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Constitutional and Law Reform Commission of Papua New Guinea |
FINAL REPORT
ON
DOMESTIC VIOLENCE
REPORT NO. 14
1992
PAPUA NEW GUINEA LAW REFORM COMMISSION
4-MILE GOVERNMENT OFFICES
P.O. BOX 3439
BOROKO
PAPUA NEW GUINEA
The Law Reform Commission of Papua New Guinea was established by the Law Reform Commission Act 1975 and began functioning in May 1975.
The Commissioners are: Frank Senge Kolma
Father Robert Lak
Stella Miria
Benjamin Passingan
Stephen Pokawin
Miriam Yawa
Josepha Kanawi is Secretary to the Commission.
The Research Staff are: Herman Buago
Mapesa Dume
Imtiaz Omar
Christine Stewart
The Administrative Staff are: Mary Boigo
Ari Heai
Theresa Kaiser
Peter Kondawe
Thomas Resena
Jack Uke-e
This Report was prepared for the Commission by Dr. Christine Bradley, Principal Project Officer.
The Commission's Office is at the Four-Mile Government Offices, Boroko. The postal address of the Commission is:
Law Reform Commission
P.O.Box 3439
Boroko
Papua New Guinea
Telephone: 258755
Fax: 251491
First published 1992
1992 Papua New Guinea Law Reform Commission
Published by the Papua New Guinea Law Reform Commission
ISBN 9980 55
National Library Service of Papua New Guinea
ABCDE 95432
Printed By: Hebamo Press Pty. Ltd.
P.O.Box 6033
Boroko, Papua New Guinea
March 1992
The Honourable Bernard Narakobi MP
Minister for Justice.
Sir,
In August 1982, the then Minister for Justice, the Honourable Tony Bais MP, required the Law Reform Commission to enquire into and report to him on:
1. the nature and extent of domestic violence as a social problem; and
2. the legal remedies available for complaints of domestic violence; and
3. any changes to the law which may be necessary or desirable to achieve the protection of women from domestic violence; and
4. the steps which should be taken to bring the problem of domestic violence to the public notice.
Accordingly, the Commission has undertaken extensive surveys, established a nation-wide awareness campaign, and proposed certain amendments to existing legislation, most notably that of instituting a system of protection orders which may be granted by District Courts.
Yours faithfully,
Father Robert Lak
Stella Miria
Benjamin Passingan
Stephen Pokawin
Frank Senge
Miriam Yawa
-----------------------------------------
CONTENTS
Preface
Summary and Recommendations 1
PART I - BACKGROUND
Chapter 1: Introduction 10
Terms of the Reference 10
Scope of the Reference 10
Law Reform Commission research 11
The Interim Report on Domestic Violence 12
The Final Report on Domestic Violence 13
Chapter 2: What is Domestic Violence? 14
Definition of the problem 14
Most domestic violence is wife-beating 14
Wife-beating worldwide 14
Types of domestic violence 15
Other types of abuse 15
When does the violence start? 16
When does the violence stop? 16
The cycle of violence 16
Trends 17
Chapter 3: What is Wrong With Domestic Violence? 18
Introduction 18
Domestic violence is against the law 18
Domestic violence is against the Constitution 19
Harmful effects of domestic violence 19
Effects on the victim 19
Effects on the children 20
Effects on the offender 21
Effects on the family 21
Effects on the community 22
Effects on society 22
Conclusion 24
Chapter 4: The Nature, Extent and Causes of Domestic Violence in Papua New Guinea 25
Husbands hitting wives 25
Wives hitting husbands 26
Wife-beating is the main problem 26
Attitudes 30
Causes 29
Chapter 5: Recommended Approach 34
Special features of domestic violence 34
Underlying principles 34
Competing considerations 35
A five-fold approach 35
Objectives 36
The role of the law 36
The criminal law and the police 37
Protection Orders 37
Prevention through awareness 38
Counselling 38
Services for victims 39
PART II - LEGAL MEASURES
Chapter 6: Present Legal Provisions and their Deficiencies 40
Criminal prosecution 40
District Court Good Behaviour Bonds 41
Local Court "Keep the Peace" Orders 41
Village Court Preventive Orders 42
Civil action for compensation 42
Mediation 42
Other obstacles to the protection of beaten wives 43
Chapter 7: The Police 45
Nature of the police role 45
Difficulties of the police role 46
Policy and procedures 48
Training 50
Powers of entry 53
Community Relations 55
Female police 56
Data collection and monitoring 57
Police powers and Protection Orders 57
Chapter 8: The Criminal Law 58
Introduction 58
Evidence of spouses 58
Weekend imprisonment and other sentencing options 60
The defence of provocation 62
Chapter 9: The District Courts and Protection Orders 63
The Good Behaviour Bond System 63
Protection Orders 65
Chapter 10: The Village Courts 68
Introduction 68
Assault as an offence 68
Preventive Orders 69
Wife-beating as custom 70
Male domination of Village Courts 71
Training 73
PART III - SOCIAL MEASURES
Chapter 11: Public Awareness and Education 73
Introduction 73
The Women and Law Committee 73
The domestic violence awareness campaign 74
Other initiatives 77
Evaluation of the campaign 78
Conflict resolution education 79
Chapter 12: Health Services 81
Introduction 81
The Interim Report 81
The Health Department's response 81
Initial presentation at hospital/health centre 82
Data collection 84
Training 84
Further action 85
Chapter 13: Accommodation 87
Emergency accommodation ("refuge" or "shelter") 87
Short-term accommodation 91
Long-term accommodation 91
Chapter 14: Legal Information and Legal Aid 93
Legal information 93
Victim's information needs 94
Availability of legal information 98
Legal aid 99
Chapter 15: Counselling and Welfare Services 101
The Interim Report 101
Limitations of counselling 101
Types of domestic violence counselling 102
Special features of domestic violence counselling 103
Special information needs 106
Existing counselling services 107
Domestic Violence Resource Persons Training Scheme 108
Chapter 16: The Churches 111
Introduction 111
The Interim Report 111
How the churches can help 113
Chapter 17: Women's Organisations 117
Introduction 117
Activities so far 118
The National Council of Women 119
Chapter 18: Research and Monitoring 122
APPENDICES:
1. Terms of Ministerial Reference on Domestic Violence 123
2. Papua New Guinea Law Reform Commission publications and papers on domestic violence. 124
3. Wife-beating and the Constitution 126
4. Summary of the harmful effects of domestic violence 127
5. Common beliefs about domestic violence 130
6. Summary of the causes of domestic violence 134
7. Constabulary Standing Orders on domestic assault 136
8. Draft legislation: Police powers of entry 137
9. Draft legislation: Compellability of spouses 139
10. Draft legislation: Periodic Detention and Protection Orders 141
11. Funding donors for public awareness activities 153
Bibliography and References 154
LIST OF TABLES
Table 1: Incidence of husbands hitting wives 27
Table 2: Incidence of wives hitting husbands 28
Table 3: Indicators of relative seriousness of wife-beating and "husband-beating" 29
Table 4: Attitudes - Is it alright for husbands to hit wives? 30
Table 5: Attitudes - Is it alright for wives to hit husbands? 31
Table 6: Main causes of marriage problems 32
--------------------------------------
SUMMARY AND RECOMMENDATIONS
In August 1982 the Law Reform Commission was given a Reference to investigate and report on domestic violence in Papua New Guinea.
For the purposes of this work, domestic violence was defined as physical violence between marriage partners, whether they are married under custom or under the Marriage Act or are simply living together as if they are married.
The recommendations contained in this report are based on extensive nationwide research and consultation carried out since 1982 (Chapter 1). Domestic violence is a complex social problem (Chapter 2), which has harmful effects not only on the victims, but also on the family, the community and the entire society (Chapter 3). It is therefore a public not a private matter.
The Commission found that domestic violence is a widespread problem affecting over two-thirds of families in the country and that its main form is wife-beating (Chapter 4). A certain amount of domestic violence is accepted as normal in most parts of the country, with brideprice seen as justifying a husband's right to beat his wife in many of Papua New Guinea's diverse societies. Reducing or eliminating the problem therefore means changing attitudes as well as behaviour.
The Commission's Interim Report on Domestic Violence, published in 1987, was widely circulated and generally favourably received. A number of its recommendations have already been wholly or partially implemented, in particular a national public awareness campaign conducted by the Commission in co-operation with the Women and Law Committee. This and other activities stimulated by the Interim Report are described in this Final Report in the relevant chapters.
The Final Report retains the approach recommended in the Interim Report, expanded in the areas of prevention through awareness and education, and of counselling, in response to comments from the public.
The objectives of the approach recommended by this Final Report are:
1. the protection of victims;
2. the prevention of further violence; and
3. the improvement of married life.
This approach is based on six underlying principles or beliefs:
1. that freedom from violence is every person's right;
2. that violence is learned behaviour, which can be unlearned;
3. that violence in marriage is not a private matter, but a social problem of public concern;
4. that stopping domestic violence will strengthen marriages and improve family life;
5. that stopping domestic violence will help create a more peaceful society;
6. that it is the responsibility of government to take a strong stand against domestic violence for the benefit of the whole society.
The five-fold approach to the problem of domestic violence recommended by the Law Reform Commission combines legal and social measures:
1. strengthening the application of the criminal law to domestic violence and improving the police response, by clarifying police powers to deal with violence on private premises; by ensuring that offenders cannot pressure victims into dropping charges and by introducing more appropriate sentencing, in particular a system of weekend imprisonment (Chapters 7, 8);
2. improving the effectiveness of other means of legal protection against personal violence by replacing the inefficient system of Good Behaviour Bonds with a new system of Protection Orders; tightening the response of Village Courts to domestic violence and promoting the use of Preventive Orders (Chapters 9, 10);
3. maintaining public awareness campaigns, educational programmes and improved professional training, to increase community understanding and disapproval of domestic violence (Chapters 11, 15, 16, 17);
4. improving counselling for domestic violence situations by introducing specific training for domestic violence counselling with victims, offenders and both parties together (Chapter 15);
5. improving services for victims by promoting changes in health services and by increasing the availability of accommodation (emergency, short-term and long-term) and of legal information and legal aid (Chapters 12, 13, 14, 16, 17).
Priority is given initially to legal measures. The law is a powerful tool in motivating behaviour change, both in terms of its practical value through punishing offenders and in terms of its wider educational and preventive value as a statement of what society will not tolerate. The success of the other educational and social measures recommended by the Commission also depends on the effectiveness of the legal measures.
With time, attitudes will begin to change as the educational and awareness programmes take effect, and the law will have a decreasing role to play. Ultimately, the Commission wishes to see a situation in which communities themselves take responsibility for eliminating domestic violence in their own areas by stepping in to prevent violence where possible and by protecting and assisting victims where necessary. For this to be achieved, each community will need to recognise that domestic violence is not a private matter but a community concern, and that violence has no place in married life.
Considerable progress towards this goal has already been made through the active support of many thousands of individuals throughout the country. The Commission hopes that many more will be inspired by this Final Report each to make his or her contribution towards ending domestic violence in Papua New Guinea.
Recommendations
1. That funding be provided by the Department of Justice for this Final Report on Domestic Violence to be made available to government and non-government bodies and the general public.
2. That police procedures for granting bail in domestic violence cases be revised and restricted in line with ss.9 and 18 of the Bail Act, as well as requiring third party recognizance and cash sureties, and imposing conditions on the alleged offender's contact with the victim for part or all of the bail period.
3. That when called to domestic disputes, where there is insufficient evidence for an arrest, police should hand to both parties a leaflet explaining the possibilities of counselling, mediation and legal action.
4. That recruit training on handling domestic assaults be extended to clarify the legal concept of provocation, to deepen recruits' understanding of the causes and effects of domestic violence and the difficulties faced by victims, and to allow recruits opportunity for practising responses to different types of domestic disputes.
5. That police instructors be trained to take over responsibility for conducting domestic violence training of recruits in the relevant law and in the police role, while still inviting specialists from the Law Reform Commission, the Probation Service, and the Welfare and Women's Divisions of the Department of Home Affairs and Youth, or others, to participate in discussion sessions.
6. That ongoing in-service training on domestic violence be developed and systematically implemented for all ranks along the lines used in recruit training, and that appropriate bail procedures be covered where relevant.
7. That police powers to enter private premises be clarified and extended to allow police to enter such premises where they reasonably believe that an offence involving force or the threat of force is being committed, has been committed within the last 24 hours or is about to be committed, in order to take such action as may be necessary to:
(i) investigate whether an offence has been committed;
(ii) render aid to any person who appears to be injured;
(ii) exercise any lawful power to arrest a person;
(iv) prevent the commission or continuance of such an offence; and
(v) offer to transport any person injured or apparently in danger to a place of safety.
8. That the national and provincial police Community Relations Sections continue to make domestic violence a focus of their work in the community.
9. That the Department of Police take responsibility for funding the reprinting of the "Wife-beating is a Crime" leaflets and poster as part of the recurrent budget of the Community Relations Section and for distributing it to all police stations and police posts and to the Bomana Police College.
10. That more female police be recruited and that they be utilised more in face-to-face dealings with the public, especially for domestic violence cases, rather than being primarily confined to office duties.
11. That the police computerised data system be extended to allow domestic assaults to be distinguished from other assaults.
12. That the police Research and Training Section continuously monitor and evaluate any changes in police powers and procedures relating to domestic violence.
13.1 That s.13 of the Evidence Act be amended to make spouses compellable witnesses in cases of assault by one spouse on the other, or on a child of the family.
13.2 That courts should have the discretionary power to excuse a spouse from giving evidence, if the spouse makes a statement on oath that voluntary reconciliation has been achieved or is imminent, or that other considerations make it undesirable for the spouse to be compelled to give evidence.
13.3 That where such discretion is exercised by a court, its reasons should be recorded in writing and be subject to a system of inspection.
13.4 In the case of a conviction, the court should be able to order alternatives to imprisonment, in consultation with the victim.
14. That courts deal with a first-time or minor offender by making a Probation Order, and that where this service is not available more use should be made of supervised Work Orders and of compensation to the victim.
15. That a system of periodic detention be introduced which may be used by the courts for repeat or more serious domestic violence offenders where a sentence of up to three months' continuous imprisonment would otherwise be imposed.
16. That the Supreme Court be asked to consider the relevance of long-term provocation as a defence or as a mitigating factor in sentencing for domestic killings and serious assaults.
17.1 That Part X of the District Courts Act be repealed and replaced with provision for Magistrates to make a Protection Order to protect an applicant who proves on the balance of probabilities that the defendant has:
(i) injured the applicant or threatened to do so; or
(ii) damaged his or her property, or threatened to do so; or
(iii) harassed or molested the applicant or behaved in an abusive, provocative or offensive manner towards him or her; and
(iv) is likely to repeat the behaviour or carry out the threats unless ordered not to do so by the Court.
17.2 That Magistrates have the power in emergencies to make an immediate provisional Order at any time of day or night, to protect the applicant until the case is heard in court, which must be within 14 days.
17.3 That provision be made for the application to be made on behalf of the complainant by a police officer or by some other person with an interest in the case.
17.4 That a Protection Order for a child may be applied for by the parent or guardian, the Director for Child Welfare, a police officer or some other person with an interest in the case.
17.5 That an Order may forbid any of the offensive behaviours complained of and may, if necessary, order the defendant to stay away from the applicant and/or not to contact him or her, and not to damage his or her property, for the period of the Order, which may not exceed three years.
17.6 That an Order may exclude the defendant from the family's accommodation or restrict his or her access to it for a period of up to three months, regardless of any legal rights he or she might have in the property, if this appears necessary for the safety of the defendant's spouse and/or the welfare of the children.
17.7 That an Order may forbid or restrict the defendant's possession of firearms.
17.8 That an Order may prohibit the publication of names, where the applicant wishes it.
17.9 That an Order may require the defendant to undertake counselling with a counsellor trained in domestic violence counselling (but counselling for the victim should not be a condition of granting an Order).
17.10 That a copy of an Order be kept by the local police station, to facilitate action on a suspected breach.
17.11 That breach of an Order be an offence, for which the police are empowered to arrest in the normal way without a warrant.
17.12 That the form used by Magistrates in issuing a Protection Order contain a set statement to be read aloud in court, so that all parties will have the same understanding of the conditions of the Order and the consequences of a breach.
17.13 That a range of punishments for breach of an Order be available for the Magistrate to use at his or her discretion, in consultation with the applicant, taking into account the seriousness of the breach, the circumstances of the family and the state of the relationship between the applicant and the offender, as well as the need for deterrence.
17.14 That normal court fees be waivable by a Magistrate or Clerk of Court when considering an application for a Protection Order, if the applicant cannot afford to pay: personal safety is a basic human right to which poverty should not be a barrier.
17.15 That normal police fees for the service of summons be waivable by the Police Station Officer-in-Charge if the applicant cannot afford to pay, for the same reason as in 17.14.
18. That a detailed circular explaining the new provisions be sent out to all District Court Magistrates by the Magisterial Service as soon as the legislation is enacted, and that the subject be covered thoroughly in pre-service and in-service training for Magistrates.
19. That police recruit and in-service training be expanded to cover the new responsibilities for police contained in Recommendation 17 as soon as the legislation is enacted.
20. That the Village Courts Handbook and other information materials be amended to clarify the definition of assault, limiting the circumstances when assault between civilian adults may be justified to those listed in the Criminal Code (principally self-defence, defence of another person, defence of home or property, and provocation under certain circumstances).
21. That the Village Courts Handbook be amended to include specific guidelines on the use of Preventive Orders for domestic violence cases.
22. That Village Court officials be trained in the use of Preventive Orders for domestic violence cases.
23. That the Village Courts Handbook be amended to explain the limits on the application of custom, with particular reference to wife-beating, and directing that any customary right of a man to beat his wife (or of a woman to beat her husband) shall not be recognised by the Court.
24. That training for Village Court officials be revised to emphasise the points made in Recommendation 23.
25. That the Village Courts Secretariat immediately introduce a policy of recommending the selection of women as Village Magistrates, with the aim of having one or more female Magistrates in each Village Court within five years, and eventual equal representation.
26. That the Tok Pisin version of the Village Courts Handbook be amended to make it clear that persons are allowed to ask someone else to put their case for them in court, provided that the spokesperson is not a lawyer, and that this point be covered in training for Village Court officials.
27. That the Village Court Secretariat continue with its efforts to educate officers of the Secretariat and Village Court officials about domestic violence as a serious social issue, using all means at its disposal.
28. That the Department of Home Affairs and Youth take responsibility for funding the reprinting and distribution of the Women and Law Committee's domestic violence public information materials as part of the recurrent budget of its Welfare Services Division, in order to maintain supplies for the Department's own use and for the use of other government and non-government bodies (with the exception of the Police and Health Departments, for whom separate provisions are being recommended).
29. That anger management and conflict resolution skills be included in the curriculum at both primary and high school levels and that in-service training on these topics be provided for all teachers.
30. That the Education Department and the Teaching Services Commission implement the recommendations of the Gibson Report (Education Research Division Research Report No. 65) that clear policies be developed with respect to spouse-beating, so that a teacher who physically assaults his or her spouse will be charged and disciplined, repeat offenders will be dismissed from the teaching service and teachers who are victims of domestic violence will be supported and not penalised.
31. That the Health Department take responsibility for funding from its recurrent budget the printing and distribution of supplies of an information leaflet on domestic violence for use by health staff with the public.
32. That women's groups and churches co-operate in setting up systems for providing temporary safe accommodation for beaten women and children in all parts of the country and that they publicise these widely. Whether or not the safe accommodation is part of a refuge or is provided within someone's home or as part of another organisation, the staff should be properly trained in the area of domestic violence.
33. That provincial governments provide at least some part of the funds needed for running such a system of emergency accommodation for domestic violence victims, as a demonstration of their commitment to ending domestic violence.
34. That Lifeline publicise its refuge service much more widely (but not the location of the refuge), that it set up a support group for its refuge to assist especially with transport and fundraising, that it allow clients to stay longer than three days if necessary, and that all refuge staff be trained in domestic violence counselling.
35. That the National Housing Corporation and banks introduce a policy of encouraging couples to purchase their family housing in joint names rather than in the name of the husband only, and that they publicise this policy widely.
36. That the National Housing Corporation allow a wife to take over the tenancy agreement if the marriage breaks up because of the husband's violence towards his wife.
37. That women's groups immediately educate their members about applying for joint husband-wife tenancy and purchase agreements and that they continue to monitor the implementation of Recommendations 35 and 36 and keep their members informed of developments.
38. That the government step up its efforts to increase the availability of low income housing throughout the country.
39. That the Attorney-General's Department be given responsibility and resources for producing and distributing nationwide simple materials in English, Tok Pisin and Hiri Motu explaining those aspects of the law and legal system that affect ordinary people's lives.
40. That the Law Reform Commission be funded to produce and distribute materials in English, Tok Pisin and Hiri Motu to inform the public of changes to laws arising from the Commission's work, such as the enactment of the legal provisions recommended in this Final Report or introduced by the Commission's Family Law Working Group.
41. That all those involved in counselling in domestic violence situations be trained to provide information on the law and the victim's legal rights (see also Recommendation 43).
42. That the Law Society, the Public Solicitor and the Attorney-General's Department ensure that the legal aid services offered by the Law Society and the Public Solicitor are adequate to cover the needs of victims of domestic violence in all areas of the country.
43. That the Welfare Services Division of the Department of Home Affairs and Youth take responsibility for domestic violence training and public awareness work and that it implement its proposal for a nationwide domestic violence training programme to increase awareness of domestic violence among key decision-makers and the general public, to educate those who deal with domestic violence in the course of their work or daily lives and train them to act as Domestic Violence Resource Persons in their own organisations or communities, and to provide specific training in domestic violence counselling for those currently involved in or interested in becoming involved in domestic violence counselling.
44. That those churches which have not yet done so should develop a clear policy on domestic violence, including clarifying the concept of the husband/father as head of the family and emphasising instead marriage as a partnership of equals.
45. That all churches participate in raising awareness of the harm caused by domestic violence, of the sources of practical and legal help available to victims, and of the value of community intervention in preventing violence.
46. That specific consideration of domestic violence be included in the training of church workers (ordained, lay and pastoral); in marriage enrichment classes; in the preparation of individual couples for marriage; and in talks on sex and marriage given to young people (see also Recommendation 43).
47. That churches take a more active role in providing emergency accommodation for beaten wives and their children.
48. That church-run educational establishments teach the practical skills of conflict resolution to students.
49. That all churches ensure that those church workers (ordained, lay and pastoral) doing counselling in domestic violence cases are properly trained in the specific principles and techniques of domestic violence counselling (see also Recommendation 43).
50. That member groups of the National Council of Women implement the Council's policy against domestic violence.
51. That other women's organisations which have not already done so develop and implement a clear policy against domestic violence.
52. That the national government commit funds to implementing the "Women's Policy" of the Department of Home Affairs and Youth as a matter of high priority.
53. That research institutions conduct research on violence and domestic violence, in consultation with the Law Reform Commission.
54. That the Law Reform Commission and the Division of Welfare Services of the Department of Home Affairs and Youth collaborate in monitoring and evaluating the implementation of the measures recommended in the Final Report on Domestic Violence for the first year of their operation, and that the Division of Welfare Services set up a committee to be responsible for monitoring the domestic violence situation thereafter.
CHAPTER 1
INTRODUCTION
Terms of the Reference
The Law Reform Commission's work on domestic violence owes its beginning to a letter written by the National Council of Women in 1982. Following an Extraordinary General meeting in November 1981, the Council wrote to the then Minister for Justice, the Honourable Tony Bais, asking him to review areas of the law which inadequately protected women. Male violence against wives or girlfriends was listed as the Council's first priority. In August 1982 the Minister responded by authorising a Reference for the Law Reform Commission to investigate domestic violence in Papua New Guinea, on the grounds that:
"1. domestic violence is contrary to the principles of our Constitution; and
2. the law does not enable the police and the courts effectively to protect women from domestic violence."
The Reference required the Law Reform Commission to report on the nature and extent of domestic violence in Papua New Guinea and make any recommendations necessary "to achieve the protection of women from domestic violence". The wording of the Minister's Reference recognised the reality that women are the main victims of domestic violence, but the research and recommendations have covered both male and female victims equally. The Terms of Reference are printed in full as Appendix 1.
Scope of the Reference
For the purposes of the Commission's work on this Reference, domestic violence was defined as physical violence between marriage partners, whether the couple have a legally recognised marriage or are simply living together as if they were married.[1] References in this Report to "marriage", "spouse", "husband" and "wife" should be understood in this broad sense, except where otherwise stated.
Although "marital violence" or "spousal violence" might be a more accurate term to describe violence between married persons, domestic violence is the term which has become accepted and used internationally by law agencies working on this topic and was therefore the one adopted by the Law Reform Commission. This definition does not include violence between co-wives, or between the wife and girlfriend of the same man, or between other persons in a domestic setting. It also excludes violence against children, except as a side-effect of violence between spouses (see Chapter 3). Child abuse is a problem in its own right requiring separate study.
These other types of violence were not specifically covered by the Reference, but it is expected that the Report's recommendations for dealing with violence between spouses will also be of value in dealing with other kinds of violence associated with domestic or family relationships. Similarly, mental cruelty was not covered by the definition of domestic violence, yet the Commission's investigations showed that physical abuse often causes psychological as well as physical damage to victims (see Chapter 3). Physically violent spouses may also deliberately inflict mental suffering on their partners, whether through threats of violence or through other harassing behaviours, such as persistently telephoning or following the victim. These factors have been taken into account in the recommendations.
Law Reform Commission Research
The lack of reliable existing data on domestic violence from agencies such as the police, the courts, hospitals, welfare offices or women's organisations made it necessary for the Law Reform Commission to undertake its own research. Phase One of the research explored the nature and extent of domestic violence in Papua New Guinea; Phase Two investigated existing remedies and their deficiencies.
It should be pointed out that the Commission's research was pioneering work, for at that time no other developing country had conducted systematic research on this topic. In fact, even as recently as 1989, a United Nations survey observed that "the only comprehensive and systematic study of violence against women in the home that has been undertaken in a developing country is of Papua New Guinea" (United Nations 1989:5). The Commission's research has therefore received considerable international attention, and has since served as a model for research in several other countries (Tahiti, Zimbabwe, Malaysia).
The Commission's research programme was nation-wide. With the assistance of students and staff from the Administrative College and the Geography Department of the University of Papua New Guinea, extensive questionnaire surveys on the nature and extent of domestic violence were carried out. A rural survey covered 19 villages in 16 provinces, during which 736 men and 715 women were interviewed. Findings have been published in the Commission's Occasional Paper No. 18 (Toft and Bonnell eds. 1985) and in Monograph No. 4 (Law Reform Commission 1986). Two urban surveys were also conducted. For the survey of low income earners and wives of low income earners in Port Moresby, 368 men and 298 women were interviewed, while 178 men and 99 women responded to a postal questionnaire of urban elites (defined as families of persons employed by the government at Clerk Class 10 and above). Findings of both surveys are presented and analysed in the Commission's Occasional Paper No. 19 (Ranck S. and Toft S. 1986).
Additional quantitative data were provided by a survey of two squatter settlements in Port Moresby (Au 1986), and a study of patients seeking treatment at Lae's Angau Hospital (Ekeroma 1986). Case studies of beaten wives (Toft 1985) and three anthropological studies provided more qualitative, in-depth data on the extent of the problem (Bradley 1985; Chowning 1985; Josephides 1985). These have been published in the Commission's Monograph No. 3 (Toft ed. 1985). Recently, the Commission has also had access to several other anthropological studies of domestic violence in Papua New Guinea and the Pacific.[2]
Information on existing legal and social responses to domestic violence was derived from analyses of District and Local Court case files in five provinces, a joint study with the Police Research and Planning Section on police records of domestic violence assaults at three police stations in the National Capital District (Kaetovuhu and Tyrer 1987), and a study in 15 provinces of police attitudes towards wife-beating, carried out with the assistance of staff and students of the Law Faculty of the University of Papua New Guinea (Bradley 1987). Two anthropological studies focussed on the role of Village Courts in dealing with domestic violence (Westermark 1985; Scaglion and Whittingham 1985). Interviews were conducted with Magistrates and court officials, members of the legal profession, church and government welfare workers, community leaders, women's leaders and members of the public. Domestic violence discussion sessions conducted by the Commission's staff during the training of probation officers, police recruits, community school teachers, lawyers, church workers and youth leaders, senior public servants during in-service courses at the Administrative College, Arts and Law students at the University of Papua New Guinea and graduates at the Legal Training Institute also yielded useful insights. A complete list of publications and papers arising from the Commission's work on domestic violence is given in Appendix 2.
Domestic violence has been the subject of recent concern in many other countries, some of which have introduced social and legal measures of various kinds designed to reduce or prevent the problem. The Commission was able to collect information on what is being done (or not done) about domestic violence in 38 other countries from all regions of the world.[3] In addition, both the United Nations and the Commonwealth Secretariat have brought out guidelines for countries wishing to address the problem of domestic violence (United Nations 1989; Commonwealth Secretariat n.d.a). The Commission found this wider comparative background helpful in shaping an approach. However, Commissioners wish to stress that the resultant proposals are made solely with Papua New Guinean needs and constraints in mind, to suit this stage in the country's cultural, social and political development.
The Interim Report on Domestic Violence
The Commission's normal practice is to distribute a working paper and invite comments from the public before making recommendations in final report form. In the case of the Domestic Violence Reference, the then Minister for Justice, the Honourable Warren Dutton, requested the Commission to prepare an interim report instead of a working paper, to enable him to table it in Parliament and thus stimulate public debate on the issue. The Interim Report on Domestic Violence was presented to Parliament in February 1987, and the ensuing debate was widely reported in the press both at home and overseas.
Following its presentation in Parliament the Interim Report was circulated throughout the country, for comment and criticism. Over 500 copies were sent out - a much wider circulation than for any of the Commission's previous references.[4] Formal comments were received from over 30 of those individuals or organisations consulted, a much larger proportion of replies than is usual. Public meetings were held in Mendi, Wewak, Madang, Rabaul and Port Moresby at which members of the public gave their views. Comments were also obtained during discussion sessions with teachers, probation officers, police recruits, church workers, women's groups, senior public servants, university students and trainee lawyers and journalists.
As a result of this extensive consultation with the public, the Commission has made some changes, both to specific recommendations and, to some extent, to the overall emphasis. The changes will be described in the body of this Report. The Commissioners greatly appreciate the comments and criticisms received from relevant professionals and from the public. These have helped to produce a set of recommendations which Commissioners believe will, if implemented consistently, substantially reduce domestic violence in Papua New Guinea.
The Final Report on Domestic Violence
The Commission sees this Final Report on Domestic Violence as a useful collection of materials on this important subject that will have value for many government and non-government organisations, educational and training institutions and concerned individuals throughout the country. The level of public interest in domestic violence is high at present and the Commission wishes to help sustain this by providing as much information as possible. It therefore recommends that this Report be made available to the public as widely as possible.
Recommendation
1. That funding be provided by the Attorney-General's Department for this Final Report on Domestic Violence to be made available to government and non-government bodies and the general public.
CHAPTER 2
WHAT IS DOMESTIC VIOLENCE?
Definition of the Problem
The Law Reform Commission's surveys found that domestic violence exists in more than two-thirds of families in this country. Because a certain amount of violence between husbands and wives is taken for granted in some parts of the country, many of these families would not themselves feel that domestic violence is a problem for them. The Commission is often asked: "How much domestic violence is alright?" The Commission's answer is that all violence is potentially dangerous and should be discouraged, even if it is acceptable to the couple themselves.
The Commission has been accused of trying to interfere unnecessarily in "family squabbles", therefore it is important to emphasise that this Final Report is not dealing with squabbles or verbal arguments. Disagreements, conflicts, arguments or quarrels are a normal part of any domestic relationship to some degree or other. They may be unpleasant but they do not constitute a threat to life or safety. Violence, however, comes into a different category, because it can kill or cause serious injury. All violence is potentially dangerous: even what was intended to be one little slap can kill, if it lands wrongly. There are also many other harmful effects, as will be described in the next chapter. This Final Report is concerned only with the use of physical force or violence.
Violence does not just mean hitting or punching. It also covers kicking, shoving or pulling a person, pulling hair, twisting arms, legs or neck, bending back fingers, biting, stamping on hands, stubbing out cigarettes on the skin, throwing a person against the wall, pushing downstairs, holding a person until they are forced to do something they do not want to do, and so on. Legally, violence against the person is known as "assault", which is defined in Chapter 6.
Most Domestic Violence is Wife-Beating
The Commission's research found that most domestic violence is inflicted by men on their wives. The wife-beating/husband-beating picture for Papua New Guinea is discussed more fully in Chapter 4. Because the reality is that most domestic violence is wife-beating, this Final Report will usually speak of the offender as "he" and of the victim as "she".
Wife-Beating World-Wide
Papua New Guinea is not the only country in which wife-beating is a problem. It exists all over the world. According to the United Nations' recent study on the subject: "All the research evidence that is available suggests that violence against women in the home is a universal problem, occurring across all cultures and in all countries" (United Nations 1989:4). In some countries it appears to be a more serious problem than in Papua New Guinea, and in some countries it appears to be less serious, although international comparisons have little validity because of the lack of published statistics from most countries. However, in terms of taking action against domestic violence, Papua New Guinea is in advance of most other developing countries, and even of some more developed countries, through the recent work of the Law Reform Commission and the Women and Law Committee.
Types of Domestic Violence
There are three main types of domestic violence:
a) punishment/discipline, where a man hits his wife because of something she has done that he does not like, in order to "teach her a lesson". This is the most common type of domestic violence, and one that many people in Papua New Guinea find acceptable (see section on attitudes in Chapter 4).
b) preventive, where a man hits his wife to remind her who is boss, so she will not be tempted to disobey him in future.
c) expressive, where a man hits his wife as a way of getting rid of his negative feelings such as anger, frustration, anxiety or guilt, (which may not necessarily have anything to do with her).
d) defensive, where one partner, usually the wife, hits back after being hit or threatened, often in order to escape from the violence.
The examples above have been worded as if the husband is the partner using the violence, since this is the most usual situation. Wives do sometimes hit their husbands, and when they do, their violence is usually of types c) and d), since wives do not have recognised authority over their husbands in the same way that husbands have authority over their wives, as is necessary for types a) and b). Women generally also have limited fighting skills and are weaker than men, and therefore cannot normally beat their husbands into submission in the same way that husbands sometimes do to their wives in types a) and b).
Other types of abuse
Through the Commission's research in Papua New Guinea, it emerged that other types of abuse or bad treatment are often found in relationships where there is regular domestic violence, particularly wife-beating. These are:
verbal abuse: saying hurtful things to the wife, calling her names, telling her she is stupid or ugly, accusing her falsely of seeing other men, using threats, and so on.
social abuse: embarrassing the wife in front of other people, controlling where she is allowed to go and who she is allowed to see, checking up on her, cutting her off from friends and relatives, locking her in the house, and so on.
financial abuse: keeping her short of money, making her account for every toea spent, and so on.
sexual abuse: making her have sex when she does not want to, or in ways that she does not want.
These non-physical forms of abuse were not included in the Commission's Reference, therefore no recommendations will be made in relation to them. The Commission merely observes that some or all of these undesirable behaviours often accompany physical abuse or violence.
When does the violence start?
Wife-beating usually starts early in the marriage, as the husband tries to "school" the wife to behave as he wants. Sometimes it begins before the marriage, and some young women even welcome it at first, seeing it as a sign that the boyfriend is treating them like a wife, and could therefore be thinking of paying brideprice soon. Another common time for the man to start being violent is when his wife is pregnant. This may be because the change in the situation makes the man feel insecure, or because he is worried about supporting the child, or because of sexual frustration caused by restrictions on intercourse during pregnancy which continue until the baby stops breastfeeding. Whatever frustrations he is experiencing, however, violence is not an appropriate way of dealing with them.
When does the violence stop?
The violence stops when someone or something makes it stop. Intervention from outside is usually the key factor. In some cases it is enough for the man to be shamed by knowing that other people disapprove of his behaviour and are willing to help the wife. In other cases stronger action needs to be taken, such as direct intervention from relatives, friends or community leaders, counselling or mediation, a Good Behaviour Bond or Village Court Preventive Order, or even reporting to the police. In some cases, nothing stops the violence and one or both parties are seriously injured or even killed, or the victim has to leave the marriage.
The easiest time to stop the pattern of violence is right at the beginning, before it gets serious or frequent.
The cycle of violence
Once a man has started to hit his wife, the violence tends to follow a regular pattern or cycle:
Build-up Phase
may last weeks, days
or just minutes
"Honeymoon" Phase
Things seem fine for VIOLENCE
a while, but nothing
has been solved
Wife returns, Wife withdraws,
or forgives him emotionally and/or
physically
"Sorry" Phase
Man feels sorry:
1. Tries "buy-back" with promises, presents
2. Tries acting helpless without her
3. Tries threats e.g. more violence, taking
the kids, etc.
Usually the violence is not bad the first few times: just a push or a slap, a punch or a kick, which the wife may not get too alarmed about. But if she does not let him know very firmly at this stage that she will not accept this kind of treatment, the violence will almost certainly get worse or more frequent, involving more and more risk for all those involved.
It is important to recognise that the violence goes in cycles. When things quieten down after a fight, the tendency is for people to think that everything is alright again, and that nothing needs to be done. This is not true. It is just the end of another phase in the cycle. The cycle will begin all over again if nothing is done to make a real change in the situation.
Trends
It is impossible to say for sure whether domestic violence is increasing in Papua New Guinea, because the Commission's studies were done at one point in time, and there is nothing to compare them with. However, many of the people with whom the Commission discussed this question feel that domestic violence is increasing. Possible reasons for this are outlined in Chapter 4.
CHAPTER 3
WHAT IS WRONG WITH DOMESTIC VIOLENCE?
Introduction
"Why should we be concerned about domestic violence? What is wrong with it?" These were the questions asked or implied by several Honourable Members when the Commission's Interim Report on Domestic Violence was presented to Parliament (Hansard, 2nd March 1987). One had noted the Commission's finding that two-thirds of Papua New Guinea's rural population agree with wife-beating in certain circumstances. If the people themselves accept it, he reasoned, why should we interfere? Others argued that domestic violence is and should remain "strictly a private affair", and that the law should not have the right to intervene in family life. Several asserted that there is nothing wrong with wife-beating provided the husband has good reason for it, and a Minister even went so far as to claim that paying brideprice makes the man head of the family, so that husbands feel they "own the woman and can belt her any time they like". Another Honourable Member was annoyed that the nation's leaders were being asked to discuss something as trivial as wife-beating: "We are wasting our time instead of discussing the development of the country. We should have something better to discuss than this!"
These views are not unusual. In fact, they are very common at all levels of the society, amongst women as well as men, as the Commission already knew from its own research (see Chapter 4 for the findings on attitudes). Domestic violence is not a new phenomenon but it is only in recent years that it has begun to be recognised around the world as a social, rather than a personal, problem. In the eyes of many Papua New Guineans it is still a personal and private matter, in which outsiders should not interfere. What these views show is that there is a great lack of understanding among the public and their leaders of what is wrong with domestic violence in general and with wife-beating in particular. Although not everyone holds these kinds of views - some Members of Parliament did speak strongly in favour of the Interim Report - there is obviously a need for the Commission to explain clearly what is wrong with domestic violence and why the public and their leaders should be concerned about it. The main reasons will now be given.
Domestic Violence is against the Law
All types of violence are against the laws of Papua New Guinea (except in very limited circumstances, such as self-defence, see Chapter 6 for more detail). There is no special law which allows husbands to hit wives, or wives to hit husbands. Even though wife-beating is allowed under customary law in many parts of Papua New Guinea, the national law overrides customary law when the two systems of law conflict.
The uncontrolled use of violence is a problem for any society, since it disrupts or destroys normal human relationships, whether between individuals or between groups. The physical safety of its citizens, both male and female, is the responsibility of the government. When violence is used or threatened, the safety of its citizens is at risk. It is the primary function of government through its legal system to control and prevent violence, and replace it with peaceful methods of settling grievances.
Domestic Violence is against the Constitution
There is no specific section on domestic violence in Papua New Guinea's Constitution, but there are several sections which make it clear that domestic violence, and particularly wife-beating, are against the Constitution. These sections are given in Appendix 3.
Harmful effects of Domestic Violence
The reason that domestic violence is against the law and the Constitution is that domestic violence is harmful. It is harmful not only to the immediate victim, but also to the children, to the violent partner himself or herself, to the family unit, to the community and to society as a whole. The various ways in which domestic violence is harmful will now be described, assuming the victim to be the wife. This is because, as the next chapter will document, this is the most common situation.
Effects on the victim
The physical effects on the victim (usually the wife) range from minor to fatal. In a country like Papua New Guinea, where the major events of most people's lives pass unrecorded by any official agency, it is impossible to say with certainty how many injuries and deaths are caused each year by domestic violence. The only available figures on deaths caused by domestic violence derive from records of National Court trials for murder and manslaughter. These show that between 1979 and 1982, 66% of the recorded killings of adult women were committed by their husbands or boyfriends (Kivung et al 1985:79-80).
The most common injuries suffered by wives are cuts and bruises, black eyes, sprains, pulled hair, burns, scalds and even bites - one woman taken for treatment at Port Moresby General Hospital after being assaulted by her husband had 19 bites on her body, several so deep they needed stitches. Serious cases have large lacerations or wounds, internal injuries and/or broken bones. The usual injury sites are the face, head, neck, breasts, abdomen and forearm (as the victim raises her arm above her head to protect herself).
A particular problem in Papua New Guinea is that many people have a spleen enlarged through malaria (although they may not realise it) and these people usually die if hit on the spleen. Every year many women are accidentally killed by their husbands in this way by a blow, kick or push that did not land where it was intended to. Brain damage is another frequent result of domestic violence, according to Dr Burton-Bradley, Papua New Guinea's most experienced psychiatrist (personal communication). Even a minor blow to the head can result in temporary or permanent brain damage. This may show itself as loss of memory, loss of concentration, inability to think clearly, various kinds of personality disorder and loss of sight or memory.
Many people do not realise that domestic violence also has psychological effects on the victim. These are not as visible as the physical effects, but can be easily recognised, once people are aware of them. The victim feels afraid and tense (because she can never be sure when she will be hit again); she loses confidence in herself (because she is not able to stop the violence); she feels guilty (because her husband is always telling her that it is her fault that he hits her); she feels confused (because she often does not really know why he is hitting her); she feels unable to make any decision on her own (in case her husband does not like it and punishes her for it); she feels helpless (because he controls her through his violence); and she feels hopeless (because she does not know what to do to make it stop). In the worst cases, the wife sees no way out but to commit suicide (e.g. Counts 1987, 1989a).
Because of these psychological effects, beaten wives find it hard to help themselves. For example, they may start a court case and then drop it, or leave the husband and then go back to him. People who have been helping these wives, such as the police or a welfare officer, may then feel frustrated and lose interest in helping any more beaten wives. "Why should I help them if they won't help themselves?" is a common reaction amongst frustrated helpers. Those trying to help a beaten wife need to know that this apparently irrational behaviour is not her fault, but is a symptom of the violence itself. It is caused by living for a long time in fear and danger. Helpers need to be particularly patient and recognise that it can take a long time, and perhaps several failed attempts at leaving, before a beaten woman builds up the courage to help herself.
A beaten wife may also experience social effects. She gradually becomes isolated, because she can only go where he allows her to go and see those people he permits her to see. If she has a job, her work performance usually suffers, she is absent a lot and may eventually lose her job. This will also have financial effects for the family.
Effects on the children
Like their mothers, children also suffer physically, mentally and socially as a result of marital violence. They may get hurt, or even killed, during fights between their parents. This is a particular danger for small children in their mother's arms. They may be neglected, because the mother is upset and may not take good care of them. Even before they are born, children may be at risk: every year the lives of hundreds of unborn babies are lost because their mothers miscarry after being beaten. Beatings during pregnancy are very common. The Commission even knows of cases where babies were born with broken bones, because the father kicked or punched the mother in the stomach when she was close to giving birth.
Children who regularly witness violence between their parents also suffer long-term psychological and emotional damage. They become upset and frightened, may suffer from nightmares and disturbed sleep, they lose respect and love for the violent parent (normally the father), and may develop behavioural problems such as bedwetting, refusal to co-operate, or an excessive dependence on the mother. Teachers with whom staff of the Commission have conducted discussions about domestic violence have been unanimous that they can always tell which children in their classes come from homes where there is violence, because it affects the children's behaviour and performance in school. The children find it hard to concentrate, and may be aggressive and troublesome, or passive and withdrawn.
When older, the children may leave home at an early age to escape from the atmosphere of fear and tension. This brings the risk for boys of getting involved with "rascal" gangs, and for girls, of getting pregnant. When these young people eventually get married, they normally repeat their parents' behaviour patterns because this is what their parents' example taught them. However, it is important to point out that this pattern can be changed, if the young people are able to think about what they are doing and recognise that violence is harmful. There is no need for the son of a violent father to worry that he will necessarily beat his own wife, if he makes the effort to learn how not to do it.
Effects on the offender
Most offenders (mainly husbands) do not realise that by using violence, they are risking various harmful consequences to themselves. A husband too may be physically hurt if he beats his wife and she retaliates or defends herself. The Commission's surveys found that wives often try to compensate for their lesser strength by picking up a stick, rock, knife or saucepan to use against their husband's attack (Ranck and Toft 1986:38-9). Sometimes wives even kill their husbands, and when they do, it is always in retaliation for long term violence and maltreatment by the husbands (Kivung et al, eds. 1985:75).
The husband loses the love and respect of his wife and children, but may not realise it until it is too late (see next section). He may also lose his self-respect. Many husbands are not happy about their violence and are sorry about it afterwards. They may feel guilty or ashamed of themselves, and worry that they might one day really hurt the wife. Paradoxically, they may try to cover up these feelings of inadequacy and insecurity with more violence. The tense atmosphere at home may lead the husband to go out drinking with friends, which creates even more problems. Eventually he may lose his family altogether if the wife decides she must leave, or if she finds someone she thinks will treat her better. The law allows a wife to leave a violent husband, and to claim maintenance for any of the children the court says can stay with her, regardless of how much brideprice the husband paid (for more detail, see Chapter 14).
Effects on the family
When a man uses beating to control his wife, to force her to behave in certain ways out of fear of being hit, the love and trust that the wife and children had for the husband/ father begins to be replaced by fear. Sadly, though, many men do not seem to realise this. Even highly educated husbands have told the Commission: "The wife's fear of her husband is an essential ingredient for the marriage to work"; "A little bit of fear is a good thing for wives"; "I expect my wife to be afraid of me, then I know she'll do as she's told without arguing back and wasting my time"; and so on.
With this kind of attitude, it is not surprising that when a marriage breaks down because of the husband's violence, the husband himself may not realise that his violence was the reason. In its rural survey, the Commission found that when it asked divorced people why they divorced, the second most important reason given by wives was that their husbands beat them, but when divorced husbands were questioned, hardly any of them mentioned this (Toft and Bonnell eds. 1985:39). The husbands did not realise that wife-beating can contribute to marriage breakdown.
Wife-beating does lead to the breakdown of the marriage in many cases. In Lae, 80% of the marriage breakdowns dealt with by the Legal Aid Service up until 1987 involved violence by the husband as one causal factor (personal communication from the then Provincial Legal Officer, Theresa Doherty). When families split up, everyone concerned suffers, but particularly the children.
Effects on the community
Domestic violence is disruptive for the community. In Papua New Guinea's tropical conditions people spend most of their time outdoors, or indoors with windows and doors open, so everyone around usually hears and often sees every domestic fight. This can be upsetting for neighbours, and sets an undesirable example for their children. It is also intimidating for the women of the community, since if their community allows any wife to be beaten, the likelihood is that there will be no protection for other wives also. A further consequence is that relatives often take sides and the situation can escalate into a tribal war.
Effects on society
The harmful effects of domestic violence extend beyond the family and the community to the whole society. Domestic violence contributes in two ways to the law and order problem in Papua New Guinea. Firstly, as has been mentioned, it can lead to family breakdown, which creates instability and insecurity in the society. Secondly, it helps to create and maintain a high level of violence in society, because it shows children that violence or force is one way to get what they want. Children learn from what they see, and violence learnt in the home can be used outside the home.
Violent patterns of behaviour are reinforced by factors outside the family (such as cultural expectations of behaviour, the prevalence of warfare, the availability of books, films and videos showing violence, and so on), but most people's first and formative experience of violence is in the home. Examples of the extent to which ordinary Papua New Guineans as well as criminals are using force as a way of expressing a grievance or getting what they want are provided daily by the news media, in reports of road blocks, harassment of government employees, stoning of vehicles, destruction of government property, sports violence, payback killings, and so on. An important component of any plan for improving the law and order situation in Papua New Guinea must therefore be a programme for reducing domestic violence, particularly its main form of wife-beating.
Other costs to society are economic. For example, many thousands of work hours are lost each year by rural and urban women when they are unable to do their normal work because of being beaten. Domestic violence also constitutes an unnecessary drain on health services. The medical records system does not yet identify cases of domestic violence, so it is not possible to estimate accurately what men's violence against their wives is costing the country in terms of resources and staff time, but one researcher has recently estimated that wife-beating is costing Papua New Guinea several million kina each year in medical services and lost output (Marshall 1990:17-18, 49-50).
It must also be remembered that all these costs are avoidable. Plenty of Papua New Guinean men manage to solve their marriage problems without beating their wives, and those who do beat their wives do it by choice. In many cases they even choose what kind of injuries to inflict, according to whether or not they want the damage to be visible. Health staff are already busy enough coping with unavoidable illness and injury without having to spend valuable time and resources dealing with deliberately inflicted injuries.
There are also the financial costs of the police and court services to be considered. These services are essential for victim protection, but their resources could be freed to concentrate more on criminal activity if more husbands stopped beating their wives.
The final and perhaps most far-reaching effect of domestic violence is on the position of women in society. Most domestic violence is directed by men against women, to enable men to stay in control. The effect is to perpetuate women's second class status, both as wives and as citizens. This is contrary to the National Goals and Directive Principles of the Constitution, which call for equal rights for men and women in society and in the home (see Appendix 3). But proclaiming equal rights for women is an empty gesture if women are prevented from taking up those rights through fear of their husbands.
When men control women through violence, women are not able to develop their full potential, either for their own benefit as individuals or for the benefit of their families and communities. The right to live free from violence or the threat of violence is a basic human right which women should be able to enjoy to the same extent as men, regardless of their marital status. Unfortunately, this is very far from being the case at the moment, where the majority of married women can only develop as far as their husbands allow them to.
This has a negative effect on the development of the country. Through the use and/or threat of force, a man is able if he wishes to prevent his wife from participating in any development activities. Simply attending a women's meeting may be dangerous for a woman whose husband sees this as threatening, and many Papua New Guinean men do forbid their wives to go to women's meetings. Yet women's groups are the major means for women's development.
There are many ways in which men's use of force against their wives interferes with development. One example concerns the use of family planning. Papua New Guinea's population is growing at an alarming rate, and will double in a generation.[5] But information about natural family planning methods, which is frequently requested by the large number of Catholic women's groups all around the country, is useless if the husband forces his wife to have sex at the wrong time. In fact, the Commission's research found that one of the commonest situations in which wives get beaten is when the husbands force sex on them against their will (see discussion of causes in Chapter 4). This situation also has serious implications for the spread of AIDS from men to women.
Another example is provided by a recent study of female teachers, who represent 39% of primary school teachers but less than 5% of head teachers. One of the reasons given by married female teachers for their failure to apply for or take up promotions is their fear that it would provoke their husbands to beat them more (Gibson 1990:77-8).
Wife-beating also encourages other forms of violence against females in general, because it reinforces an attitude of male superiority and disrespect for women. Not only adult women but even small girls suffer as a results of this attitude: of the rapes and sexual assaults reported to Port Moresby General Hospital during the first three months of 1985 (the only period for which statistics have been collected), 22% were of girls aged between 11 and 15 years old, 12% were of girls aged between 8 and 11 years old, and a shocking 13% were of girls under 8 years old! (Riley et al eds. 1985:3).
Conclusion
From this overview of the harmful effects of domestic violence, it can be seen that domestic violence is not a private problem. It is a public matter, because directly or indirectly it affects the quality of life of the whole society. The whole society must therefore be involved in helping to reduce the problem.
NOTE: A summary of the harmful effects of domestic violence is provided as Appendix 4.
CHAPTER 4
THE NATURE, EXTENT AND CAUSES OF
DOMESTIC VIOLENCE IN PAPUA NEW GUINEA
The Law Reform Commission's findings on the nature and extent of domestic violence in Papua New Guinea have been published in the form of four books and a number of papers (see Appendix 2). Only a brief summary of the main points will be given here.
Husbands hitting wives
The Commission's rural survey found that two-thirds of wives had been hit by their husbands. It is worth pointing out that this finding (and all others in this Final Report) is based on the statements of husbands as well as of wives, and that there was almost perfect agreement between them: 66% of husbands said they had hit their wives and 67% of wives said they had been hit (Toft and Bonnell 1985:55-6). However, these figures are an average for the whole country, and conceal considerable variation between the different areas. Of the villages surveyed, the lowest results for wife-beating came from the Oro and West New Britain Provinces, where 49% and 53% respectively of wives surveyed said they had been assaulted by their husbands, while the highest results were from Chimbu and Western Highlands, where the figures were 97% and 100% respectively (Bradley 1988 a:259). For urban-dwellers, the surveys showed that 56% of wives of low income earners and 62% of elite wives had been physically assaulted by their husbands (Ranck and Toft 1986:23).
Table 1: Incidence of husbands hitting wives
Rural Urban Low Urban
Income Elite
Wives who have been hit 67% 56% 62%
Husbands who have hit 66% 55% 62%
Source: Tables 8 and 9, Ranck and Toft 1986:22-3.
For all groups surveyed, the majority pattern is for wives to be hit once a year or more, but not as frequently as every month. More than half (57%) of rural beaten wives surveyed said they had been hit with a weapon or implement, but the majority of assaults are carried out without weapons. Nevertheless, serious injury and even death can be caused without the use of weapons, particularly in Papua New Guinea, where spleens may be easily ruptured.
Amongst some urban-dwellers, the frequency and severity of wife-beating are particularly alarming. Of those urban low income wives who said they were hit by their husbands, 18% said they were hit regularly, once a month or more, while an additional 4% of wives said they were hit every week. Just over one-third (37%) of urban low income beaten wives said they had had weapons used against them. Of elite beaten wives, 6% were beaten once a month or more, and weapons were used against 23% of them. Close to one third (29%) of the urban survey wives who had been hit by their husbands had received hospital treatment at least once for their injuries, although not necessarily as in-patients (Ranck and Toft 1986: 39). In other words, approximately one in every six of all urban wives surveyed (not just of those who said they had been hit) had received hospital treatment for injuries inflicted on them by their husbands.
Wives hitting husbands
As regards violence by wives against husbands, 30% of rural husbands, 37% of urban low income husbands and 50% of urban elite husbands said they had been hit by their wives. Table 2 shows that wives' replies were in agreement, except in the low income category. Of the two urban groups, approximately 5% said they had received hospital treatment for injuries inflicted by their wives. However, at least some of these injuries would have been received as a result of wives defending themselves against their husbands, since for all groups the main reason for a wife to hit was self-defence. The surveys showed that wives use weapons or implements more than men, in order to compensate for their lesser strength (Ranck and Toft 1986:38-9). It is not possible to tell from the data whether the higher rates for wives hitting husbands in towns indicate that town wives are more likely to defend themselves than their counterparts living in the midst of close rural communities or whether town wives are actually initiating more violence, or both. Whatever the reason, the increased risk to both parties in an urban environment must be recognised.
Table 2: Incidence of wives hitting husbands
Rural Urban Low Urban
Income Elite
Husbands who have been hit 30% 37% 50%
Wives who have hit 33% 24% 49%
Source: Tables 8 and 9, Ranck and Toft 1986:22-3.
Wife-Beating is the main problem
In addition to the Law Reform Commission's figures presented above, further evidence that wife-beating is a much more serious problem than husband-beating comes from two studies conducted by independent researchers. At Lae's Angau Hospital, Dr Alec Ekeroma found that of all patients presenting for treatment for domestic violence injuries over a ten week period, 97% were wives and only 3% were husbands (Ekeroma 1986:78). Similar findings were made during a police study carried out at the Commission's request, of reports of domestic violence at three police stations in the National Capital District for three months of 1987: 94% of complaints were made by wives, and only 6% by husbands (Kaetovuhu and Tyrer 1987:9), as Table 3 shows.
Table 3: Indicators of the relative seriousness of
wife-beating and "husband-beating"
Females Males
Patients seeking treatment for domestic
violence injuries* 97% 3%
Domestic violence victims seeking
police assistance** 94% 6%
Sources: * Ekeroma 1986:78; ** Kaetovuhu and Tyrer 1987:9
The Commission's figures presented in previous sections show that wife-beating is far more common and causes more injuries than husband-beating. Husbands also initiate violence much more than wives do. It is certainly true that the proportion of husbands who have been hit by their wives is not insignificant, and in the case of elite men is as high as 50%. However, it is important to remember that wives hit much more frequently in self-defence than in attack, and in any case, plain numbers of husbands or wives hit give a misleading indication of the relative seriousness of husband-beating versus wife-beating because husbands and wives start from unequal positions. Most husbands are considerably bigger, stronger and heavier than their wives, and more experienced in using physical force. In other ways too, most husbands have the advantage over their wives because they usually control the family's land, house and property (including the children, in patrilineal tradition) and are in a strong position to exert control through physical force, whereas wives may risk losing everything if they go too far.
It is also worth remarking that the term wife-beating is a familiar one, used frequently in everyday language, whereas the term "husband-beating" is not in common use, for the simple reason that husband-beating is not such an established phenomenon as is wife-beating. For convenience, the Commission uses the term "husband-beating" to refer to violence against husbands by wives, but this does not imply that husband-beating is just the mirror opposite of wife-beating, for the reasons already given.
On the basis of the above facts, the Commission has identified wife-beating as a more serious problem than husband-beating, and has made wife-beating the major target of its proposals. However, all the remedies and measures suggested by the Commission will be available to help beaten husbands as well as wives wherever necessary.
Attitudes
Law Reform Commission studies of attitudes towards wife-beating show that there are marked differences of opinion between men and women, between different areas of the country and between the rural and urban populations. The majority of the rural husbands surveyed (67%) said that it is acceptable in some circumstances for a man to hit his wife (without using a weapon). A slight majority (57%) of rural wives agreed (Ranck and Toft 1986:24). However, there was a wide range across the country: only 17% of the New Ireland men interviewed felt it is acceptable, whereas 95% of the Highlands men did. In New Ireland, only 7% of the women in the survey viewed wife-beating as acceptable in some circumstances, whereas 98% of the Eastern Highlands women did find it acceptable (Bradley 1988a:261). However, acceptability must not be confused with desirability. One small survey amongst the Tolai asked respondents whether they thought wife-beating was desirable. All respondents answered no to this question and said they would advise their sons against it, although the majority of both sexes had agreed that it was acceptable in some circumstances.
Table 4: Attitudes - Is it alright for husbands to hit wives?
% Males % Females
Yes No Yes No
Rural average 67 33 57 43
Urban low income 42 58 25 75
Urban elite 41 59 36 64
Source: Table 10, Ranck and Toft 1986:24.
In urban areas the balance of opinion is against wife-beating. The majority of respondents of both sexes, and particularly women, do not think it is acceptable for a man to beat his wife. Fifty-eight per cent of men interviewed in the low income category and 59% per cent of men in the elite category did not agree that it is acceptable for husbands to hit wives. Urban women are even more strongly against it. Of the urban women interviewed, 75% of the low income category and 64% of the elite women disagreed with husbands hitting wives.
The conclusion to be drawn from these differences between rural and urban attitudes towards wife-beating is that there is a significant trend in urban areas away from seeing wife-beating as acceptable. It can be assumed that this change in attitudes is also taking place in rural areas, although at a slower pace, as a result of education, acculturation, increasing mobility to and from the towns, and the influence of mission activity and women's groups.
With regard to the acceptability of wives hitting husbands, the majority of rural and urban respondents agree that it is not acceptable for a wife to hit her husband. Amongst those who agree with a wife hitting her husband, the main justification recognised is self-defence. Again, there is a trend for hitting to be seen as less acceptable by those living in town. Whereas 53% of rural men and 45% of rural women think it is alright for a wife to hit her husband in certain circumstances, only 44% and 33% of urban low-income men and women respectively, and 39% and 37% of elite men and women, think this. Interestingly, men seem to approve of wives hitting husbands more than women do.
Table 5: Attitudes - Is it alright for wives to hit husbands?
% Males % Females
Yes No Yes No
Rural average 53 47 45 55
Urban low income 44 56 33 67
Urban elite 39 61 37 63
Source: Table 13, Ranck and Toft 1986:25.
It must be pointed out that the above data on attitudes derive from surveys carried out by the Commission during 1983-4, long before the start of any specific public education activities about domestic violence. Although it has not been possible to conduct a follow-up survey to evaluate systematically the impact of the Commission's nationwide awareness campaign about domestic violence (see Chapter 11), the extensive feedback received by the Commission from around the country suggests that this process of attitude change has speeded up significantly over the last three to four years as a result of the Commission's work. It is likely to continue and possibly accelerate further, if the aspects of the campaign aimed at school children and young people are successful. If the legal and social improvements recommended in this report are implemented, these would also help create a climate of opinion in which wife-beating is no longer viewed as acceptable. This does not mean that wife-beating would no longer happen: attitude and practice do not necessarily agree (Ranck and Toft 1986:24).
Note: Some of the most commonly held beliefs about wife-beating are given in Appendix 5.
Causes
There are two levels at which the causes for domestic violence can be sought. The first is at the level of surface or "trigger" causes. These are the immediate events that "trigger" or spark off a particular fight. They are the reasons the participants themselves give for their fight. The second is at the deeper level of underlying causes. These are the causes that make a person choose violence as a way of dealing with conflict or relieving tension, rather than some other method. They are the reasons that exist in the culture and the social structure of the participants, and in their broader social situation. The surface causes will be described first, using data from the Commission's own surveys.
Surface causes
It is difficult to draw clear conclusions about the causes of domestic violence from the survey respondents' explanations of the causes of their own domestic fights. This is because husbands and wives often see the same incident differently, the trigger incident may be a trivial event masking a deeper long-standing grievance, and many respondents merely said that their fights started from a `domestic argument'. Respondents' replies about the causes of problems in marriage in general give a better indication of what factors lead to domestic arguments and fights, particularly since there is much greater agreement on these between the sexes.
In rural areas, the main causes of problems in marriage were said by respondents to be firstly, sexual jealousy; secondly, the wife failing in her duties; and thirdly, dislike of the spouse. In urban areas, both groups of respondents gave alcohol as the main cause of marriage problems. For the low income respondents, money problems came second, with sexual jealousy third. Elite respondents cited these same problems, but in reverse order (Ranck and Toft 1986:26-32).
Table 6: Main causes of marriage problems
Rural Urban Low Income Urban Elite
1. Sexual jealousy 1. Alcohol 1. Alcohol
2. Wife fails in duties 2. Money problems 2. Sexual jealousy
3. Dislike of spouse 3. Sexual jealousy 3. Money problems
"Wife fails in her duties" covers a range of situations where the wife does not carry out what is expected of her by her husband (such as having meals ready when required), whether because of laziness, or because of a heavy workload, or because refusing to fulfil her duties is one of the few ways in which a wife can show her protest at some aspect of her husband's behaviour (such as getting drunk, or looking for a second wife). A wife resisting sex with her husband also comes under the category of "wife failing in her duties", and general discussion with informants suggests that this may be the main situation survey respondents had in mind when giving this answer.
Sexual jealousy refers to adultery, whether real or suspected, by either partner. As a cause of wife-beating, it includes the common situation in which it is the husband who commits adultery yet it is the wife who gets beaten, because she complains or questions him about it. Money problems can be caused by either spouse, but are often linked to the husband's expenditure on alcohol, with the wife again being beaten to stop her complaining about him spending money on drink. In fact, Law Reform Commission data do not lend support to the popular belief that wife-beating is generally the justifiable disciplining of a wife for her wrong-doings or laziness. It seems that a substantial amount of wife-beating is of the type described in Chapter 2 as "expressive", in which the husband hits his wife in order to relieve his own negative feelings of guilt, anxiety or frustration. This seems to be particularly true in urban areas, where alcohol is frequently associated with wife-beating.
Although much wife-beating occurs when the husband is drunk, alcohol should not be seen as a direct cause of domestic violence. Many husbands get drunk without hitting their wives, and many husbands hit their wives without being drunk, so the relationship is not a direct one of cause and effect. Alcohol is certainly a contributing factor, and any measures to reduce alcohol consumption could be expected to reduce the violence associated with drunkenness and would therefore be welcomed by the Commission. However, the Commission feels that the common tendency to blame alcohol for domestic violence is oversimplifying the situation. Other, less immediately obvious but more fundamental factors must be recognised, at the level of underlying causes.
Underlying causes
Four main underlying causes of domestic violence in Papua New Guinea can be identified. These are the unequal position of men and women generally and particularly within marriage; stress; lack of communication between husbands and wives; and the place of aggression in the culture.
a) Unequal position of men and women
The extent to which Papua New Guinea's traditional cultures are dominated by males has been extensively documented by anthropologists (e.g. overviews by Brown and Buchbinder 1976; Glasse and Meggitt 1969; Meggitt 1964). Exceptions can always be found to any generalisation about a country as diverse as Papua New Guinea with over 800 different languages,[6] but it is true to say that by and large, men control women, particularly within marriage. Most of Papua New Guinea's traditional cultures are organised patrilineally, meaning that children belong to their father's clan and that land rights pass from father to son, with women normally being dependent on their husbands for the roof over their heads and for land to grow food on. In towns, women are even more dependent on their husbands, unless they are able to get jobs themselves. Women are taught to be obedient to their husbands, with male control and use of force seen as being justified by the payment of brideprice, and/or the concept (promoted also by the churches) of the husband as the household head (see Appendix 5). Most cultures reveal a belief in the general inferiority of women in relation to men, as evidenced by menstrual pollution beliefs, myths which portray women as weak or gullible, the undervaluing of women's work and so on, as well as by direct statements of men's greater worth.
In summary, most men in Papua New Guinea not only have control over their wives, but they are also believed to have the right to control them. When their superior position in the marriage is threatened by the wife's independent behaviour, or when they fear it may be threatened, men commonly respond with force to protect or re-establish their authority. It is this belief that men should control women which is the main cause of wife-beating. Readers are reminded of the statement made in Parliament by a government Minister quoted in the previous chapter, that men pay for their wives and therefore they feel they own them. Wife-beating is not only an extreme expression of male dominance, it is the means by which that dominance is maintained. That is why wife-beating must be eliminated if women are ever to take their place as equal citizens of this country.
b) Stress
Stress is another important underlying cause of domestic violence. In situations of rapid social change, where old norms are constantly challenged by new circumstances, men may react with more violence than usual in order to stay in control. The changes involved in urban living especially can put a lot of stress on individuals and on marriages. Often the husband has to become the breadwinner instead of relying on his wife's daily labour to feed the family as he did in the village, while the wife becomes isolated and dependent as a house-wife. Many new problems over money, alcohol, visiting wantoks (relatives), safety, the couple's sex life, and so on have to be faced, and both partners have far more opportunity to be unfaithful to each other than they did in the village. Both men and women are more likely to use violence in situations of stress and tension. This should not serve as an excuse, however, as there are other ways in which tension and stress can be relieved without hurting others.
c) Lack of communication
The likelihood that stress will cause marriage partners to hit each other is linked to the lack of communication between them. Male-female relationships in Papua New Guinea are often characterised by suspicion and anxiety. This situation is most marked amongst Highlands cultures (which account for close to one half of Papua New Guinea's population), where it is known to anthropologists as "sexual antagonism" (e.g. Gelber 1986; Langness 1967). In traditional times there was strict separation between men and women, and husbands and wives often lived separately. Marriage was expected to be more of a work partnership than an emotional attachment (at least in the early years), and many customs maintained distance and formal respect between husbands and wives. There was much less need than there is nowadays for ongoing communication between husbands and wives, since customary roles and expectations were clear.
In contemporary circumstances, however, many changes have affected the marriage relationship. Papua New Guineans are now much more likely to have been influenced by Christianity and western ideas and to want to have an intimate emotional relationship with their marriage partner. They want closeness, and they need to communicate openly and frequently in order to make mutually acceptable decisions about the problems they face in modern living, yet they do not have the communication skills they need to achieve this. It can be very difficult for husbands and wives to reveal their thoughts and feelings to each other face-to-face, especially about matters to do with sex. Misunderstandings therefore frequently arise, leading to distrust, conflict and violence.
d) Culture and aggression
The final underlying cause of domestic violence to be considered is the background level of aggression and violence in each particular culture. Cultures vary in the extent to which they regard violence as an acceptable means of resolving conflict and for each social group there is usually a connection between the level of violence in the home and the level of violence outside it. For example, Highlanders, who overall have the highest rates of domestic violence in Papua New Guinea, also have a reputation amongst other Papua New Guineans for being aggressive and resorting readily to violence in non-domestic situations.[7]
This can be linked to the continued prevalence of tribal fighting in these areas, where male strength and aggression are essential to the survival of the group and are therefore regarded as desirable and admirable by men and women alike. The use of violence is therefore viewed more positively in these cultures than it is amongst cultures which do not feel themselves to be under immediate threat from outside forces. People with this kind of background experience have a difficult adjustment to make as they become increasingly integrated into modern society, in which only the government is authorised to use force for the good of the majority, and all other uses of violence (except self-defence) are officially seen as antisocial and illegal.
Another aspect to the cultural background of violence is the use of violence against children. Most cultures in Papua New Guinea (and elsewhere in the world) approve of parents hitting their children to discipline them. This teaches children that hitting is normal. If children were disciplined in other ways, they would be less likely to resort to violence as adults.
Finally, a great deal of violence is demonstrated in imported films, videos and television programmes. Characters such as Rambo and the "A" Team, who use extreme violence without suffering any harmful consequences, are portrayed as heroes. War films and martial arts films are the most reliable money-earners for local cinemas and video shops. Frequently this imported material shows male sexual violence against women, with female characters being shown as weak and submissive. The result is to help create a cultural environment which accepts and even glorifies male violence.
It might be assumed that the impact of imported television and video programmes would be confined to those relatively small sectors of the urban population wealthy enough to own the necessary equipment, but this is not so. Solar, battery or generator powered video equipment means that programmes can be shown and viewed deep in the bush, far from roads and power lines. It is becoming common for a young man to work in town for a while, return to his village carrying video equipment and a selection of imported videos and taped television shows, and to make a small income for himself by holding nightly video shows for a small charge. One rural set can influence hundreds of people. The impact of television and video on both rural and urban populations in Papua New Guinea is a field in which research is desperately needed.
Note: A summary of the causes of domestic violence is given as Appendix 6.
CHAPTER 5
RECOMMENDED APPROACH
Special features of Domestic Violence
The Law Reform Commission's proposed approach to domestic violence is based on the recognition that it is not sufficient merely to insist that domestic assaults be treated the same as other assaults. Domestic violence presents special problems, additional to those associated with violence between strangers, that require special remedies. There are four main, distinctive features of domestic assault which put victims at greater risk and which lead to more severe consequences for domestic assault than for assault between strangers. These are that:
1) the victim and assailant are in an ongoing relationship, which makes it more likely that assaults will be repeated and probably get worse;
2) the victim (usually the wife) is often wholly dependent for her material requirements (and those of her children) on the assailant (usually her husband) and is therefore far less able to escape the violence;
3) beliefs about the privacy of marriage mean that the victim tends not to ask for help until injuries are serious, and that outsiders are unwilling to help even if asked; and finally, that
4) children are frequently present during domestic assault and may also suffer physical and emotional damage.
The Law Reform Commission concludes that these characteristics of domestic violence and its widespread existence in Papua New Guinea justify the Commission's call for a concerted programme of legal and social action against domestic violence in general and wife-beating in particular.
Underlying principles
The Law Reform Commission's recommended approach to domestic violence is based on several underlying principles or beliefs. The most important of these are:
1) that freedom from violence is every person's basic right;
2) that violence is learned behaviour, which can be un-learned;
3) that violence in marriage is not a private matter, but a social problem of public concern;
4) that stopping domestic violence will strengthen marriages and improve family life;
5) that stopping domestic violence will help create a more peaceful society;
6) that it is the responsibility of government to take a strong stand against domestic violence, for the benefit of the whole society.
Competing Considerations
In formulating an approach to the prevention of domestic violence, the Commission has tried to find a balance between conflicting considerations. These are:
(a) the individual's basic human right to safety and freedom from violence, versus the family's right to privacy;
(b) the need of society to uphold the integrity of the family as the fundamental unit of society, versus society's need to punish and prevent violent behaviour;
(c) the need of society to take the strongest possible measures against domestic violence offenders for the protection of victims and as a deterrent to others, versus the need of victims and their children for offenders not to be punished so severely that extra hardship is caused for the families;
(d) short-term remedies for crisis situations versus long-term prevention.
Bearing these considerations in mind, the Commission has produced a set of recommendations which represents in the Commission's view a reasonable compromise between the various interests involved.
A five-fold approach
The Law Reform Commission recommends a five-fold approach to the problem of domestic violence, combining legal and social measures:
1) strengthening the application of the criminal law to domestic violence and improving the police response, by clarifying police powers to deal with violence on private premises, by ensuring that offenders cannot pressure victims into dropping charges and by introducing more appropriate sentencing, in particular a system of weekend imprisonment;
2) improving the effectiveness of other means of legal protection against personal violence by replacing the inefficient system of Good Behaviour Bonds with a new system of Protection Orders, tightening the response of the Village Courts to domestic violence and promoting the use of Village Court Preventive Orders;
3) maintaining public awareness campaigns, educational programmes and improved professional training, to increase community understanding and disapproval of domestic violence and stimulate community action;
4) improving counselling for domestic violence situations by introducing specific training for domestic violence counselling for victims, offenders and both parties together;
5) improving services for victims by promoting changes in health services and by increasing the availability of accommodation for victims (emergency, short-term and long-term) and of legal information and legal aid.
Objectives
There are three major objectives of this approach:
1) the protection of victims
2) the prevention of violence in the future
3) the improvement of family life.
The role of the law
Some explanation of the role of the law in dealing with domestic violence is necessary for those who feel that problems between husbands and wives should be dealt with by welfare agencies and not by agencies of the law. When the Commission began its investigations into domestic violence it found that although unlawful assault is a criminal offence regardless of the relationship between parties, the existing laws on assault were not usually being enforced in cases of assaults by husbands on wives. Normal practice by the police and the lower courts was to treat wife-assault as a welfare matter to be dealt with by mediation and counselling, with the emphasis on reconciliation. The justification offered for this was that intervention by the law might result in the breakdown of the marriage.
The Law Reform Commission believes that this is a short-sighted and mistaken view. Countless marriages have already broken down due to domestic violence, despite the non-intervention of the law, and perhaps even because of it. The result of this approach is to trivialise domestic assault, particularly wife-assault, and to lend support to the popular misconception that wife-beating is not really a crime. By turning a blind eye to the criminal nature of wife-beating and appearing to condone it, the current response of the police and the lower courts provides a background against which wife-beating can flourish and escalate. At the same time it also undermines the potential effectiveness of the alternatives to prosecution: mediation and counselling. These require the voluntary participation of both parties, but if the legal system fails to treat wife-beating seriously, a major motivation for wife-beaters to try to mend their ways is missing. The threat of legal consequences can provide that motivation.
The difficulty with the way the present law was administered prior to the Commission's work was that it offered an "all or nothing" approach. "Domestic disputes" were treated as a private matter until such time as serious injuries were caused, when the law responded (if it responded at all) with criminal charges and a prison sentence. All too often there was no legal response even to serious assault, unless the parties were already separated or unless the wife insisted on police action. If help from the law could be sought at a much earlier stage in the marriage, while the violence is still minor and before an escalating pattern of violent behaviour is set, many more marriages could be saved, and families could be spared much physical and emotional suffering.
Enforcing the law has a crucial part to play in the short term in achieving the Commission's three objectives, by forcing offenders to recognise that they can no longer get away with their violent behaviour. Education programmes, counselling and other social measures will not work unless the law is there to back them up. However, in the long term, as attitudes change in response to education and awareness programmes, there will be less and less need to resort to the law. Ideally, the Commission wishes to see a situation in which families and communities themselves take action to put a stop to domestic violence in its earliest stages. This will only be achieved when the public recognises that domestic violence is not a private matter but a community concern.
The criminal law and the police
The Commission recommends that the existing criminal law relating to assault be firmly applied in cases of assault between spouses. In reality, this will be feasible mainly in urban areas, where the police are relatively accessible to the public. In addition, the Commission recommends that inadequacies in the present criminal law which limit its effectiveness in domestic assaults be remedied. These relate mainly to improving police powers of entry to premises, ensuring the compellability of spouses as witnesses for crimes of violence against each other and the increased use of forms of punishment that do not cause suffering to the family as well as to the offender. Since the law will only be as effective as those who administer it, it is essential that these measures be accompanied by the introduction of comprehensive training programmes for the police, magistrates and other members of the legal profession on their role in tackling domestic violence.
Protection orders
Although the criminal law is viewed as the most appropriate response to domestic violence, the Law Reform Commission recognises that the operation of the criminal law in domestic violence cases is currently inadequate and likely to remain so for some time, even if this Final Report and its recommendations are accepted and implemented. The police are the initial enforcers of the criminal law. Although significant improvements in police handling of domestic violence have already been made since the publication of the Interim Report (see Chapter 7), a great deal still remains to be done before it can be said that the police response to domestic violence is reliable and effective. There is therefore a need for an alternative method of making legal protection available to victims. The Law Reform Commission recommends the replacement of the current system of Good Behaviour Bonds by a system of Protection Orders under which a person threatened with violence can ask a District Court to order the person making the threat not to carry it out. This will provide a quicker, simpler and more effective means of protecting all those under threat of personal violence, not just domestic violence victims.
Protection Orders are not intended as a substitute for criminal action. It is in the interests of society that domestic violence offenders be prosecuted wherever possible. However, it is desirable that an intermediate measure be available to victims who, for various reasons, may not wish to involve the police. If used early enough, Protection Orders have a valuable potential for bringing about change in the offender's behaviour. By allowing wives and children to stay with the offender without the immediate fear of violence, Protection Orders will give couples the opportunity to try to settle their marriage problems by discussion, and where possible by counselling. Far from breaking up marriages, it is expected that Protection Orders will bring about a significant improvement in the quality of married life, to the long-term benefit of the whole family.
Prevention through awareness
Once the remedial legal measures are operating effectively and become well-known, they will have a deterrent effect. However, the Law Reform Commission also recognises that social measures have a crucial role to play in the long-term prevention of domestic violence. Educating the public that domestic violence is criminal behaviour and is harmful to the whole family is particularly important in modern Papua New Guinea, where wife-beating and other forms of violence incompatible with the ideals enshrined in the Constitution (such as tribal fighting and payback killings) have been part of the traditional way of life for many of its peoples for centuries.
The symbolic and educational value of enforcing the law has already been discussed, but the Law Reform Commission also strongly recommends that nation-wide public awareness campaigns be carried out, with the participation of the Police Department (both General Duties and Community Relations sections), the Magisterial Service, the Village Courts Secretariat, the Public Solicitor, the Probation Service, Welfare Offices, the Health Department, the Law Awareness Campaign, provincial Law and Order Committees, women's groups, church organisations and the media, with maximum use of Tok Pisin and Hiri Motu rather than English, and of local languages whenever possible. Relevant material about domestic violence (particularly wife-beating) should also be systematically included in formal and non-formal educational programmes at primary, secondary and tertiary levels and in the professional training programmes for health staff and doctors, police, magistrates and court staff, lawyers, social workers, probation officers, teachers and church workers. The ultimate goal of all these awareness measures is to stimulate communities to take responsibility for eliminating domestic violence in their own areas.
Counselling
The Law Reform Commission sees counselling as a useful service to couples who are motivated to co-operate with each other in solving their marriage problems, although not as a substitute for legal action where criminal assault has already taken place. Counselling cannot deal effectively with the couple's underlying problems when one partner is afraid of and dominated by the other. It would also be helpful if courts were able to order professional counselling for offenders as an accompaniment to Protection Orders, where appropriate, or as a condition of a sentence for domestic assault. At present, such services are inadequate or non-existent. The Law Reform Commission recommends that both government and non-government bodies examine ways of improving and extending existing counselling services and proposes a training scheme for Domestic Violence Resource Persons.
Services for victims
The Commission recognises that the provision of other social support services to victims of domestic violence such as exist in more developed countries will not be feasible in Papua New Guinea for the foreseeable future. Therefore it limits its present recommendations on other social services to improvements in the health service response, the expansion of accommodation options for domestic assault victims and their children, and the provision of legal information and advice.
CHAPTER 6
PRESENT LEGAL PROVISIONS
AND THEIR DEFICIENCIES
Criminal prosecution
Under the system of law brought to Papua in 1902 and to New Guinea in 1921 by the Australians, hitting people is a criminal offence. These laws were adopted by Papua New Guinea at Independence in 1975. They apply to everyone in the country, whether male or female, married or single. Where they conflict with custom, the written laws take priority.
When violence, or the use of force, becomes a legal matter, it is known as assault. Assault is defined in s.243(1) of the Criminal Code as follows:
"A person who -
(a) directly or indirectly strikes, touches or moves, or otherwise applies force to, the person of another, without his consent, or with his consent if the consent is obtained by fraud; or
(b) by any bodily act or gesture attempts or threatens to apply force to the person of another without his consent, under such circumstances that the person making the attempt of threat has actually or apparently a present ability to effect his purpose,
is said to assault that person, and the act is called an assault".
An assault which occurs in a domestic setting, or an assault between spouses, is normally referred to as a domestic assault, but domestic assault is not a separate category of offence under the law. The laws on assault as contained in the Criminal Code and the Summary Offences Act cover all types of assault, and there are no special provisions for husbands and wives. Everyone has the same right to protection from assault. Even though laws appear to be written only for men, using only male examples, it is a basic principle of the law that "he" and "him" should always be understood to mean "he or she" and "him or her" (see Acts Interpretation Act s.6). The law is intended to protect men and women equally.
Assault on any person is a crime, unless it is authorised, justified or excused by law. These exceptions are dealt with under Part V Division 1 of the Criminal Code. They concern the duties of law enforcement and military personnel, prevention of a riot or breach of the peace, defence of a person under attack, defence of property or premises, physical chastisement of children by parents and teachers, discipline on board a ship or aircraft, and surgical operations. For ordinary members of the public, the only cases in which the Criminal Code recognises a possible excuse for assault between adults are in self-defence (s.269-271), in defence of another person (s.271), in defence of home or property (s.272-277), and provocation under certain narrowly defined circumstances (s.266-268). Custom is not a defence against prosecution for wife-beating, but may serve as a mitigating factor in sentencing.
Outside these situations, it is unlawful in Papua New Guinea for any person to assault another, regardless of his or her relationship to that person. There is no legal right for a man to hit his wife, nor for a wife to hit her husband.
Minor assaults may be prosecuted in the District or Local Courts for Common Assault under s.6 of the Summary Offences Act, or in the District Courts under s.344 of the Criminal Code, for Aggravated Assault. The more serious offences of Assaults Occasioning Bodily Harm and Wounding and Similar Acts (s.340 and s.322 Criminal Code), can be dealt with either by a District Court Grade Five Magistrate or by the National Court. The most serious domestic violence offences are heard in the National Court only, under the following sections of the Criminal Code: s.315, Acts Intended to Cause Grievous Bodily Harm; s.319, Grievous Bodily Harm; s.302, Manslaughter; s.300, Murder; and s.299, Wilful Murder.
Assaults are criminal matters, therefore prosecuting in cases of assault is normally the job of the police. However, before the Law Reform Commission began its work, there were widespread complaints that police were failing to prosecute or even to investigate in cases of domestic assault. The Commission's investigations found that the existing laws on assault were generally not being enforced in cases of domestic assault. Various problems were identified relating to the lack of a clear police policy, lack of training, uncertainty over police powers to enter private premises, the unreliability of wives as witnesses, the lack of alternatives to prison as a sentencing option, the attitudes of some police, the private behaviour of some police, and other matters. These will be dealt with in Chapter 6 on the police and Chapter 7 on the criminal law.
District Court Good Behaviour Bonds
Although domestic violence is a crime, an alternative procedure to criminal prosecution is also available to victims. Under s.209 of the District Courts Act, any person who has been threatened with violence by any other may apply to a Magistrate of a District Court for a Good Behaviour Bond, ordering the defendant to keep the peace in relation to the applicant for such time as the Magistrate thinks fit.
The research undertaken for the Interim Report found many difficulties with the system of Good Behaviour Bonds as a means of protecting persons from domestic violence. Some of these relate to deficiencies in the legal provisions themselves, which make them too slow, too confusing and too difficult to enforce. Others relate to administrative difficulties and the lack of training for Magistrates in these matters. These problems, and the proposed new system of Protection Orders, will be dealt with in Chapter 8 on the District Courts.
Local Court "Keep the Peace" Orders
Under Reg.11 of the Local Courts Act, an Assistant Magistrate may, upon a verbal complaint, order persons likely to breach the peace to be of good behaviour until their cases are heard by the court.
This provision is ineffective: the maximum penalty for failing to obey the order is K20, procedures for making such an Order are unclear, and the system seems not to be used for domestic violence cases, if at all. No further consideration will be given to this provision, however, since it is understood that the Attorney-General's Department is planning to amalgamate Local Courts with District Courts in the near future.
Village Court Preventive Orders
Under s.15 of the Village Courts Act, a Village Court may, on its own initiative or at the request of a member of the community, make a Preventive Order to prevent any breach of the peace, including acts of domestic violence. The Court may also order the payment of compensation up to K1,000.00 for any assault which may have already occurred, or may impose a court fine of up to K200.00, or a sentence of supervised community work, or a combination of these penalties. These points will be dealt with in more detail in Chapter 10.
These provisions are not being used to anything like their full potential, partly because neither the Village Magistrates nor the public are clear about their applicability to domestic violence, and partly because of Magistrates' own attitudes towards wife-beating.
Civil action for compensation
A person convicted of assault may be sued by the victim through a civil action in a District Court for medical and legal costs, loss of earnings, and compensation for pain and injury. This remedy is available to persons assaulted by their spouses in the same way as to persons assaulted by strangers, whether or not they are still living together.
In practice, this method is seldom used. The reasons for this are that most people do not know of its existence, the Office of the Public Solicitor does not assist in civil cases of this nature, and the cost of private legal services is far beyond the reach of most people.
Mediation
The mildest form of intervention offered by the law is mediation. A Magistrate of the Local or District Court can mediate in any kind of domestic dispute, whether or not violence is involved, at the request of one or both parties. If the parties reach an agreement, the Magistrate will record it and ask them to sign it. The advantage of this system is that the parties themselves make their own decision, rather than having it imposed on them by the Magistrate as it would be in a court hearing. The disadvantage is that it is entirely voluntary, and many husbands asked to come for mediation with the Magistrate simply fail to turn up. In practice this provision is seldom used, although the Commission has known it to be effective with less educated couples who accept the Magistrate's informal authority.
Other obstacles to the protection of beaten wives
Attitudes
The major obstacle to the provision of protection for beaten wives lies in the prejudices and misconceptions about the position of women in marriage and about the circumstances of domestic violence which prevail among a large section of the general public. These views are also to be found amongst those with the ability or even the duty to offer practical assistance, causing them to fail to take the necessary supportive action. The main misconceptions can be summarised as follows:
* that brideprice gives a man the right to beat his wife;
* that men are superior to women, and women must therefore obey them;
* that no-one can interfere between husband and wife;
* that wife-beating is customary in many parts of Papua New Guinea, and therefore it must be legal;
* that a man can do whatever he likes inside his own home;
* that if a woman is beaten, she must have done something to deserve it;
* that if a woman really minded about being beaten, she would leave the man or prosecute him.
These attitudes spring from a lack of understanding of the position of women under Papua New Guinea's law and Constitution, and of the material and psychological constraints on wives, especially if they have children. Many women themselves share some of these misconceptions, which leads them to suffer even extreme maltreatment without complaint. As a result, it is only recently that wife-beating has been identified as a serious social problem. A fuller list of these beliefs, and some discussion of them, is given as Appendix 5.
Ignorance of the law
A second major difficulty in providing protection for victims of domestic violence, whether male or female, is that many people do not realise that domestic violence is against the law, and that legal remedies, although inadequate, are available. It is mainly educated people who apply for Good Behaviour Bonds. The extensive campaign conducted by the Law Reform Commission and the Women and Law Committee has succeeded in raising awareness of the law and legal remedies among large sections of the public (see Chapter 11), but a great deal more public education work still needs to be done.
Police reputation
The police are widely believed to be reluctant to intervene in any but the most serious domestic violence incidents. This deters victims and the general public from reporting domestic assaults to the police.
Good Behaviour Bond applications: service of summons
Service of summons on a violent man is a dangerous undertaking, yet many women cannot afford the K6.00 fee charged by the police for serving a summons. Welfare officers used to help with the service of summonses, but no longer do so.
Lack of counselling for offenders
Until recently, no counselling conducted by counsellors specifically trained in domestic violence counselling for offenders has been available. Professional counselling should not be a separate sentencing option, but it should be possible for the court to order the offender to undertake counselling as a condition of a protective order such as a Good Behaviour Bond, or as part of a custodial sentence.
Lack of counselling services
There are insufficient counsellors professionally trained in marriage counselling techniques to meet the need. Many violent incidents could be prevented if couples could have more guidance on how to resolve their family problems without resort to violence.
Lack of support services
Women who are trying to take action to protect themselves against domestic violence frequently need immediate financial assistance and a safe place to stay in the short or long term (depending on the seriousness of the situation). If the marriage breaks down, they need financial help to return to their own village, or to create an alternative source of income. In developed countries, the State makes some provision for all these needs. In Papua New Guinea, it would be unrealistic to expect the State to do so. Voluntary organisations such as Lifeline, the YWCA and some churches occasionally offer some assistance with short-term accommodation, but these services are very limited in scope, are not available in many parts of the country, and are rather haphazard. More beaten wives would have the courage to take legal action against the violence if more practical help was available to them.
Court filing fees
Many beaten wives, particularly those living in towns, do not have any money of their own, and are deterred from applying to the District Court for a Good Behaviour Bond, by the K2.40 filing fee charged by the court.
CHAPTER 7
THE POLICE
"If the police had had the policy then that they have now, my Mummy would still be alive today. But they told her to go home, because it was a domestic matter."
Personal experience shared by a police recruit with his classmates at Bomana Police College in domestic violence training, May 1989.
The nature of the police role
The police have a central role to play in combating domestic violence. This is not to suggest that the police should always be called in for all cases of domestic violence. As stated earlier, the Commission hopes that domestic violence cases will eventually be handled by community intervention at the very earliest signs of trouble, so that police will seldom need to become involved. When police are involved, however, they must correctly enforce the law, for that is their job. The firm policing of domestic violence provides the foundation for an effective community response to the problem.
The importance of the police role has three aspects. Firstly, the police are the main outside agency called in to protect victims and to re-establish order in crisis situations. Secondly, their response to domestic violence directly influences public attitudes on this issue. To most people in Papua New Guinea, the police represent the law. If the police take action against a particular kind of behaviour, that behaviour is understood to be against the law. If police do nothing, people assume that that behaviour is not against the law, and is therefore acceptable. Even though, for various reasons, only a small proportion of domestic assault cases are brought to the police, the way the police respond (or do not respond) to those cases becomes known to a large number of people and influences how the general public regards domestic violence. Every wife-beater firmly dealt with by police can cause dozens of others to think again.
Thirdly, correct action by police is essential for the effectiveness of the preventive measures and public awareness campaigns recommended by the Commission in its Interim Report and set in motion over the last three years. It is quite pointless for thousands of people around the country to use their time and energy distributing over half a million leaflets authorised by the Police Commissioner explaining that "Wife-beating is a Crime" if people find that their local police do little or nothing about wife-beating cases reported to them.
These second and third aspects of the police role need emphasising to answer some critics of the Interim Report who argue that domestic violence should be tackled entirely through social measures such as counselling and public education. The Commission certainly agrees that social measures are desirable, but believes that their effectiveness is undermined without reliable follow-through from the police and the legal system. The educational and symbolic functions of the police role are as valuable in helping to reduce domestic violence as is the practical aspect of their role as crisis managers. It is therefore crucial that the police recognise the criminal nature of domestic violence, and enforce the law accordingly.
It is generally only in urban areas that the police are regularly called upon to deal with domestic assaults. The Law Reform Commission's urban surveys found that 18% of the beaten low income wives and 11% of the beaten elite wives had called on the police for help (Ranck and Toft 1986:40). Reporting to police was taken as an indicator of a relatively severe assault, since at the time of the surveys the police were widely known not to take action on "domestic disputes" except in serious cases.
The police role is more significant in urban areas than in rural areas, for various reasons. Wife-beating is a more serious problem in towns because the severity and frequency of beatings seems to be greater and because alcohol is more often involved. Also, town wives have fewer sources of help, particularly in a crisis, and they therefore need outside assistance more than village wives do. In towns it is of course much easier to get in touch with the police, whether in person or by telephone. There is a common urban scenario in which a wife is beaten late at night, runs out or is thrown out of the house, and then hides until she sees a passing police patrol car.
In rural areas, even serious cases may not be brought to the police, therefore no figures on police involvement were collected in the rural survey. Although approximately 200 of Papua New Guinea's 250 or so police stations and police posts service rural areas, the difficulties of transport and the lack of telephones mean that large sectors of the population are effectively out of touch with the police most of the time. In any case, villagers normally prefer to deal with their problems in their own way, rather than involve police. This is particularly true for family matters, and for domestic violence. Wife-beating is taken more for granted in villages than in towns, and is not generally seen as "criminal" unless it is seen as undeserved or excessive, or there is a danger of it escalating into a tribal fight. It must also be said that allegations of police brutality in rural operations have received a great deal of publicity in recent years. These may well reduce rural people's willingness to seek police assistance for matters of any kind, including for domestic violence.
Nevertheless, as pointed out above, even though police in rural areas may be called in relatively seldom for domestic violence cases, their role is still crucial in deterring domestic violence. They must be known to take domestic violence seriously as a criminal and not a private matter.
Difficulties of the police role
The police have in the past come in for a good deal of criticism over their apparent lack of concern about domestic violence, both from members of the public and from the Commission in its Interim Report. However, it must be acknowledged that the police role in handling domestic violence is fraught with difficulties. The police are called in to deal with tense situations where the parties are in an inflamed emotional state, often flinging accusations and counter-accusations at each other so that it can be hard for police to get a clear idea of what really happened. Frequently there are no adult eye-witnesses able or willing to give evidence.
Until recently, police were operating without any clear guidelines or training on domestic violence to help them understand the issues involved. They learned from experience that if they arrested and charged the husband, the chances were that the wife would later ask for the case to be dropped. Police would then feel frustrated that their time had been wasted and would become cynical about the apparent fickleness of wives. Since there was no training on domestic violence, they had no understanding of the "cycle of violence", nor of the pressures on wives which lead them to drop out.
Even if the police did manage to secure a conviction in court, the Magistrates also had no clear policy on domestic violence. The offender might be merely let off with a warning, which some people would interpret as the court not really bothering about wife-beating. Or he might be sent to jail, in which case the family would suffer further through being deprived of their breadwinner.
Since they had not had the benefit of specialised training on domestic violence, many police were handicapped by their own attitudes or lack of understanding of domestic violence (see the section in this chapter on Training for further details). This was revealed by the Commission's survey of 155 police men and women, conducted during December 1986 and January 1987 with assistance of students from the Law Faculty of the University of Papua New Guinea (Bradley 1987b). In the survey many police expressed views indicating tolerance of or even support for a certain amount of wife-beating, and some volunteered the observation that the police themselves are the worst offenders. The survey also showed that due to the lack of training, many police had acquired completely false notions about the legal situation relating to domestic violence, which meant that they often failed to take appropriate action. Interestingly, police are apparently not deterred from intervening in domestic disputes by fears for their own personal safety. The survey found that only 14% of those interviewed feared being hit when attending a domestic dispute, and only 13% feared payback.
In addition to these difficulties relating specifically to domestic violence, it must be recognised that the police face many other problems of a more general nature. From the early eighties they have suffered a series of cuts in resources and personnel (although the Namaliu government has begun to reverse this situation). Many police are obliged to live separately from their families or cramped in single quarters because of a serious shortage of married housing. Violent crime and tribal fighting have escalated alarmingly over the last five to ten years, illegal firearms have become widespread, and stations often have to operate on skeleton staff when personnel are deployed on special missions in Bougainville and other areas in crisis. Taking all these factors into account, the lack of police action in domestic violence cases in the past is not so surprising. The important point is that this is now changing, and that real progress is gradually being made.
It is encouraging that the Commission's survey of police found that most police expressed more willingness to intervene in wife-beating cases than their public reputation suggests. Only 25% felt that domestic fights are not important, or that police action will not do any good. Ninety-six per cent expressed willingness to take a beaten wife to a safe place, 95% expressed willingness to do whatever seems best for the wife and children, and 83% felt that wife-beating was a problem in the area where they were working. Many volunteered comments in the "Other Remarks" section such as "wife-beating can have serious consequences"; "police should be given more powers to deal with domestic disputes"; "there should be stronger laws against wife-beating"; "there should be tougher penalties for wife-beaters"; "wives are human beings too"; and so on. The Commission feels optimistic therefore, that with the introduction of clear policy guidelines and systematic training, the way in which police handle domestic assaults will continue to improve significantly. In fact, since the publication of the Interim Report, great advances have already been made, thanks to the co-operation and support of large numbers of individuals in the Department of Police at all levels, from the three successive Police Commissioners involved downwards. In particular, the Law Reform Commission is grateful for the insight and commitment of Commissioners Tasion, Tohian and Geno.
Policy and procedures
The first and most obvious problem affecting police handling of domestic assaults which the Interim Report identified was that there was no clear official policy on domestic assaults. Standard practice was for the police to turn away complaints about domestic violence, telling people that domestic disputes were to be dealt with privately between themselves, yet there appears not to have been any formal policy statement to this effect. Constabulary Standing Orders made no mention of domestic assault, neither was domestic assault dealt with specifically in recruit training. Domestic violence was referred to only twice in the Recruits' Manual: in the section on assault a "domestic dispute" and "domestic discipline" (as authorised under s.278 of the Criminal Code) were listed amongst situations in which the use of force by a member of the public "may be justified". This section of the Criminal Code is badly named, in that it allows parents to use physical punishments to discipline their children, teachers to discipline pupils and masters to discipline apprentices. It has nothing to do with husbands disciplining wives, the usual sense in which most Papua New Guineans would understand the phrase "domestic discipline".
As a result of this lack of a clear policy and the misleading training notes, many police were unsure whether they had the right to intervene in domestic assault cases or not. This was confirmed by the Law Reform Commission's survey of police. Some of those interviewed made statements such as: "assault is not a crime if the couple are married"; "a man can do whatever he likes in his own home"; " men are not allowed to beat their wives in a public place, only at home"; "police don't have the powers to handle domestic disputes"; "police can only act if the man has no good reason for hitting his wife, or if the force used was excessive"; "wife-beating should be made a crime so police can deal with it"; and so on.
The Interim Report recommended "that Constabulary Standing Orders be revised to clarify police powers and responsibilities in responding to domestic violence, to remove the emphasis on mediation and emphasise instead the criminal nature of assault in the home". Arrest is therefore the preferred police response.[8] It also recommended that where there is insufficient evidence for arrest, police should hand to both parties a leaflet explaining the possibilities of counselling, mediation and legal action. Recommendations made on the police role in enforcing a new system of Protection Orders to take the place of Good Behaviour Bonds will be described in Chapter 9.
The research and discussions that led up to the Interim Report not only highlighted some of the problems with the police response to domestic violence, but also produced some positive changes even before the report was published. For this, the Commission wishes to acknowledge the initiative of the then Commissioner of Police, David Tasion. It was his personal interest in the problem that resulted in key changes being made to police policy and procedures.
Following consultations with the Law Reform Commission, Commissioner Tasion began to take action on the problems outlined in the Interim Report even before it was presented to Parliament. In November 1986 he issued a circular to all police, expressing concern about the "alarming situation regarding assaults on wives by husbands" and the "passive attitude" of police even to "cases of positive brutality" witnessed by police themselves. The circular stated clearly that domestic assaults should be investigated and prosecuted wherever possible, and that breaches of the instructions were to be treated as disciplinary offences.
In February 1987, the Commissioner also made domestic violence the subject of a special session of the Annual Provincial Police Commanders' Conference. The Law Reform Commission presented its findings and recommendations relating to the police (Bradley 1987b), and the Commissioner spoke strongly in support. In addition, he called on all Provincial Commanders to cease beating their own wives, and to ensure that their men did the same. This frank recognition that even some senior police beat their wives made headlines at home and abroad, and was welcomed by the Law Reform Commission as an important step in improving the police response to domestic violence.
In May 1987 the Commissioner issued a second and more detailed circular. This began with the statement:
"ALL ASSAULTS ARE ILLEGAL.
An assault by a husband on his wife is no less illegal than an assault on a stranger by another person".
It went on to lay down the steps which must be taken by all members of the Constabulary every time a report is received of an assault. These principles and procedures were then included in the new edition of the police handbook Constabulary Standing Orders, which was issued later the same year (see Appendix 7).
The main points of the new policy on domestic assaults are that all reports are to be investigated in a proper manner, with charges laid if there is sufficient evidence; that arrest of the husband is recommended if there is a likelihood that the offence will be repeated after the policeman leaves; that the correct charge will be laid according to the injury sustained (instead of bringing every case as a Common Assault, which was the former practice); that the police will not decide whether the assault was justified under law or custom, or whether there was provocation, since that is the job of the courts; and that in serious cases, the matter should be prosecuted by police even without the evidence of the injured person, if necessary.
The Commission feels that these instructions fulfil the recommendation of the Interim Report for clear guidelines on policy and procedures emphasising the criminal nature of domestic assault, with two exceptions. The first concerns bail procedures. Section 9 of the Bail Act states clearly that bail should be refused where the bail authority is satisfied on reasonable grounds that the alleged act constituting the offence consists of a serious assault, or a threat of violence to another person. Currently, persons arrested for domestic assault are normally released on bail on their own recognizance, with little consideration of the risks to the victim's safety that this involves. Section 18 of the Bail Act allows conditions to be imposed when bail is granted. The Commission would like ss.9 and 18 of the Bail Act to be strictly applied in domestic violence cases, with the risks to the victim being given proper consideration. Persons arrested for domestic violence offences should not normally be released on their own recognizance but a third party and cash sureties should be required, and wherever possible the condition should be imposed that the alleged offender stay away from the victim for at least 24 hours, preferably longer.
The second exception concerns the Law Reform Commission's recommendation that when there is insufficient evidence for arrest, the police should hand to both parties a leaflet explaining the possibilities of counselling, mediation and legal action. Police around the country have been provided with the Women and Law Committee's "Wife-beating is a Crime" leaflets and some police seem to be using them appropriately, but there is as yet no directive to this effect. The Commission therefore retains this recommendation from the Interim Report.
Recommendations:
2. That police procedures for granting bail in domestic violence cases be revised and restricted in line with s.9 and s.18 of the Bail Act, as well as requiring third party recognizance and cash sureties, and imposing conditions on the alleged offender's contact with the victim for part or all of the bail period.
3. That when called to domestic disputes, where there is insufficient evidence for arrest police should hand to both parties a leaflet explaining the possibilities of counselling, mediation and legal action.
Training
The second key problem area for the policing of domestic violence is training. New policy and procedures will be of no use at all unless those whose job it is to implement them are taught what they must do, and why. For domestic violence, proper training is particularly crucial because the police already have many false ideas and misunderstandings about domestic violence which must be disposed of before police will be receptive to a new approach. The Commission's research into police attitudes and practices relating to domestic violence found that the following beliefs were prevalent:
- that whatever goes on between husband and wife is their own private business;
- that police can only act in domestic disputes where injuries are serious, or the force used is "excessive";
- that pulling hair, pushing or dragging a person along, twisting arms, throwing down, pushing against a wall, stamping on hands, slapping the face, burning the skin with cigarettes, biting, and similar behaviours which do not involve hitting or punching do not constitute assault;
- that brideprice gives a man the right to beat his wife;
- that a man can hit his wife if he has a "good reason";
- that custom (in some areas) gives a man the right to beat his wife, therefore it is allowed;
- that a man can do whatever he likes in his own home;
- that if a wife is beaten, it is usually her own fault because she provoked it;
- that if a wife really minded about being hit, she would prosecute the husband, or leave him;
- that it is in men's nature to be violent, so it is no good trying to stop them;
- that a man who hits when drunk cannot be held responsible for his actions.
Respondents tended to see domestic assault as a welfare matter to be settled by counselling and referral to the welfare office (92%), a church leader (70%), a village or community leader (56%) or the woman's relatives (40%), or they recommended that the woman take legal action on her own behalf through the District Court (68%), the Village Court (64%) or the Office of the Public Solicitor (31%).
The Interim Report recommended that "specific segments on domestic violence be incorporated into police pre-service and in-service training at all levels, in which the following principles should be stressed:
- that protection of the victim be given the highest priority;
- that police should not be influenced by the offender's allegations that the victim had committed adultery, failed to cook, wasted family money, etc: the police should not usurp the role of the courts;
- that where custom conflicts with the Constitution and the law, the latter should prevail;
- that the harmful effects of domestic violence extend to the family of the victim, and to society in general;
- that a beaten wife's apparent unwillingness to prosecute for assault in no way absolves police from their duty to enforce the law to the best of their ability."
With the co-operation of Police Commissioner Tasion, and of his two successors, training based on the above recommendations was introduced for recruits in January 1988. Recruits receive one lecture covering the law on domestic assaults and the role of the police. This is followed by a double period for discussion, exploring the harmful effects of domestic violence, the relationship of custom to the written law and the Constitution, and the importance of the police leading by example in their own personal lives. All sessions emphasise two key principles to be kept in mind when handling any domestic violence situation. These principles are: PROTECT THE VICTIM, and PREVENT FURTHER VIOLENCE.
The sessions are conducted by staff of the Commission, with the assistance of representatives from the Welfare Division and/or the Women's Division of the Department of Home Affairs and Youth and of the Probation Service. The Recruits' Manual has been amended to make it clear that domestic assaults are against the law. Recruits also watch the awareness video "STAP ISI", which contains a section, authorised by Police Commissioner Tohian, demonstrating the correct police response to a wife-beating case. The Law Reform Commission is pleased with what is now being done, but suggests that more time is needed to cover the concept of provocation, the difficulties of the victim's situation, and for practising interventions in various types of cases.
There is also an urgent need for in-service training. The value of recruit training is seriously reduced if older officers, who may not know about or understand the reasons for the new policy, prevent the young ones from implementing it. The Commission continues to receive complaints from various parts of the country that some police are still ignoring reports of wife-beating; that some still try to dissuade wives from laying charges, particularly if the husband is an influential man or is friendly with police; that they tell the woman that she must herself go and bring the husband back to the police station before any investigation can be made (in some cases the wives have tried to do this, and been injured again in the process); that there are still incidents where police actually witness domestic assaults without intervening; and finally, that many police are known to the public to be wife-beaters themselves. Although three Police Commissioner's circulars on the new domestic violence policy and procedures have been sent to all station commanders and read to all members of the Constabulary, and all police stations are supposed to display the "Wife-beating is a Crime" poster and to be familiar with the section in the leaflet explaining what the police can do, much still needs to be done to get the message across.
In-service training is in the process of being decentralised, and all Provincial Training Officers have been provided with copies of the "STAP ISI" video, the "Wife-beating is a Crime" leaflets and poster, and the relevant pages of Constabulary Standing Orders. A set of in-service training notes has recently been developed, in which domestic violence is one of the 14 subjects covered. The in-service notes are based on the material developed by the Commission for the recruit course, stressing that domestic violence is a criminal matter and that arrest is the preferred police response wherever there is sufficient evidence. Bail for alleged domestic violence offenders is not currently covered in recruit materials but is important for in-service training for certain ranks, particularly if bail procedures are revised in line with Recommendation 2.
Recommendations:
4. That recruit training on handling domestic assaults be extended to clarify the legal concept of provocation, to deepen recruits' understanding of the causes and effects of domestic violence and the difficulties faced by victims, and to allow recruits opportunity for practising responses to different types of domestic disputes.
5. That police instructors be trained to take over responsibility for conducting domestic violence training of recruits in the relevant law and in the police role, while still inviting specialists from the Law Reform Commission, the Probation Service, and the Welfare and Women's Divisions of the Department of Home Affairs and Youth, or others, to participate in discussion sessions.
6. That ongoing in-service training on domestic violence be developed and systematically implemented for all ranks along the lines used in recruit training, and that appropriate bail procedures be covered where relevant.
Powers of entry
The third problem area for the police role in handling domestic assaults concerns the lack of clear powers of entry for police called to investigate an alleged incident on private premises. Many incidents take place at night, when everyone is indoors. It often happens that police are called by a neighbour, but by the time they arrive the situation has quietened down again. The husband may refuse to open the door, so the police are unable to see or speak to the wife. They may not even be able to determine whether the violence taking place behind closed doors is being perpetrated by a husband on his wife or by intruders on a female resident.
There is currently no written legislation empowering them to enter in such circumstances, except with a search warrant. However, for domestic assault, by the time a warrant is obtained the victim could be seriously injured or even dead. Under s.5(5) of the Search Act, they may enter only in hot pursuit of a criminal. Under the common law (i.e. legal tradition inherited from England) they may enter if invited by the householder, but a husband who has just beaten his wife is hardly likely to invite the police in. The common law also provides a right for police to enter into private premises in any circumstances in which they have the right to arrest a person, such as for assault or for breach of the peace. However, it is not clear whether this common law right, and the general police duty to prevent crime, do or do not over-ride the Constitutional protection of an individual's freedom from arbitrary search and entry (s.44) and right to privacy (s.49). The police have in any case always been notoriously reluctant to intervene in domestic disputes, and the uncertainty about their powers of entry provides them with some justification for not investigating on private premises.
Without the clear power to enter premises, the police are unable to exercise their existing powers under s.3 of the Arrest Act to arrest without warrant a person whom they reasonably suspect is committing, has committed or is about to commit a crime. In Papua New Guinea it is standard practice that police powers are embodied in statute (written) law wherever possible, to avoid the uncertainty of interpretation which frequently surrounds the application of the common law.
The Interim Report therefore recommended that an amendment be made to the written law on police powers, giving specific powers of entry to private premises where police have reasonable grounds to suspect that a crime of violence has been, is being or is about to be committed. This would greatly assist the police in apprehending offenders for a range of violent crimes, not only for domestic violence. These improved police powers of entry will be of value mainly in urban areas, where police are frequently called to the scene of a domestic crisis.
Concern has been expressed by some people commenting on the Interim Report that police might abuse the power to enter private premises to investigate an offence involving violence. Police might intimidate certain individuals by unnecessarily violating their right to privacy. Or, under the pretence of investigating a complaint of violence, they might search premises for evidence of other crimes. Allegations of police brutality and victimisation have increased alarmingly in recent years, and the fear has been expressed that granting police the power to enter private premises without a warrant in cases of suspected violence would give police further opportunities to intimidate the community.
Objections have also been made to the recommendation on the grounds that it violates the individual's rights under the Constitution. The Commissioners have considered these objections, and have come to the conclusion that the basic human right to physical safety should take precedence over rights to privacy. Where the honouring of one person's right to privacy would endanger another person's right to safety, the right to privacy may be infringed for the purpose of protecting the person in danger. In the case of domestic assaults, the safety and welfare of any children present must also take priority over the alleged offender's right to privacy in his own home.
The Commissioners feel strongly that violence must be discouraged at all times and in all places. Assault is dangerous, harmful and unlawful behaviour whether it takes place inside or outside the home and the law should be able to offer the same protection in either circumstance. It is not in the public interest that the law should appear to condone violence on private premises by preventing police from entering to the premises to deal with it. It is the spontaneous, unpredictable and often uncontrolled nature of violence, and its life-threatening potential, which require that police be empowered to deal with it wherever it occurs. This power should relate to any kind of violence, not just to violence between spouses.
As to the concerns about whether police might abuse the power to enter private premises to investigate alleged assaults, the Commissioners believe that the legislation provides sufficient safeguards. The police would have to have grounds for forming a "reasonable belief" that an assault had taken place within the previous 24 hours, was currently taking place or was about to take place, otherwise each policeman or woman involved could be sued individually under the Police Act, in the same way as for any other situation in which a member of the police force exceeds his or her powers. Any evidence relating to other offences collected while police were on the premises investigating domestic assault could be used in court, but police would first have to prove that their grounds for entering the premises were genuine. Thus this limited right to enter private premises will be strictly regulated and there is no reason to expect that it will be more susceptible to abuse than any other police powers. The Commissioners therefore abide by the recommendation in the Interim Report.
Recommendation:
7. That police powers to enter private premises be clarified and extended to allow police to enter such premises where they reasonably believe that an offence involving force or the threat of force is being committed, has been committed within the last 24 hours or is about to be committed, in order to take such action as may be necessary to:
(i) investigate whether an offence has been committed;
(ii) render aid to any person who appears to be injured;
(iii) exercise any lawful power to arrest a person;
(iv) prevent the commission or continuance of such an offence; and
(v) offer to transport any person injured or apparently in danger to a place of safety.
NOTE: Draft legislation embodying this recommendation is included at Appendix 8.
Community relations
A great deal of preventive work on domestic violence can be done through the national and provincial Community Relations Sections. The Interim Report recommended that the Community Relations Sections participate in spreading awareness of domestic violence as a crime, and of ways of preventing it. The Commission is happy to be able to report excellent co-operation in this from the Community Relations Section at the national level, and generally speaking at the provincial level too.
The "Wife-beating is a Crime" leaflets and posters in three languages have been distributed through the Community Relations Sections. Staff also give talks to local leaders, often using the "STAP ISI" video, which was provided to all Community Relations Sections by the Law Reform Commission and the Women and Law Committee. On numerous occasions staff of the national or provincial sections have taken the opportunity of annual Provincial Shows around the country to highlight domestic violence, with displays of the leaflet, poster, video, and specially made audio-tapes. The popular police magazine "Police Raun" has several times featured items on these public awareness materials, and on the changes in police policy and procedures for handling domestic violence.
However, there have been problems in maintaining supplies of the leaflets, not only for community relations work but also for the use of General Duties staff, who need copies to be carried in patrol cars as well as to be available to members of the public coming to police stations with enquiries or complaints. Ongoing supplies of posters are also necessary. Up until now, both leaflets and posters for police use have been supplied by the Women and Law Committee, but the Committee is unable to go on meeting this need indefinitely. The Law Reform Commission would therefore like to see the Police Department take over responsibility for reprinting the "Wife-beating is a Crime" leaflet and poster for police use. This should be funded annually in the recurrent budget.
Recommendation:
8. That the national and provincial Community Relations Sections continue to make domestic violence a focus of their work in the community.
9. That the Department of Police take responsibility for funding the reprinting of the "Wife-Beating is a Crime" leaflets and poster as part of the recurrent budget of the Community Relations Section and for distributing it to all police stations and police posts and to the Bomana Police College.
Female Police
Another recommendation of the Interim Report was that more female police be recruited, and that they be utilised more in face-to-face dealings with the public, especially for wife-beating cases, rather than being primarily confined to office duties. Since making this recommendation, the Commission has learned that this approach has been taken much further in Brazil with very successful results. Police stations entirely staffed by female police have been opened in all major cities to deal with complaints from women about wife-beating, rape, incest and other forms of violence against them (Salvi 1988). The knowledge that they can count on being interviewed by someone of their own sex has meant that women are far more willing to report these offences to police. This has a powerful deterrent effect on the wife-beaters.
The same thinking is behind the formation of the all-female Sexual Offences Squad in Port Moresby, to deal with sexual assaults on females and offences against juveniles. This was another valuable initiative of former Commissioner Tasion. It is, however, not recommended that all-female teams be formed to deal with domestic violence/wife-beating in Papua New Guinea's provincial centres, because the staffing levels at most stations would not permit this. In the Papua New Guinean context it is preferable that all members of the Constabulary, whether male or female, be trained to respond appropriately and sensitively to domestic violence cases. However, the presence of more female police would help to create a more conducive environment.
Another compelling argument for more female police, quite aside from the domestic violence context, is the Constitutional requirement that women be given equal opportunities to participate in all aspects of development (Second National Goal contained in the Preamble to the Constitution). Unfortunately, little progress towards this goal has been made within Papua New Guinea's police force. The recruit intake of females has remained regrettably low, at less than 5%. It is recommended that the Police Department give urgent consideration to recruiting more females into the Police Force.
Recommendation:
10. That more female police be recruited and that they be utilised more in face-to-face dealings with the public, especially for domestic violence cases, rather than being primarily confined to office duties.
Data collection and monitoring
In its Interim Report, the Commission also made a number of other recommendations concerning police activities which have not yet been acted on. These will therefore be retained here.
Recommendations:
11. That the police computerised data system be extended to allow domestic assaults to be distinguished from other assaults.
12. That the police Research and Planning Section continuously monitor and evaluate any changes in police powers and procedures relating to domestic violence.
Police powers and protection orders
If the new legislation proposed in Chapter 9 is enacted, the police will have a role in applying for and in enforcing Protection Orders. These powers are defined in Chapter 9 in Recommendations 17.3, 17.4, 17.7, 17.10, 17.11 and 17.15, with the training implications mentioned in Recommendation 19.
CHAPTER 8
THE CRIMINAL LAW
Introduction
There are three areas of the criminal law in which the current legislation is inadequate for domestic violence situations. Two of these relate to the prosecution of cases, namely the exemption of spouses from the duty to give evidence in court against each other, and the need for a wider range of sentencing options that will effectively deter domestic violence offenders without causing unnecessary hardship for their families. Appropriate amendments to these areas of the criminal law would improve the ability of police to respond effectively to domestic assaults. The third problem relates to the defence of cases where a domestic violence victim is charged with the murder or manslaughter of the violent spouse, in that the present law does not recognise long-term maltreatment as provocation. A fourth inadequacy was mentioned in the Interim Report, which proposed that it be made a separate offence to cause injury to an unborn child through assaulting its mother. This proposal has been dropped as being beyond the scope of the present work, since it raises fundamental questions about the definition of life and the rights of an unborn foetus that should properly be dealt with in a separate enquiry.
Evidence of spouses
Under the present legislation (s.13 of the Evidence Act and s.36 of the Criminal Code), husbands and wives cannot be compelled to give evidence against each other, except for offences against each other's property when they are no longer living together. Members of the police force at all levels cite the well-known unreliability of wives as witnesses against violent husbands as the main obstacle to successful prosecutions for wife-beating. It is certainly true that police often initiate a prosecution on behalf of a beaten wife, yet have to drop the case later because the wife backs out.
This may be because of pressure from relatives not to disrupt the family, or because the wife fears her husband will be imprisoned and the family will lose his income, or because she feels the threat of prosecution has itself been enough to deter the husband from future violence. But the most common reason is that the wife is threatened with retaliation by her husband or his relatives if she does not drop the case. Not being in a position to appreciate the enormous difficulties of the wives' situation, police feel annoyed and frustrated when they prepare a case for court only to find that the wife changes her mind. This is a major cause of police reluctance to intervene in anything but the most serious wife-beating cases.
The solution adopted in many other countries is to make wives (and husbands) compellable witnesses for cases involving violence against each other or against a child, in the same way as they would be compellable if they were not legally married to each other. (The laws apply equally to men and women, but as most cases are brought by wives against husbands, it is wives who are most affected by this provision). This approach makes it clear that it is the State, acting in the public interest, which is responsible for taking action to stop the violence. The victim is the prime witness in the State's case, and should therefore be obliged to give evidence in court, unless there is sufficient evidence from other sources. In its Interim Report the Commission recommended that this approach be adopted in Papua New Guinea. It is stressed that it is only in cases of violence by one partner against the other or against a child that spouses could be compelled to give evidence. In other situations the privacy of the marriage relationship would be respected.
It might at first sight seem unfair to wives to prevent them from dropping cases against their husbands (or vice versa) if this is what they wish to do. In fact, in many cases it is not the wife's genuine wish to drop the case, but she is forced to do so because of threats of further violence from the husband or his relatives. The purpose of the provision is to protect the wife by preventing this kind of thing from happening. If the husband understands that his wife is legally bound to give evidence in court, there is no longer any point in his trying to force her to drop the case, since further intimidation will only make the situation worse for him. It will make it clear to him that he is being prosecuted by the police and the State, because domestic violence is a public and not a private matter. In practical terms the situation will be easier for the wife, because the burden of having to decide whether or not to give evidence will be lifted from her.
Under the present system it is the wives of the most violent men who are the least protected, because they are usually too terrified to press charges on their own account and, unless there are other witnesses, the police cannot do it without their evidence. The same applies to the wives of influential men, with harmful effects on the rest of society when it is known that "big men" can get away with beating their wives. Thus a mockery is made of the law, and an example is set for others to follow. This is not in the best interests of the public, nor of the victims.
The Commissioners recognise, however, that there are certain circumstances in which it is reasonable to allow victims to drop charges. The Interim Report recommended that Magistrates should have discretionary powers to allow victims to drop charges and refuse to give evidence where the couple have become reconciled, provided that the Magistrate is convinced that the victim is acting of her own free will and not through fear of retaliation by her husband. The Magistrate's reasons for granting an exemption should be recorded in writing and open to inspection.
The Interim Report also recommended that spouses should only be made compellable witnesses for domestic assault if further alternatives to prison are made available, so victims need not fear that reporting the case to police will automatically lead to a court case and prison sentence for their husbands and financial hardship for the family. This extreme situation would deter most victims and concerned neighbours or relatives from involving the police at all. Recommendations for alternatives to prison will be discussed in the next section.
Another necessary safeguard recommended by the Interim Report was for the introduction of a more effective civil means of providing protection than the existing system of Good Behaviour Bonds (such as the system of Protection Orders recommended in the next chapter). Victims who fear police involvement, for whatever reason, would then still be able to obtain a form of legal protection by applying direct to the District Court. As outlined earlier, the Commission prefers that domestic violence be dealt with as a criminal matter as far as possible. However, it recognises that it is necessary to balance the need of victims for a range of remedies, according to the severity of the offence and the circumstances of the family, against the need for society to punish and prevent crimes of violence.
Recommendation
13.1 That s.13 of the Evidence Act be amended to make spouses compellable witnesses in cases of assault by one spouse on the other, or on a child of the family.
13.2 That courts should have the discretionary power to excuse a spouse from giving evidence, if the spouse makes a statement on oath that voluntary reconciliation has been achieved or is imminent, or that other considerations make it undesirable for the spouse to be compelled to give evidence.
13.3 That where such discretion is exercised by a court, its reasons should be recorded in writing and be subject to a system of inspection.
13.4 In the case of a conviction, the court should be able to order alternatives to imprisonment, in consultation with the victim.
NOTE: Draft legislation embodying these recommendations is included at Appendix 9.
Weekend imprisonment and other sentencing options
The Interim Report recommended that courts make more use of alternatives to prison when sentencing domestic violence offenders. Beaten wives are frequently told by police that if they charge their husbands for assault, the husbands will be sent to jail and the family will be worse off. Many wives are thereby discouraged from laying charges. Yet the statement by police is simply not true. Magistrates are, quite rightly, reluctant to send husbands to jail for wife-beating, except in serious cases. Similarly, they recognise that a fine will probably also hurt the family. They have therefore tended to let the man off with a warning. This can do more harm than good, since it can give the man the impression that he has "got away with it". It is not likely to be effective in deterring him from doing it again.
Other sentencing options do exist. A Community Work Order is a possibility, but is under-utilised because it can be hard to arrange for the proper supervision. The court may order the man to enter into a Good Behaviour Bond but, as will be described in the next chapter, this option is cumbersome and difficult to enforce. The offender could be ordered to pay compensation to the victim, but some Magistrates feel that it is meaningless to order payments between husbands and wives if the marriage still exists, since there should be community of property between them. Yet the Commission feels that there are in fact many cases where compensation would be appropriate, even where the partners are still living together. Compensation can be paid from one spouse to another in many of the cultures of Papua New Guinea, and examples of this from the Tolai are documented in one of the Commission's own publications (Bradley 1985: 54-5).
A relatively new sentencing option which is highly suitable for many domestic violence cases has become much more widely available since the Interim Report was published. This is the option of probation. The value of this system is that the offender reports regularly to the Probation Officer, and that he and his wife can both receive specialised counselling. The Chief Probation Officer has been very supportive of the Commission's work on domestic violence, and has directed that domestic violence be covered in the pre-service and in-service training for all Probation Officers. The comprehensive new training programme for all levels now being trialled by the Probation Service will give Probation Officers a basic understanding of the problem of domestic violence as well as providing some training in the special features and techniques of counselling for domestic violence situations (see Chapter 15). The Commission wishes to acknowledge the co-operation it has received from the Chief Probation Officer, Mr. Leo Tohichem, and from his Training Officer, Ms. Cindy Banks, in initiating specific domestic violence training for Probation Officers.
These non-custodial sentencing options are appropriate for first offenders or relatively minor assaults. For repeat offenders or more serious assaults, the Commission believes there is a need for a new option to be introduced that would be less harsh on the family than imprisoning the offender. A system of periodic detention (known more popularly as "weekend imprisonment") was proposed in the Interim Report. Under this system, an offender could be sentenced to serve a certain number of 44-hour "periods of detention" at a prison, one a week for up to twelve weeks. In normal circumstances, this sentence would be served from 6p.m. on Friday night to 2p.m. on Sunday afternoon, but other days could be chosen by offenders whose jobs require them to work on weekends. Periodic detainees would be kept apart from other prisoners and would be given work to do during their detention. Only provincial Corrective Institutions and not rural lock-ups or police cells would be involved in this system, at least initially.
The great advantage of this system is that it causes minimal disruption for the family. The offender can continue with his normal work, support his family and fulfil his roles as husband and father, but every weekend he is reminded that he cannot get away with his violent behaviour. If his violence is connected with drink, there is the further advantage that he is out of the way at weekends, when most drinking goes on. Weekend imprisonment need not be restricted to domestic violence offenders. It would also be useful as a sentencing option for other types of minor or repeat offences for which people are currently being sentenced to a period of continuous imprisonment. It could therefore be effective in reducing the overcrowding in jails.
Similar systems have been used with success in other countries (e.g. New Zealand, Australia, Canada) and the Commission believes it will work well in Papua New Guinea. Reaction to the proposal in the Interim Report has generally been enthusiastic. The Corrective Institutions Service in particular is keen to see the system introduced as soon as possible. Details of the proposal have been worked out by a high level Working Group comprising two Assistant Commissioners for the Corrective Institutions Service, the Assistant Commissioner for Police (Operations), the Chief Magistrate and his Legal Advisor, the Chief Probation Officer, the Assistant Secretary for Welfare Services and the Commission's Principal Project Officer, under the chairship of the Secretary for the Commission. It is hoped that the system will be trialled as a pilot project on a limited basis, so that any unforeseen problems can be dealt with before the system is extended to the rest of the country.
Recommendations:
14. That courts deal with a first-time or minor domestic violence offender by making a Probation Order, and that where this service is not available, more use should be made of supervised Community Work Orders and of compensation to the victim.
15. That a system of periodic detention be introduced which may be used by the courts for repeat or more serious domestic violence offenders, where a sentence of up to three months continuous imprisonment would otherwise be imposed.
NOTE: Draft legislation embodying Recommendation 15 is included at Appendix 10.
The defence of provocation
In the Interim Report it was recommended that s.267 of the Criminal Code be amended so that long-term and persistent acts of domestic violence against the defendant by the victim be recognised as provocation in the defence of a charge for serious assault or murder. The study of National Court cases by Kivung et al found that women who kill their husbands "have a history of maltreatment, abuse and violence by their husbands which precipitates their act" (Kivung et al 1985:75). Commissioners were concerned that wives who were driven to kill their husbands in order to escape from the husband's intolerable violence and maltreatment should face a lesser sentence, in recognition of their past sufferings. (The Commission knows of no cases where husbands killed to escape persecution by a violent wife). While the loss of life cannot be treated lightly, women who kill their husbands in response to long-term abuse should not be treated in the same way as wilful murderers.
This recommendation was however opposed by some judges and magistrates. They felt that the final act of provocation causing the defendant to lose control and retaliate in the heat of the moment, as required under s.267 of the Criminal Code, must still be present for the defence of provocation to be offered. Otherwise the law would appear to be condoning the cold-blooded killing of their husbands by dissatisfied wives.
Nevertheless, the Commission still believes some kind of recognition should be given to past acts of violence suffered by the defendant. It is encouraged in this view by recent private expressions of concern by some judges about the cruel and humiliating treatment experienced by wives (and sometimes their children), which resulted in them killing their husbands or their husbands' other wives or girlfriends. The Commission therefore withdraws its proposal for an amendment to s.267 of the Criminal Code and recommends instead that the Supreme Court be asked to make a ruling on the relevance of long-term provocation to sentencing for domestic killings and serious assaults.
Recommendation:
16. That the Supreme Court be asked to consider the relevance of long-term provocation as a defence or as a mitigating factor in sentencing for domestic killings and serious assaults.
CHAPTER 9
DISTRICT COURTS AND PROTECTION ORDERS
The good behaviour bond system
A Good Behaviour Bond may be used to protect people against violence in some situations. Under s.209 of the District Courts Act, a person who has been threatened with injury to himself/herself, or to his/her family or property, may ask the District Court to order the person making the threat to give an undertaking to "be of good behaviour" or to "keep the peace". The complainant has to prove that the defendant made the threats, that he or she is likely to carry them out unless prevented by a court order, and that the complainant is in fear of the defendant. These points do not have to be proved "beyond reasonable doubt" as in criminal prosecutions, so people are usually able to handle the case themselves without needing a lawyer. If found guilty, the defendant is required to pay a certain amount of money to the Court as "sureties", that will be kept by the Court if the defendant breaks the conditions of the Order.
The value of the Good Behaviour Bond system from the point of view of victims is that it is an intermediate measure, being more forceful than counselling or mediation but less intimidating than criminal prosecution through the police. There are a number of reasons why beaten wives may not wish to involve the police: they may believe the police will not take their complaint seriously enough; there may be insufficient evidence for a criminal prosecution; they may fear that the only outcome of prosecution would be imprisonment for the offender and financial hardship for the family; or they may feel an Order from a Magistrate would be all that is needed to make the offender mend his ways, with less fuss and less likelihood of retaliation than by criminal prosecution through the police and with less disruption to the marriage.
If the violence is not too serious or habitual, and if both parties still want the marriage to work, a Good Behaviour Bond can be effective in stopping the violence and saving the marriage. This likelihood is greatest during the early years of the marriage, before patterns become too entrenched and feelings become damaged beyond repair. Certainly the Commission knows of numerous cases where this has happened. It is important to stress this, because many people believe that in encouraging beaten wives to take legal action to stop the violence, the Commission is breaking marriages. This is not the case. In fact, the opposite is true. The Bond gives the man a clear message that he must change his behaviour, and by allowing wives and children to stay with the offender without the immediate fear of violence, it gives the couple a chance to re-structure their relationship through discussion and counselling. If there is still a mutual bond between the couple, court action is more likely to improve the marriage than to destroy it.
However, there are situations in which a Bond could do more harm than good, by giving the victim a false sense of security. For example, a man who has a drink problem as well as a violence problem may forget about the Bond when drunk. Some men are enraged by the Bond and become even more violent in retaliation. For such cases, criminal prosecution of the offender and separation of the couple are the only answers.
Although the system of Good Behaviour Bonds does have its uses, there are many difficulties with it in practice. Good Behaviour Bonds are a generalised legal remedy against threats of assault, or damage to property. They are ill-suited to the specific circumstances of domestic assault, for the following reasons:
(i) Process is by summons from a District Court, which means that at least 3 days must elapse between the making of an application and the hearing. The time between the offender receiving his summons to appear in court and being put on a Bond is a period of heightened danger for a beaten wife, for the husband will try everything he can to make her drop the case. There is no provision for issuing a Bond in emergencies, nor for making an Interim Order to protect the applicant while waiting for the case to come up.
(ii) Good Behaviour Bonds are designed to deal with violence and threats of violence only, and not with other kinds of harassing behaviours commonly associated with domestic violence.
(iii) Penalties for breach of a Bond are inadequate or non-existent and consist at best of the forfeiture of cash sureties of not more than K200.00. In cases where the Magistrate has accepted the offender's verbal promise to pay there is no penalty, unless the victim initiates fresh proceedings to ask the Court to make him pay. In any case, it is no help to the wife if the husband has to pay to the Court money that is needed by the family.
In addition to these deficiencies in the law itself, the Commission's investigations found a number of administrative problems which were at that time further restricting the usefulness of Good Behaviour Bonds in domestic assault cases.
(i) Most District Courts had restricted times for receiving complaints from the public. In Port Moresby, for example, these were Tuesday, Wednesday and Thursday afternoons, so that a woman who was assaulted by her husband on a Thursday evening could not even see a Magistrate to make a complaint until the following Tuesday afternoon. Several courts only received complaints from the public on one day a week.
(ii) Many applications for a Good Behaviour Bond were wrongly made under s.209 together with s.210. (In Port Moresby this applied to 55% of applications). This invalidated the application, and if the case was eventually heard before a Magistrate who realised this, the case would have to be struck out. This would leave the defendant with the impression that the law could not touch him for beating his wife. Very few wives would be likely have the stamina to start all over again with a correctly worded application after such a set-back.
(iii) S.209 relates to threats of violence, and does not clarify whether evidence of actual assault may be used to support an application under this section. In practice, women do not apply for a Bond until they have already been assaulted, but some Magistrates were incorrectly dismissing applications under s.209 if an assault had already taken place, advising wives that criminal charges should be laid instead. Again, the effect was to give the defendants the impression that the Court could not touch them.
(iv) Applications were not being heard quickly. For example, in Port Moresby District Court, the Commission found it took an average of 21 days for an Order to be made in undefended cases, and up to six months for defended cases. For the whole of that time, the applicants were unprotected and living in fear. Some Magistrates even admitted to deliberately setting hearing dates a long time ahead, to "give the woman a chance to cool down and drop the case"!
(v) Because of one or more of these difficulties, many women did drop their case. This confirmed the Magistrates' belief that women were not really serious about stopping the violence.
It is highly disturbing that so many obstacles are placed in the way of someone wishing simply to be protected against future violence. Living free from violence and the threat of violence is a basic human right that should not have to be struggled for in a democratic, Christian country. It must be stressed that the Good Behaviour Bond is not a punitive Order, but purely a preventive one. It is in effect giving the offender another chance by reminding him that the law says he must not beat his wife, rather than punishing him for already having done so.
As a result of the Commission's investigations and discussions with the Magisterial Service during the preparation of the Interim Report, a comprehensive circular addressing the administrative difficulties listed above was sent out to all Magistrates by the Chief Magistrate. Magistrates were instructed that applications for Good Behaviour Bonds in domestic violence cases should be received on any day of the week, and that the earliest possible hearing date should be set, allowing only the necessary three days for the summons to be served on the defendant. The situation relating to past assaults, and to s.210 of the District Courts Act was clarified, and Magistrates were advised not to accept a verbal promise of sureties, but to insist on the money being lodged with the Court straight away.
The Magisterial Service assisted the Commission in preparing that part of the Women and Law Committee's leaflet, "Wife-beating is a Crime", which sets out for the public the steps for obtaining a Good Behaviour Bond. The Chief Magistrate also authorised Magistrates to use the leaflet themselves, to make it available to the public and to display the "Wife-beating is a Crime" poster where the public and staff can see it. At the request of the Magisterial Service, the Commission regularly supplies the Courts with more leaflets and posters. For all these moves, the Commission wishes to acknowledge the co-operation and support of the former Chief Magistrate, Mr. Joe Aisa; his successor, Mr. Arnold Joseph; and their Legal Advisor, Mr. Bob Mellor.
Protection orders
Despite the improvements made to the operation of the Good Behaviour Bond system since the publication of the Interim Report, the basic problem remains that the current legislation cannot meet the needs of domestic violence victims. The Interim Report therefore recommended that a new Act be introduced, entitled the Domestic Protection Act, to empower District Courts to make a Domestic Protection Order to prevent violence or harassment between spouses or against a child. Harassing behaviours would also be covered, and there would be the power to exclude the violent person from the family home for up to three months. The Act would contain provision for the making of Emergency Orders and Interim Orders when necessary, and breach of an order would be a criminal offence. Protection Orders would therefore have real teeth.
Public response to this proposal was favourable. In fact, it was pointed out to the Commission that there is a need to improve the current Good Behaviour Bond legislation for the benefit of anyone under threat of violence, not just domestic violence victims. This could be politicians threatened by rivals, husbands threatened by in-laws over bride-price, neighbours disputing over noise nuisance or land boundaries, relatives arguing over the use of shared property, or any other situation where a person has been threatened with violence and is in genuine fear that the threat will be carried out, or has already been attacked and has good reason to believe it will be repeated. With the gradual deterioration of the law and order situation, more people are resorting to threats and violence in order to get their own way, yet there is no effective means of protection through the law, other than laying criminal charges after an assault or attack has happened.
One motive for the Commission originally opting for a separate Domestic Violence Act rather than for amendments to general legislation was to highlight the problem of domestic violence. However, the publicity given to domestic violence over the last three years of the Commission's work has removed this need. The Commission therefore decided to drop its proposal for a separate Domestic Protection Act, and to recommend instead that the Good Behaviour Bond system be abolished and replaced with a system of Protection Orders, available to anyone at risk of force or violence.
Recommendations:
17.1 That Part X of the District Courts Act be repealed and replaced with provision for Magistrates to make a Protection Order to protect an applicant who proves on the balance of probabilities that the defendant has:
(i) injured the applicant or threatened to do so; or
(ii) damaged his or her property, or threatened to do so; or
(iii) harassed or molested the applicant or behaved in an abusive, provocative or offensive manner towards him or her; and
(iv) is likely to repeat the behaviour or carry out the threats unless ordered not to do so by the Court.
17.2 That Magistrates have the power in emergencies to make an immediate provisional Order at any time of day or night, to protect the applicant until the case is heard in court, which must be within 14 days.
17.3 That provision be made for the application to be made on behalf of the complainant by a police officer or by some other person with an interest in the case.
17.4 That a Protection Order for a child may be applied for by the parent or guardian, the Director for Child Welfare, a police officer or some other person with an interest in the case.
17.5 That an Order may forbid any of the offensive behaviours complained of and may, if necessary, order the defendant to stay away from the applicant and/or not to contact him or her, and not to damage his or her property, for the period of the Order, which may not exceed three years.
17.6 That an Order may exclude the defendant from the family's accommodation or restrict his or her access to it for a period of up to three months, regardless of any legal rights he or she might have in the property, if this appears necessary for the safety of the defendant's spouse and/or the welfare of the children.
17.7 That an Order may forbid or restrict the defendant's possession of firearms.
17.8 That an Order may prohibit the publication of names if the applicant wishes it.
17.9 That an Order may require the defendant to undertake counselling with a counsellor trained in domestic violence counselling (but counselling for the victim should not be a condition of granting an Order).
17.10 That a copy of an Order be kept by the local police station, to facilitate their action on a suspected breach.
17.11 That breach of an Order be an offence, for which the police are empowered to arrest in the normal way without a warrant.
17.12 That the form used by Magistrates in issuing a Protection Order contain a set statement to be read aloud in court, so that all parties will have the same understanding of the conditions of the Order and the consequences of a breach.
17.13 That a range of punishments for breach of an Order be available for the Magistrate to use at his discretion, in consultation with the applicant, taking into account the seriousness of the breach, the circumstances of the family and the state of the relationship between the applicant and the offender, as well as the need for deterrence.
17.14 That normal court fees be waivable by a Magistrate or Clerk of Court when considering an application for a Protection Order, if the applicant cannot afford to pay: personal safety is a basic human right to which poverty should not be a barrier.
17.15 That normal police fees for the service of summons be waivable by the Police Station Officer-in-Charge if the applicant cannot afford to pay, for the same reason as in 17.14.
NOTE: Draft legislation embodying Recommendation 17 is included at Appendix 10.
18. That a detailed circular explaining the new provisions be sent out to all District Court Magistrates by the Magisterial Service as soon as the legislation is enacted, and that the subject be covered thoroughly in pre-service and in-service training for Magistrates.
19. That police recruit and in-service training be expanded to cover the new responsibilities for police contained in Recommendation 17 as soon as the legislation is enacted.
CHAPTER 10
THE VILLAGE COURTS
Introduction
The courts most familiar to the rural majority of Papua New Guineans are the Village Courts.[9] The District Courts and the police are only readily available to those who live close to towns, perhaps 30% of the population, whereas over 80% of the population have access to Village Courts. Village Courts are "people's courts", as the Handbook for Village Court Officials puts it (p.1). They are empowered by the Village Courts Act (introduced in 1973) to "ensure peace and harmony in the area" by mediating disputes and punishing certain offences (s.16). They do not follow government law, but are expected to apply the customary law of the area, except where a specific custom conflicts with the Constitution or a statute. However, over recent years there has been a tendency for Village Courts to see themselves more and more as "government courts", following principles of government law when they aware of them and taking a more punitive rather than mediatory approach.
Village Courts are staffed by Magistrates, Peace Officers and Clerks from the area, selected by the community and then confirmed by the senior District Court Magistrate for the province. Appointments are normally for three years, and must be gazetted nationally. A week's training is provided for new appointees, after which they are paid a small monthly salary. Court sessions are held on one or two fixed days of each week, but may be more or less, according to need. Cases are heard in the local language but decisions are recorded by the Clerk in one of the country's three official languages. People speak for themselves and representation by lawyers is not permitted.
Assault as an offence
Assault is one of the offences which Village Courts are empowered to deal with. The matter can be brought to court by the person who has been hit, or by a Village Magistrate or Peace Officer. The court may then order the offender to pay a court fine, do community work, work for the person who was hit, or pay compensation to that person. The usual punishment imposed for assault is a court fine, with compensation to the victim if actual injury was caused.
A problem with the way these powers are used for domestic assaults is that the offence of assault or hitting is described as "hitting without a good reason" in the Village Courts Handbook and information sheets provided for the public, with no clarification of what is or is not a good reason. In the context of Papua New Guinea custom, which supports men's right to control their wives, almost anything a wife does which her husband does not like could be considered a good reason for him to hit her. In some areas of the country, a great deal of wife-beating goes on which wives can do nothing about, because it is not seen by the male Village Magistrates as an offence. It even happens that wives are jailed by Village Courts for leaving husbands who beat them, because the beating is not recognised as an offence and therefore is not a justification for the wife to leave. The Commission has been called in to investigate several such cases in the Highlands lately. As long as people believe that hitting is an acceptable way for husbands to punish wives, the harmful effects of wife-beating as described in Chapter 3 will continue to be felt by individuals, families and society.
In the laws governing the operation of other courts, the circumstances under which hitting is excusable are clearly defined. As described in Chapter 5 on the Police, these relate mainly to self-defence, defence of another person, defence of home and property, and provocation under certain circumstances. Village Courts are not bound by any laws which do not specifically apply to them, but the Commission feels that some limitations need to be set out for Village Courts as to when hitting is and is not excusable, similar to the provisions in the Criminal Code just referred to. It should also be strongly emphasised that the provisions apply to assaults between husbands and wives in the same way as to assaults between other people. The question of provocation will still allow considerable scope for interpretation according to local custom, but the introduction of these guidelines will help to make it clear to Magistrates and rural communities generally that much stricter limits must be set on wife-beating.
Recommendation:
20. That the Village Courts Handbook and other information materials be amended to clarify the definition of assault, limiting the circumstances when assault between civilian adults may be justified to those listed in the Criminal Code (principally self-defence, defence of another person, defence of home or property, and provocation under certain circumstances).
Preventive orders
Village Court Magistrates have the power to make Preventive Orders if they believe "that a dispute may cause a breach of the peace" (Village Courts Act s.51). A person who fears violence may ask a sitting of the Village Court to make a Preventive Order forbidding the other person to hit him or her, and to come to the Village Court at a later time to have the problem dealt with there. A single Magistrate also has the power to issue a Preventive Order if he thinks it necessary to prevent future trouble, even if he is not asked to by the person at risk. A person who breaks a Preventive Order can be fined up to K1,000.00, or sent to prison for up to six months.
The main purpose of this provision is to prevent tribal fighting, but the wording of both the Act and the Handbook make it clear that it can be used for individual as well as group trouble, where there is a danger that the peace of the community may be disturbed. Despite the fact that a certain amount of domestic violence is a frequent occurrence in many rural communities, it may still be said to disturb the peace. The breach or disturbance may range from minor annoyance caused by the shouting and screaming that normally accompany a domestic fight, through more serious cases where other people interrupt their activity in order to observe or intervene, up to extreme situations where a domestic dispute sparks off a fight between in-laws or a full tribal fight. The Commission found during its investigations that some Village Courts were indeed making Preventive Orders to