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Melanesian Law Journal |
Sexual Crimes Against and Exploitation of Children and the Law in Papua New Guinea[∗]
John Y. Luluaki[∗∗]
Abstract
On 28 March 2002, the National Parliament of Papua New Guinea (PNG) passed the Criminal Code Ch.262 (Sexual Offences and Crimes Against Children) Act (the new law). Its purpose was to repeal certain sections and amend others of the Criminal Code chapter 262, (the Code) dealing with sexual offences against children, to reflect more appropriately the changed and changing circumstances of sexual violence against women and children in the country. The old Criminal Code provisions relating to sexual offences against children and women generally went under the legislative scalpel changing completely the landscape of the old provisions with this enactment. The purpose of this article is to discuss the different provisions contained in the new law dealing with the issue of sexual crimes against children. This is done in the context of both legislative reform of outdated criminal laws and PNG’s international obligation to safe guard children from all forms of abuse and exploitation and protect the rights of children.
1. Introduction
In March 1993, Papua New Guinea (PNG) ratified the Convention on the Rights of the Child (the CRC). Three years prior to becoming a State Party to this Convention, it signed the World Summit Declaration for Children committing it, along with other members of the international community, to achieve global goals for child survival, development, protection and participation. By becoming a signatory to these international treaties, it agreed to join hands with other members of the international community to be both bound by their terms and to take all political, legal and administrative steps necessary to implement the principal imperatives of the Convention as embodied in its Articles.
PNG’s commitment to be bound by the terms of the CRC in particular meant that it was incumbent upon the country to be bound both by its procedural reporting requirement as well as in taking appropriate legislative steps, among others, to ensuring that children’s rights as contained in the Articles were realized and implemented within its domestic legal system. However, compliance with the formal requirements has been slow and compliance with substantive responsibilities even slower.
Although PNG... became a State Party to the CRC in 1993, it was not until 2000 that it was able to provide an initial report to the UN Committee on the Rights of the Child. It was not until 2002 that the first and major legislative step was taken to enact new, and amend existing, laws to implement a major imperative of the CRC, in the form of Articles 19 and 34, to provide greater protection to children from sexual abuse and exploitation.
While the incidence of the sexual crimes committed against women generally can be expected to increase, the upward trend has been unprecedented in the last half-decade. The nature of many of these crimes are despicable and an affront to the dignity of individual victims, some of them very young, and mankind. Many of these crimes, which are often characterized by force, such as pack-rapes and the use of objects result in the death of the victim. The sexual abuse of children and their commercial sexual exploitation by adults have also very closely followed the rate of other forms of sexual abuse and violence against children. It is against this background that the passage by Parliament in March 2002 of the amendments to the Criminal Code and the creation of special offences against children must be situated and welcomed.
In taking this legislative step, Parliament not only indicated its willingness to reform existing laws dealing with sexual crimes against children to reflect more appropriately the reality of the present circum stances, but, as a nation, it also marks the first real step to meet its international obligations under the CRC since ratifying it in March 1993. In terms of law reform generally, most, if not all, of the country’s laws concerning the protection and welfare of children and other family members during times of crises originating from both within and out side the family and following family breakdown have remained in the statute books in the same form they were in when adopted into the country from Australia after Independence in 1975.
In presenting the Bill to Parliament, Lady Kidu, said the following:
Papua New Guinea’s Criminal Code, like most Commonwealth countries, is based to a large extent on the British Common Law. Many of the key principles contained in modern law procedures on rape and sexual violence were developed in England in the 1600s. Accordingly, changes have been made to the Legal Codes of many Commonwealth countries to bring a basic human rights approach to dealing with sexual violence in society. In 1995, Papua New Guinea ratified the United Nations Convention on the Elimination of All Forms of Discrimination and Violence Against Women. As a nation we have both a regional and international commitment to address this important issue. At both the regional and international level, the general consensus is that women and girls are the major victims of sexual violence. But it is recognized that males can also be victims and therefore the legislation should not be gender specific. The amendment before Parliament applies to both men and women and girls and boys. Mr. Speaker, we as parliamentarians must speak out loudly against all violent sexual assault because they not only can cause us physical injury, they also destroy our self-dignity and pride. Declaring act as criminal acts gives a moral denunciation of the conduct as unacceptable. This can have a very significant impact on shaping the changing values of our young nation. We as parliamentarians have an extremely important role to play in this regard; passing, drafting or clarifying laws that criminalize violence particularly against women and children but also to all violence is an important step in re-defining the limits of acceptable behaviour.[1]
The amendments to the Code sought two principal objectives. They were, and not necessarily in that order, to situate the rights of children to be protected from sexual abuse and violence more prominently in the criminal justice system while at the same time replace the existing outdated colonial provisions with a new set of offences. The added value of the new law is that it substituted the legalese so characteristic of the older provisions with language that was simple, clear and easily understood.
The new law is wide-ranging and deals with a whole host of sexual abuses that may be committed against children. It does not therefore deal with non-sexual abuses such as neglect and maltreatment. These will require further legislative initiatives of a similar kind to be addressed in the future. The main focus of the new law is threefold: first, the protection of children from physical sexual abuse by individuals and their punishment; second, but not secondarily, the commercial exploitation of children or prostitution; and third, an important aspect of this law is that it has altered the laws regarding incest and rape in ways that represent a fundamental departure from the traditional common law position as was the case under the old law.
2. What is Child (sexual) Abuse?
The definitional issue of what constitutes abuse is an important one both from the perspective of children’s rights in a culturally and socially heterogeneous world and from the perspective of the existing domestic laws on the matter.
There is presently no definition of child abuse that may be appropriate or relevant in a cross-cultural sense. This is hardly surprising given the difficulty of situating all forms of child abuse within a single universally applicable definition although any such attempt must reflect both the emic (the cultural viewpoint) and the etic (the outsider viewpoint) perspectives. However, the absence or difficulty of providing such definitions does not mean that child abuse does not exist or that it exists only in some and not all societies. There are certain acts or omissions directed at children which cannot anywhere be considered as acceptable regardless of the social and cultural context in which they arise.
Definitional ambiguity is a major impediment to cross-cultural child abuse and neglect research and professional practice. Questions of prevalence and causation necessarily hinge on how the problem is defined. The classically battered, burned, or starved child looks sadly similar regardless of nationality, racial classification, or ethnicity. The majority of cases of child maltreatment, however, fall into a grey area and require an appreciation of the cultural context in which acts of omission or commission result in harm to the child (Korbin 1987: 25).
Abuse can take different forms and be regarded differently by different societies depending on the socio-cultural context in which it arises. The form of abuse can be physical, which invariably involves violence, or non-physical. The classical battered, burned or scalded child are examples of the physical form of abuse while neglecting or starving a child would be non-physical. Emotional abuse in the form of harsh language, shaming, insults which may or may not be accompanied by the application of physical force is also a non-physical form of child abuse. An indirect form of child abuse has also been identified both globally as well as in PNG. It has been reported that regular domestic violence against the mother will affect the physical and mental health of her children, and their performance in school. They develop self-damaging behaviours both as adolescents and later as adults (Bradley, 2001: 3, 17).[2] Often, children are seriously or fatally injured themselves during attacks on their mother, particularly breastfeeding young children.
Most child sexual abuses are physical, invariably without the consent of the victim, involving at times different degrees of violence. It is this type of abuse that the new law aims to address. Often, this type of abuse exists concurrently with other forms of abuse but not necessarily. However, what is clear is that irrespective of the form of abuse the victim child is subjected to, it impacts negatively on the physical, mental and emotional health, well-being and development of the child and is regarded as such by all societies regardless of nationality, racial classification, ethnicity or cultural affiliation.
In PNG, while certain sexual acts with or directed at children are clearly proscribed by law, ‘sexual abuse’ is not a term that is used in the legal system. From the non-legal perspective, however, ‘sexual abuse’ has been defined as:
the involvement of dependent, developmentally immature children in sexual activities that they do not fully comprehend and therefore to which they are unable to give informed consent and/or which violate the taboos of society.
Sexual abuse includes all forms of paedophilia... and all forms of incest and rape (Krugman and Jones, 1987: 286).
In the legal sense, however, all acts of sexual contact with children under the age of consent are unlawful regardless of the presence or otherwise of consent. These acts have been variously described by terms such as ‘unlawful carnal knowledge’, ‘indecent treatment’, ‘defilement’ and now, under the new law, ‘sexual penetration’, ‘sexual touching’, and ‘indecent act’. Article 19 of the CRC provides that State Parties have an obligation to take all appropriate measures to protect children from physical or mental violence, injury or abuse, including sexual abuse. Under Article 34, State Parties are required to protect a child from ‘all forms of exploitation and sexual abuse’. Paragraph (a) of that Article imposes an obligation on State Parties to take all appropriate measures to prevent ‘the inducement or coercion of a child to engage in any unlawful sexual activity’. However, neither the term ‘sexual abuse’ nor ‘sexual activity’ is defined by the Convention. However, does ‘sexual abuse’ mean or should include inducing or coercing a child to engage in ‘unlawful sexual activity’? If it does, one must look to the legal system to identify the different circumstances under which ‘sexual activity’ with a child is prohibited by law.
Here, however, one must sharply distinguish between customary law, on one hand, and the general or written law, on the other. In reality, it is an uneasy co-existence of two legal systems involving in varying degrees co-existence and conflict. Often, practices that customary law may permit are prohibited by the written system of law. The age of consent and consent itself for marriage is particularly illustrative of this conflict. Under the written law, a female person under the age of 14 years lacks the capacity to consent to or contract a marriage regardless of her wishes and physical condition. Such a marriage is void. Thus, a person who purports to have marital sexual intercourse with the girl would be engaging in a sexual activity not authorized by law and therefore unlawful even if the ‘married’ girl-child consents to the activity.
By contrast, under customary law, because the emphasis is on physical maturity rather than on the chronological age, a girl of 14 years of age who has the attributes of a physically ‘fit’ person may enter into a valid customary marriage. Her consent to the marriage is generally also irrelevant because her parents contract the marriage for her. Customary law therefore protects marital intercourse with her by the husband. Since the present law recognizes customary marriages, one can conclude that the conflict between the two forms of marriage is legally recognized. This creates difficulties in the application of written laws that criminalize certain sexual activities involving children. This is because while one branch of the law criminalizes a particular sexual activity the other permits it, thus making it possible for one to escape criminal liability by simply making the right choice of law.
Other forms of sexual acts directed at children may be associated with customary rites and initiation. Here, both male and female children may be affected. The extent to which these practices are observed nowadays is however not known and may never be known because of the nature of and secrecy surrounding these practices. Literature on this issue is therefore either scanty or not available.
The most common form of sexual violence directed at women and female children which is considered justifiable by custom is rape. Rape is generally recognized as a form of aggression, and this can be directed either at an individual woman or at a group by rape of their women. It can as indeed has been used as an expression of dominance or in celebration of victory. Thus, women could be raped and abducted or abducted and raped following defeat in tribal war (Luluaki, 1994: 64— 5), as punishment for committing certain kinds of offences, such as breaching taboos, committing adultery, disobedience (Bradley, 2001:12) or as revenge for running away from their husband (Strathern, 1985:138-9). This can be in addition or as an alternative to other forms of punishment. However, acts of sexual violence and abuse directed at girls and women generally in deference to customary precepts or requirements are clearly unlawful and unconstitutional.
3. Child Sexual Abuse in Papua New Guinea
The extent of child sexual abuse in PNG is not known partly because there is absent an effective reporting system and also because most of these abuses are carried out in secret and are perpetrated upon a vulnerable group of people who are helplessly dependent upon their adult counterparts to take some form of remedial or corrective measures. Although the issue of child sexual abuse has featured in some studies into domestic violence, the prevalence of this form of abuse has not been the focus of any comprehensive and systematic study. Certain customary practices which may justify the invasion of a child’s right to privacy may no longer be justified or legally protected in this country. PNG’s report to the UN on the CRC states that:
Rape, sexual assault and harassment, indecent assault, carnal knowledge, incest and sodomy where children are victims, are common occurrences in contemporary Papua New Guinea. Child sexual abuse is a serious problem, now widely acknowledged as commonplace (GOPNG, 2000: 100, 101).
It is commonplace knowledge therefore that serious sexual crimes against and abuse of children occur, are widespread and increasing in PNG. However, not all cases come to the attention of relevant law enforcement authorities and offenders punished.
The number of cases that have received formal attention and brought to the courts and dealt with according to the criminal laws of the land represent only a small proportion of the number of sexual abuse cases of children in the country. There are many social and cultural reasons as well as inadequacies of the formal legal and administrative structures and processes for this including the inability of the formal legal machinery to apprehend, prosecute and impose appropriate penal sanctions on offenders. Further, in many such cases, the victim child’s family may not have the social or cultural choice to take the relevant steps to report and have the matter opened up for formal, hence public, scrutiny. For them, it is better to hide or conceal such instances so as to retain and protect its own integrity, continuity and standing in the community. Bradley (2001: 18) presents it this way:
There are few services or trained professionals dealing with this issue, and people often do not know who to report to. People are embarrassed to admit family problems to outsiders, and fear retaliation if they interfere in a neighbour’s family affairs. Mothers dare not report fathers or other senior males for fear of bringing anger and financial hardship on themselves. Another deterrent is that there are people in high positions with government, churches, private enterprise and foreign embassies who are known to sexually and/or physically abuse children. Finally, there is little knowledge of what behaviours constitute abuse, as opposed to discipline.
Presently, and principally because of these factors, there is also no reliable and up-to-date incidence data available in this country for different forms of child sexual abuse. Various factors have contributed to this situation, including the variability of the definition of sexual abuse itself. Others include the absence of an effective reporting system, lack of coordination between criminal justice data and social services, the absence of a uniform system for data collection in the country and, given that the crime of sexual abuse of children is so private, shrouded in secrecy, and hard to detect, only a small proportion of these cases is likely to be represented by such data. These difficulties aside, sexual abuse of children is at least of the same magnitude as physical abuse and is therefore among the most prevalent afflictions children suffer from in PNG.
Different institutions interested in and concerned with the issue of protecting children from a clearly increasing trend of acts of violence and sexual crimes against them have organized conferences and workshops to raise awareness among the people about their plight. Many more individuals have spoken out at these gatherings on the prevalence and seriousness of such perpetrations against a defenceless and vulnerable group of people in society and the need to take appropriate political, legislative and administrative steps to provide children greater protection from such abuses.[3] Other institutions have also conducted their own research into different aspects of child abuse, from direct sexual abuse and exploitation to indirect abuse as a result of family violence.[4]
From the legal standpoint, child sexual abuse crimes fall under one of the following three broad categories:
(i) activities which involve actual penetration of the vagina or anus of the child with any object or part of the body including the penis;
(ii) activities which involve the touching of children in a sexual manner and for a sexual purpose. These activities would include the sexual touching of the child by the perpetrator, or encouraging, inciting, or requiring a child to touch himself/herself, or requiring or encouraging the child to touch the perpetrator for the sexual gratification of the latter;
(iii) acts of exposing oneself to a child, or committing indecent acts in front of a child, or encouraging, requiring, or coercing a child to indecently expose himself/herself to the perpetrator.
Different countries have adopted their own methods of proscribing these different forms of child sexual abuse within their legal system. The approach however can be one of two kinds. One approach has been to separate these abuses into penetrative and non-penetrative categories and create different categories of offences for each type of abuse. Non-penetrative acts would include all acts of sexual touching, short of penetration, of a child by any person and of indecent exposure to a child. In South Africa, for example, all acts of indecent sexual contact with, short of penetration, or act directed at a child constitutes the single offence of ‘child molestation’ which is defined to mean intentionally committing a ‘sexual act’ with a child under the age of 16 years and penalties prescribed accordingly.[5] The second approach is that which Canada has adopted where its Criminal Code makes no provision for a separate and distinct offence of sexual penetration of children. Instead, cases of child sexual penetration are dealt with under the general criminal provisions relating to sexual assault. Offences short of penetration are dealt with separately under the headings of ‘ interference’ and ‘ to sexual touching’. The former involves sexual con tact with the child by the perpetrator while the latter involves sexual contact with the perpetrator by the child at the invitation of the perpetrator. In both approaches, however, the age of the victim child is an aggravating circumstance and higher penalties determined accordingly.
A third approach is to provide separate offences for each of the three different categories of sexual offences that may be directed at children. This is the approach that PNG has taken following developments in the Australian States of New South Wales and Victoria. Section 39 of the Victoria Crimes Act (1958 as amended), for example, establishes three main sexual offences which can be committed against children and provides separate penalties for each offence depending on whether the child is under ten, or between ten and 16 years of age. These offences are stated as:
(i) ‘Sexual Penetration’ of a child, to any extent, of the genitalia or anus by any part of a person’s body or with an object, and the penetration of the mouth by a person’s penis;
(ii) ‘Indecent Touching’ of a child, which includes touching a child, or being touched by the child;
(iii) ‘Indecent Act Directed at a Child’, which covers any indecent act that does not involve physical contact.
This is the structure that has been adopted by the new law in PNG. As we shall also see, the definition of ‘sexual penetration’ provided by s.2 of the new law is a verbatim copy of that provided by s.35 of the Victoria Crimes Act, 1958.
4. Commercial Sexual Exploitation of Children
The two most common ways in which children can be sexually exploited for commercial purposes are prostitution and pornography. Studies into child prostitution indicate that it is a growing problem in PNG.[6] Both females and males are affected. Some girls are actually prostituted by those having the care and control over them, including fathers and male relatives. Although it is known that both girls and boys are involved in child prostitution, prostitution of boys including acts of sodomy occurs much less frequently than it does among girls.
Child prostitution is a particularly extreme and terrible form of exploitation of children. That it is widespread is well known to the international community including PNG. Article 34 of the Convention on the Rights of the Child imposes a duty on State Parties to take all necessary steps to protect children from ‘all forms of sexual exploitation and sexual abuse’. It also requires them to prevent the ‘exploitative use of children in prostitution or other unlawful sexual practices’ by taking all appropriate bilateral and multilateral steps.
The extent to which child prostitution has taken hold in the country’s prostitution industry is however not fully known although the problem is greatest in towns, and in the rural areas in the vicinity of mines, logging operations, fisheries, and other large-scale resource exploitation operations (Bradley, 2001: 15). A study conducted in 1994 indicated that children constituted a significant proportion of female prostitute operatives in the country. The statistics indicated that 30 per cent of 350 prostitutes interviewed were aged between 13 and 19 years old, and some were as young as 11 years (NSRRT, 1994: 52). There are many reasons for child prostitution. Most often, children prostitute their bodies to survive or in exchange for favours, where sex is exchanged for food, accommodation, clothing, alcohol or cigarettes for either themselves or their families. Some of these children are either from broken homes or have run away from situations of sexual abuse at home. The 1994 study indicated that some of these children were involved in prostitution with the full knowledge and encouragement from their parents or someone having parental or similar authority over them (Bradley, 2001: 14).
Child pornography has also become a well established and growing industry worldwide. In PNG, locally made and imported child pornography, especially in the form of photos and home videos, is already available (GOPNG, 2000: 102). The proliferation of child pornographic material has become more difficult to contain because of sophisticated technologies in computer and telecommunications. As a result, prohibited materials are readily accessible through the internet by adults as well as children of all ages. Paedophiles have also used these advanced communication methods to distribute or share such information and also make contact with potential victims.
5. Background to the New Law
In order however to appreciate the changes that have been made to the Code’s provisions relating to sexual offences against children, it is necessary to first consider the background of the old provisions and the legal considerations that went into shaping and developing the present provisions.
A. The Old Law
An important aspect of the existing Criminal Code of PNG is its colonial link to Queensland, Australia. Although the adoption of the Queensland Criminal Code took place at different times in British Papua and German New Guinea during the period of colonial administration, no substantive changes were made to it throughout the entire colonial period. In 1974, during the period of self-government and in preparation for Independence, it was repealed and replaced by the Criminal Code Act, 1974.[7] Apart from the formal severance of the link to Queensland, no changes were made to the provisions relating to sexual offences which had been adopted from the Queensland Criminal Code. These provisions also survived various other changes that were made after 1974 and Independence in 1975 (Chalmers et at, 2001: 97— 108) until March 2002 when the current changes were effected by Parliament. As a result, the Code carried a variety of overlapping offences all aimed essentially at prohibiting sexual contact with children below the age of consent which it set at 16 years. Further, the Code used antiquated language such as ‘defilement’, ‘carnal knowledge’, ‘against the order of nature’ and provided differential and inconsistent protection for boys and girls. The Code also made no special or proper provision for the protection of young children from commercial sexual exploitation including prostitution and pornography.
The repealed provisions dealing with sexual offences under the Code created both penetrative and non-penetrative sexual abuse offences against children. Separate offences were created for the sexual abuse of boys and for girls. Under s.211 of the Code, it was a crime for a person to ‘unlawfully and indecently deal with a boy under the age of 14 years’. A person found guilty of this crime was liable to imprisonment for a term up to seven years. Under this section, the term ‘deal with’ included any act that, if done without consent, would constitute assault as defined except that for this crime, it was necessary that the assault was ‘indecent’. An act of sodomy committed against a boy below the age of 14, despite its grossly indecent nature, fell outside the parameters of this provision. Such acts came within the ambit of the general provision of s.210 which proscribed unnatural offences between persons. Under this provision, a person who had carnal knowledge of a person ‘against the order of nature’ was guilty of a crime punishable by a period of imprisonment of up to 14 years. A person found guilty of attempting to commit this crime was liable to be imprisoned for up to seven years. Otherwise, there were no other offences recognized by the Code concerning boys under 14 years of age. By contrast, the Code recognized four different sexual offences that could be committed against girls. Most of these offences involved penetrative abuses or of having ‘unlawful carnal knowledge’.
The Code however provided no definition of the term ‘carnal knowledge’ except to provide under s.6 that ‘carnal knowledge’ or ‘carnal connexion’ is ‘complete on penetration’, even if only slightly and the hymen is not ruptured.[8] In R v Brombley, Philips J stated that ‘Carnal Knowledge means sexual intercourse, and sexual intercourse is complete upon penetration of the female organ by the male organ[9]’
By this definition, therefore, penetration of the female organ by means other than by the penis did not constitute carnal knowledge or sexual intercourse. This appears now to have been too restrictive and not in line with the real situation today in which women suffer at the hands of men who use non-penile methods to sexually penetrate women. Many have reported suffering at the hands of men because of forced anal penetration and penetration by objects such as beer or wine bottles, the handle of a rake, a torch, knives and sticks (UNICEF, 2001:12). In this respect, the law was in dire need for change to reflect more appropriately the reality of the circumstances in dealing with the issue of sexual violence against women generally and children in particular more comprehensively.
Under s.213 of the Code, a person ‘who has unlawful carnal know ledge of a girl under the age of 12 years is guilty of a crime’. Punishment for committing this crime was, subject to the Court’s discretion to impose a shorter term in accordance with s.19 of the Code, imprisonment for life. Attempts to commit this crime attracted a lesser imprisonment term not exceeding seven years. Section 215 created a specific criminal offence of attempted ‘unlawful carnal knowledge’ if the girl was under the age of ten years. Punishment for this was imprisonment for a term not exceeding 14 years. Under s.216 of the Code, a person who ‘has or attempts to have unlawful knowledge of a girl under the age of 16 years is guilty of a misdemeanour’. A maximum term of five years imprisonment could be imposed for any person found guilty of this offence. The major differences between this section and s.213 are that first, s.213 recognizes such acts as constituting a more serious offence than is the case when the victim child is more than 12 years as provided under s.216. Second, consistent with the seriousness of the crime under s 213, the defence available to the accused under s.216[10] was not available to the accused if the crime was committed against a girl under the age of 12 years. In other words, the age of the victim would decide not only the maximum imprisonment term possible but also whether the defence of believing that the girl was of a particular age was available or not.
Finally, under s.217 of the Code, a person would be guilty of a misdemeanour if he unlawfully and indecently dealt with a girl under the age of 16 years. For the purpose of this offence, the term ‘deal with’ was defined to include any act that, if done without consent, would constitute an assault as defined under s.243 of the Code. If the victim child was over 12 years of age at the time of the commission of the offence, the guilty person was liable to a prison term not exceeding two years.[11] However, it was a defence to this charge to prove that the accused believed, on reasonable grounds, that the girl was of or above that age. However, if the girl was below the age of 12 years, no defence arose and he could be imprisoned for a period of up to five years.
All these provisions have now been repealed and replaced by new provisions that the National Parliament enacted in March 2002. However, it is important to note that the repealed provisions and their equivalent under the new law have to be read together with the provisions relating to the crimes of incest[12] and rape,[13] which have essentially been retained under the new law. In many situations of sexual violence against children which the law proscribes, the offences of incest and rape have also been committed. Under the repealed provisions, unlawful carnal knowledge of a girl may also have been incestuous and/or rape. These provisions regarded the crimes of unlawful carnal knowledge of a girl under the age of 12 years, rape, and incest by a man to be of equal seriousness, as reflected in the punishment prescribed where each carried the possibility of life imprisonment as punishment. In cases where two or more sexual crimes have been committed in a single act, the most common procedure, though not necessarily, is to lay alternative charges in the order of the seriousness of criminal culpability attached to each different offence. However, in cases where the victim is a child coming within the age bracket of below 16, the charge should be laid under one of those provisions. Thus, in a case where a father or adult brother has intercourse with his daughter or sister who is under the age of 12 years, the charge should be that of unlawful carnal knowledge under s.213 of the Code rather than that of incest or rape. The facts that they are blood relatives and that the victim lacked the legal capacity to provide consent or may have been forced to submit to the act, would constitute aggravating circumstances and appropriately reflected when determining the sentence to be imposed.
B. The New Law
The new law has changed the old law in three major respects. First, the term ‘carnal knowledge’, which has been rejected in most Commonwealth countries, has been replaced by the term ‘sexual penetration’ and given a definition that is wider than the traditional definition of vaginal intercourse using the penis. The term now also includes penetration of the anus or mouth of another person by any object including the penis. Thus, it includes the introduction of any other part of one’s body such as fingers or tongue or other object into any of the specified areas of another’s body. This of course does not mean that the non- penile penetration of the vagina or penile penetration of the mouth is illegal if it involves consenting adults. No offence would be committed in all such situations.
What this means is simply that the offence of unlawful sexual penetration can only be committed if there is an absence of such consent between adults or if the act involves children under the age of 16[14] or 18 years,[15] as prescribed under the new legal arrangement. In the former situation, the act would constitute rape while the offence of ‘sexual penetration of a child’ would be committed in the latter situation. As such, any act of sexual penetration involving a child under the age of 16, regardless of his/her sex, is, almost without exception, unlawful. Second, the new law also recognizes that both males and females can be held criminally responsible for sexual penetration. Third, and also important, is that the new definition of sexual penetration applies to all sexual offences established by this law including penetrative sexual offences against children, rape and incest.
A further departure of the new law from its predecessor is the language used in describing a young person who may be the victim of a sexual offence. Under the old law, the words ‘boys’ or ‘girls’ under a specified age were used to describe what the present law simply describes as ‘child’. However, although the term ‘child’ is defined for purposes of the provisions prohibiting the commercial sexual exploitation of children, there is no general definition of the word ‘child’ provided by the new law. The absence of a definitional provision for this word may imply that there is no age limit beyond which the word cannot be extended. However, this notwithstanding, it is submitted that the term ‘child’ must necessarily be restricted to and can only be understood as meaning young persons under the age of 18 years. This is consistent with both the structure and purpose of the new legislation and the definition provided by the CRC.[16]
6. Sexual Crimes Against Children
The new law has not only repealed all the old provisions relating to the sexual abuse of children under the age of 16 years, it has also replaced them with completely new offences. Section 15 of the new law creates two new Divisions, each establishing a separate category of crimes against children. Division 2A establishes sexual offences against children while the other, Division 2B, establishes provisions dealing with the commercial sexual exploitation of children or child prostitution or pornography. Also, crimes under Division 2A are further divided into two categories. One category deals with offences which were previously described as ‘unlawful carnal knowledge’ under the repealed provisions. They involve actual penetrative intercourse with a child under the age of 16. The other involves non-penetrative abuses such as touching a child in a sexual way and for a sexual purpose.
A. Sexual Abuse
Penetrative sexual crimes
There is only one penetrative offence that may be committed against children that comes under this category. The offence is called ‘Sexual penetration of a child’ and is created by a new s 229A of the Act. This provides as follows:
(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime. Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years.
(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life.
(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.
Since sexual penetration is crucial for this offence, it follows that if there is no penetration, no offence has been committed under this pro vision. So what constitutes sexual penetration and penetration by and of what? It was pointed out earlier that by s.6 of the old law, the definition of ‘carnal knowledge’ was restricted to the penetration, however slight or to any extent, of the female organ by the male organ. This therefore meant that penetration by means other than by the penis did not constitute ‘carnal knowledge’ or sexual intercourse. This has now been replaced by a new s 6 which, in addition to replacing the term ‘canal knowledge’ with ‘sexual penetration’, gives it a meaning wider than was the case previously under the old law. Under this provision, ‘sexual penetration’ is defined in the following manner:
When the expression ‘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 part of his or her body (other than the 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.
For purposes of the offence of ‘sexual penetration of a child’, therefore, the section creates three situations in which this crime can be committed. First, a person who engages in an act of sexual penetration of a child between the ages of 12 and 16 years is guilty of a crime. The maximum penalty for this crime is imprisonment for a term of up to 25 years. Second, if the victim child is under the age of 12 years, the offender faces the prospect of being imprisoned for life. Third, if, at the time of the offence, there was present a relationship of trust, authority and dependency between the offender and the victim child, this constitutes aggravating circumstances and the offender would be liable to imprisonment for life. In such cases, the age of the victim is not relevant in determining the period of imprisonment. It is only necessary to show that the child was under the age of 16 years and that there was also present a relationship of trust, authority or dependency at the time of the alleged offence to determine sentence. In other words, the maximum imprisonment term possible is not reduced if the child is between the ages of 12 and 16 years.
It is important to note that since the offences are restricted to situations when they are committed against children under the age of 16, if the victim child is aged 16 or more, this offence cannot be committed. Instead, and in the absence of a relationship of trust, authority and dependency between the perpetrator and the victim, the offence of rape has been committed. However, if a relationship of trust, authority and dependency exists, the offence of breach of that relationship has been committed as provided by s 229E, as discussed below. In this situation, the fact that force may have been used becomes a situation of aggravation which will be taken into account in determining punishment.
A significant change under the new law is that the offence of ‘attempted’ unlawful carnal knowledge of a child under the age of 16 years created by ss 215 and 216 of the old law has not been retained. These have been repealed and no equivalent provision has been included in the new law. Thus, it is no longer an offence to attempt to commit the crime of ‘sexual penetration’ of a child under the new law. This probably means that any physical contact with a child in the course of making an attempt to commit this crime constitutes the crime of sexual touching; but this can hardly be accepted because an act of forcibly touching a child cannot be regarded as a form of sexual touching for a sexual purpose within the meaning of s 229B, as discussed below. That is to say, the act of holding down a girl on the ground or twisting her arm to secure her cooperation to an act of sexual penetration of her is not sexual touching because first, the parts being touched are not sexual parts as defined in the section. Second, the act itself is not sexual in nature, and third, the offender derives no sexual satisfaction from such act. It is assault. Its omission was probably not intended and may need to be reintroduced to deal with situations of ‘failed’ acts of sexual penetration of a child under the age of 16. It is submitted that acts of attempted sexual penetration of children demand appropriate criminal charges and punishment and must be considered as being more serious an encroachment of a person’s privacy and liberty than if they occur to older persons who are more mature and less vulnerable than younger children.
Non-penetrative sexual crimes
There are two types of non-penetrative offences created by the new law: (i) sexual touching, and (ii) indecent act directed at a child.
(i) Sexual touching. This crime is committed when a person, for a sexual purpose, touches with any part of his/her body, the sexual parts of a child under the age of 16 years, or compels a child under that age to touch the sexual parts of that person with any part of his/her body. Section 229B provides:
(1) A person who, for sexual purposes (a) touches, with any part of his or her body, the sexual parts of a child under the age of 16 years; or (b) compels a child under the age of 16 years to touch, with any part of his or her body, the sexual parts of the accused person’s own body, is guilty of a crime.
(2) For the purpose of this section, ‘sexual parts’ include the genital area, groin, buttocks or breasts of a person.
(3) For the purpose of this section, a person touches another person if he touches the other person with his body or with an object manipulated by the person.
(4) If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.
(5) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.
The penalty for this offence is imprisonment for a period of up to seven years. However, if the victim is under the age of 12 years or is in a relationship of trust with, authority under or dependency on the accused, the maximum period of imprisonment possible is 12 years regardless of the age of the victim.
The Act is silent however in one major respect. It makes no provision for dealing with situations where a child is incited or coerced into sexually touching himself/herself for the sexual gratification of the person inciting or forcing the child to touch himself/herself in that way. It is submitted that this should constitute an indecent act directed at a child as discussed below.
(ii) Indecent act directed at a child. This crime is created by s 229C of the Act. It provides:
(1) A person who commits an indecent act directed at a child under the age of 16 years is guilty of a crime. Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding five years.
(2) If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding seven years.
(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding seven years.
It is important to note that this offence is different from that of ‘sexual penetration’ although it may also involve some degree of ‘sexual touching’. Before this offence can be said to be committed, the act complained of must be directed at a child and it must be indecent in nature. The Act however provides no definition of the term ‘indecent act’. What is not clear therefore is if the acts complained of include or exclude acts which involve some degree of physical contact with a child. Judicial interpretations of analogous terms such as ‘indecent treatment’[17] and ‘indecent assault’ indicate that some degree of physical contact is necessary for this offence to be committed (Chalmers et at, 2001: 249— 50; 256; 337—8). It follows therefore that mere inactivity by the accused would not constitute an act amounting to the offence created by this section even if the act itself might be considered reprehensible and indecent. Thus, if an accused invited a child to touch his penis or to masturbate him and this occurs, an indecent act has not been directed at a child and hence an offence has not been committed. This is because in each such case, the indecent act is being directed by the child at the accused rather than by the accused at the child even though the act was clearly solicited by or committed at the behest of the accused. Similarly, an act of indecent sexual assault would be committed if an accused fraudulently convinces a girl into consenting to an indecent sexual act by convincing her that the procedure is a necessary medical or therapeutic ‘treatment" or if he sexually touches or penetrates her when she is heavily intoxicated. In both situations, however, the more serious charges of ‘sexual penetration of a child’ and ‘sexual touching’, as discussed above, is considered more appropriate.
On the other hand, if the accused physically interferes with a child under the age of consent in an indecent manner, then an indecent act within the meaning of this section has been directed at the child even if the child acquiesces to the accused’s actions. Thus, if the accused inserts his finger into the vagina of a young girl, applies his hand on or over her vagina, cups or otherwise touches her breasts or takes the penis of a young boy in his hands, an indecent act directed at a child has occurred. However, in such cases, the preferred course of action would be to charge the person for sexual penetration in the first example and for sexual touching in each of the other cases (as discussed above) respectively.
If physical contact with a child is not considered necessary, then any indecent communication directed at a child would constitute an indecent act for the purpose of this offence. In this situation, it is only necessary to show that a communication accompanied by circumstances of indecency by the accused to the child did take place. Thus, an act of inviting a child to sexually touch the accused or asking the child’s permission to sexually touch him/her would be an indecent act directed at a child. It is altogether irrelevant that there was no actual physical contact between the child and the perpetrator. The act that attracts criminal culpability is the indecent communication to the child and not the presence of an act of indecent physical contact because if there is present such contact, the offence becomes that of ‘sexual touching’. Similarly, a person who indecently exposes himself/herself to a child would be guilty of this offence.
However, not all acts of indecency may be directed at the child. In such situations, the question arises if an offence has been committed. For example, has an offence been committed if a person asks or forces a child to sexually touch himself/herself for the sexual gratification of the person communicating with the child? Is it possible to argue in such cases that, to the extent that the act being complained of has not been performed by the perpetrator, an offence under this section has not been committed? It is submitted that the legislative intent would be ignored and gross injustice done in such cases if no offence is committed. This is consistent with what was said earlier, that the offence is not limited to non-contact indecent acts which the accused perpetrates against or directs at a child but also those which he/she initiates for the child to perform for the sexual purpose of the perpetrator.
The purpose of this section therefore is not to deal with indecent acts which involve physical contact, either directly or indirectly, between the child and the perpetrator. Physical contact is not necessary for this offence as these have been adequately provided for under ss 229A and 229B. Rather the principal purpose of this section is to protect children from being targets of indecent exposure by a perpetrator of his/her genitals and other sexual parts. ‘Sexual parts’ is not defined in the section. However, it is submitted that the definition provided by s.229B, which includes the ‘genital area, groin, buttocks or breasts of a person’, applies equally to the offence established by this section. It is further submitted that the offence would also be committed if the perpetrator exposes indecent pictures or photographs such as pictures of their own ‘sexual parts’ or those of other persons and pictures of persons committing indecent or sexual acts including homosexual acts.
Persistent sexual abuse
This crime is committed if a person commits any of the offences discussed above on at least two occasions. Section 229D(l) is in the following terms: ‘(1) A person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against the Division, is guilty of a crime of persistent abuse of a child’.
The penalty for this offence is imprisonment for a term not exceeding 15 years. It is irrelevant that the conduct complained of is of the same nature or constitutes the same offence on each such occasion.[18] However, if actual penetration occurs during one of those occasions, a person found guilty is liable to life imprisonment.[19] In order for this offence to be committed, however, the court must be ‘satisfied beyond reasonable doubt’ that the evidence establishes that the offence had been committed on at least two separate occasions and that they occurred on separate days during the relevant period and that the accused was involved on all those occasions.[20]
Abuse of trust, authority or dependency
This is also an offence not previously contained under the Code and applies only to children between the ages of 16 and 18 years. Section 229E of the Act provides:
(1) A person who engages in an act of sexual penetration or sexual touching of a child between the ages of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.
This offence is targeted especially at persons in charge of children and who have the duty and responsibility of caring, raising and generally providing for the welfare of those children in their care. These persons include parents, step-parents, adoptive parents or guardians, school teacher, religious instructor, counsellor or youth worker, health care professional, and police or prison officer.
The punishment for offences committed under the new law are more severe than was the case under the old laws. This is reflective of both the seriousness with which society regards sexual crimes against children and the need to impose higher penalties as a method of deterrence and to ensure compliance.
It is irrelevant that the child consented to the act, unless, at the time of the offence, the accused believed, on reasonable grounds, that the child was aged 18 years or older.[21] The penalty for this offence is imprisonment for a term not exceeding 15 years. It will be noted that while the section makes an act of breaching a relationship of trust, authority and dependency a separate offence on its own, the same breach constitutes a serious aggravating circumstance in all other sexual offences discussed above, for which a higher penalty would be imposed on a person found guilty.
Defences
The general rule concerning sexual offences against children is that it is irrelevant that the accused did not know that the child against whom the offence was perpetrated was under the age of consent. Apart from the limited protection the law provides for the accused, as discussed below, there is no defence. Section 209 of the Code (as amended) states clearly that:
Except as otherwise expressly stated, it is immaterial, in the case of any of the offences specified in this Division committed with respect to a person under a specified age, that the accused person did not know that the person was under that age, or believed that the person was not under that age.
The general rule therefore is that there is no defence to a charge of committing a sexual offence against a child. The only defence available however relates to the age of consent, as discussed below. All common law jurisdictions have set an age below which a child is deemed incapable of consenting to a sexual act. This age varies considerably between and amongst jurisdictions although generally it is between the ages of 14 and 16 years.
In PNG, the age of consent to sexual intercourse or penetration is 16 years, a position that has not been altered by the new law. Thus, any person who has sexual intercourse with a person under the age of 16 would be committing a criminal offence and punished accordingly, depending on the age of the victim and the presence of any aggravating circumstances. Under the old law, and as was seen earlier, the offender would have been charged for either indecent treatment of boys under the age of 14 years, unlawful carnal knowledge of a girl under the age of 12 or 16 years and, of course, rape. However, now, with the wider definition of sexual penetration provided by the new law, any of the offences mentioned in the foregoing discussions could be committed.
The law however did not and still does not separately set an age limit for consent. Instead, the age limit has been set by creating separate offences for committing sexual acts against a child under a specified age. The highest age below which a child lacks the capacity to consent to a sexual act has been set at 16 years. The age of consent is therefore 16. In fact, and except for the offence of ‘abuse of trust, authority or dependency’,[22] all of the sexual offences against children established by the new law state the age of 16 as the age of consent. Thus, a person who sexually penetrates a child, or sexually touches the child or is touched by him/her, or directs an indecent act at a child under the age of 16 years is guilty of an offence even if the child consents to the act.
There are only three situations in which exceptions may be made or considered, in favour of an accused, to the general rule concerning sexual offences against children. The first relates to an honest ‘mistake’ as to the actual age of the child, where the offender is an adult or at least not a child. The second concerns sexual relations between persons both of whom are, or one of them is, below the age of consent, while the third is the protection provided to the accused as a result of marriage to the victim child.[23]
(i) Mistake as to age. The most common defence to a charge of sexual offence committed against a child is that the accused believed on reasonable grounds that the child was of or above the age of 16 years. Thus, as was the case under the old law,[24] s.229F of the new law states that ‘it is not a defence to a charge under the Division that the child consented unless, at the time of the alleged offence (a) the accused believed on reasonable grounds that the child was aged 16 years or older’.
Most countries make similar provision in their laws allowing a ‘mistake of age’ defence. The onus to prove that the accused believed on reason able grounds that the victim was of or above the age of 16 lies with the defence and this must be discharged on the balance of probabilities.[25] In discharging this duty, the accused must prove both that he had the requisite belief and that there were reasonable grounds for that belief. In doing so, factors which may have influenced that belief may also be taken into account.[26]
Here, a sharp distinction must be made between a belief regarding chronological age, on one hand, and a victim’s physical ability to admit sexual intercourse without sustaining physical harm or that a female child was fit for marriage under custom, on the other. Thus, an accused who forms a belief as to her physical ability to admit intercourse cannot rely on this defence and escape criminal liability. The accused’s reasonable belief must be related to her chronological age and not her physical maturity.[27] In countries such as Canada, however, this defence is not available generally but restricted to accused persons who show that they had taken reasonable steps to ascertain the correct age of the victim.[28] The defence is therefore not available to an accused who does not take steps to ascertain the relevant age even though it is reasonable to expect him/her to do so or has shown recklessness in making such an inquiry. The reason is to prevent an accused from successfully pleading his own innocence or recklessness in defence.
(ii) Ages of offender and victim. Many common law jurisdictions have made special provisions to accommodate sexual contact or experimentation between children in situations where either one is or both of them are under the age of consent. This is based on the recognition that sexual experimentation is a normal part of growing up and although it may be objected to on religious and cultural grounds, it would be inappropriate to criminalize it. However, to ensure that the ‘allowance’ is not taken advantage of by adults or older children to abuse or exploit children, many of these countries have set limits on the permissible age difference between children who become involved in such ‘experimentations’. In most countries, the age difference is set at two years. Under the Victoria Crimes Act of 1958, for example, where the age of consent is 16 years, it is a defence if, at the time of the offence, the accused was not more than two years older than the victim child provided that the child is not younger than ten years old[29] and the act is consensual. In other words, the defence only applies if the offender is within two years older than the victim child who must be at least ten years or between the ages of ten and 16 years and there was consent by both parties. Whether the age of ten is too young for sexual experimentation or old enough so as not to be protected by the law is a matter which is open for further inquiry or discussion.
In PNG, the youngest permissible age is set at 12 years by s 229F(b) of the new law. This provides ‘it is not a defence to a charge under this Division that the child consented unless, at the time of the alleged offence (b) the child was aged 12 years or older, and the accused was no more than two years older than the child’.
Thus, a 12-year-old can have consensual sex with a 14-year-old but not a 15- or 16-year-old. Likewise, a 15-year-old can have sex with a 16- or 17-year-old but not an 18-year-old. In both situations, the defence would apply and no criminal liability would attach to the older child. However, because the defence is limited to situations of consensual sexual acts, if one child forces another to become involved in such acts, the defence would not apply and the offending child would be dealt with in accordance with other legal provisions dealing with juvenile offenders.[30]
A further and final point that needs to be made is that this defence would also not apply if the victim is younger than the minimum permissible age of 12 years. Although there is no express provision to that effect, this appears clearly to be the necessary implication of s 229F(b) of the new law. Thus, if the victim is under 12 years old, it is not open to the accused to argue that he reasonably believed the victim to have been 16 years or older at the time of the sexual offence.
(iii) Marriage. The state of being married to a person under the age of consent at the time of the objectionable sexual act has been recognized by the law of many countries as operating to protect the offending person from criminal prosecution.[31] The protection in this country is provided by s 229G of the new law. This provides that:
A person is not criminally responsible for an offence against this Division in respect of an act if, at the time of the act, the child was of or over the age of 14 years and the person was married to the child.
The critical requirements before this defence can apply are that first, the child must be at least 14 years old and second, the offender must be married to the child at the time of the sexual act. It is here that a conflict between the age of consent set by the Code, on one hand, and the minimum marriage age set by the Marriage Act, Ch. 280, on the other, arises. This is because while the age of consent under the Code is 16 years, the lowest marriageable age under the Marriage Act is 14.[32] However, the no consent age rule which applies to all the offences indicated above must be read subject to the defence of marriage provided by s 229G. Otherwise, a man who is legally married to a 15-year- old girl cannot have legitimate marital intercourse until his ‘wife’ reaches the age of 16 years or must risk committing an offence if sex takes place prior to her reaching that age.
A more difficult situation arises in relation to customary marriage because of the existence of a plural marriage system where both statutory and customary forms of marriage are recognized by the law.[33] There is no prescribed age for marriage under customary law. However, all societies recognize the disadvantages of marriages involving young children and infants and often place strict restrictions in that regard. What is of greater importance is the physical maturity rather than the chronological age of the young person. While the possibility of abuse or exploitation cannot be ruled out or ignored, ‘child marriages’, with all its attendant evils, do occur although its frequency is unknown.
There is presently no law setting a minimum age requirement for customary marriage as it does for statutory marriage. This presents a particularly difficult problem regarding the application of the defence of marriage provision under s.229G of the new law. Generally, while customary law would recognize the marriage of a young girl under the age of 14, s.229G appears clearly to proscribe ‘marital’ sex between the young ‘wife’ and her ‘husband’. Does this mean therefore that while they may be considered properly married under custom, and because s.229G applies generally to all marriages, lawful ‘marital’ intercourse cannot take place between them until the girl reaches the age of 14 at least? It is however submitted that contrary to the commonly held view, customary law also prohibits the marriage of very young girls and that instances of betrothal which have often been confused with marriage have in part been responsible for this conclusion. Instances where marriages have taken place involving very young girls are therefore exceptions to the rule and it is clearly inappropriate to convert this into something amounting to a norm or rule.
Custom also recognizes that young children are considered too young for the hardships of marriage and need to be protected. The physical, psychological and social hardships of early marriage and marital sex and the serious negative impact of premature and hazardous pregnancies are clearly understood by all societies although they may not be articulated or presented in the same manner or degree. The fact that a girl may appear physically ‘fit’ for marriage at the relevant time does not necessarily mean that she is also physically ‘mature’ or psychologically and emotionally capable of assuming the responsibilities that go with it including sex, pregnancy and childbirth. International studies have shown that early marriage, especially for girls, poses serious threats to their health and development leading to increased maternal and infant mortality rates. It also deprives them of access to educational and employment opportunities.[34] Existing legal provisions dealing with the recognition of custom in the legal system already cover infrequent cases of immature child marriage. The major obstacle therefore is not the lack of appropriate legal provisions but one of bringing such instances to the attention of relevant legal authorities so that young girls who need to be protected from the application of harsh customary practices are given that protection.
Under Schedule 2.1 of the Constitution, custom will not be applied and enforced if, and to the extent that, it is inconsistent with the Constitution, or a statute, or ‘repugnant to the general principles of humanity’. Additionally, s 3 of the Customs Recognition Act, Ch. 19, provides that customs which, if applied and enforced would result in injustice, or infringe public interest requirements or be contrary to the best interests of a child under the age of 16 years will not be recognized. It is clear that the customary marriage of a female child under the age of 14 years would violate all of the above criteria or considerations. These provisions can therefore be invoked to protect young girls from entering into potentially harmful customary marriages and punish men who consider them only as items for marriage, begetting and raising their children and generally labouring for them. In such situations, the consent of the young ‘wife’ to marital intercourse with the ‘husband’ will be vitiated and a charge successfully laid of sexual penetration of a child.
Finally, the point should be made that where marriage to the victim child is raised as a defence to a charge of sexual offences against children discussed above, the onus to prove the existence of the marriage, customary or statutory, lies with the accused. It is a duty he has to discharge on the balance of probabilities. If he fails to prove a subsisting marriage between himself and his purported ‘wife’, he will be found guilty.[35] However, if the child is under the age of 14 years and the accused claims to be customarily married to that girl, the ‘marriage’ defence would not be available even if he proved that all relevant customary procedural requirements for marriage had been complied with. In any case, customary privileges or rules must never be left to the vices of evil men at the serious peril of innocent and vulnerable children.
B. Commercial Sexual Exploitation of Children
(a) Child prostitution
It is important to stress that child prostitution is different from, and much more serious than, adult prostitution. Not only does it represent a particularly heinous form of abuse, it is also a clear violation of a child’s right to be protected from such exploitation and constitutes a contemporary form of slavery.[36] Unlike adult prostitution, children do not choose but are forced either by persons having authority over them or by circumstances of need such as poverty, hunger and survival to go into prostitution. As such, special and different laws are required to address and distinguish the issue of child prostitution from adult prostitution. These special laws were created by the new Division 2B of s.15 of the amending legislation of 2002.
Prior to March 2002, the Summary Offences Act created and dealt with the offence of prostitution. It dealt with the issue generally and applied to all forms of prostitution irrespective of whether children were also involved. The special needs of children both in situations of sexual exploitation and for their protection were therefore seriously missing from that Act. This ‘special’ protection has now been made available under the new law.
For purposes of the offences created under Division 2B relating to the commercial sexual exploitation of children, the new law defines ‘child’ as a person under the age of 18 years. It also defines child prostitution as any sexual service provided by a child in return for ‘financial or other reward, favour or compensation’ regardless of whether the reward or compensation is paid to the child or to some other person. The Act also prohibits the involvement of children in the production or distribution of pornography. The different offences created for the protection of children from prostitution and the punishment of offenders are briefly discussed below.
(i) Obtaining the services of a child prostitute. It is illegal for a person to become a client of a child prostitute. It is also illegal for a person to invite, persuade or induce a child to engage in an act of prostitution with him, her or any other person.[37]
(ii) Offering or engaging a child for prostitution. It is also an offence for a person to offer or engage a child for the purposes of child prostitution.[38]
Both offences are regarded with the same seriousness. Thus, a person who offers or engages a child for prostitution is considered as guilty as the one who actually obtains the sexual services of the child prostitute. This is clear from the penalties prescribed where each carries a maximum imprisonment term of 15 years and up to life imprisonment if the child involved is under the age of 12 years.
(iii) Facilitating or allowing child prostitution. Section 229M makes it an offence for a parent, guardian or any person having the care or custody of a child to allow or facilitate, in any way, the engagement of that child for prostitution. The offence is intended to prevent a parent from ‘hiring out’ a child in his/her custody and care to another person for the purpose of prostitution. It also aims to criminalize the actions of any person in this way as a way of settling debts owed to the person to whom the child is hired out. An imprisonment term of up to 10 years applies if found guilty of this offence.
The only defence to a charge under any of the above offences is if the accused ‘reasonably believed that the child was aged 18 years or older.[39] Here, the discussions which were made earlier in relation to the ‘mistake of age’ defence relating to the offences of sexual penetration would also apply.
An important aspect of the new law is that a child, as defined, cannot be charged for engaging in prostitution. This is a reflection of the view that children under the age of 18, unlike their adult counterparts who may voluntarily choose to do so, often become involved in prostitution as victims of adult exploitation rather than opting to engage themselves in such vice. However, while this may be true for the majority of child prostitution cases, it would be incorrect to say that this is true for all cases. The crises of survival, poverty and hunger are not uniquely adult needs or to persons above the age of 18. A girl who can consent to marriage at the age of 14 or to sex at the age of 16 should also be regarded as having the capacity to offer or consent to sex in return for survival, food, clothes and other essential services. The danger of offering a blanket immunity against prosecution to females under 18 years is that while they may solicit sex in return for rewards, only the conduct of the other party to the sex contract will be criminal while hers will be ignored. This is not justice, especially when the effect is an added reward for a girl who chooses to go into prostitution. The preferred legal option would be to limit the presumption of ‘immunity’ to situations where it can be shown that the girl was acting under the direction of someone having authority over her. Thus, if it is shown that she is or has been married or is or has been a mother, the presumption of immunity would not apply. The onus would be on the defence to show on the balance of probabilities that she had volunteered to prostitute her body, or is or had been married, or is or had been a mother. If this is accepted, as I submit it should, they would be additional to the defence of ‘mistake of age’ as mentioned earlier.
(iv) Receiving benefits from child prostitution. It is a crime under s.229N to knowingly receive any financial or other reward, favour or compensation from child prostitution. A term of up to 15 years imprisonment may be imposed on the wrongdoer. It seems here that the actor under s 229L (the person offering or engaging the child), to the extent that he/she stands to benefit, would also be caught by this section. So, too, a parent or guardian who facilitates or allows the engagement of the child for that purpose in return for a proportion of the rewards. The element of knowledge is crucial for this offence. Thus, an innocent parent or guardian who receives financial assistance from a child whom the former does not know is a prostitute operative would not be guilty of this offence.
(v) Permitting premises to be used for child prostitution. An owner, lessor, manager, tenant or occupier of a property who knowingly permits his property to be used for child prostitution is guilty of a crime. Further, a person who, upon learning that the property is being used for that purpose fails, within a reasonable time after gaining that information, to report the situation to police is guilty of a crime. In both situations, the accused is, if found guilty, liable to be imprisoned for a maximum period of 15 years.[40]
(b) Child pornography
Child pornography as a form of commercial sexual exploitation, even though it does not involve sexual penetration or touching, is as serious a violation of a child’s rights as child prostitution. Both forms of exploitation present children as being merely sex objects. Child pornography can take many forms and can be distributed using sophisticated technology as well. Many jurisdictions have enacted laws to define child pornography as broadly as possible to include the different forms this kind of exploitation can take. PNG has drawn from these experiences as indicated by the definition adopted by the law.[41] Prior to the enactment of the new offences, there were no separate and distinct offences relating to child pornography. The only offences related to the production, possession, and distribution of pornography generally. Under the new law, three different offences are introduced, each dealing with a separate aspect of child pornography, as defined.
(i) Using children for pornographic purposes. Section 229R prohibits any person from (a) using a child to produce child pornography, or (b) causing or procuring a child for the purpose of producing child pornography, or (c) allowing or consenting for a child under his care or custody to be used for the production of child pornography. The maximum penalty for this offence is 15 years imprisonment.
(ii) Producing, distributing and possessing of child pornography. Under s.229S, it is also a crime for a person to knowingly (a) produce, distribute, print or publish any child pornography, or (b) import, export, sell or show any child pornography, or (c) possess any child pornography for any of the above purposes. The penalty for this crime is up to 10 years imprisonment.
Apart from the defences of ‘innocent purpose’[42] and ‘official use’[43], there is no defence available to an accused against this crime. Interestingly, too, there is no immunity against prosecution applicable to a child who becomes involved in producing child pornographic material as is with the case involving child prostitution. Thus, both the child and the accused stand to face criminal prosecution for this offence. However, that this was indeed the legislative intent is doubtful. It is submitted that, as a general rule, children who become involved in the production of child pornography, as defined, should be given the same immunity that is given to their counterparts involved in child prostitution. Thus, in the case of a female child, unless it can be shown that she was married to the accused at the time of the production, or was married previously, or has had or has children of her own and is between the ages of 16 and 18, the immunity would apply to her. If none of these situations exist, the immunity applies and the producer of such material dealt with accordingly under this section. On the other hand, if any of these situations apply to her, she should, it is submitted, be treated as an adult who volunteered to become involved in this way and dealt with separately under other relevant provisions of the Code which criminalize acts of producing, distributing or selling pornographic material.[44]
Likewise, the only possible defence available to an accused would generally be the same ones applying in respect of child prostitution. Thus, if he can show that a female child of between the ages of 16 and 18 volunteered her body for pornographic purposes in return for a reward or fee for purposes of her own survival and livelihood and those of her family members who may be dependent on her or is married to the accused, or was married previously to another man, or has had or has children of her own, he would not be guilty of producing child pornography. Instead, both parties would be charged under s.228(l)(d) of the Code which makes the production and distribution of such material an offence.
(iii) Possession of child pornography. Under s.229T, a person who knowingly possesses any child pornography is guilty of a crime punishable by a term of imprisonment up to five years. The elements of both deliberate intention to have in possession child pornography and knowing it to be such material must be present therefore to successfully lay a charge under this section. The only defences available to an accused are those of ‘innocent purpose’ and ‘official use’, which have already been mentioned. Another possible defence is if the person in possession of the material did not know that pictures depicted in the material were that of a child. In that case, it has to be shown that the belief was reasonable although it may not necessarily acquit him of criminal responsibility because he may still be charged under s 228(4) of the Code which deals with pornography generally.
The provisions dealing with child pornography fail however to deal with the situations of possession of pornographic material by children and the distribution of such material by them. Thus, would an offence be committed if a child has in his/her possession pornographic material or if he/she distributes them? It may be argued that by defining the word ‘child’ to mean persons under the age of 18 years and to proceed then to use the term ‘A(ny) person’ in all the sections discussed above, the latter must necessarily be taken to mean persons other than a ‘child’. If this is accepted, the answer to the question must be that no offence is committed, at least not under those provisions. However, they could still be charged under s 228(4) of the Code and dealt with as juvenile offenders by a Children’s or District Court in accordance with the Child Welfare Act.[45]
7. Rape
Rape is an act involving the sexual penetration of a person without his/ her consent. However, the person against whom the offence has been committed must be or above the age of 16 years. If it involves a person under the age of 16 years, it constitutes the new offence of ‘sexual penetration’ of a child regardless of the presence or otherwise of consent, as discussed earlier. The penalty for this offence is up to 25 years imprisonment or life if the child is under the age of 12 years. However, the fact that force has been used to effect penetration of a child under that age constitutes aggravating circumstances which will be taken into account when the issue of punishment is considered. Under the new law, s 347 of the Code has been amended to read as follows:
(1) A person who sexually penetrates a person without his or her consent is guilty of a crime of rape. Penalty: [Up to] imprisonment for 15 years (2) Where an offence under subsection (1) is committed in circumstances of aggravation, the accused is liable, [Up] to imprisonment for life.
Apart from the change in the wording from ‘carnal knowledge’ under the old law to ‘sexually penetrates’ as provided above, the new law has effected three other major changes to the previous position. First, and as was mentioned in the discussion concerning sexual penetration of children, sexual penetration is no longer limited to the penile penetration of the vagina. Under the new law, sexual penetration constituting rape includes penile as well as the non-penile penetration of the vagina, anus or mouth of the person against whom the offence is committed. Second, the crime of rape is now recognized as an offence that can be committed by both males and females and both can be victims. By contrast, under the old law, only a male person could commit rape and only females could be victims. Under the new law, however, a female can also be guilty of rape if she ‘sexually penetrates’, as defined, another person without his/her consent. Third, and most fundamentally, the state of being married to the victim is no longer a defence for the accused. In other words, the marital rape exemption rule under the old law is now a thing of the past. Under the new law, therefore, a husband who forces sexual intercourse with his wife has, without her consent, sexually penetrated her (a person) within the meaning of the amended s 347 and has therefore committed the crime of rape.
8. Incest
Incest differs from rape in that rape implies force or violence and it may be committed against children or involve consenting adults. Like rape, however, if the act is committed against a child, it constitutes the crime of ‘sexual penetration’ of a child as discussed earlier and if force has been used, this constitutes aggravating circumstances.
Under s 223 of the old law, incest could only be committed by persons who are related by blood to each other and not otherwise. Thus, sexual intercourse between a man and his stepdaughter, adopted daughter, niece, first cousin or aunt did not amount to incest. Under the amended s 223, however, the definition of incest has been widened to also include the relationships of aunt, niece and first cousin. The amended s 223 provides:
(1) A person who engages in an act of sexual penetration with a close blood relative is guilty of a crime.
(2) For 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 such 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 the act of sexual penetration occurred, he was under restraint, duress or fear of the other person engaged in the act.
Thus, incest would be committed if sexual penetration takes place between persons one of who stands in the relationship of niece, first cousin or aunt to the other. The relationships of stepchild and adopted child, however, continue to be outside the new incest definition. In other words, sexual penetration of an adopted or stepchild is not incest although appropriate criminal charges may be laid for any of the crimes against children established by the new law including the unlawful sexual penetration of a child under the age of 16 or breach of an existing relationship of trust if the child is above 16 but below 18 years of age.
The new incest provisions are meant to apply only to consenting adult ‘blood’ relatives. They are therefore not meant to cover situations of incestuous rape or when the act of incestuous sexual penetration is committed against a child. It is for this reason that the penalty for committing incest carries only an imprisonment term of up to seven years. It is clear from subsection (3) that if incestuous rape is committed against an adult person or if an incestuous act of sexual penetration is inflicted upon a child under the age of 18 years, the more serious charges of rape, in the first situation, and sexual penetration of a child who is in a relationship of trust, authority or dependency with the offender, in the second situation, would be the proper course to take.
9. Application and Commencement of Act
Given the new definition of ‘sexual penetration’, males as well as females can be victims of rape and sexual abuse, and females as well as males can commit any of the offences established by the Act. The Act, although enacted in March 2002, was not certified until 25 June 2002. The commencement clause of the Act states that it will come into operation after a notice for that purpose has been published in the National Gazette.
As at the end of February 2003, a year to the month of its enactment, no such notice has been published. This notwithstanding, the very fact of its passage, regardless of when it comes into force, represents the first real step by PNG to implement Articles 34 and 19 of the Convention on the Rights of the Child since it ratified it in 1993. However, while we wait to see the outcome and success of the implementation and enforcement processes, and prediction can be a peculiarly hazardous task, it is hoped that Parliament 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, organizational restructure and executive application aimed at ensuring that those who most need to be protected from sexual and any other form of abuse and exploitation are provided such protection by the law.
[∗] This essay is published in the International Journal of Law, Policy and The Family, Vol.17, No.3. Permission has been given to republish it.
[∗∗] Associate Professor of Law, School of Law, PO Box 317, University of Papua New Guinea, PNG.
[1] Hansard, National Parliament, Thursday, 11 October 2001, 30 – 2.
[2] Bradley (2001: 3, 17)
[3] Department of Justice and Attorney General, ‘Workshop on Legislative Reviews of Law Relating to Child Rights in PNG; 21-22 November 2000, Islander Travelodge, Port Moresby; Pacific Islands News Association (PINA) Convention, “The Pacific Child”, Hosted by the Media Council of PNG, 14-20 October 2001, Madang; Save the Children (New Zealand-Australia) PNG Programme, ‘Country Strategy Plan Workshop’, 11-13 February 2002, Goroka, PNG; PNG national Judiciary, ‘Protecting the Rights of the Child’. 5th National Legal Convention, 5-7 September 2002, Port Moresby.
[4] For example, see Bradley (2001); UNICEF (2001).
[5] Sexual Offences Bill. A ‘sexual act’ is defined as: (1) any act that causes direct or indirect contact between the anus, breasts, penis or vagina of one person and any part of the body of another person; or (2) the exposure of one person’s genitals to another person. Cited in UNICFEF, Sexual Offences Against Women and Children. Issues for Discussion on PNG Criminal Code Reform, September 2001, Port Moresby, 30.
[6] See Bradley (2001) above n 3, 15, and the references made therein.
[7] Now Ch.262 of the Revised Laws.
[8] R v Yoka Kiok (1970) No.607
[9] (1952) Q.W.N. 32, at 36
[10] It was a defence to this charge if it could be proved that ‘the accused person believed, on reasonable grounds, that the girl was of or above the age of 16 years.’
[11] In Ikiap v Lingnoge (1972) N673, it was held that an act of intercourse consented to by a woman who was 14 years of age at the time of the offence was not incedent behaviour toward her.
[12] Section 223.
[13] Section 347.
[14] Under the present law, persons under the age of 16 years are deemed legally incapable of consenting to sexual acts.
[15] In accordance with s.299E if a relationship of trust, authority and dependency between the perpetrator and child exists.
[16] Article 1 of the Convention defines ‘child’ to mean a person under the age of 18 years.
[17] The State v Andrew Tovue [1981] PNGLR 8
[18] Subsection (2).
[19] Subsection (6).
[20] Subsection (5) (a).
[21] Subsection (2).
[22] Section 229E.
[23] See further UNICEF, above, n 4, 26-9
[24] Section 216, Criminal Code
[25] R v Ulele [1973] PNGLR 254
[26] The State v Leo Nimo [1980] PNGLR 129; see further, Chalmers et al (2001: 254-5)
[27] R v Wanigu [1973] PNGLR 330, 332-3
[28] Section 150.1(4), (5), Criminal Code, Ch C-46
[29] Section 45(4)(b)
[30] The major provisions are provided under Part VI of the Child Welfare Act, Ch.276. In considering this matter, regard must also be had to section 30(2) of the Code as amended) which it is provided that at the time of the [act] he had capacity to know that he ought not to do the act’.
[31] For example, s. 45(4), Victoria Crimes Act, 1958 (as amended) (Australia); s.5, Criminal Code Act, Cap 42 (Nigeria)
[32] Although the Marriage Act states the ages of 18 and 16 years as the marriageable age for boys and girls respectively, a person within two years below that age can, with special permission from the Court, validly marry a person who is of marriageable age. Thus, the earliest age at which a girl can married is 14 years.
[33] On the recognition of customary marriage, see Luluaki (1997) “Customary marriage laws in the Commonwealth: A comparison between Papua New Guinea and Anglophonic Africa’, 11 International Journal of law, Policy and the Family, 1-35.
[34] UNICEF Innocenti Research Centre, Digest No.7: Early Marriage March, 2001, cited in UNICEF above, n 4, 29.
[35] The State v Paul Ben Kuman (1996) CR 954 (Unreported)
[36] Optional Protocol to the Convention on the Rights of the Child.
[37] Section 229K
[38] Section 229L
[39] Section 229P.
[40] Section 229O
[41] For the purpose of the newly created offences, s.229J defines child pornography’ as meaning: ‘(a) any photographic, film, video or other visual representation:
(i) that shows a person who is or who is depicted as being under the age of 18 years and is engaged in, or is depicted as engaged in, sexual activity; or (ii) whose dominant characteristics in the depiction, for sexual purpose, of the genital or anal region of a person under the age of 18 year, or (b) any audio representation of a person who is, or is being represented as being, a child and who is engaged in, or is being represented as being engaged in, sexual activity; or (c) any written material, visual representation or audio representation that advocates, counsels or encourages sexual activity with children, irrespective of how or through what medium the representation has been produced, transmitted or conveyed and, without prejudice to the generality of the foregoing, includes any representation produced by or from computer graphics or by other electronic or mechanical means’,
[42] Section 228U.
[43] Section 229V.
[44] Section 228.
[45] ss 32 and 33.
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