate and punish such acts by private individuals or groups. States have a duty under international human rights law to employ positive measures to prevent, prohibit and punish violence against women, regardless of where it takes place and regardless of the identity of the perpetrator.
In addition, if an individual’s right has been violated, the State must ensure that the right violated is restored as far as is possible, including through appropriate reparations. This does not absolve the actual perpetrators from being prosecuted and punished, nor from being liable to civil legal procedures.
Due Diligence
The standard of "due diligence" determines the requisite level of effort that a State must employ to fulfil its responsibility to protect individuals from abuses of their rights by non-state actors. The general obligation of States to exercise due diligence was elaborated by the Human Rights Committee, the body established by the International Covenant on Civil and Political Rights to monitor its implementation by states parties. In a General Comment the Human Rights Committee stated:
"The Covenant cannot be viewed as a substitute for domestic criminal or civil law. However the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities."(66)
A State must therefore act appropriately and effectively to prevent violence against women, and to investigate and punish such violence after it occurs. Where the State fails to do so it can itself be held responsible for the violations women have experienced. According to the UN Declaration on the Elimination of Violence against Women, states should:
"exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the state or by private persons".(67)
General Recommendation 19 of the Committee on the Elimination of All Forms of Discrimination against Women states:
"Under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation."(68)
According to the Special Rapporteur on violence against women, its causes and consequences:
"States must promote and protect the human rights of women and exercise due diligence:
(a) To prevent, investigate and punish acts of all forms of VAW [violence against women] whether in the home, the workplace, the community or society, in custody or in situations of armed conflict;
(b) To take all measures to empower women and strengthen their economic
independence and to protect and promote the full enjoyment of all rights and fundamental freedoms;
(c) To condemn VAW and not invoke custom, tradition or practices in the name of religion or culture to avoid their obligations to eliminate such violence;
(d) To intensify efforts to develop and/or utilize legislative, educational, social and other measures aimed at the prevention of violence, including the dissemination of information, legal literacy campaigns and the training of legal, judicial and health personnel."(69)
As these quotations illustrate, ‘due diligence’ obligations are not merely limited to legislating against and criminalizing various forms of gender-based violence, but require that the State adopt a whole range of measures including the training of state personnel, the adoption of practical policies and mechanisms to protect women's rights, and ensuring that relevant legal mechanisms are accessible to women who have experienced any form of gender-based violence and can best serve their needs. It must also ensure that its efforts to respond to violence against women are not based on laws and policies which themselves lead to violations of human rights.
5.2 National Commitments, Plans and Policies
At the national level in Papua New Guinea much of the basic formal framework (discussed below) is in place for recognising the State’s obligation to respect, protect, and fulfil women’s human rights. However, commitments made by the Government of Papua New Guinea at the national level have rarely been matched by sustained, properly resourced implementation measures. The result is that women in Papua New Guinea have largely achieved their rights on paper, but are consistently denied the enjoyment of those rights in practice, often because of gender-based violence.
The Constitution
Consistent with article 2 of CEDAW, the principle of equality of men and women is embodied in the National Constitution of Papua New Guinea. In fact, the first clause of the Constitution reads:
"We declare our first goal to be for every person to be dynamically involved in the process of freeing himself or herself from every form of domination or oppression so that each man or woman will have the opportunity to develop as a whole person in relationship with others."
The second National Goal and Directive Principle in the Constitution calls for:
"equal participation by women citizens in all political, economic, social and religious activities"
and for:
"recognition of the principles that a complete relationship in marriage rests on equality of rights and duties of the partners, and that responsible parenthood is based on that equality."
Likewise section 55(1) provides:
"Subject to this Constitution, all citizens have the same rights, privileges, obligations and duties irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex."
With respect to all forms of violence, the preamble to the Constitution specifically provides that the people of Papua New Guinea:
"reject violence and seek consensus as a means of solving our common problems."
Likewise section 36(1) provides:
"No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person."
In this way the Constitution contains a clear commitment both to gender equality, including within marriage, and to the right to live free from violence.
The Work of the Law Reform Commission
In 1982, the then Minister for Justice authorised a reference for the Papua New Guinea Law Reform Commission (LRC)(70) to investigate and report on domestic violence in Papua New Guinea, on the grounds that:
· Domestic violence is contrary to the principles of the Constitution; and · The law does not enable the police and courts effectively to protect women from domestic violence. In particular, the LRC was instructed to inquire into and report on:
· the nature and extent of domestic violence as a social problem; · the legal remedies available for complaints of domestic violence; · any changes to the law which may be necessary or desirable to achieve the protection of women from domestic violence; · the steps which should be taken to bring the problem of domestic violence to public notice.
Over the following decade the LRC embarked upon a major programme of action on domestic violence. Extensive research was conducted on the nature, extent and causes of domestic violence and published in the mid-1980s. Equipped with this information, the LRC worked with the police services to change their policies and practices; provided training and practical advice for District and Village Court magistrates, teachers, social workers, lawyers and church workers; prepared best-practice guidelines for domestic violence counselling; assisted churches and women’s organisation to prepare policies and action plans on domestic violence; and combined with an NGO, known as the Women and the Law Committee, to produce a pro-active multi-media campaign designed to change attitudes towards domestic violence and to educate the public that wife–beating is a crime.
In 1992, the LRC was required to conclude its work on domestic violence. A final report was produced which documented the work that had been undertaken since the initial referral, outlined the considerable progress that had been made in reforming institutional policies and practices, and made 54 recommendations for further action. The recommendations covered five broad areas: legal reforms and actions required to strengthen the application of the criminal law and police responses; legal reform and actions required to improve other means of legal protection outside of the criminal justice system; measures required to maintain public awareness campaigns, educational programmes and professional training; measures required to improve counselling for victims and offenders; and measures required to improve services, particularly in the area of health and accommodation, for victims.
The report was presented to Parliament but neither the recommendations for legislative reform nor the recommendations for broader action were taken up by the government. Instead, government focus on domestic violence substantially decreased and the momentum for change dissipated. The progress which had been achieved was largely lost, as the police service, courts and other government agencies reverted to their old practices.
In 1999, Lady Carol Kidu, the only elected female representative in the National Parliament, initiated two consultative parliamentary workshops to review the LRC’s Final Report. Since that time Lady Kidu has succeeded in introducing a number of legislative reforms which are discussed further below. Nonetheless, the majority of the LRC’s recommendations are yet to be implemented.
Fourteen years after the Final Report was published the LRC’s findings and recommendations remain as accurate and pertinent as ever. The potential of the wide ranging work undertaken by the LRC to bring about significant change for women appears to have been squandered. Despite the tireless work of certain individuals, such as Lady Carol Kidu, it is not apparent that the situation for women in Papua New Guinea with respect to gender-based violence is markedly different from the situation which existed before the LRC commenced its work.
CEDAW and Platforms for Action
The Government of Papua New Guinea ratified the UN Convention on the Elimination of Discrimination Against Women (CEDAW) without reservation in 1995 and there is reportedly a national implementation plan for CEDAW and an Inter-Agency Core-Committee on CEDAW.
Prior to ratifying CEDAW, the government had already adopted in 1991 a National Women’s Policy,(71) formed an inter-agency women’s advisory committee and established a Gender and Development Unit within the then Department of Finance and Planning.
In 1995, the government issued a ‘Platform for Action: A Decade of Action for Women Towards National Unity and Sustainability’ which was presented at the UN Fourth World Conference on Women in Beijing. The document specifically addressed violence against women and listed activities which would be undertaken in order to: increase community awareness of women’ human rights and legal rights as contained in the Constitution and CEDAW; create increased awareness that violence is both a crime and a violation of women’s’ human rights; develop public measures to eliminate violence against women; ensure that the laws relating to violence against women are enforced; ensure that women are able to participate in efforts to promote conditions for sustainable peace in the family and community; and advocate for the elimination of practices that discriminate against women.
The Government of Papua New Guinea has also endorsed other relevant international and regional platforms for action, including, in 1994, the Pacific Platform for Action on Women and Sustainable Development and, in 2004, the Revised Pacific Platform for Action on Advancement of Women and Gender Equality.(72) Both platforms committed the government to promoting the advancement of women, including by eliminating family and sexual violence.
However all of these committees, policies and platforms relating to the protection, promotion and fulfilment of women’s human rights have achieved very little, other than to create an illusion of commitment and activity. The resources and political will required to give effect to CEDAW and related platforms have never been forthcoming at any level of government and little is known about their existence, particularly in the provinces.
CEDAW Reporting and Implementation
"Currently the rights of the rural woman as enshrined in the CEDAW have attracted little programmatic attention" … [Summary of rights listed] …. "All the rights are little known amongst Papua New Guinea’s rural women, neither are the correlative duties understood at the various societal levels in the country."(73)
Although Papua New Guinea signed CEDAW in 1994 and ratified the treaty in January 1995, the Government of Papua New Guinea has never submitted its initial report or subsequent periodic reports to the Committee on the Elimination of Discrimination Against Women. Contradictory information has been received over the last five years about who is responsible for completing the initial report and about the report’s readiness for submission.
In early 2005, the National Executive Council gave approval for the establishment of an Office for the Development of Women(74) which will assume responsibility as the lead agency and national coordinating body for issues relating to the implementation of CEDAW. However, at the time of writing there had been no budgetary allocation to give effect to the decision.(75)
Until the Office for the Development of Women becomes operational, the government agency with responsibility for implementing CEDAW appears to remain the Women’s Division within the Department of Community Development. This is a relatively low priority Department with a small budgetary allocation, and the Women’s Division is only one of several divisions within the Department. In Papua New Guinea’s decentralized system of government, the Women’s Division, which exists at national level, has little capacity to directly implement policies and programs. Staff working within the Women’s Division explained that they primarily fill a policy and advisory role while programs are implemented at the provincial and district level.
However, their counterparts at provincial and district level are often allocated no program budget, notwithstanding the existence of national policies and platforms which they are tasked with implementing.
For example, the Assistant Secretary of the Community Development Division in Western Highlands Province told Amnesty International that her Division had been allocated no program budget by the Provincial Government at all, let alone a budget for programs relating to the implementation of CEDAW. The Division has an "Activities Plan", but every one of the Division’s available monthly reports for the period April 2004 to April 2005 proceeds with statement: "There was nil funding for welfare activities from national/provincial government this month". Over the same period, in the section of each monthly report form where the Division is required to record whether the provincial CEDAW committee has met, the notation reads "not aware of this committee."
In November 2005, the Department of Justice and Attorney-General hosted a two day conference on CEDAW in Port Moresby with the aim of reaching agreement between government departments, NGOs and statutory organisations about how they could work together to further the implementation of the CEDAW principles. At the conference, the International Law Division of the Department of Justice and Attorney General presented a legislative review, examining what legislative reforms would be necessary to give domestic effect to CEDAW. Amnesty International was not able to obtain information about what, if any, concrete plans emerged from the conference. Although it is understood that funding continues for a CEDAW technical officer within the Department of Justice and Attorney General and that there is a technical advisory committee attached to this post.
National Council of Women
A National Council of Women was established by legislation in 1979(76) and receives some funding from the National Government. However, it is independent from government and is regarded by its members as an NGO. Below the National Council of Women, there are Provincial Councils of Women and District Councils of Women. Essentially the Women’s Council structure represents a hierarchical network of affiliated women’s organisations which is intended to operate as a type of "official voice" for women at the various levels of government. In theory it provides a structured conduit for channelling training and information to women’s organisations from the national level down to the grassroots. In turn, it also provides a structured system of representation whereby women’s views can be gathered and voiced by a coordinated body. However, with very limited or no funding and support from the State, the Women’s Council structure sometimes exists simply as an end in itself. A Gender Analysis conducted for the Law and Justice Sector program concluded:
"The National Council of Women faces considerable problems such as institutional constraints, lack of resources, poor accountability, and poor communications with its regionally based executive and members."(77)
Throughout its lifetime the limited institutional capacity of the National Council of Women has severely undermined its potential to operate as a genuinely representative, accountable, dynamic and effective advocate for women.
5.3 Criminal Justice System
5.3.1 Legal Framework – Recent Amendments
To a large extent, the criminal law provisions already in place in Papua New Guinea enable the State to prosecute and punish acts of violence against women. No distinction is made in statute between violence which occurs in the context of a family relationship and violence which occurs in the context of wider community life. For example, it is not a statutory defence to a charge of assault, for a husband to claim that he was ‘chastising’ or ‘disciplining’ his wife. Likewise, amendments to the Criminal Code, which came into effect in April 2003, reformed the definition of rape so that it includes sexual penetration without consent whether it occurs within marriage or not.(78) Amongst other things, the same amendments also broadened the definition of sexual penetration(79) and, recognising that rape is often used as a means of ‘payback’ against women, created an offence whereby it is a crime to order or induce another person to commit an act of sexual violence.(80) A number of new crimes relating to the sexual abuse and sexual exploitation of children were also introduced.(81) Meanwhile, corresponding amendments to the rules of evidence and procedure abolished the requirement that the there must be evidence to corroborate the victim’s testimony in rape and other sexual assault cases.(82)
The amendments to the law were accompanied by training for members of the Sexual Offences Squad, dissemination of information leaflets produced by the Family and Sexual Violence Action Committee and other announcements in the media. The Office of the Director of Public Prosecutions has drawn up standard charge sheets to assist police in laying charges under the new provisions.
The amendments were introduced as a Private Members Bill by Lady Carol Kidu, and were drafted and passed with the assistance and lobbying of the Family and Sexual Violence Action Committee. The successful passage of the amendments through parliament represents a major achievement, particularly given that they challenge some deeply entrenched views regarding a man’s assumed right to have sexual intercourse with his wife.
5.3.2 Police Investigations
Sending a clear message to perpetrators and victims alike that abuses of women’s human rights are not acceptable and will be dealt with effectively by the criminal law, is an important part of a state’s obligation to prevent violence against women. Although appropriate criminal law provisions are largely in place, that obligation is not currently met in Papua New Guinea because the police frequently fail to investigate complaints relating to incidents of violence against women and often turn away women who have suffered violence.
Background - General Ineffectiveness of Police
While the police services in Papua New Guinea have been particularly inadequate in responding to violence against women, it should be noted that this poor response occurs in the context of a broader failure by the RPNGC to deliver all basic policing services reliably and consistently. A 2004 government commissioned review of the RPNGC found, for example:
"There has been a serious failure in discipline and systems that has rendered the Royal Papua New Guinea Constabulary largely ineffective. It has been powerless to deal with rising incidents of violent crime, and unprofessional and unethical acts by some of its members have caused the community and the Government to lose confidence and trust. These problems are continuing."(83)
"The police need to restore discipline, and be more accountable for their actions and the resources provided to them. Honest police are overwhelmed by lack of resources, poor leadership, bad management, apathy, and the condoning of sometimes openly corrupt behaviour of their colleagues and superiors"(84)
"The Constabulary has suffered from a lack of leadership and effective command by senior police members. Discipline has been allowed to deteriorate and there is no accountability for members to apply their training in police operations. Established processes and procedures are ignored, and equipment is lost, abused or mislaid. Commanders do not take responsibility for developing and mentoring their teams and no follow on training is identified or provided."(85)
The consequence of the resulting breakdown in policing is not only that the vast majority of crimes go unreported, but that even those crimes which are reported to police are highly unlikely to be resolved by the apprehension and successful prosecution of the perpetrator. Of the minority of offenders who are arrested, many still avoid conviction because of inadequacies in police investigations.
Background - Limited Resources and Poor Conditions
"A significant gap has developed between the resources that have been provided to the Constabulary and those it needs to deliver an effective policing service. The shortfalls are not only in people but also in the lack of fundamental supplies such as paper, pencils, desks, tables, chairs, typewriters, Police Notebooks, recording systems and a telephone."(86)
A lack of resources, both in terms of equipment and personnel undeniably contributes to the ineffectiveness of the police services in Papua New Guinea. While it is true that the members of the RPNGC have often misused the resources available to them and conveniently relied on resource constraints as an excuse for inaction, it is also true that there are simply not enough police personnel in Papua New Guinea(87) and that they do not have the equipment to allow them to be mobile and responsive. Police stations and police barracks, where most police and their families are accommodated, are in such as state of disrepair that many are hazardous to human health. Outnumbered by criminal gangs and fighting clans, under-resourced and neglected by the State, the police are themselves often the targets of violence by armed criminals seeking to evade arrest.
From the perspective of international human rights standards, however, even where police resource constraints are the reason for a failure to investigate allegations of violence against women, the State is not absolved from responsibility. States should provide women who are subject to violence with access to the mechanisms of justice, which in practice involves properly training and resourcing those agencies which are tasked with delivering justice. For example, UN General Assembly Resolution 52/86 – Crime prevention and criminal justice measures to eliminate violence against women: Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice – urges members states, within the framework of their national legal systems, to "empower the police to respond promptly to incidents of violence against women."(88)
Victims who are Dismissed and Sent Away
In every discussion Amnesty International had with women’s organisations and at every gathering of women Amnesty International attended, the organisation was told that women reporting incidents of domestic violence were still regularly sent home by police and told their problems were "family matters" or "should be dealt with by the Village Court." Many police men and women themselves conceded that this is common practice.
The testimony of Margaret (not her real name) in Angoram, East Sepik was indicative of dozens of stories that Amnesty International heard from frustrated women across the country:
"My husband took a second wife and I had to live with them both in my house. When I came home one day and found everything in a mess, I said "this is my house and you should keep it clean".
My husband broke my nose and hit me with timber over the back of my head. I went to the police to tell them to arrest him – they said they would do it but they didn’t.
Last month, my husband kicked me in the face and broke my teeth. I went to the police bleeding from my mouth and nose. They said they would go and get him and have a word with him but they have done nothing.
I am tired of the police –they’re useless."
A women’s leader in Minj, Western Highlands echoed similar sentiments:
" Police are also in line with bribery from the men. We have gone to the police with axe wounds and black eyes and …. Nothing. We have to pay petrol to get them to come.
We know it [wife bashing] is against the law. We know the law – but there is no equality. We just have to hide in the bush to give them [our husbands] time to calm down."
The same kinds of experiences were reported again and again and were not confined to incidence of violence in the home. An NGO worker in Port Moresby told Amnesty International that women in the sex industry reporting sexual assaults against them were often dismissed by police who took the attitude that they "could not be raped". Similarly, one policeman in Mt Hagen, after describing the police station’s ‘model’ response to women reporting sexual violence, told Amnesty International:
"But there are some women who walk around town acting so tough, laughing and joking and making fun of police. Then the next day they come in and say they have been gang raped and we say look who’s laughing now."
Women have also reported that police sometimes demand sexual favours as a condition for taking action on their complaints.
Even well intentioned police officers disclosed to Amnesty International that, although they did not send women away, in cases of intimate partner violence they often acted as mediators rather than proceeding with charges. Police described how they offered advice and guidance to husbands and wives at the counter. Amnesty International was frequently told by police that if they could "sort it out" then they would leave it at that rather than commencing an investigation and laying charges. One experienced female activist from East Sepik described it as "counter counselling" and said that police commonly engaged in it.
This type of response from police is neither sanctioned by, nor consistent with, RPNGC’s officially declared policies. For example, a Constabulary Standing Order on Domestic Violence issued in 1987, instructed police that domestic assaults must be treated in the same way, and with the same seriousness, as any assault. The Standing Order provides as follows:
"ASSAULT BY HUSBANDS ON WIVES
1. All assaults are ILLEGAL.
Likewise brochures produced by the RPNGC for the purposes of awareness raising contain messages such as:
"For women in immediate danger a call to the nearest police is important for their own safety and that of their children. Women have a right to be safe and to protection under the law. You Are Important."
And:
"What can police do to help?
- Police can arrest the offender if you have been physically assaulted in or out of your home; - Offer reassurance and advice on aspects of the law and where you stand. Physical violence is a crime; - Make appropriate referrals to other agencies in the community which offer support."
It is positive that the official RPNGC policy framework sends a message that violence against women, including violence committed in the home, is a serious criminal matter and will not be tolerated. However, until the clear gap between official policy and implementation in practice is addressed, the message will not be heard and its benefits will not be felt by women in need of police support.
Incomplete and Inadequate Investigations
Amnesty International observed that even when police did conduct investigations into allegations of violence against women, their investigations were primarily limited to collecting statements from those willing to attend the police station. Discussions with police and women’s organisations confirmed that if victims or their families were not prepared to gather statements or locate witnesses and secure their attendance at the police station, then investigations often did not advance.
A staff member at the Family Support Centre in Port Moresby, for example, told Amnesty International that some police officers appeared to misunderstand the role of the Centre, which was intended as a liaison point for victims’ services and not as an investigation unit. She reported that, rather than taking a statement from women reporting violence, commencing an investigation and making an arrest where appropriate, some police officers who were aware of the existence of the Centre simply sent women straight to there, advising them that the police could not take action until they returned with a medical report and other evidence.
Other human rights advocates showed Amnesty International files they had compiled on cases of violence against women and girls brought to them by members of the community. These advocates were engaged, as far as possible, in pursuing investigations and gathering evidence themselves. They explained that the police were often unable or unwilling to undertake investigations, with the result that many cases reported to police, although not officially ignored or dismissed, went nowhere.
Police cited a lack of resources as the reason for their inability to follow up and investigate reported crimes. A member of the Sexual Offences Squad in Wewak, for example, set out for Amnesty international the Squad’s investigation procedures when a sexual offence was reported. These procedures included: locating and interviewing the victim; referring the victim to hospital with appropriate forms indicating the types of tests required; locating and interviewing witnesses; and attending the scene to draw sketches and gather relevant physical evidence. However, when Amnesty International referred to the Squad’s record books and inquired what steps had been taken to investigate the cases recorded over the previous days, Amnesty International was told that because no vehicle was available it had not been possible to conduct any inquiries. Amnesty International was further told that it often took several days before a vehicle became available, if at all.
At both Mt Hagen and Wewak police stations, police told Amnesty International about cases of violence against women which had stalled because: "the victim didn’t come back", "we are waiting for a witness to come in and give a statement" or "we couldn’t locate the suspect." Where crimes are reported in rural areas, which are difficult, time consuming and expensive to access, the police are even less likely to attend and conduct investigations. Members of communities outside major town centres in the Western Highlands and East Sepik told Amnesty international that the police usually asked for money to investigate cases, to cover their expenses such as food and fuel. If they cannot raise the money, then the police cannot or do not take any action.
5.3.3 Support for Victims and Witnesses in the Criminal Justice System
The UN Declaration on the Elimination of All Forms of Discrimination against Women states in Article 4 (d) that: "women who are subject to violence should be provided with access to the mechanisms of justice."
Where women are deterred from assisting in the investigation and prosecution of acts of gender-based violence because they fear being exposed to humiliation, further harm, or attacks on their character and credibility, they do not have effective access to justice.
Victims and witnesses who assist in the investigation and prosecution of acts of violence against women are entitled to protection and to be treated with dignity. The investigation and prosecution process should be explained to them, including their role in it. They should be kept abreast of developments in their case and of the progress of proceedings. Measures should be taken to minimise inconvenience to them and to protect their privacy. Where necessary, steps should also be taken to ensure their safety.(89)
Lack of Support for Women Reporting to the Police
Despite some positive initiatives and the best efforts of certain individual policemen and women, the experience of reporting incidents of gender-based violence to police in Papua New Guinea remains intimidating and often degrading for women. Police expressed to Amnesty International great frustration caused by women who reported crimes involving family or sexual violence and then later withdrew their statements. However, with few exceptions the police demonstrated only superficial understanding of why women often behaved this way and were unable to offer any evidence of steps they were taking to support women through the criminal justice process in a way which might give more women the confidence to proceed with investigations and prosecutions.
On the contrary, Amnesty International found that most police: failed to avail themselves of information about support services in the community; failed to refer women to those services; failed to inform women about their rights and about the progress of investigations; failed to afford women any privacy or sensitivity when recording their statements and other information; failed to give consideration to the ongoing safety concerns of victims; and frequently abrogated their responsibility by placing pressure on women reporting gender-based violence to make decisions themselves about whether and what charges should be pressed.
Amnesty International was told that "victim’s desks" introduced to police stations across Port Moresby have made it easier for women to report incidents of violence to the police and for police to interlink with other agencies to provide a more comprehensive response to victims of crime. However, when Amnesty International randomly visited Gerehu police station, one of nine in Port Moresby, the policewoman spoken to said that although she had once heard of the concept of a victim’s desk, there was no provision for one in the station. She reported that complainants would be attended to at the front desk or in one of the staff rooms, but that there was no private space where a woman could make a complaint or give a statement uninterrupted by people coming and going. Further, she explained that if one of the five policewomen based at the station was around then female complainants would probably be referred to her, however, she reported that no women were available after 4pm. In relation to referral to other services such as counselling, the same policewoman told Amnesty International that she was not aware of any protocols and that it was up to the individual policeman or woman handling the case to make such referrals.
She recalled a case from the previous week when she had accompanied a woman, Mary (not her real name), to get help and refuge from a local NGO, the Individual and Community Rights Advocacy Forum (ICRAF). Mary had come to the station on a Friday having been badly beaten by her husband and needing somewhere to stay. The complaint was recorded by police and Amnesty International was told that charges were eventually laid. In the meantime the policewoman told Mary to come back to the station on Monday because, by chance, she planned to visit ICRAF herself to seek assistance with her own domestic situation. The policewoman reported that, but for her own domestic problems, she would not have known about ICRAF or referred Mary. She highly doubted whether her colleagues would have done the same. While Mary, who also spoke to Amnesty International, was happy that she eventually received assistance, her referral to ICRAF was not particularly timely and occurred more by chance than as the result of any uniform practice or policy.
At the main police stations in Mt Hagen and Wewak, Amnesty International observed: no private space away from the public or police thoroughfares for women to make a complaint or statement; very few or no female police officers available; no standard procedures with respect to raising and addressing security concerns with victims and witnesses; no standard procedures for providing information on or referral to counselling or other services; and limited or incomplete knowledge about the availability of such services.
In the three provinces visited by Amnesty International, sexual offences were referred to and handled by the specialist Sexual Offences Squad. The purpose of the Squad was to ensure that investigations into sexual offences were consistent across the police service, of a guaranteed quality, and coordinated with other agencies, such as hospitals. While the existence of Squad personnel might have improved the quality of police investigations, they have not impacted significantly on the level of sensitivity afforded to women reporting sexual offences to police. Amnesty International’s interviews with members of the Squad in Port Moresby, Mt Hagen and Wewak revealed that most police officers within the Squad have little or no training or skills in dealing with victims of sexual assault.
A case Amnesty International observed in Mt Hagen was illustrative. A 19 year old college student reported to the police station that she had just been pulled off the street and raped. Although there was a Sexual Offences Squad in Mt Hagen, her statement was taken by a policeman working in the criminal records section. No policewomen were on duty at the station. She was visibly very upset but was afforded no privacy. Her statement was taken in a room with people coming in and out as she attempted to recall what had happened. She was not told anything about the criminal investigation process, was left sitting alone for extended periods, unsure if she had finished or not and was not provided with any information about counselling or other services. With prompting, she was referred to the hospital with a form indicating what tests were required. A relative living in town was notified of what had happened and he accompanied her to the hospital. Police did not attend the hospital with her and did not give her any information about how the investigation would progress or when they would contact her again. Although she lived some hours from town and night was approaching, both the police and her male relative were content for her to catch a public bus home alone.
Despite this overall poor performance, there have been some positive initiatives designed to improve police responses to women reporting crimes of gender-based violence. In both Port Moresby, at Waigani police station, and in Wewak, at the Wewak Community Policing Resource Centre, there are community policing initiatives which are aimed, in part, at providing a more integrated and supportive response to victims of crime, particularly women. In both locations, police have developed networks with women’s organisations and other NGOs which have made it easier for cases to be referred to police and, visa versa, for police to refer women to services such as counselling or para-legal advice. For example, at the Wewak Centre, located in the grounds of the East Sepik Council of Women, crisis counselling is available on site. Unfortunately, these initiatives appear to have been approached as specialist outreach activities, and there was no evidence that they had informed broader changes in police policy, protocol and practice.
Responsibility for Initiating and Maintaining Criminal Proceedings
A problem frequently encountered in Papua New Guinea is that regardless of what laws are in place, regardless of whether police act on complaints, conduct proper investigations and lay appropriate charges, cases of violence against women often do not proceed to successful prosecution because victims and witnesses withdraw their cooperation. This often occurs either because the victim is intimidated or threatened into dropping the complaint or because there is overwhelming pressure to resolve the matter outside of the criminal justice system through the payment of compensation. Delays in the criminal justice system add to the pressure on victims and their families to resolve cases in a more timely way outside of the formal system at the community level, so that "peace can be restored" and the community can move on. A prosecutor from Mt Hagen explained:
"The files are piling up because people don’t want to proceed. Compensation has been paid so they feel that justice has been done. They forget that a crime has been committed against the law of the State."
It is important that the views of the victim are taken into account when a decision is made about whether to prosecute a particular case. However, it is also important that it is made clear to the perpetrator and the wider community that it is the State, rather than the victim, that ultimately makes the decision about whether to proceed with the prosecution.
According to Article 7(b) of the UN General Assembly Resolution 52/86:
"The primary responsibility for initiating prosecutions lies with prosecution authorities and does not rest with women subjected to violence."
At present, the prevailing view in Papua New Guinea appears to be that the police and prosecution are impotent to act once a victim has "chosen" to pursue the compensation route or no longer wants to proceed for other reasons.
In the record book of the Sexual Offences Squad in Wewak, the disposition notation on many recorded cases states "settled by civil compensation". For example, an entry from January 2004, where a woman was alleged to have been gang raped by 16 people was recorded to have been settled by the payment of 600 Papua New Guinea Kina. The policeman spoken to reported that the Squad accepts compensation settlements as the effective resolution of a criminal matter because no one will cooperate with the investigation or prosecution after that point anyway. He explained:
"If it is going to be sorted out by community leaders, we try to have a police presence there. We talk to the victims and relatives and negotiate with them. If it can be settled at the community level we leave it at that."
When asked whether by their presence the police were in fact sending a message to the public that it was acceptable to resolve serious sexual assault cases at the community level alone, he replied:
"The concern is that we want to see peace in the community. So it depends on the victim whether we proceed or not."
A policeman with the Sexual Offences Squad in Port Moresby told Amnesty International:
"When victims come here they are very sad, they tell their story. They say they want to charge the man but they say they also want compensation. We tell them to decide, if they want compensation then take that path. If they go ahead with compensation, there is no point us going ahead because they won’t give evidence. If I say "This is a crime" and proceed anyway – no one will turn up.
A lot of families come here and say: "lock him up so that we can ask for compensation.""
Similarly, almost all policemen and women spoken to by Amnesty International said that, having spent time in the past working on intimate partner violence cases only to have the victim withdraw her cooperation, they always asked female complainants first "Do you really want to take action?" or "Are you going to go through with this because otherwise I don’t want to waste my time?" Women were in effect told that if they were prepared to endure violence against them, then it would be tolerated by State authorities.
Despite the frustration expressed by police, Amnesty International found that when victims of gender-based violence withdrew their support for an investigation or prosecution, little attempt was made by police to speak to them in private to ascertain their reasons for not wanting to proceed. Likewise, few attempts were made to discuss with victims what pressures or security risks they might face if a prosecution proceeded nor to consider ways in which appropriate support might be offered, including through the provision of police protection or if appropriate, through court protection orders. Where compensation agreements had been reached at the community level with the help of alternative dispute resolution mechanisms, it was not clarified whether the victim herself voluntarily participated in the negotiations nor whether she was satisfied with the negotiated outcome. It was rarely properly explained to victims that they had a right both to compensation and to expect that the perpetrator would be prosecuted and punished, and that accordingly under the Criminal Law (Compensation) Act the perpetrator could be ordered to pay compensation in addition to other punishments.(90)
Further, it appeared that the police and prosecution services rarely utilised, or did not utilise to maximum effect, measures available to assist them in circumventing the pressure placed on victims to withdraw their cooperation with a criminal investigation and prosecution. These measures include provisions in the Papua New Guinea Criminal Code which make it an offence to corrupt a witness, to prevent a witness from attending court or to conspire to defeat justice(91) and powers to compel reluctant witnesses to attend court and give evidence.
Proceeding with an investigation and prosecution when there is no cooperation from the community is difficult, sometimes impossible. Nonetheless, the State has an obligation to victims of violence against women, who themselves may have little power or autonomy within the community, to clearly communicate that violence against women is a serious matter which is not, and should not, be tolerated. The State cannot meet this obligation by passively deferring to alternative dispute resolution mechanisms which prevent crimes of violence against women from being investigated, prosecuted and appropriately punished.(92)
Compellability of Spouses
In fairness to police and prosecutors a note must be added here about an exception to the power to compel witnesses to give evidence. Under the law in Papua New Guinea, spouses can not be compelled to give evidence against each other, except in certain criminal cases relating to the abuse of a child. This means that in a case of spousal abuse, if the victim refuses to give evidence against her husband, the court cannot force her to do so. To protect wives from undue pressure being placed on them by their husbands and to relieve wives of the burden of having to decide whether or not to give evidence, the Law Reform Commission recommended changes to the Evidence Act to make spouses compellable witnesses in cases of assault by one spouse on the other. The recommended changes were not enacted. As a result, although in theory it is the prosecution service which decides whether to proceed in a case of spousal abuse, if the evidence of the spouse who has been the victim of abuse is the key evidence, then in reality, it is the victim who determines whether or not to proceed. Amnesty International believes that, in the interests of combating impunity, the courts must be able to secure relevant evidence. Courts should not be precluded from obtaining relevant evidence from an entire class of persons because of restrictions on the compellability of spouses.
However, the compellability of witnesses is not an issue which should be viewed in isolation. The court is likely to have access to the most complete evidence when witnesses feel sufficiently secure and confident in the justice system to volunteer their cooperation. For that reason, any measures used to compel greater cooperation from victims and witnesses should only be employed as part of a broader strategy designed to create an environment in which the rights and welfare of victims and witnesses are prioritized and safeguarded.
Amendments to the Evidence Act to Assist Victims of Gender-Based Violence
Although there are problems with the level of support provided to victims outside of the courtroom, there have at least been some positive developments with respect to the treatment of victims once they reach the witness box. Legislative reforms have been introduced to overcome some of the fear and humiliation that victims often experience when giving evidence in rape and other sexual assault cases. Amendments to the Evidence Act, which came into effect in 2003, now provide that court hearings in sexual offences cases may be closed to the public, that the victim may have a support person with her while giving evidence and that the accused is not allowed to cross-examine the victim himself. Further there are restrictions on what types of questions the victim can be asked about her prior sexual conduct and no evidence may be admitted as to her sexual reputation. In addition to these amended procedures, both the Office of the Director of Public Prosecution and the Community Justice Liaison Unit told Amnesty International that they are working on developing systems and protocols to support victims throughout the court process.
5.3.4 The Duty to Protect Women from Violence – Is Reactive Work Alone Enough?
Both of the sections immediately above deal with the response of the criminal justice sector once an act of violence against women has already occurred. However, States also have an obligation to protect women from gender-based violence before it occurs; to prevent such violence from happening. On a general level this obligations requires States to adopt measures, such as educational programs and awareness raising initiatives, which address the societal dynamics that fuel violence against women. On a more specific level it requires States to adopt targeted measures, such as deploying police at a time or place of known risk, to address particular patterns of abuse.
International human rights standards do not expect the impossible of police services. Not every time a woman’s rights are abused by a non-state actor will the state have breached its duty of due diligence by failing to prevent the particular instance of gender-based abuse. It is recognised that it is not realistic to expect the police to be on hand wherever and whenever women are at risk of violence. In 1996, the then UN Special Rapporteur on violence against women explained this point:
"Unlike for direct State action, the standard for establishing state complicity in violations committed by private actors is more relative. Complicity must be demonstrated by establishing that the State condones a pattern of abuse through pervasive non-action. Where States do not actively engage in acts of domestic violence or routinely disregard evidence of murder, rape or assault of women by their intimate partners, States generally fail to take the minimum steps necessary to protect their female citizen's rights to physical integrity and in extreme cases, to life. This sends a message that such attacks are justified and will not be punished. To avoid such complicity, states must demonstrate due diligence by taking active measures to protect, prosecute and punish private actors who commit abuses."(93)
More specifically, jurisprudence from the European Court of Human Rights suggests that where the authorities know or ought to know that a person is at real or immediate risk of grave harm, that person is entitled to expect that the authorities will take all reasonable measures available to them to avert that risk.(94) The Court has further explained that the test is not whether the abuse would have occurred "but for" the state’s failure to act, but whether had the state taken reasonably available measures there could have been a real prospect of altering the outcome or mitigating the harm."(95)
Contrary to this principle, the police in areas visited by Amnesty International were generally confined only to reactive work. The police failed to take pro-active steps designed to protect women from violence, including by being present and visible in places where violence was known to occur or by responding promptly to assist women in danger.
Women’s organisations in all three prov
