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Incest and Marriage Prohibitions: Implications of Recent Changes to the Law Against Incest under Papua New Guinea’s Criminal Code [2003] MLJ 2; [2003-04] 29 MLJ 15 (1 January 2003)

Incest and Marriage Prohibitions: Implications of recent changes to the law against incest under Papua New Guinea’s Criminal Code[∗]

John Y. Luluaki[∗∗]

I. Introduction

In the space of just over five months, provisions under the Criminal Code proscribing incest went through two lots of statutory change. On the 11th of October 2001, an amendment of ss 223 and 224 of the Criminal Code, c 262,[1] was made extending the existing law against incest to include relations which were previously not covered by the amended law. The changes came about when Lady Carol Kidu MP successfully introduced the Criminal Code (Amendment) Bill 2001. Then, on March 28, 2002, she again successfully introduced the Criminal Code (Sexual Offences and Crimes Against Children) Bill which, inter alia, repealed ss 223 and 224 of the Principal Act and replaced them with an entirely new regime. This paper discusses these changes insofar as they relate to the definition of incest and the implications they have in respect of the law concerning marriage prohibitions.

The successful passage of the March 2002 Act represents a significant step in protecting the rights of children as provided for by Article 19 of the United Nations Convention on the Rights of the Child. It provides:

"1. State Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child."

2. "Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement."

The incidence of child sexual abuse generally and incest as a form of such abuse is not available in the country although newspaper reports of such cases seem to be on the rise. However, that it is increasing and widespread throughout the country received judicial comment in the case of The State v Arthur Taradi Tamti,[2] a case of non-consensual incest between father and daughter. Commenting on the increasing prevalence of incest, Jalina J said:

"This year alone I have dealt with a number of incest cases. In The Sate v John Elei... I sentenced the prisoner who forced his sister to commit incest with him to 6 years imprisonment in hard labour. In The State v Pikah Ndrohas... I sentenced the prisoner who consensually committed incest with his sister and who had a prior conviction for incest with the same sister to 7 years imprisonment in hard labour. In The Sate v Francis Liro... I sentenced the prisoner to a total of 13 years imprisonment for incest with two separate daughters. In The State v David Daniel and Polin Daniel... I sentenced the son to 8 years imprisonment and the mother to 2 years and 6 months imprisonment. [These cases] demonstrate that incest is becoming prevalent and must be stamped out through imposition of stiff penalties."

In introducing the proposed amendments to ss 223 and 224 of the Code in October 2001, and commenting particularly on the prevalence of sexual violence against women and children in the country, Lady Carol Kidu explained that:

"My concern is not about incest between consenting adults, but incest against children who live in the situation of trust and dependency and to protect our children. [I]t is very important for us to protect our children and by passing this amendment today, we are making a very public statement about the rights of children."[3]

She then proceeded to stress the important role of legislators to respond to the situation of sexual violence and child sexual exploitation and shaping public perceptions and values by making appropriate changes to the criminal law and justice system. The passing of the proposed amendments would clearly indicate a "moral denunciation of the conduct as unacceptable."[4]

A significant aspect of the new law is the distinction it makes between incestuous sexual intercourse between consenting adults, which it regards as being less serious than when the act involves a dependent child. The change is both welcome and timely if not overdue. At least now, people who ‘grow’ their own child victims can expect to be punished more severely than previously. The changes also go a long way to protecting children from this form of child sexual abuse while at the same time maintaining the traditional justifications for the existence of the incest prohibition which are partly biological, partly social and protective of the family, and partly the product only of traditional moral values and attitudes.

II. Purpose of the Taboo Against and Definition of Incest

Every society identifies certain, though not all, forbidden forms of sexual congress as particularly dreadful, attracting both human anger and punishment. Sexual relations between parent and child and between brother and sister are, with very few exceptions, universally forbidden and everywhere not mentioned without a shudder. Many theories have been advanced as to the origin and reasons for the observance of the incest taboo. However, there is as yet no universally accepted theory to explain the universality of the rules against incest. Anthropologist Lucy Mair tells us that the theories of incest are of two kinds. One kind asks "why it is regarded with such horror; [while the other] asks why there is a rule against it in every society."[5] All of these theories have offered either biological, psychological, sociological, socio-cultural, socio-economic, or evolutionary explanations of the incest taboo.[6] They included the theories of ‘instinctive’ revulsion against incest, as necessary to prevent the birth of biogenetic defectives caused by inbreeding, and necessary to join families into larger groups to maximize benefits from such cooperation.

This theory, which Leslie White calls the ‘culturological’[7] explanation for the existence of the incest taboo, explains the presence of the incest taboo in terms of the socio-cultural and economic contexts of the family or tribe. The theory claims that the incest taboo was necessary not only to ensure that there was stability within the family but it also ensured cooperation between individuals in ways that maximized the economic benefits of cooperation between families or tribes. This in turn ensured the family’s collective survival. According to this theory,

‘[T]he prohibition of incest has at bottom an economic motivation...Rules of exogamy originated as crystallizations of processes of a social system rather than as products of individual psyches. Inbreeding was prohibited and marriage between groups was made compulsory in order to obtain the maximum benefits of cooperation.’[8]

However, incest and marriage prohibitions are not necessarily conflicting conceptions; only different. Incest pertains to sexual congress as such while marriage prohibitions to exogamy, a relationship which cannot be created merely by sexual congress. Exogamy, in this theory, was therefore necessary for the family’s very own survival. Either the family survived by forming into larger groupings through the practice of out-marrying or face extinction. As first noted by E.B. Tylor in 1888:

‘Exogamy, enabling a growing tribe to keep itself compact by constant unions between its spreading clans, enables it to overmatch any number of small intermarrying groups, isolated and helpless. Again and again in the world’s history, savage tribes must have had plainly in their minds the simple practical alternative between marrying-out and be killed out.’[9]

There is however as yet no satisfactory theory of the relationship between the prohibition of incest and the rules of exogamy although it is clear that they are not extensions of the rules against incest between persons who are closely related by blood such as between parent and child and between siblings. According to one commentator on the matter, "incest was so dangerous that marriage had to be invented to prevent it!"[10]

Generally, the rules of incest and exogamy are mutually exclusive although they do coincide in some cases, under certain circumstances and for certain categories of relatives. Incest rules compel one to marry outside the family, at least outside the nuclear family. However, the same rules would not apply to certain categories of close relatives outside of this basic unit. Incest and exogamy rules are based on different considerations and reflect different values although in many instances they do actually coincide. Thus, although in most cases those who are covered by the incest rule cannot also be marriage partners, this is not necessarily so because some categories of relatives who are otherwise considered too close for sexual congress are preferred or even prescribed marriage partners. The marriage of cross-cousins is one such example. Incest rules prohibits sexual connexion, a consideration not necessarily present in marriage. As Lowie notes:

‘Marriage, as we cannot too often or too vehemently insist, is only to a limited extent based on sexual considerations. The primary motive, so far as the individual mates are concerned, is precisely the founding of a self-sufficient economic aggregate. A Kai [of New Guinea] does not marry because of desires he can readily satisfy outside of wedlock without assuming any responsibilities; he marries because he needs a woman to make pots and to cook his meals, to manufacture nets and weed his plantations, in return for which he provides the household with game and fish and builds the dwelling.’[11]

What is important for our purpose is that the different theories about incest reveal that there is no universal definition of incest although there is agreement that it involves sexual connexion between categories of close relatives traced either lineally or laterally. Although there is agreement that there is no society that does not recognize the taboo as covering the elementary family of parent, child and sibling, there are widespread variations as to the application of the incest taboo to other degrees of relations beyond this basic group. In all cases, however, definitions are constructed to emphasize either social or blood ties and in some cases both. For our purpose, most legal definitions of incest have emphasized the blood link rather those that are social in nature. It is the relationship of the legal definitions to the area of marriage prohibitions that concern us.

III. Legal Definitions of Incest

Prior to the March 2002 law, there was no clear definition of ‘incest’ under the Criminal Code although the wording of ss 223 and 224 prior to their repeal indicated conformity with the commonly accepted definition of incest - acts of sexual intercourse performed with parents, siblings, children (of the blood) and other lineal descendants and ancestors. Further, the term carnal knowledge was used in the sections instead of the more popular lay term of sexual intercourse. However, the two terms did not represent different activities. In the case of R v Brombey, Philips J stated that

‘Carnal knowledge means sexual intercourse, and sexual intercourse is complete upon penetration of the female organ by the male organ.’[12]

Section 6 of the Code explains that "carnal knowledge" or "carnal connexion" is "complete on penetration", even if only slightly and the hymen is not ruptured.[13] It is irrelevant that there was no erection of the penis or emission of seed or that the perpetrator intended a result other than sexual gratification[14] such as to simply hurt a woman’s feelings, as punishment or to avenge a past wrong.

If incestuous sexual intercourse involves the penetration of the vagina, what constitutes ‘sexual intercourse’? Is, or should, penetration be limited to the penetration of the vagina by the penis? Can or should non-penile penetration of the vagina amount to incestuous intercourse? These questions, which could not be answered under the old law, are now answered by section 2 of the 2002 Act (amending section 6 of the Code): This section, which adopts the term "sexual penetration" instead of the more common term of sexual intercourse, defines sexual penetration as follows:

‘6. Sexual Penetration.

When the expressions "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete, where there is –

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his body (other than his penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.’

This means therefore that for purposes of the crime of incest, it would be committed even if there is no contact between the penis and the vagina. Further, one can also anticipate that sometime in the distant future, the terms ‘penis’ and ‘vagina’ will need also to be defined to accommodate changes in technologies designed to reassign biologically determined genitals of an individual to complement the emotional and psychological make-up of the individual.

IV. Categories of Relations covered by the Incest Law

A The old law.

Prior to the amendments of 2001 and the Act of March 2002, ss 223 and 224 provided as follows:

‘223. Incest by man.

(1) A person who carnally knows a woman or girl who is, to his knowledge –

(a) his daughter or other lineal descendant; or
(b) his sister; or
(c) his mother,

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

224. Incest by adult female.

(1) A woman or girl of or above the age of 18 years who permits –

(a) her father or other lineal ancestor; or
(b) her brother; or
(c) her son,

to have carnal knowledge of her, knowing him to be her father, or other lineal ancestor, her brother or her son, as the case may be, is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.’

Under these provisions, the crime of incest was restricted to persons who were related only by blood such as between a man and his daughter, sister including a half-sister,[15] mother or other lineal descendant or between a woman and her son, father or other lineal ancestor. Thus, the criminal prohibition against incest did not apply to situations of sexual contact between a man and his grandmother, between cousins or between a man and any of his nieces.[16] The man also escaped criminal responsibility if he entered into a sexual relationship with his step-daughter.[17] A woman, defined as being a person above the age of 18 years, was similarly restricted from engaging in such relationships. Under the old provision, she was prevented from permitting a person whom she knew to be her brother, son, father or other lineal ancestor to have carnal knowledge of her. No other relatives who are generally regarded as being too close for sexual contact were covered by the Code. Thus, it was not incest if she allowed a person whom she knew to be her grandson, cousin or nephew to have carnal knowledge of her.

B The amendments of 2001

Both ss 223 and 224 of the Criminal Code were affected by the amendments of 2001. The principal purpose of the changes was to extend the category of persons who could be charged and be held criminally liable for incest. Otherwise it did not change the substance of the law on incest.

The amending words to ss 223 and 224 are highlighted below:

‘223. Incest by man.

(1) A person who carnally knows a woman or girl who is, to his knowledge –

(a) his daughter, step daughter, adopted daughter, whether by custom or otherwise or other lineal descendant; or
(b) his sister; step sister, half sister or adopted sister, whether by custom or otherwise; or
(c) his mother, step mother, foster mother or guardian to whom the person is wholly dependent for his livelihood and sustainence (sic); or
(d) his niece,

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.’

Similar changes were made to section 224 regarding incest by a female. This provided:

‘224. Incest by adult female.

(1) A woman or girl of or above the age of 18 years who permits –

(a) her father, step father, foster father or guardian to whom this person is wholly dependent for her livelihood and sustainence (sic) or other lineal ancestor; or
(b) her brother; step brother or adopted brother, whether by custom or otherwise; or
(c) her son, step son, adopted son, whether by custom or otherwise; or
(d) her nephew

to have carnal knowledge of her, knowing him to be her father, step father, guardian to whom the person is wholly dependent for her sustainence (sic) or other lineal ancestor, her brother, step brother, half brother, adopted brother, whether by custom or otherwise, or her son, step son, adopted son, whether by custom or otherwise or her nephew as the case may be, is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.’

The greatest difficulty presented by these amendments concerned the issue of determining if a particular category of ‘relatives’ described in the amendments existed at the time the alleged incestuous intercourse took place. The difficulties related particularly and only to ‘relatives’ described as ‘customarily adopted daughter, son, sister or brother’ and "foster mother/father or guardian to whom this person is wholly dependent for his/her livelihood and sustenance." However, as the March 2002 Act has removed these categories, it will serve no useful purpose considering the issues raised.

C. The Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

Section 13 of the 2002 Act repealed ss 223 and 224 of the Code and replaced them with a single s 223. This provides:

‘223. Incest

(1) A person who engages in an act of sexual penetration with a close blood relative, is guilty of a crime
Penalty: Imprisonment for a term not exceeding seven years.

(2) For the purposes of this section, a close blood relative means a parent, son, daughter, sibling (including a half-brother or half-sister), grandparent, grandchild, aunt, uncle, niece, nephew or first cousin, being a family member from birth and not from marriage or adoption.

(3) No person shall be found guilty of an offence under this section if, at the time of the act of sexual penetration occurred, he or she was under restraint, duress or fear of the other person engaged in the act.’

In comparing the above provisions with the 2001 amendments, the following differences are revealed. First, the 2002 provisions have removed the relationships of stepdaughter, adopted daughter, stepsister and adopted sister as coming within the definition of the crime of incest. Sexual penetration, as defined, of any person in any one of these categories would therefore not constitute incest. However, if the victim is a child under the age of 16 years or is between the ages of 16 and 18 and is in a relationship of trust, authority and dependency to the perpetrator, this would constitute an act of unlawful sexual penetration or conduct under the Act.[18] Secondly, the definition has retained, on the whole, the common definition of incest based on lineal descent except that it has added the non-lineal lateral relationships of aunt, uncle, nephew and first cousin, relationships which were previously not included under the 2001 amendments or the earlier law.[19]

Thirdly, the 2002 law makes a sharp distinction between incestuous sexual intercourse between consenting adults, on one hand, and instances of incestuous sexual connexion in which one party is a child, on the other. A ‘child’ is defined as being a person under the age of 16 years. A child under this age is not capable of giving consent to an act of sexual penetration.[20] Thus, incestuous sexual connexion with a person under the age of 16 cannot be consensual and therefore amounts to incestuous rape as well as unlawful sexual penetration of a child contrary to section 229A of the 2002 Act. It is also clear that the new Act ranks the interests of children, as vulnerable, physically and emotionally immature and dependent persons, higher than those served by the observance of the incest taboo in society generally. Thus, incestuous sexual penetration of a child is regarded more seriously and attracts a higher penalty than when it occurs between two consenting adult relatives. The penalty for incestuous sexual penetration of a child under the age of 16 years, regardless of whether the child is a blood relative or not, is up to 25 years imprisonment[21] or up to life imprisonment if the victim child is less than 12 years old or is in a relationship of trust, authority and dependency, as defined,[22] with the offender.[23] Incest between two consenting adults, by contrast, carries a penalty of up to only 7 years imprisonment.[24] Where consent is absent, and both parties are adults, the conduct becomes rape and proceedings instituted accordingly under separate provisions in the Act.[25]

Fourthly, as mentioned earlier, the 2002 law replaces all references in the Code to the expression "carnal knowledge" or "carnal connexion" with the expressions "sexual penetration" or "sexually penetrates". Section 2, which replaces s 6 of the Code, defines "sexual penetration" as "the introduction, to any extent, by a person of his penis, an object, or a part of his body into the vagina, anus or mouth of another person" for a non-medical or hygienic purpose. The new law therefore makes unnecessary, but includes, the need for the presence of the act of penile penetration of the vagina before the crime of incest can be committed.

It is also worth noting that prior to the March 2002 Act, the Code categorized male incest differently from that of female incest. Under the Code, if a man, regardless of age,[26] committed incest, it was a "crime". It was only a "misdemeanour" if a female person, above the age of 18 years, committed the act. Under section 223, a female person below the age of 18 years was incapable of committing incest. The penalties were also different. A male person who committed incest may be imprisoned for a maximum period of up to life and only up to 3 years if committed by a female. Although history shows that men are more likely to initiate and perpetrate incestuous relations, and that physically women are incapable of having carnal knowledge of a male person, the rationale for these differences were otherwise neither clear or justified. Why should a woman who knowingly permitted a male person to have carnal knowledge of her or induced a male child to improperly deal with her sexually, whether penile penetration of her occurred or not, attract a lesser punishment than for her male counterpart?

Section 13 of the March 2002 Act has eliminated this difference. This has been effected by making ‘any person’, whether male or female, who commits incest guilty of a crime for which a penalty of up to seven years imprisonment may be imposed.

V. Adoption and Incest

It is significant that the 2002 Act provides that ‘relatives’ covered by the incest prohibition do not include persons who become family members following adoption. Does this mean that the law protects a man who sexually penetrates his adopted daughter? It appears that the answer is both yes and no depending on the factors of the age of the daughter and the presence or otherwise of consent at the time of the alleged sexual penetration. But we begin with a discussion of the effect of adoption on the law of incest as it was prior to the Act of March 2002.

The extent to which the new legal relationships effected by adoption affected the legal provisions proscribing incest was however a matter of controversy. Here, the law appeared to have made a distinction between adopted persons and those who were related by blood. Thus, while sexual contact between a man and his natural daughter constituted incest, this was not the result if it took place between him and his adopted daughter even if he had raised and brought them up as twins because of the absence of the lineal connection.

In The State v Misimb Kais[27] and Sanguma Wauta v The State,[28] the National Court and the Supreme Court respectively held that sexual intercourse with a customarily adopted daughter did not amount to incest. These conclusions followed a strict interpretation of s 223 of the Code which clearly distinguished between adopted children and children "of the blood". Under this provision, the term "daughter or other lineal descendant" meant "daughter of the blood" or descendant of the blood and did not extend to a customarily adopted daughter. Support for this conclusion was also drawn from s 37(2) of the Constitution which provides that a "person may not be convicted of an offence that is not defined by...a written law." Since s 223 of the Code did not extend the definition of incest to include a customarily adopted daughter, custom could not be applied pursuant to Schedule 2.1 of the Constitution even if under the relevant custom, sexual intercourse between a man and his customarily adopted daughter was regarded as being equivalent to "incest".[29] Moreover, since the laws dealing with adoption were made subject to any law relating to a sexual offence which distinguished natural children from other ‘children’[30] and because s 223 of the Code made such a distinction, it was not proper for the Court to go outside the clear terms of that provision.

Nevertheless, even in the absence of such Parliamentary intervention then, the interpretation of the effect of adoption as not creating the additional relationships of ‘father’ and ‘daughter’ in accordance with existing statutory provisions concerning adoption for purposes of the offence of incest under s 223 of the Code is open to serious legal question and in any event not in harmony with the social reality of the extended family and expectations in the country.

Even though the Misimb Kais and Sanguma Wauta cases concerned customarily adopted daughters, it appears that the court in each case would have reached the same conclusion if the matters involved statutory adoptions despite the clear terms of s 28 of the Adoption of Children Act, c 275. Under this provision, an adopted child becomes the child of the adopting parents "as if the child had been born to the adopters in lawful wedlock", and at the same time, the child ceases to be the child of his/her natural parents.[31]

Later decisions have however doubted if these decisions can be accepted as necessarily stating the correct legal position at the time. In The State v Aidou,[32] for example, the Court was asked to consider if sexual intercourse between a half brother and half sister amounted to incest as proscribed by s 223 of the Code. It was clear that according to the customs of the Siassi people, sexual intercourse between a half brother and half sister was forbidden. To determine if incest had been committed, the Court had to be satisfied that the definition of "sister" under s 223 of the Code included a half sister. The Court decided that since the Code did not provide a definition of the word ‘sister’, it should provide one. Drawing support from the custom of the Siassi forbidding sexual intercourse between a half brother and a half sister, applicable common law principles,[33] and the fact that the Siassi custom was not inconsistent with a Constitutional Law or statute or inapplicable to the circumstances of the country, Barnett AJ concluded that the term "sister" as used in s 223 of the Code included a half sister and therefore found the accused guilty of committing incest against his younger half sister.

Again, in The State v Peter Burin,[34] the Court was asked to consider if sexual intercourse between first cousins constituted incest within the meaning of s 223 of the Code. According to the custom of the parties, they were regarded as brother and sister and therefore sexual intercourse between them was prohibited. It was held that a sister under s 223 included a cousin sister, and that such a finding depended on custom, whether a first cousin has the status of a sister for purposes of the section. This assumed of course the relationship of ‘father’ and ‘daughter’ between uncle and niece whereby an uncle would be guilty of incest if he had sexual intercourse with his niece because he is her father and she his daughter.

In the strict legal sense, however, the decision in The State v Peter Burin[35] case can be challenged. There appears to have been no justification for the court to have confused lineal blood relatives with lateral ones especially when section 223 was framed so as to restrict the offence of incest to people related by blood only. If it had been intended to also include the uncle and niece relationship, it could have easily done so by adding ‘lateral’ relatives as well. As such, there was no need to define ‘sister’ and it was therefore not open to the court to extend the definition by what amounts to a legislative act. This view is supported by the fact that under the Marriage Act c 280[36], the marriage of first cousins is not prohibited. To think otherwise is to argue the absurd, that first cousins can marry but they cannot have marital sex. If they do, they would be committing incest and risk spending their marriage in prison.

There is a further problem with the decision in Peter Burin’s case. If this decision is to be accepted as stating the correct legal position at the time, it means that, depending on the peculiarities of custom, the definition of ‘father’, ‘mother’, ‘daughter’, ‘son’, ‘brother’, ‘sister’ is anything but precise and may include an endless list of categories of persons who may be regarded as "father’, ‘daughter’, ‘sister’, brother’ and so on. Lineal and lateral relatives represent different kinds of relatives but at what point do they cease to have the same meaning and take on different meanings? To the point where while sexual intercourse with a ‘sister’ or ‘daughter’ in one community will amount to incest and the guilty person sent to prison, his/her fellow citizen in another community will escape criminal responsibility for incest. Thus, if the facts in In Re Emmanuel Lavaki,[37] the case in which the court held that a person who has sexual intercourse with his niece did not commit incest, occurred in Peter Burin’s community, he would have been adjudged guilty of incest and punished accordingly. This is a most unsatisfactory situation and must be avoided. These inconsistent decisions militated against the development of a coherent system of legal principles, a result perhaps not intended by the court in that case. The better view however is that the definition of ‘mother’, ‘father’, ‘sister’, ‘brother’ should be restricted to people related by blood regardless of customary extensions to other ‘relatives’ and that it is up to the legislature to extend it, by clear express statements to that effect, to include other categories.

The problem the Courts faced in the cases of The State v Misimb Kais and Sanguma Wauta v The State was not helped by the fact that section 223 provided no definition of "incest" or of the words "father", "son", "daughter" or "sister". Such a provision may have extended the definition of these terms to include these newly created relationships. As this was not the case, if the Courts decided otherwise, it would amount to a legislative act, a power that only Parliament has the right to exercise. Indeed, Raine DCJ, felt that there were good reasons for Parliament to feel it desirable to amend the law. He suggested that "the present sections should not be fiddled with, and that a completely new section be constituted, dealing solely with girls who have been legally adopted, or adopted in the customary sense."[38]

To an extent, the legislative amendments Raine DCJ had in mind were effected, almost 23 years to the month later, by the October 2001 amendments to the Code. This controversy appears now to have been given its final legal quietus with the enactment of the March 2002 Act. However, the exclusion of the special relationships effected by adoption in the new definition of incest raises special problems when applying them to the issue of marriage prohibition.

As regards the question whether sexual intercourse between a man and his adopted daughter is protected by the law, the position under the new law is that it is not incest but the adoptive father stands to be criminally charged for any one of two acts of unlawful sexual penetration of a child or not at all, depending on the age of the daughter. If the adopted daughter is a child under the age of 16 years, criminal charges will be laid under s 229A[39] of the Code. If the age of the child is between 12 and 16 years of age, a maximum penalty of 25 years imprisonment may be ordered. If the child is below 12 years, the maximum possible penalty is up to life imprisonment. However, if the adopted daughter is between the ages of 16 and 18 years and she is also in a relationship of "trust, authority or dependency" to the adoptive father, a term of imprisonment not exceeding 15 years will be imposed. By contrast, if the adopted daughter is above the 18 years of age, no offence is committed except that rape charges may be laid if sexual penetration occurred without her consent.[40] Thus, if consensual sexual intercourse takes place between a man and his adult adopted daughter, no offence is committed even though, as mentioned below, he can never marry her.

VI. Incest and Marriage Prohibitions

Prior to the amendments of 2001, all lineal relatives covered by the incest prohibition under the Code were also recognized as prohibited marriage partners under the Marriage Act c 280.[41] Apart from the issues raised by the effect of adoption on the incest requirement, as discussed earlier, no other category of relatives were covered by the incest prohibition. This position was subsequently changed by the 2001 amendments and again by the 2002 Act. The new laws on incest have, however, given rise to both positive and negative consequences.

Under the old laws, certain lateral relatives were not covered by the incest requirements even though they were recognized as coming within the marriage prohibition requirements under the Marriage Act. This situation arose in the case of a man and his aunt or niece and a woman and her uncle or nephew. This meant that while sexual intercourse could take place between them without breaching the laws against incest, they could not enter into a marriage contract under the Marriage Act. This apparent conflict has now been removed by including that category of relatives in the new incest provisions. Unfortunately, the conflict has been continued in the case of first cousins. Under the new law, incest would be committed if sexual intercourse takes place between first cousins. It must be stated, however, that some societies in Papua New Guinea recognize first cousins as preferred marriage partners. In others, they are prescribed partners. Unfortunately, the thinking that went into putting together the new incest provisions appears to have missed this point altogether. That this may not be the custom in most societies[42] cannot and should not have justified the enactment of legal provisions having a general application.

Under the Marriage Act, first cousins are allowed as marriage partners. The effect here therefore is that while they can get married, marital sexual intercourse cannot take place between them without also contravening the law against incest. For them, therefore, the choice is between having a sexless marriage life or spending it in prison. The question should therefore be asked whether a successful charge can be brought against the husband for committing incest against his wife.

Under section 229G of the 2002 Act, it is a defence to a charge of sexual penetration of a child if, at the time of the alleged offence, "the child was of or over the age of 14 and the [accused] person was married to the child." Thus, in order for the accused to escape criminal liability, two elements must be proved. First, it has to be proved that the child was or above the age of 14 years, and secondly, the accused was married to the victim child at the relevant time. Marriage however is not a defence to a charge of incest under the Act. However, by parity of reasoning with the offence of sexual penetration of a child, it would appear that if the marriage has been freely and voluntarily entered into and solemnized and there are no grounds avoiding it, sexual penetration of one’s wife would in law not amount to incest. Sexual intercourse between a husband and wife who are also first cousins would therefore, it is submitted, be protected from criminal prosecution. This interpretation would mean that the legal protection given to parties to customary first cousin marriages would be extended to such marriages under the Marriage Act.

Furthermore, the inclusion of the categories of aunt, niece and first cousin also means that the number of different situations in which incest would be committed if sexual intercourse takes place has been increased. This in turn is likely to have an increasing effect in the incidence of incest cases in the country.

Conflicts between the new criminal laws on incest and the Marriage Act prohibitions also arise in the converse situation. That is, while the Code does not criminalize sexual intercourse between certain categories of relatives, they are eligible marriage partners under the Marriage Act. Thus, sexual penetration of an adopted daughter or stepdaughter is not incestuous whereas marriage between them is forbidden. This means that if the adopted daughter or step daughter is older than 16 years, her adopted or step father can found a family with her and they can live as if they were married, such as in a de facto relationship, and there would be nothing criminal or otherwise illegal about their association. With respect, I doubt if the framers of the new law intended such a result.

In law, adoption produces the result that the adopted child becomes the adopting person’s child as if he or she was the natural child of the adopting parent. It is for this reason that marriage between them is prohibited. Unfortunately, the new law does not consider this link as justifying the application of the incest law to this relationship. Under the present law, while an adoptive father may be found guilty of a sexual offence against his dependent adopted daughter who is under the age of 18 years, no offence would be committed if he sexually penetrates her with her consent and she is over that age. This is a most unsatisfactory situation and one which could easily have been avoided by including the special relationships created by adoption as coming within the definition of incest in the new law.

VII. Conclusions

In the last few years, the issue of children’s rights and Papua New Guinea’s international obligations under the Convention on the Rights of the Child, which it ratified in 1993, has been the subject of much public discussion and concern. Several national gatherings (forums, workshops, conferences, and seminars) have carried the issue of children’s rights as their theme. A review of the domestic laws in relation to the rights of children established by the Convention on the Rights of the Child was completed in 2000.[43] Later this year, in September, the 5th Papua New Guinea National Legal Convention, under the auspices of the Papua New Guinea Judiciary in collaboration with the PNG Law Society, the Attorney General’s Department and the Law School, University of Papua New Guinea, bearing the theme "Protecting the Child" will be held. A comprehensive review of the colonial Child Welfare Act, c 278, is also in progress and it is expected that this will go for Parliamentary consideration in 2003.

While efforts to locate the issue of child rights more centrally in the political and governmental processes and generally increase public awareness of the need to take the issue of children’s rights more seriously have begun and continue, the enactment of the Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002, represents the single most important piece of legislative initiative in that regard since Papua New Guinea ratified the Convention on the Rights of the Child. However, what is perhaps disappointing about the initiative is that it came in the form of a private member’s Bill and not, as one would have expected, from those within the Executive and Legislative arms of Government responsible for initiating and progressing such legislative enactments and changes in the law. Nevertheless, that the law was unanimously supported without amendment is testimony to the burgeoning of a hitherto absent political interest in this subject and a willingness on the part of the legislature to respond positively to the need to make new laws and change existing ones to make them more suitable to the changing circumstances and needs of this country consistent with the requirements of a world society.

The 2002 Act has changed the laws relating to crimes against women and children in many significant respects although this paper has concentrated only on the crime of incest and its relationship to the issue of marriage prohibition under the Marriage Act. Maybe an opportunity to discuss these other areas will become available in the near future. There is of course little doubt that the pubic has warmly if not enthusiastically welcomed this new law. However, while we wait to see the outcome and effect of the enforcement process, and prediction can be a peculiarly difficult task, it is hoped that the new Parliament[44] will take inspiration from this initial step towards a long-term objective of translating rhetoric into legislative and administrative reality through a combined process of legislative reform and organizational restructure aimed at ensuring that those who need to be protected from sexual and other abuses are provided such protection by the law. However, it is also hoped that in its zest to introduce and enforce these important laws, Parliament does not lose sight of the also important need to avoid conflicts between laws and for the statutory scheme to be structured in a consistent and coherent manner.

[∗] Republished by permission of the International Survey of family Law, 2003.

[∗∗] Associate Professor of Law, School of Law, PO Box 317, University of Papua New Guinea, PNG.

[1] Hereafter the Code.

[2] (1999) N1878.

[3] Hansard, 11/10/01, p. 32.

[4] Ibid.

[5] Mair, L Mair 1972 An Introduction to Social Anthropology, Second Edition, 84.

[6] See Aberle, D et al ‘The Incest Taboo and the Mating Patterns of Animals’, in McCurdy D.W. and Spradley J.P 1979 Issues in Cultural Anthropology. Selected readings, 111-122, 112-113.

[7] White L. ‘The Definition and Prohibition of Incest’, in McCurdy D.W. and Spradley J.P (eds.) 1979 Issues in Cultural Anthropology, Selected readings, 95-110, 100.

[8] White L. ‘The Definition and Prohibition of Incest’, in McCurdy D.W. and Spradley J.P (eds.) 1979 Issues in Cultural Anthropology, Selected readings, 95-110, 103.

[9] Tylor, E.B. ‘On a Method of Investigating the Development of Institutions; Applied to Laws of Marriage and Descent’, Journal of the Anthropological Institute (1888), Vol 18, 245-269, 267. Emphasis supplied.

[10] Leach, E “The Social Anthropology of Marriage and Mating”, in Reynolds V. and Kellet J (eds.) 1991 Mating and Marriage, 91, at p. 108.

[11] Lowie, R.H. 1920 Primitive Society, 65-66.

[12] (1952) Q.W.N. 32, at p. 36.

[13] R v Yoka Kiok (1970) No. 607.

[14] The State v John Kalabus [1979] PNGLR 87.

[15] The State v Luke Aidou [1985] PNGLR 292.

[16] In Re Emmanuel Lavaki (1982) N324 (M).

[17] State v Bob Madaha Seneka (1990) N970 (M).

[18] Sections 229A and 229E respectively.

[19] In Re Lavaki (1982) N324 (M).

[20] Section 229F.

[21] Section 229A(1).

[22] Section 6A.

[23] Sections 229A(2) and (3).

[24] Section 223.

[25] Section 347.

[26] Under section 30(3), however, there is a rebuttable presumption that a male person under 14 years of age lacks the capacity to have carnal knowledge.

[27] [1978] PNGLR 241.

[28] [1978] PNGLR 326.

[29] Sanguma Wauta v The State (supra).

[30] Section 27(2), Adoption of Children Act, 1968 (No. 8 of 1969).

[31] On this, see Jessep O. and Luluaki J. 1994 Principles of Family Law in Papua New Guinea, 154-55.

[32] [1985] PNGLR 292.

[33] R v Thompson [1933] QJPR 93. In this case, the Queensland Court of Criminal Appeal, when interpreting an identical section in the Queensland Criminal Code, held that a “sister” included a half sister who was from the same mother as the accused but of a different father. This decision obtained the status of a decision of the High Court of Australia when that court refused leave of appeal on this point: R v Thompson (1934) 52 CLR 750.

[34] [1994] PNGLR 15.

[35] [1994] PNGLR 15.

[36] Hereafter the Marriage Act.

[37] (1982) N324 (M).

[38] Sanguma Wauta v The State [1978] PNGLR 326, at p. 335.

[39] As amended by section 15 of the Act.

[40] Section 347, Criminal Code, as amended by section 17 of the 2002 Act.

[41] Hereafter the Marriage Act.

[42] As occurred in The State v Peter Burin [1994] PNGLR 15.

[43] ‘The UN Convention on the Rights of the Child. Legislative Review’, December 2000, Department of the Attorney General. In relation to the domestic laws dealing with the rights of children to be protected from all forms of abuse including sexual abuse, the Review, in noting the inadequate and colonial nature of the wording of the provisions in the Criminal Code dealing with sexual offences against children, recommended that the definition of the term “carnal knowledge” should be widened to include acts of non-penile penetration of the vagina, anus or mouth, pp 169-170.

[44] This is election year. Polling for the 2002-2007 Parliament begins on June 15 and concludes on June 29.