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Constitutional and Law Reform Commission of Papua New Guinea

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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 stop domestic violence, sometimes even using them as a penalty following the hearing of the matter in the court, rather than just as a means of bringing disputants to court. However, the majority of courts were not using Preventive Orders for domestic cases at all.

 

In its Interim Report, the Commission therefore recommended that the Village Courts Handbook be amended to include specific guidelines on the use of Preventive Orders for domestic violence cases, and that these be covered in the training for Village Court officials. For administrative reasons the Handbook has not yet been revised, but the Secretary for Village Courts, Mr Peni Keris, has already assisted the Commission's work on domestic violence in many ways, which the Commission wishes to acknowledge. He has directed his staff to utilise the Commission's recommendations during training sessions and community discussions, and has approved the inclusion in the "Wife-beating is a Crime" leaflet of a section explaining that Village Courts have the power to issue Preventive Orders in cases of domestic violence. The leaflets have now been circulating throughout the country for over three years, and the Commission has heard of many cases where wives have obtained Village Court Preventive Orders to stop their husbands beating them. The situation is still far from standard, however, and the recommendations of the Interim Report are re-iterated here.

 

Recommendations:

 

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.

 

Wife-Beating as custom

 

The Commission's research found that a majority of rural Papua New Guineans find it acceptable for husbands to beat their wives in certain circumstances, whereas only a minority agree with a wife hitting her husband (see Chapter 4). In the sense that customary values generally support a husband's right to physically chastise his wife, and two-thirds of husbands actually do so, wife-beating (within certain limits) can be said to be customary in many or even most Papua New Guinea cultures. (Although some wives do hit their husbands, "husband-beating" cannot be said to be a general custom in Papua New Guinea in the same way that wife-beating can).

 

Village Courts were set up to apply custom, but this does not mean that they may permit wife-beating on the grounds that it is customary. There are limits on the application of custom, even by Village Courts. The Customs Recognition Act (s.3(a) and (b)) provides that custom shall not be recognised or enforced where "its recognition or enforcement would ... result in injustice or would not be in the public interest", or in a case involving the welfare of a child under 16 years, where its recognition or enforcement "would not be in the best interests of the child". The Commissioners take the view that recognising husbands' customary right to beat their wives results in injustice to wives, is against the public interest for the reasons discussed in Chapter 3, and is against the interests of any children involved.

 

The Constitution makes it even clearer that the custom of wife-beating can no longer be protected or encouraged (see Appendix 3). Wife-beating is also inconsistent with the statutory provisions on assault, which apply to every citizen, male or female. Where a custom conflicts with the Constitution or with a statute, the Constitution lays down that it is custom which must give way. Other examples of customs which conflict with the Constitution and with statute law and which are also no longer permitted to be applied or enforced, through the Village Courts or elsewhere, are the customs of tribal fighting and payback killing.

 

Recommendations:

 

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.

 

Male domination of Village Courts

 

Perhaps the greatest difficulty with Village Courts in dealing with wife-beating is that the Courts are dominated by men. Out of over 9,000 Village Magistrates in the country, less than 20 are women (the exact figure is not known to the Village Courts Secretariat). The natural result of this situation is that male interests are likely to be given more weight by the Court than female interests. This is not necessarily to imply that male Magistrates are deliberately biased against women, but that as husbands themselves (some of whom beat their own wives), it is more likely that they will find it easier to see things from the husband's point of view when a case of wife-beating comes before them. The Commission has, however, come to the conclusion during its investigations that some Village Courts are systematically repressive to women over marital disputes, both in their decisions and in their sentencing, particularly in some parts of the Highlands.

 

One obvious way of ensuring that women's interests are given fairer consideration by Village Courts is to create more women Magistrates. So far, the Village Courts Secretariat has left it up to local communities themselves to select their own Village Magistrates. The Secretary and some senior male staff of the national Secretariat have expressed willingness to encourage the recruitment of more female Magistrates, and the Secretary has made an effort to employ several women within the Secretariat. Yet all the Secretariat's printed materials describe Magistrates as men, and only men are shown in the illustration fronting the Secretariat's handout explaining Village Courts to the public. In another paper outlining the selection process for Village Court officials, the public are advised on "what sort of men" they should choose to be Magistrates, and are told that village "big-men" are the ideal candidates. These materials are all undated, but are believed to have been in use since 1973, when the Village Courts system was introduced.

 

The only way to remedy this situation is for the Village Courts Secretariat to make a policy decision to challenge the traditional preference for male leaders and to start actively recommending the selection of women as Magistrates. This is justified by the Second National Goal of the Constitution, which calls for equal participation by women in all spheres of life. Target figures and dates should be set, and progress monitored by the Secretariat. If some communities are slow to co-operate, the Commission feels it would be appropriate for the Secretariat to take a firm line by, for example, refusing to gazette a Village Court unless a certain proportion of Magistrates are women.

 

Another way of helping to get fairer treatment for women in Village Courts is to allow men to speak on their behalf. Most women are not used to speaking in front of an audience and may be so overcome with embarrassment that they are unable properly to explain their side of the story. The legislation already permits the use of spokesmen or women, but not of lawyers. However, the Tok Pisin version of the Village Courts Handbook incorrectly translates this, stating that no-one is allowed to speak for anyone else in a Village Court. Unfortunately, it is this version of the book which is by far the most widely used in training and by Magistrates in their course of their work.

Recommendations:

 

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 a person is 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.

 

Training

 

As previously mentioned, some of the Commission's suggestions for improving the Village Courts' response to domestic violence have already been incorporated into the training of Secretariat officers and Village Court officials. All provincial training officers have been supplied with the "STAP ISI" video and have been directed to use it regularly to promote discussion. They also distribute the "Wife-beating is a Crime" leaflets and posters. On occasions, the Secretariat has invited Commission staff to lead domestic violence discussions at training sessions for Village Court officials. The Commission appreciates the Secretariat's efforts so far, and would like to encourage their continuation.

 

Recommendation:

 

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.

 

CHAPTER 11

 

PUBLIC AWARENESS AND EDUCATION

 

Introduction

 

Part II has described the various ways in which the law and its administration can be improved in order to provide better protection to victims of domestic violence. Legal measures may have a preventive and deterrent effect as well as a punitive or remedial one. However, the Commission believes that more direct preventive action is necessary, to change the attitudes that allow domestic violence to continue.

 

The Interim Report recommended that comprehensive public awareness campaigns be carried out, to inform the public that domestic violence is harmful and against the law, and that sources of help exist. The purpose of the campaign is to promote public understanding and disapproval of wife-beating, so that communities will gradually accept responsibility for intervening to stop domestic violence in its early stages rather than waiting until it has become an established pattern of behaviour which will be hard to break. The ideal is to achieve the kind of situation described by anthropologist Gerald Erchak for the Kpelle, a people in East Africa, where domestic violence does not exist because neighbours, friends and relatives come running at the sound of raised voices to step in physically and prevent any violence from occurring (Erchak 1984).

 

The Commission believes that this kind of public education is so essential that it decided to take on the responsibility for implementing its own recommendation. Since the Commission itself had no funds for conducting such a campaign, it called on the Women and Law Committee for assistance. Thus was born a very fruitful collaboration, which will now be described.

 

The Women and Law Committee

 

The Women and Law Committee is a small, non-government, voluntary body which was formed in August 1986 to help educate the public in general and women in particular about women's legal rights. At the time of writing, it has six members, all of them women. Two are staff of the Law Reform Commission, one is with the YWCA, one is a former Secretary for the Department of Youth and Home Affairs, one is editor of the country's only weekly newspaper in English, and one is a lawyer with the State Solicitor's Office. The Committee meets as and when the need arises, with administrative support provided by the Law Reform Commission. It has obtained funding from donors both within and outside Papua New Guinea for all its projects. The Commission wishes to thank all those who contributed to the Women and Law Committee (listed as Appendix 12).

 

The first project undertaken by the Women and Law Committee was a public awareness campaign on domestic violence in collaboration with the Law Reform Commission, as will now be described.

 

The Domestic Violence Awareness Campaign

 

Poster: "Wife-beating is a Crime"

 

In 1987 the Women and Law Committee produced a poster in the three official languages bearing the message "Wife-beating is a Crime" and giving six simple reasons why wife-beating is wrong. This title was chosen at the suggestion of the then Police Commissioner, Mr. David Tasion. The format was field-tested by staff of the Commission and of the College of Allied Health Sciences to ensure that the graphics used would convey the correct message to non-literates unable to read the rest of the poster, as well as to the literate population. These posters have been very widely distributed throughout the country even to the most remote rural areas, through primary schools, aidposts and clinics, village courts, local government councils, police stations, women's groups, youth groups, church groups, welfare offices, courts, other government bodies and private individuals. The co-operation received from these agencies and individuals in distributing the materials has been extraordinary.

 

Leaflet: "Wife-beating is a Crime"

 

Also in 1987, a leaflet carrying on its front page the same graphics and messages as the poster was printed, with the inside pages giving information on the law and other sources of help for wives or husbands beaten by their spouse. These leaflets were also distributed nationwide through the same outlets as the poster, as well as through banks and private companies. There has been substantial support from the private sector because of the number of work hours lost by female employees due to domestic violence, particularly by wives, and some companies even volunteered to distribute the leaflets with their employees' paypackets. The leaflet was produced in the three official languages and some provinces have also chosen to translate it into some of their local languages. Demand for the leaflets and posters has been so great that finding funds to cover reprints is a continuous activity for the Women and Law Committee. So far, over half a million have already been distributed (amongst a population of nearly four million). In preparing the poster and leaflet, the Committee and the Commission worked closely with the Police Department, the Magisterial Service, the Health Department, the Village Courts Secretariat, the Department of Home Affairs and Youth, the Office of the Public Solicitor, the YWCA and Ms. Theresa Doherty (now Justice Doherty), then Provincial Legal Officer in Morobe Province. The Commission greatly appreciates this assistance.

 

Radio

 

The members of the Committee have made many radio broadcasts on domestic violence, and both national and provincial radio stations have run their own information programmes using the leaflet and poster. Provincial stations have translated the materials into many of the local languages. The subject has been covered in news, current affairs, law and order, religious and women's programmes. Phone-ins have been conducted, and a radio play written by members of the Committee was aired on national radio as a preliminary to the development of a video script.

 

Video

 

In order to reach more of the non-literate population, in 1988 a 30-minute broadcast-quality video drama was produced in two versions, one in Tok Pisin only and one in Tok Pisin with English subtitles. The video is entitled "STAP ISI", meaning "Take it Easy", and it takes a more positive approach than the "Wife-beating is a Crime" leaflets and posters. It shows how a village man and an educated urban man recognise the harm which their beating of their wives is causing in their families, and demonstrates how they go about changing their behaviour. The story is told from the perspective of the twelve year old son of the village man and is suitable for use with children as well as adult audiences, since no violence is actually shown. The script was sent to many provincial groups and individuals for comment and criticism before shooting began, and it incorporates segments authorised by the respective authorities for use in the training of police, teachers, magistrates, probation officers and church workers.

 

The video has been enormously popular, partly because it was the first video produced in Papua New Guinea to be distributed widely amongst community groups as well as government offices. Over 1,000 copies have been distributed and requests are still coming in. The public's response to the video has demonstrated that video technology has spread much more extensively than was previously thought, even into remote areas where there are no roads and equipment is carried in on people's backs. The success of "STAP ISI" has inspired some government departments and development organisations to move into video for community education, and its distribution network has been shared with other agencies interested in communicating with rural populations. The video has also been well received overseas. It has been supplied on request to the International Labour Organisation, UNIFEM, The South Pacific Commission, ESCAP and to organisations in Vanuatu, the Solomons, Fiji, Australia, New Zealand, Zimbabwe, Sierra Leone, Ghana, Nicaragua, the Dominican Republic, the UK, the USA, China, Thailand, Malaysia and Canada, and is being used by groups working with Aboriginals in several Australian states, and with Native Indians in northern Saskatchewan, Canada.

 

Television

 

The video was launched on the national television station, with an introduction from the Prime Minister, the Right Honourable Rabbie Namaliu, and his wife, Ms. Margaret Nakikus. It was followed by a panel discussion led by the then Governor-General, Sir Ignatius Kilage, and Lady Kilage, and other prominent persons. The launch was also covered on the television news, as have been all other major events of the awareness campaign. A programme of interviews with the members of the Women and Law Committee was also screened.

 

Local theatre

 

During preparation for the video, various versions of the script were trialled at the request of the Women and Law Committee by the National Capital Theatre Group. This is a group of up to 20 young unemployed people, some of them former criminals, who perform plays around the villages, marketplaces and settlements of the National Capital District. This proved to be a very popular and effective method of getting the message about wife-beating across to ordinary people, whether literate or illiterate. The Committee therefore arranged sponsorship for the Theatre Group to travel around several provinces, performing their wife-beating awareness play "Your Wife is not Your Enemy" and conducting workshops with local youth groups and women's groups to help them develop their own plays on the same theme. Again, it was the Women and Law Committee who pioneered the use of this method of development education, which proved so appealing that a number of other development organisations and the Health Department have since used the Theatre Group.

 

Church sermons

 

The Law Reform Commission wrote to the bishops of all the major churches in Papua New Guinea asking for sermons to be preached on the theme of wife-beating as un-Christian behaviour. Many complied, and in addition the Catholic Church (the largest in Papua New Guinea) also undertook to explain to its congregations that battered wives may leave their husbands for their own safety and still receive communion.

 

Debating competition

 

With the assistance of the Lions Club of Papua New Guinea, a debating competition for schools was held at which the topic to be debated was "What is wrong with wife-beating?". Prizes were given and the debate was covered by the national media.

 

Newspaper and newsletter coverage

 

All major events in the campaign have been covered in the daily and weekly newspapers, all of which have carried supportive editorials, in some cases more than once. Other publications which have carried items on the campaign are the Education Gazette, the Police Gazette, the newsletter of the Post and Telegraph Corporation, the magazine of the Department of Primary Industry, the newsletters of the national women's and youths' organisations, the Health Times, and many others.

 

Seminars, public meetings, rallies

 

These public events have been held in co-operation with local authorities in several provinces (East New Britain, East Sepik, Southern Highlands, Madang, Morobe, New Ireland, Western, National Capital District) and have attracted large audiences. Local radio stations have usually broadcast these live, and there has also been extensive coverage by the newspapers and the radio and television news services.

 

T-shirts

 

T-shirts bearing the slogan "Amamasim femili, noken pait" ("Have a happy family, don't fight") were printed and sold at rallies as another means of getting the message across.

 

Curriculum materials for high schools

 

Through the co-operation of the Curriculum Development Unit of the Department of Education, Social Science materials for grades 8 through 10 have been revised to include coverage of domestic violence, and a separate resource book on domestic violence has been produced for grades 11 and 12.

 

Cartoon story-book for primary schools

 

The latest production is "Let's Talk it Over", a cartoon storybook in comic form dealing with domestic violence, with emphasis on wife-beating. This was a three-way project of the Law Reform Commission, the Women and Law Committee and the Curriculum Development Unit of the Education Department, for which the Commission particularly wishes to acknowledge the co-operation of the Curriculum Development Unit. Sixty thousand copies of the book have been distributed free to all primary schools in Papua New Guinea for use with Grades 5 and 6. It is believed that this is a first for the Asia-Pacific region, and perhaps elsewhere, since domestic violence is not normally introduced at primary level. A feature of the book is that it links with the "STAP ISI" video. Because it is expected that high schools and adult community groups will also be keen to use the book, the Committee have entered a joint publishing agreement with a printing company, so that additional copies will also be on general sale to the public. A Tok Pisin version suitable for use with Sunday Schools, youth groups and other non-English speaking groups has also been printed for commercial sale.

 

Literacy materials

 

The posters, leaflets and video are already being used as literacy materials in the national government's literacy programme. The English and Tok Pisin versions of the comic book are also to be developed as literacy materials, and a version with blank spaces for the text to be added in local languages is planned.

 

Other related materials

 

The Women and Law Committee has also produced other public information leaflets, following on from its initial one on wife-beating. The second leaflet, "Maintenance and Custody of Children for Deserted Wives", assists deserted wives (and wives forced to leave by their husband's violence) since some men desert their families when their wives try to take action to stop the violence. Also, the Committee found that the majority of women did not know they had the right to take their children and leave their husband if he physically abused them. When trying to get maintenance orders, some women found they were not recognised as legally married, therefore the Committee produced a third leaflet, "Affiliation and Custody of Children for Unmarried Mothers", to help women in this situation. A major cause of wife-beating is adultery, or accusations of adultery, so a fourth leaflet, "The Law on Adultery and Enticement", was written to help both men and women bring their adultery accusations to the court instead of letting them erupt into violence. Two other leaflets cover rape and sexual offences, and the last of the series so far, "Some Laws about Drinking", is intended to reduce some of the harmful effects (including violence) of alcohol abuse. All these leaflets are produced in three languages and distributed nationwide with the co-operation of government and non-government bodies. All funding was raised by the Women and Law Committee from primarily non-government sources.

 

Other Initiatives

 

The Commission has been greatly encouraged by initiatives against domestic violence (particularly wife-beating) taken by other organisations or individuals. In East New Britain, the Social Action Committee obtained funding from West Germany to undertake an awareness programme of their own, with two paid workers giving talks to schools and village groups using materials provided by the Law Reform Commission. They have also produced their own wife-beating awareness video "Tupela Meri" ("Two Women"), whose catchy reggae theme tune "Noken Paitim Meri" ("No Hitting Wives") became an enormous hit nationally, much requested on the radio. In Enga, Southern Highlands, Eastern Highlands, East Sepik, Western Province, Morobe and Madang, local groups also organised their own smaller campaigns against domestic violence, using materials provided by the Commission and the Women and Law Committee.

Local awareness campaigns, essays and poster competitions have been run by some provincial high schools, using "STAP ISI" video cassettes provided by the Commission and locally donated items as prizes. Some individuals (males) have even run campaigns using their own transport and video equipment, or with assistance from local business people. Provincial drama groups in Morobe, East Sepik, East New Britain, Madang, Manus, Central Province and the National Capital District have developed and performed their own awareness plays about domestic violence. The rallies and marches held by several provinces have already been mentioned in a previous section.

 

Evaluation of the Campaign

 

An accurate assessment of the impact of the campaign is difficult to make, since neither the Law Reform Commission nor the Women and Law Committee has had the staff or resources to carry out a systematic evaluation of the changes in attitude and practice brought about by the public awareness campaign. The Commission and the Committee have received hundreds of letters and phone-calls from all over the country, many from people wanting materials so they can join in and conduct their own campaign in their local area. A few letters even claim that the materials, particularly the video, have changed their lives. Certainly the campaign has gained widespread recognition within Papua New Guinea as the most successful public education programme so far undertaken in the country. There can be no doubt that as a result of the campaign, wife-beating is now widely recognised as a serious social issue and a legitimate cause for public concern, whereas previously it was an accepted part of married life. Many leading public figures, from the Prime Minister and Governor-General down, have publicly condemned wife-beating and announced their support for the campaign. This in itself is a striking indicator of success at least at one level, since it was only in 1987 that the Interim Report on Domestic Violence was treated with contempt and ridicule when it was debated on the floor of Parliament.

 

The campaign has also received recognition internationally. Members of the Law Reform Commission's staff and of the Women and Law Committee have been invited to speak at conferences in Canada, the UK, China, Thailand, Fiji, the USA and Australia. The project has been used as a model by the Asian and Pacific Development Centre in its 1989 Women's Resource and Action book on health (Asian and Pacific Women's Resource Collection 1989: 191-3) and by ESCAP in its regional workshop on the production of media materials on women's issues, where it was described as "the most consistent and comprehensive campaign that the PNG women's movement has known" (Cox 1989:1).

 

Another noteworthy feature of the project is the close co-operation between the Women and Law Committee, a non-government body, and the Law Reform Commission as well as other government bodies, which has greatly enhanced the effectiveness of the campaign. Results so far have been encouraging, but an enormous amount remains to be done. The problem for the future is to sustain the effort for a long enough period to ensure that genuine and permanent changes of both attitude and behaviour are made. For this, funds will be needed to ensure the continued availability of the necessary information materials. The Commission feels it is no longer appropriate for government to rely on outside donations and on a voluntary and non-permanent organisation such as the Women and Law Committee for the provision of an essential information service. That there is a huge and ongoing need in particular for the leaflets and posters put out by the Committee has been clearly demonstrated. The Commission therefore recommends that government funding for reprinting and distributing these materials be provided on a regular basis.

 

Recommendation:

 

28.      That the national government assume 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 the Welfare Services Division of the Department of Home Affairs and Youth, in order to maintain supplies for its 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).

 

Conflict Resolution Education

 

The emphasis of the public awareness campaign and of most of the materials described is on what people should not do: i.e. they should not use violence. Little has been produced (except for the "STAP ISI" video and the "Let's Talk it Over" schoolbook) to show people what they can do instead. The teaching of anger management techniques and skills for resolving conflicts peacefully is essential and should be begun with children at primary school level. If children could learn at school how to respond to stress and conflict without using violence and how to use constructive rather than destructive methods of dispute settlement, their chances of a lasting marriage would be vastly increased, not to mention the benefit to their other relationships. The longterm benefits to society of a reduction in conflict levels would also be enormous.

 

This idea is gaining popularity in Australia, New Zealand and the United Kingdom, where growing numbers of primary school children are being taught the skills of conflict resolution so that both sides can win. A simple method of recognising and controlling build-up of anger, known as the "Time Out" method, is also being widely used overseas as a means of avoiding violence. This is the method demonstrated in the "STAP ISI" video and the "Let's Talk it Over" schoolbook. These are already being used by community schools and many high schools in connection with domestic violence. The impact of their message would be greatly strengthened if conflict resolution for all types of conflict were introduced as a separate subject in the curriculum.

 

In this connection, the need for teachers to model the recommended behaviour is obvious. Disciplinary action should be taken against teachers who physically assault their spouses, and support should be given to those teachers (normally females) who are victims of spouse-beating. The Gibson Report of June 1990 revealed that the current de facto policy of the Education Department and the Teaching Services Commission is to dismiss the female teacher from her job if her husband persists in beating her and this interferes with her performance (Gibson 1990). The policies of the Education Department and the Teaching Services Commission need to be revised in line with the recommendations of the Gibson Report to ensure that they discriminate against violent behaviour and not in favour of it.

 

Recommendation:

 

29.      That anger management and conflict resolution skills be introduced into 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 recommendation of the Gibson Report (Educational 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.

 

CHAPTER 12

 

HEALTH SERVICES

 

Introduction

 

Health services are usually the first point of contact outside the family for a woman who has been beaten by her husband. Many women seek treatment for their physical injuries, in some cases many times in a life-time, without ever looking for help from other outside agencies. The Law Reform Commission's urban surveys found that one in six of all wives surveyed had received hospital treatment once or more for injuries inflicted by their husbands.[10] This does not necessarily imply that the wives had to be admitted as in-patients. Dr. Alec Ekeroma's study of Angau Hospital in Lae found that only 6% of domestic violence patients needed to be admitted to hospital (Ekeroma 1986:83). Of the victims presenting for treatment, 17% had Grade 1 injuries, 43 had Grade 2, 28% Grade 3 and 12% Grade 4 (Ekeroma 1986:80). Common types of injury have already been described in Chapter 3.

 

The Interim Report

 

Because of the frequent use made of health services by domestic violence victims, particularly in urban areas, it is important that health workers are able to respond correctly. Commissioners made seven recommendations relating to health services in the Interim Report. These requested the Health Department to develop and implement policies and general education programmes that recognise domestic violence as a community health problem, and to introduce protocols and written materials for use by health personnel in identifying, assessing, treating and referring victims of domestic violence. It was recommended that compulsory units on domestic violence as a physical and mental health problem be included in pre-service and in-service training for all health workers, including doctors, and that all textbooks and manuals be amended accordingly. Revision of existing statistical data collection systems was also proposed so that domestic violence data can be extracted and monitored. Finally, it was recommended that the Health Department consider setting up a psychological service in each province so that courts would be able to order violent offenders to undergo therapy.

 

The Health Department's Response

 

The Law Reform Commission is pleased to record that the response of the Health Department to the Interim Report has been very encouraging. The Secretary for Health, Dr. Quentin Reilly, has issued two statements of support, and in addition many health staff at both national and provincial levels have initiated positive moves of their own in co-operation with the Commission. In May 1990 the Secretary notified the Commission of the Health Department's action plan on domestic violence, as developed by Dr. Brother Andrew, First Assistant Secretary for Mental Health Services, in line with the recommendations made in the Interim Report.

 

The Department recognises that domestic violence has been proved to be "far more widespread than is realised" and believes that "it affects not only those directly involved but has an extensive and profoundly negative influence on the institution of the family and on society as a whole". It is therefore appropriate "that Health Services assist the initiatives of the Law Reform Commission because of:

 

1. The health implications

2. The costs to health resources

3. The key position of some health workers".

 

The plan identified three areas as being suitable for intervention in the health services. These are the initial presentation at hospital/health centre, data collection, and training. An outline of the plan's proposals in these areas will now be given.

 

Initial presentation at hospital/health centre

 

The Health Department's plan states that since only a small percentage of domestic violence cases require admission, most assistance, planning and training must be orientated towards the casualty sections of hospitals, health centres and urban clinics. Unfortunately, this is the most disadvantageous environment because of pressures of time and space on both staff and patients. Training and supervision are needed to help inexperienced health workers to recognise domestic violence cases when either the patient or the health worker is too embarrassed to mention it directly. It should be pointed out here that the Commission's studies have shown that wife-beating is regarded as acceptable and therefore not shameful by a large proportion of the population, so in most cases the problem is admitted fairly freely. However, this may change, if wife-beating is indeed becoming less acceptable as a result of the Commission's public awareness campaigns. Embarrassment is probably more of a hindrance in cases where it is the husband who is the victim.

 

The plan recommends that the health worker should be able to advise the patient on the potential physical dangers of domestic violence, particularly the dangers of head and spleen injury. This would enable the patient and/or the relatives to make decisions about the immediate need for protection of the patient, possibly by removing her from the source of the violence. Health workers would therefore need to be able to give information about the local availability of emergency accommodation at a women's refuge, or through a church, women's group or other voluntary organisation. Occasionally it may be possible to give advice to the husband himself, who may be unaware both of the physical dangers of domestic violence and of the existence of laws and social support systems aimed at protecting wives (and husbands) from domestic violence.

 

As well as providing physical care, the health worker should offer emotional support by showing concern, but should not attempt to take sides in the patient's marital problems. Where possible, the patient should be referred for professional counselling, preferably with both partners together.[11] If this is not possible, counselling for the patient should be provided to assist her to assess her situation and make appropriate decisions on what to do, and generally to give some relief from stress. If no professional counselling is available, the health worker with some listening skills may still be able to provide much help which may be sufficient in many cases.

 

The health worker may also advise on other action that might prevent further risk of injury, such as seeking marriage counselling or information on legal rights. The Department feels that this last is best done by making available the leaflet "Wife-beating is a Crime", published for the Commission by the Women and Law Committee. This kind of broader preventive approach is particularly appropriate for health workers to take, since otherwise it is only too likely that the patient will soon be back with more injuries to be patched up. It is well established that domestic violence is seldom an isolated event, but forms part of a pattern, one which often escalates in frequency and intensity.

 

The plan calls for the health worker to be clear about the extent of his/her own responsibilities, particularly as regards not acting as a witness except as to the nature and extent of the patient's injuries, and not expressing any judgement other than a medical one. The health worker may also be anxious about his/her own safety if confronted with a patient's angry spouse, and this must be taken into account in training and supervision. It may also be necessary to prepare strategies for reacting to a violent situation on health services premises.

 

Provision of a Certificate of Injury

 

The plan recognises that an important part of domestic violence patient care that has previously been neglected, despite an earlier Departmental circular on the subject, is the provision of what is commonly known as an "injury certificate". This is a certificate describing the patient's physical condition as observed by the health worker, similar to the medical certificate provided as standard practice for employed persons who are too sick to go to work. In the case of domestic violence patients, an injury certificate provides crucial evidence if the case ever comes to court. The Commission has found that some magistrates seem unwilling to accept a complaint of domestic violence unless there is written medical evidence of injuries. It sometimes happens that the husband contests the case, claiming that the wife fell and hurt herself. In such situations, injury certificates showing similar injuries on previous occasions can provide the decisive evidence in the wife's favour.

 

Unfortunately, some health workers have been refusing to issue certificates unless they are assured they are needed for a court case, sometimes insisting that they are only allowed to provide certificates if directed by a magistrate. Sometimes health workers refuse to give certificates on the grounds that they do not have the proper forms. Since many families these days are quite mobile, it is necessary for a patient to obtain an injury certificate at the time of seeking treatment rather than waiting until it is needed for a court case, perhaps years later in a different part of the country.

 

The Health Department's new policy on issuing injury certificates for domestic violence cases is clear:

 

"The patient's right to such a certificate arises from his/her need and is part of patient management; it does not arise from the legal or other use to which he/she may put it. It should be regarded as as much part of proper patient care as writing orders for tests or treatment or any other health care activity".

 

This statement has been followed up with a circular to all provincial Assistant Secretaries for Health explaining the need for health workers to issue injury certificates to domestic violence victims, and providing a draft format. It is worth noting, however, that if no printed forms are available, the information can be written on ordinary official letterhead, or blank paper with the relevant official stamp identifying the location. This is valid for legal purposes.

 

Data collection

 

The Department recognises that "the use of resources by health services resulting from cases of domestic violence is certainly significant" and that there is a need for a better data base to quantify this. Information about the time of the day and day of the week at which domestic violence patients most commonly present for treatment and about many other factors would be valuable for planning appropriate for health and other services. Such detailed information could not be collected by health staff on a regular basis, therefore the Department proposes to make these needs known to the Community Health Department and Social Work Department of the University of Papua New Guinea (for student research), to the National Research Institute (for professional research), and to practising doctors who might be interested in preparing a paper for the Papua New Guinea Medical Journal or for a Symposium.

 

The Department also proposes that the present sheets used for the compilation of statistics be modified to add a category of non-accidental injury. This category would be subdivided by age and sex, allowing child abuse cases to be distinguished from domestic violence/wife-beating cases. A draft format has already been drawn up for the approval of the relevant Departmental committee.

 

Training

 

The Department's plan recognises that specific training is needed to enable health workers to respond effectively, both socially and medically, in cases of domestic violence. It recommends that one lecture/class covering the special features of domestic violence should be included in the basic pre-service training for all levels of health workers: community health workers, nurses, health education officers and medical students. The opportunity for in-service programmes is also important and will be a priority until pre-service training is well established. Where time allows, teaching may be extended to cover the more important social and psychological aspects, as the subject matter would be relevant to many other areas of psycho-social health. Legal aspects would also be included for those in supervisory and administrative positions.

 

In fact, some improvements in training had already been introduced before the Health Department announced its plan. On the initiative of several staff members of the College of Allied Health Sciences, domestic violence has been included since 1988 in community health workers' training materials for identifying the health needs of a community, and students in most courses have received sessions on domestic violence and related matters of family law using materials provided by the Law Reform Commission. Most provincial health worker training institutions run by the Health Department and by the churches were also already giving some coverage of domestic violence using the "STAP ISI" video as a teaching aid. A copy of this video was supplied to all these institutions free of charge by the Women and Law Committee in 1988. Another encouraging development is that a number of hospital superintendents, clinic staff and community health workers have also held regular public showings at their various establishments as a means of raising public awareness of domestic violence as a community health problem. This serves a double purpose as refresher training for the staff involved.

 

In terms of developing further training materials, the Department of Health has at the moment only one employee with specialist skills in domestic violence. The Sister-in-Charge of Port Moresby General Hospital's Outpatient's Section, Sister Agnes Willyman, has participated in the Law Reform Commission's Training Workshop for Domestic Violence Resource Persons, and was also invited to speak on domestic violence at the first Asia-Pacific Conference for Emergency Room Nurses held in Hongkong in 1989. She is making a survey of domestic violence cases at Port Moresby General Hospital, and is offering some counselling wherever possible. She has been asked by the Department to co-ordinate a working group to develop a basic management plan, a simple survey form and an outline of key points for teaching purposes, which could be used not only in the larger hospitals but also in health centres and urban clinics, and in both pre-service and in-service teaching programmes.

 

Further action

 

Only one of the Interim Report's recommendations - that relating to the introduction of a provincial psychological service to provide court-ordered rehabilitation for violence offenders - was not covered in the Health Department's plan. Since the writing of the Interim Report, the Commission has developed with the Department of Home Affairs and Youth a broader plan for the expansion of domestic violence counselling expertise throughout the country which, if carried through, will achieve much broader coverage than could be done through a system of town-based professionals (see Chapter 15 on Domestic Violence Resource Persons Training). Health workers will also be able to participate in this scheme as needed. The recommendation of the Interim Report concerning the introduction of a provincial psychological service is therefore dropped.

 

The Commissioners applaud the Health Department's action plan on domestic violence, and also the measures introduced by the many individual health service staff who co-operated with the Law Reform Commission on their own initiative. Virtually all the recommendations of the Interim Report are now well on the way to being implemented. Only two areas of concern remain, relating to the provision of leaflets for staff use and the unmet need in the provinces for mental health expertise.

 

As mentioned earlier, the Health Department recommends that health workers use the Women and Law Committee's Public Information Leaflet "Wife-beating is a Crime" as part of the referral process in case management. Ensuring a continual stock of these leaflets at all health outlets is however a problem, both in terms of the distribution process itself and in terms of the availability of the leaflets from the supplier (the Women and Law Committee). Two distributions to all health facilities have been carried out so far on the initiative of staff of the national Department, once in 1987 and once in 1988. Since then, some provincial Assistant Secretaries for Health, hospital superintendants, clinic supervisors and community health workers have contacted the Women and Law Committee direct for further supplies, but there has been no co-ordinated re-distribution nationally. To be effective, re-supply should be carried out twice yearly, and the Women and Law Committee would find it very difficult to meet a regular demand on this scale. It is recommended, therefore, that the Health Department arrange for an annual reprinting of this leaflet and the accompanying poster to ensure a constant supply for use by its own outlets. Alternatively, the Department might find it more effective to develop its own advice leaflet for domestic violence victims, giving coverage to the health implications of domestic violence as well as providing basic information on the legal situation and other sources of help.

 

Recommendation:

 

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.

 

CHAPTER 13

 

ACCOMMODATION

 

Emergency accommodation ("refuge" or "shelter")

 

There is a need, particularly in urban areas, for a safe place for women and children to go to, in order to escape from a violent crisis. The place needs to be one which is either not known to the husbands, or where security is effective enough to prevent violent husbands from harassing the women and children staying there, and from threatening or actually injuring staff or property. Preferably both conditions would apply. The purpose of such a safe place is firstly, to allow women and children to get away from immediate physical danger and, secondly, to allow the wives time to think about what to do next, in an atmosphere free from fear and danger. The staff of such a safe place need to be trained in counselling for domestic violence and must be able to supply wives with accurate information about their options and sources of other help available to them, as well as providing emotional and spiritual support to them in their time of crisis. Victims should be able to stay for a short period only, normally not more than one month.

 

This type of emergency accommodation for victims of domestic violence is known as a refuge or shelter. In some other countries such as Canada, Britain, Australia and the United States, a whole movement has developed for the establishment and support of refuges or shelters. The refuge movement has always been closely linked with the women's rights movement, which has been effective in pressuring governments to take on at least part of the financial responsibility for funding refuges, with the rest made up from voluntary contributions.

 

In these countries, refuges have become the central focus of efforts to reduce domestic violence. As well as providing emergency escape for victims, they provide or arrange for many other services for victims. They normally provide the victim with free advice from a lawyer who can make whatever legal arrangements are necessary, such as getting a protection order, a maintenance order, a custody order if children are involved, division of marital property, separation or divorce proceedings, reclaiming the family house if appropriate, etc. They are usually able to provide short-term financial assistance until long-term financial support can be arranged under the government's welfare scheme.

 

For those women who are able to work, they offer advice on re-training schemes or further education programmes that will help them to become financially independent. They help get the children settled in new schools if necessary, arrange activities or child-care for those not in school and make referrals for specialist counselling or therapy for those children who show signs of distress. They are often able to arrange for the woman and children to be re-housed permanently, or at least in transition housing while they wait for permanent housing. Throughout their stay victims receive counselling and psychological support from the trained staff and from the other residents. Sometimes counselling is made available to the offender, and to the couple jointly. Each refuge normally has its own support group of interested outsiders, former residents and persons with special expertise who provide back-up for staff, help with transport, fundraise and generally provide moral support and practical assistance as needed.

 

Refuges in developed countries are always overcrowded and often have waiting lists. Therefore some refuges put a limit on how long victims may stay - perhaps 3 months, 6 months or 1 year, but ideally victims are allowed to stay for as long as it takes to find a permanent solution to their problem. This may take a year or more if government housing has been applied for. But in fact many of the women who use a refuge return to their husbands after a relatively short stay of a few days or weeks. In some cases the knowledge that the wife has a way out when things get bad is enough to stimulate change in the relationship and motivate the offender to reduce or stop his violence. In other cases the situation at home does not improve, and the wife may need to return to the refuge again and again until she concludes that nothing will change her husband and she must leave for good.

 

In the Papua New Guinea situation it is neither necessary nor desirable for a refuge to function in the same way that refuges function in more developed countries. Those countries have comprehensive State-funded systems of welfare services, income support and housing which Papua New Guinea could not and does not hope to emulate. What Papua New Guinea does have - which is in some ways more valuable - is a strong practical and emotional support system based on kinship. Papua New Guinean women (and men) remain much more fully integrated into their extended families than are westerners. Most women who go to a refuge for protection and decide to leave their husbands will have to depend to a greater or lesser extent on their families. Very few Papua New Guinean women would be able to survive entirely independently of their families, even if they wanted to. It is therefore important that the link between women and their family support networks be disrupted as little as possible. Refuges should provide emergency protection, a breathing space and specialist information and counselling, but should not act as a long-term substitute for family and kin support except in special cases.

 

That said, there are however many limitations on the extent to which beaten wives can count on support from their family networks, whether in an emergency or for longer term help. There is a view amongst some Papua New Guineans that victims of domestic violence can always find all the help they need in a crisis from within their own extended family or kin group, and that there is therefore no need for emergency refuges. Unfortunately, this is simply not true. With the increasing mobility of the population, many people find themselves in a situation where they no longer have their traditional support network but have yet to build up an effective replacement. Even amongst those who live more traditionally, many women move far away from their family and kin when they join their husbands on marriage, so that a place of safety among relatives could be several days' walk away, perhaps through enemy territory in areas where tribal warfare is still prevalent. Often the husband's people are former enemies of the wife and her people, since in some parts of the country it is common for marriages to be made between warring groups as part of a peace pact.[12] It can be hard, therefore, for a wife to find anyone amongst her husband's people to take her side in a confrontation with him.

 

Not that having family close at hand necessarily guarantees help for the wife. The Commission knows of many cases where families have been unable to protect their own daughters or sisters from violence by their husbands. In some cases they are held back by strong feelings of embarrassment about interfering between a married couple, or by customary restraints on relationships between in-laws. In many cases they are afraid the husband might retaliate against them, by physically attacking them, by damaging property, by using sorcery, by calling in outstanding debts to him or by refusing to help them financially in the future. Sometimes the woman's parents feel obliged to turn a blind eye to the violence because they would find it hard to return part of the brideprice if the marriage broke down completely, or because they do not want to let her have precious garden land so she may support herself, and her children if they come with her. Sometimes the woman's parents fear losing contact with their grandchildren if the couple separate and the husband gets custody of the children as is the custom in Papua New Guinea's patrilineal societies. An increasingly common situation amongst educated and employed young women is that they marry or have children with a man of their own choice rather than one approved by their parents. If the relationship then goes wrong, the woman may feel ashamed to ask her parents for help, or the parents may in any case take the attitude that she got herself into this mess so she must get herself out of it.

 

Another problem that arises is that if a woman goes to relatives or friends for help in an emergency, her husband can always track her down fairly quickly. If he is still angry and violent, he will drag her out unless there are other men around prepared to protect her, or she may feel obliged to go with him anyway to avoid causing another fight. Another tactic some men use is to go to the house where the wife and children are staying and then take back the children as a way of forcing their wives to return to them.

 

For these reasons, there does need to be a safe place for women and children to go to in an emergency where their husbands cannot get at them and intimidate them further. Specially trained staff would be able to provide counselling to both husband and wife, separately or together, covering practical and emotional issues (see Chapter 15). Support groups in the local community including male and female members would provide additional assistance and would help staff in liaising with victims' families to ensure that they understand the dangers of domestic violence and are prepared to assist the victim in taking whatever action is necessary to protect her and the children from further violence.

 

In the Pacific region, refuges for battered women and their children exist in Fiji, Guam, New Caledonia and American Samoa and there are plans for refuges to be established in Vanuatu and Tahiti. In Papua New Guinea, the only purpose-built women's refuge is the one run by Lifeline in Port Moresby. In some provinces and towns - for example Wewak, Lae, Manus, Rabaul, Tari, Kundiawa and Kavieng (as far as is known) there is sleeping accommodation at the Women's Centre where battered wives and their children are allowed to stay for a short time while other help is found for them. Sometimes victims are looked after temporarily in the house of a women's leader. Some churches are also prepared to provide a safe place for battered women and children to stay temporarily, but this seems to be up to individual pastors and ministers to decide rather being a matter of church policy. The Catholic Church seemed to be the most consistently helpful in this way until a recent unpleasant incident in Port Moresby. Church property was damaged and nuns were intimidated when a government minister came to claim his wife, who was seeking refuge from him in the convent. Since then, convents in Port Moresby have stopped taking in battered wives. However, the Catholic Bishops Conference of April 1990 agreed to consider the whole subject of providing a place of safety and other practical assistance to victims of domestic violence, and their decision is awaited currently.

 

Lifeline's Women's Refuge in Port Moresby has short-term accommodation for about ten persons. However, the refuge is often empty, despite the high rate of wife-beating in the city. There are several reasons for this. One is that almost no publicity has been carried out, so most people do not know the refuge exists. Even many police, who could make many referrals a week, do not appear to be aware of the service offered by the refuge, nor of how to contact it. Another is that when requests for help are received it is often in the middle of the night, and unless the Director is prepared to leave his own family there is no system for collecting victims. Another factor is that Lifeline's current policy is to allow clients to stay only for three days and to discourage anyone from coming for whom this would not be enough. In practice this covers all but the most desperate.

 

The Commission congratulates Lifeline and its Director on its commitment to assisting victims of domestic violence, but would like to suggest some ways in which its service could be improved. Some intensive publicity of the refuge's services, but not of its location, would be productive. The formation of a support group of volunteers to provide transport for collecting victims would help minimise public knowledge of the refuge's location as well as increasing accessibility. Only Lifeline's twenty-four hour telephone number would be publicised, so that initial contact would be by telephone and volunteers would then pick up the victim and bring her to the refuge. The support group could also help with fundraising and provision of other necessary resources. Contributions of cash or volunteer assistance from the churches would be appropriate, since Lifeline is an ecumenical organisation.

 

One urgently needed change is for Lifeline's policy to be revised to allow victims to stay longer than three days if necessary. At the moment, applying for a Good Behaviour Bond takes a minimum of four days and in many cases it is weeks before a Bond is obtained. It does not make sense to pressure a woman to leave before any legal protection is obtained. Other suggestions are that security of the building and of the yard be improved, and that any staff working at the refuge be trained in domestic violence counselling. As use of the refuge increases, expansion of premises and staff will eventually become necessary.

 

Two other organisations are looking into the possibility of providing refuges for beaten wives in Port Moresby and elsewhere. These are the YWCA and the Salvation Army. The YWCA is also planning for a Pacific regional workshop on domestic violence to be held in partnership with the Quakers of Australia and Papua New Guinea. The Commission welcomes and encourages these initiatives.

 

Recommendations:

 

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.

 

Short-term accommodation

 

In towns, where families occupy rented or mortgaged accommodation, there needs to be a system which guarantees the right of a battered wife and children to stay in the family home while the current crisis is being resolved. If a man is violent towards his wife and children and their safety is at risk while they live together, it is appropriate that it should be the violent party who is required to leave while the problem is sorted out. New legislation is needed to provide that where criminal charges for domestic assault are laid against a person, or where a protection order (full or interim) is made against a person, that person may be barred from the home he shared with his victims for a period of not more than three months. If he is normally responsible for paying the rent/mortgage and utilities bills, these obligations should continue during the period of his exclusion from the property.

 

The Commissioners believe it would not be feasible to exclude a person from a home to which he has a legal entitlement for a period of more than three months, but that an exclusion for a period of three months or less is reasonable and would be of great practical assistance to the wife and children while a longer-term solution is worked out.

 

Long-Term accommodation

 

In rural areas, married women are normally housed by their husbands. If the marriage breaks up, the wife and children do not usually have any claims on the house or land. Unless the wife has a new husband to go to, she will have to return to her own people, with or without her children, and ask them to house her. In matrilineal societies, where land rights pass through the female line, a woman can claim this as her right. In patrilineal societies, which are the great majority in Papua New Guinea, the situation regarding residual landrights for outmarrying women is complex, and a woman may not have a clear entitlement to residential or gardening land. In both types of societies however, land shortage or other considerations may mean that a separated or divorced woman is not welcomed back by her own people, particularly if they take the view that a certain amount of violence is part of a wife's lot in life. It is hoped that the public education measures recommended and carried out by the Commission will help to increase rural people's understanding of the harm caused by domestic violence so they will be prepared to welcome back a wife who escapes from a violent marriage and make housing and gardening land available to her without pressuring her to go back to her husband. As already mentioned, it would be part of the duties of those responsible for emergency accommodation to enlist support for a victim from her family and relatives.

 

In urban areas, wives who want to escape from violent marriages face enormous difficulties in finding alternative long-term accommodation. Many families are living in accommodation provided as part of a husband's job and the husband cannot be excluded from it except for the 3 month "breathing space" allowed under the proposed Protection Orders legislation. Wives living in private rented accommodation or in housing that the family is buying also find that they, rather than the husbands, are forced to leave because rental, purchase and mortgage agreements are made out in the husband's name only. A severe housing shortage, particularly in the low income range, with the resultant overcrowding, makes it almost impossible for a woman with children to find anyone able to take her in. Finding affordable rental accommodation of her own is even harder for a woman on an average salary - and of course many beaten wives have no salary or reliable source or income.

 

Recommendations:

 

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.

 

CHAPTER 14

 

LEGAL INFORMATION AND LEGAL AID

 

Legal information

 

There is a great need throughout Papua New Guinea for information on the legal situation relating to domestic violence and to the rights of victims (usually women). This would benefit both men and women. That victims need this information in order to be able to seek help is obvious. What is not so obvious is that this information also has value to offenders, and has a deterrent effect. A husband who knows he can be punished for beating his wife, that she has the right to leave him and possibly keep the children, or that he may legally be excluded from the family home for three months[13] is likely to exert more effort to control himself than one who knows nothing of the possible legal consequences. Knowing that domestic violence is against the law and that a woman can legally leave her violent husband also influences the way a beaten wife's family and friends respond, as well as the amount of sympathy and support she can expect from the wider community. The Women and Law Committee's public awareness campaign has provided the Commission with many examples of the value that legal information has for deterrence and prevention, and for increasing support to victims. In other words, giving people information on their legal rights can be an effective way of keeping them out of court rather than necessarily increasing the number of cases brought to the courts.

 

When it comes to understanding the system of law under which they live, most Papua New Guineans are at a great disadvantage. Papua New Guinea's laws are based on the laws brought with them by the Australian colonisers, who had in turn inherited them from England. The laws are written in complicated English which even educated people find it hard to understand, with many technical words and phrases in Latin. They are published in thirteen thick volumes which fill a shelf six feet long, and are only sold as a complete set costing over K1,000. Apart from the leaflets now being produced by the Women and Law Committee, the only written information about any of Papua New Guinea's laws that is available to the general public is found in textbooks for university students, which are not suitable for the average reader.

 

Often the introduced written laws contradict the unwritten customary laws that people have grown up with. Where this happens, the Constitution lays down that the written or statute law takes priority (Schedule 2.1(2) of the Constitution). Domestic violence is a case in point, where many people grew up believing that this is acceptable, whereas under the modern law it is a punishable offence. Similarly, laws relating to women's rights, especially within marriage, are an area in which the legal reality is different from people's expectations. Under the modern legal system, women generally have more options than under customary law. As one Local Court Magistrate chose to explain it in Tok Pisin to a women's workshop: "Long kastom, ol meri i stap aninit long ol man, tasol long lo bilong gavman, man na meri i gat wankain rait" (in custom, women are inferior to men, but in the government's law, men and women have equal rights). While it would be an exaggeration to say that women are genuinely equal under the modern legal system, it is true that the written introduced laws do, generally speaking, give more recognition to women's interests than do customary laws.

 

Of course, information about legal rights under written laws has more preventive and practical value amongst populations who have access to the courts and other agencies which apply the modern law. In more remote areas there are only the Village Courts applying customary law. Although it is gradually being recognised by the Village Courts that wife-beating is a punishable offence, other matters relating to the rights of husbands and wives in marriage and divorce which come before the Village Courts continue to be settled according to custom. When victims seek legal information it is usually their rights under the modern law that they have in mind, since this knowledge has not been widely available until recently.

 

Victims' information needs

 

Protection

 

The immediate need for victims is to know what kind of protection against further violence is available to them. The various options for action through the police and the courts have been described in Chapter 6 on Present Legal Provisions and their Deficiencies.

 

Custody of children

 

The second need for victims is information on their rights over their children. Many women victims hesitate to leave violent husbands or take legal action for their own protection, because they fear that they will lose their children. This is an area where the modern law differs from customary law. Most Papua New Guinean societies are patrilineal (that is, clan membership is through the father), and the custom in these societies is that a man who has made the proper customary payments (whether as brideprice or a specific payment for each child) is entitled to keep the child, regardless of whether the marriage breakdown was his fault, and regardless too of how well or badly he treats the children. In the small number of matrilineal societies the custom is for the children to stay with their mother or their mother's brother if the parents separate. These customs are still generally upheld by Village Courts.

 

Under the modern law as applied by all other courts, both parents have equal rights to their children (Infants Act s.3). A woman who has to leave her husband for her own protection can take her children with her, and apply in the Local or District Court for a custody order allowing her to keep them, under the Deserted Wives and Children Act. In these courts, custody is decided according to the rights and the best interests of the child, not according to the rights of the parents. In deciding what is best for the child, the courts will consider not only the material needs of the child, but also the moral, emotional and spiritual environment which each parent can provide. The fact that the father may have paid brideprice for his wife or made other customary payments for his children is not a deciding factor, since custody is not determined according to parents' rights. A father's violent behaviour is relevant since it is harmful for children to be brought up in a violent home, but this is not necessarily the key deciding factor.

 

If a Local or District Court believes that it is in the child's best interests to be looked after by its mother, it will award custody to her and the husband will be ordered to make maintenance payments to her for the upkeep of the child. Of course, enforcement of the maintenance order often brings its own difficulties and wives need to understand that applying for a custody order does not ensure that they will be granted one. However, it is recommended that all wives who want to keep their children apply for custody orders for them, even if they do not want to claim any maintenance for them.[14] It often happens that husbands abduct the children from their wives and send them to be looked after by relatives in another place, to prevent the wives from getting them. If the wife has a custody order from the court, the husband can be ordered to return them to her. If she has no order, getting them back can be an impossible task. For the same reason, an unmarried woman should also be advised to apply for a custody order for her child or children, even if they are already with her. Custody orders for unmarried mothers as well as for married ones may be made under the Deserted Wives and Children Act (s.1) following a precedent established by the case of PR v SC of 1986.

 

Some defects in the current custody legislation deserve mention. The main ones are that at the moment, custody orders can only be applied for through a Local or District Court at the same time as an application for maintenance; that fathers have no way of applying for custody orders except through the National Court (which requires a lawyer and is expensive); and there is no provision for other people with an interest in the child (such as a grandparent, aunt, uncle, godparent) to apply for a custody order when the parents are absent or unable to look after the child and there is a dispute about who should look after him or her. The Law Reform Commission's Family Law Working Group is planning new legislation to deal with these deficiencies.

 

Maintenance

 

Contrary to customary law, which expects that the family will be fed mainly through the labour of the wife, the introduced law expects the husband to be the breadwinner. Under the Deserted Wives and Children Act a husband can be ordered by a Local or District Court to contribute towards the costs of providing basic necessities for his wife and children, such as food, clothing, housing, water and electricity, school fees, fares to work or school, medicines, and so on. This duty can be enforced by a court order under the above Act where the husband has money but is neglecting his family's needs. A poor man who simply does not have enough money for these things cannot be prosecuted for not providing them. However, orders can be made for contributions in kind, such as garden produce, or for small amounts of money from the sale of garden produce, so that even villagers can be compelled to provide some kind of assistance to their separated wives and children.[15] But the most effective kind of order is one made against a man in regular employment because his employer can be ordered to deduct the maintenance from the man's pay and give it to the court for the wife.

 

It is important to emphasise that a wife who leaves her husband because of his violence counts as a deserted wife and can apply for a maintenance order for herself and/or the children under the Deserted Wives and Children Act. This situation is known as "constructive desertion", because it was the husband's fault that she left.

 

One difficulty women sometimes face in applying for a maintenance order is that they may find when they bring their case to a Local or District Court that they do not count as a "wife" under the law. The law recognises two kinds of marriage: customary marriage, where the parties have been married according to the customs of one or both of them, or statutory marriage, where the ceremony was carried out by a person licensed by the Registrar General to perform such marriages according to the rules laid down by the Marriage Act. Statutory marriages are not common. In 1987, only just over four hundred such marriages took place between Papua New Guineans. It is not known how many customary marriages took place in the same year because customary marriages are not registered. Proving to a formal court that a customary marriage exists therefore involves bringing evidence as to what the parties' marriage customs are, and whether or not they were properly complied with. If the customs were not properly followed (perhaps because the couple were living away from their home area, or because they are from different tribal groups and followed a mixture of customs), the marriage is not valid in the eyes of the law.

 

A marriage in a church has no separate legal status, but may be regarded as a customary marriage, or a statutory marriage, or as neither, depending on the circumstances. It counts as a customary marriage if the church ceremony was a blessing of a marriage recognised under the customs of the partners, or if having a ceremony in church has become the customary way of getting married in that particular area. It is recognised as a statutory marriage if the priest or minister was properly licensed and followed correctly the procedures laid down in the Marriage Act. In some cases, magistrates have not recognised church marriages where there was no evidence of some customary component, such as brideprice, but the Commission's Family Law Working Group is dealing with this difficulty.

 

Victims of domestic violence who do not count as "wives" are not entitled to maintenance for themselves from their "husbands", but they may claim maintenance for their children using either the Deserted Wives and Children Act, or the Child Welfare Act.[16] However, it is important that women not be misled into thinking that a maintenance order will be the answer to all their financial problems if they take the step of leaving a violent partner. The amounts ordered are often inadequate, and enforcement is a common problem. The Commission has recently produced a report on maintenance laws and their enforcement with recommendations for improvements (Working Paper No. 23). In fact, the whole area of family law relating to marriage, divorce, maintenance and the custody of children is confused and often inappropriate. The Commission's Family Law Working Group is currently looking into ways of simplifying and updating this legislation.

 

Village Courts do not have official powers to make maintenance orders because Village Courts were set up to administer custom, and it is not customary in Papua New Guinea for a husband to support his wife if she separates from him, nor his children if they leave with their mother (Mitchell 1985:88). Nevertheless, Village Courts in some areas are attempting to do this (Bradley 1985:37; Mitchell 1985:87-8). When Village Courts make an order they are responsible for its enforcement and are not able to have part of a man's salary deducted by his employer.

 

Divorce

 

Whether or not domestic violence is grounds for divorce depends on the kind of marriage the couple have. For a statutory marriage the situation is clear: habitual cruelty is recognised as grounds for divorce under section 17 of the Matrimonial Causes Act. However, this provision is of little help to most beaten wives, firstly because so few people have a statutory marriage, and secondly because actually obtaining a divorce is complex, lengthy and costly. It can only be done in the National Court, using a professional lawyer.

 

For those customarily married the situation is less clear. Only Village Courts are empowered to grant a formal divorce from a customary marriage,[17] and as has been said, Village Courts vary in the extent to which they view domestic violence as an acceptable part of normal married life. Magistrates are much more likely to try to reconcile the parties, or even to order the wife to return to her husband, than to grant a divorce and be faced with making difficult decisions about brideprice repayment or compensation. The Commission has lately been called in to assist in a number of cases in the Western and Southern Highlands of wives who were ordered by the Village Courts to return to husbands who maltreated them and were then imprisoned for failing to obey the order. Recommendations to deal with this blatant discrimination against women have been made in Chapter 10.

 

Division of property

 

Division of matrimonial property is another problem area for wives. The National Court deals with division of matrimonial property under the Matrimonial Causes Act when granting a divorce from a statutory marriage, but the law here is in line with a principle of English common law (long since abandoned in England), which is that each partner keeps what he or she brought into the marriage or has paid for during the marriage. Since men have more access to money than do women, it is usually the husband who pays for the major items of family property. If the couple split up, the husband therefore gets to keep most of the property, regardless of the fact that often it was the wife's contribution to keeping the family (either by her labour in the food gardens or by her own earnings) which allowed him to use his money to purchase the items. If women were aware of this situation early in the marriage, they would be able to ensure some measure of financial protection for themselves by insisting on a fairer division of income and property from the outset, and/or by ensuring that any major purchase (especially the purchase of a house) is made in joint names.

 

Customarily married wives are no better off. There is no legislation empowering Local or District Courts to divide up property on divorce or separation. It is assumed that arrangements will be made according to custom and enforced in the Village Court if necessary. In most Papua New Guinean societies, a couple customarily lives and gardens on the land of the man and if the marriage breaks down, the wife takes her personal possessions and returns to her own people. This was reasonable enough in former times, before the advent of permanent housing and the proliferation of material goods, but in modern circumstances it can result in gross injustice. Nowadays when a customary marriage breaks down, even a village wife may be leaving an expensive and well-furnished permanent house, a family vehicle and small business enterprises to which she has made a substantial contribution by her labour, if not financially. Even where an employed wife has made cash contributions to the purchase of the matrimonial home and other property, if they are in the name of the husband only, as is usual, the wife's claim is unlikely to be recognised.

 

The Law Reform Commission's Family Law Working Group is working on reform of all the laws relating to marriage, divorce and matrimonial property division to make them equally fair to both sexes, appropriate to modern circumstances and accessible to everyone.

 

Availability of legal information

 

Since 1987, information on how victims can use the police and/or the courts to get protection from domestic violence has been provided for the general public through the Women and Law Committee's first leaflet "Wife-beating is a Crime". This was followed by two leaflets giving information on maintenance and custody of children, one for married women and one for unmarried. A fourth leaflet, "The Law on Adultery and Enticement", brought out following the passing of a new law prepared by the Law Reform Commission, explains how people can take an unfaithful spouse to court for compensation instead of resorting to domestic violence. All of these leaflets explain step by step how a person can handle his or her own case in court. They are available to the general public and to victims through the courts, welfare offices, police, probation offices, offices of the Public Solicitor, women's and youth groups, churches, aidposts and clinics, and many other government and non-government outlets. Ideally, all those dispensing the leaflets should be trained in using and understanding them, to avoid incorrect interpretations of the contents. Although the language used is as simple as possible given the complexity of some of the laws and procedures, anyone with less than a Grade 8 education and planning to take their own case to court will probably need help in clarifying some points.

 

The need for legal information is not restricted to the topic of domestic violence. There is a general lack of factual knowledge about all aspects of the legal system as it affects the ordinary person. The Women and Law Committee has produced legal information leaflets on sexual offences, rape and alcohol abuse, and is planning one on voting, but leaflets on dozens of other subjects are also necessary. The government's short-lived attempt to make the public aware of aspects of the law through its National Law Awareness Week achieved little of lasting value. It should be the responsibility of some arm of government to provide to the public on an ongoing basis simple information about laws that affect ordinary citizens. This would enable people to make more informed decisions and voluntary settlement of disputes, as well as doing something to lessen the dangerous feeling of alienation affecting an increasing number of Papua New Guineans.

 

Recommendations:

 

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 Report or introduced by the Commission's Family Law Reform 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)

 

Legal aid

 

In addition to the information needs already described, there is also a need for assistance from trained lawyers in some cases. Using the Women and Law Committee's leaflets, many people are able to take their own case to court to get a Good Behaviour Bond and this should be possible too for the proposed Protection Orders. Some maintenance and custody cases also are straightforward enough to be handled by the complainants themselves following the leaflets, but others are complex and require professional expertise. Private lawyers are very expensive and quite out of reach of most people. It is part of the mandate of the Public Solicitor's Office to provide legal representation for those who cannot afford a private lawyer. However, the Public Solicitor has offices in only five locations, and though officers try to make visits in their regions, shortage of funds and pressure of work prevents them form providing effective coverage throughout their region. Most officers are involved full-time in providing legal defence for people accused of serious crimes and can offer little help in family cases, even where there is a risk of violence.

 

The Interim Report recommended that each Public Solicitor's office make available to the public written information that will assist them to conduct their own case in court wherever feasible, and that each office also have at least one legal officer working full-time on family matters, including domestic violence. Legal aid for domestic violence victims must cover not only the physical protection of the victim but also provision for maintenance and arrangements for the custody of children so that wives do not have to choose between being safe and being destitute, and/or deprived of their children. The Commission is pleased to report that the Public Solicitor, Mr. Ere Kariko, has implemented the Interim Report's recommendations as far as staffing levels permit. Unfortunately, staff shortages and the increase in the criminal case-load mean that there are still large areas of the country where little or no legal aid is available even for domestic violence victims.

 

One positive development in this field since the Interim Report was written is the introduction by the Law Society of a scheme to make some private lawyers available to handle family matters in court, paid for out of the Society's own funds. This is an excellent initiative, although whether or not it will be able to satisfy the demand remains to be seen. The system still depends on staff of the Public Solicitor's Office for assessing cases suitable for the scheme and there will continue to be a need for the officers to handle family matters. The Commission suspects that effective legal aid throughout the country cannot be provided without an injection of more government funds to the Office of the Public Solicitor, but feels it is not appropriate to make any recommendation about funding before the impact of the Law Society's scheme has been properly assessed. This assessment is underway and the Commission leaves it to the Law Society, the Public Solicitor and the Attorney-General's Department to make whatever adjustments are necessary to ensure that legal aid is available for the protection of domestic violence victims.

 

Recommendation:

 

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 Office of the Public Solicitor are adequate to cover the needs of victims of domestic violence in all areas of the country.

 

CHAPTER 15

 

COUNSELLING AND WELFARE SERVICES

 

The interim report

 

In its Interim Report, the Commission made two recommendations concerning counselling. The first proposed that the Health Department should set up a psychological service in each province so that rehabilitative therapy could be offered to offenders, and the second suggested that the government consider setting up a marriage counselling service. Since then, however, the economic climate has worsened considerably due to the Bougainville crisis and the Middle East war. It is now most unlikely that the government would consider setting up any new services. The Commission now believes it is preferable to look instead at ways of helping existing counselling services to respond more appropriately to situations of domestic violence. Together with the Welfare Services Division of the Department of Home Affairs and Youth it has drawn up a nationwide scheme for training relevant personnel and for spreading awareness of domestic violence issues among key decision-makers. This scheme will be described later in this chapter. First it is necessary to give some background on counselling, on what it is and what it is not, since there appears to be some misunderstanding amongst the public at large about the role of counselling in domestic violence situations.

 

Limitations of counselling

 

Many of those people who sent in their comments and criticisms on the Interim Report favoured putting much more emphasis on counselling and making this the main means of dealing with domestic violence. A few felt that any form of legal involvement in people's marriage problems was not appropriate and that voluntary counselling was the only method that should be used, except in extreme cases. While the Commission believes that counselling does have a part to play in the prevention of further violence and that far more needs to be done in this area, it believes that counselling is not the simple answer to all types of marriage problem. In fact, counselling may even do more harm than good unless it is done correctly and only with suitable cases.

 

Counsellors who have not been specifically trained for domestic violence work usually do not understand how dangerous the victim's situation continues to be. If the victim is still afraid of her husband (which is normally the case), she will not be able to be honest and open in front of her husband when discussing solutions to their shared problems. At the very least this is unproductive and prevents a longterm workable answer being found. At worst it could make the wife's situation even more dangerous. If the counsellor has not been trained to be sensitive to the power relations between offender and victim, he or she may urge the wife to speak out more freely. Hearing his wife's true feelings is likely to antagonise the husband even further, increasing the risk that he will retaliate against her in private. Thus counselling can actually make domestic violence worse.

 

Apart from the handful of counsellors who participated in the Law Reform Commission's first Domestic Violence Resource Persons Training Workshop, and some probation officers, no-one currently doing counselling in Papua New Guinea has received any special training in domestic violence counselling. All too often the aim of whatever counselling is done is to get the couple back together again as soon as possible. There are also many male counsellors who themselves beat their wives, or hold attitudes that condone wife-beating.

 

At the moment counselling is not an option for resolving most cases of domestic violence because it is voluntary. Husbands simply refuse to agree to it or fail to show up to appointments. At present, counselling works best amongst the less well educated who lack the confidence to challenge authority figures, and amongst that small proportion of men who are already motivated (perhaps by the threat of other consequences, such as court action) to change their behaviour. Not that compulsory counselling is necessarily more effective. Experience overseas has shown that court-ordered counselling of offenders requires the offender's co-operation for it to succeed (McFerran 1989). Unless counselling is successful in motivating men to change it can actually increase the danger to their wives, by giving them the expectation that things will be different because the husband has undergone counselling.

 

Types of domestic violence counselling

 

The three main types of counselling which can be helpful in domestic violence situations when conducted by properly trained persons are counselling with the victim, offender counselling and counselling with both partners together.

 

a) Victim counselling

 

The purpose of counselling for the victim (who is usually, but not always, the wife) is to help her to decide on the best way to protect herself and her children from further violence. Her safety, and the safety of the children, is the main priority. Because her self-esteem has usually been shattered by years of physical and verbal abuse, counselling must help to rebuild her self-confidence and convince her that she has a legal and moral right not to be beaten or intimidated. The counsellor must also provide the woman with the information she needs about other sources of help, and about her chances of getting financial support from her husband, custody of the children, a share of the marital property, a separation or divorce, so that she can make an informed decision about whether or not to return to her husband.

 

b) Offender counselling

 

The purpose of counselling for the offender (who is usually, but not always, the husband) is to help him to recognise that violence is an unacceptable way to deal with family conflict, that he is responsible for his own behaviour, and that he can change if he wants to. Counselling needs to help the man to recognise the signs of his anger build-up, and to practise non-violent ways of dealing with his anger. The counsellor must also explore with the offender his own feelings of inadequacy and fears that he will lose control of his wife, and help him to realise that a more equal relationship with his wife will be more beneficial to him and to the marriage in the long run.

 

Ideally, the counsellor should also encourage the male offender to question the whole system of gender inequality which allows men to control women and to dominate in social, economic, political and cultural life, and which wife-beating helps to perpetuate. However, it must be recognised that with prevailing attitudes in Papua New Guinea, this wider goal will not be achieved in many cases for some time to come.

 

Counselling for the offender may be voluntary, or it may be ordered by the District or National Court as part of a sentence for domestic assault. In Chapter 9 it was recommended that District Courts should be able to order counselling for the offender as part of a Protection Order.

 

c) Couple counselling

 

The purpose of counselling the couple together is to help them decide whether they want to stay together, and if they do, to help them to learn how to resolve their differences in a way that is fair to each of them, without using violence or threats of violence. In domestic violence cases, where one partner is already afraid of the other, couple counselling should ideally only be undertaken when the offender has already undergone successful counselling to help him accept responsibility for and deal with his violence. It is important that the counsellor also continue to see both partners separately from time to time, to assess whether or not either of them is holding back on his/her real feelings at the joint sessions.

 

If the couple decide to separate, many decisions will need to be made about about the children, about brideprice repayments, the division of property, maintenance and so on. The purpose of counselling in this case is to minimise the risk of violence while these matters are being discussed and decided on, and to ensure that the interests of the victim are given proper consideration, since she may be too demoralised or intimidated to speak up for herself.

 

Special features of domestic violence counselling

 

Counselling in domestic violence situations is different in some ways from counselling in other types of situation. In addition to the basic skills common to all types of counselling (such as active listening, reflecting feelings, picking up hidden messages, identifying themes and patterns in behaviour, spotting goal or value inconsistencies, outlining options, target setting, referral to other sources of help and so on), counselling for domestic violence requires extra skills, specialised information and a more directive approach in which the safety of all concerned is the first priority.

 

Focus on the violence first

 

In domestic violence situations there are two aspects to the problem: the violence itself and the background situation that apparently "caused" the violence. The approach of most counsellors untrained in domestic violence counselling is to try to solve the problem of the violence by solving the problem that apparently caused it. If the violence arose out of arguments over money, for example, the counsellor would help the couple to come to an agreement about how to divide up their money by discussing with them their income and expenses, explaining the basics of money management, perhaps showing them how to draw up a budget, open a savings account for school fees, and so on. If the underlying problem was sexual jealousy, the counsellor would probably help the couple to discuss their worries, suspicions and expectations, clarify misunderstandings and encourage them to make an agreement on guidelines for acceptable behaviour for the future. While this approach may well succeed in clearing up the current causes of violence in the marriage, it will not help to prevent further violence in the future. When new conflicts in the marriage arise, there will be more violence because the violence has not been dealt with as a problem in itself.

 

Counselling in domestic violence cases must therefore focus squarely on the use of violence, and not ignore it as if it will go away of its own accord. Ideally, the violence should be dealt with before trying to deal with other problems in the relationship. If this is not done, the victim may well be too afraid to speak openly and the counselling will not be able to address the real underlying problems. This does not mean that the counsellor should cut short the parties in presenting their view of their problems, but that once both sides of the story have been aired fully, the counsellor should put the violence first on the list of issues to be dealt with.

 

State clearly that violence is unacceptable

 

It is a standard principle of traditional counselling that the counsellor should be non-directive, avoiding influencing the client in any way, and refraining from making any judgements about the rights and wrongs of a situation. In domestic violence situations, however, the counsellor must be directive in the sense of taking a firm stand against the use of violence. He or she must make it clear right from the beginning that the use of violence is unacceptable.

 

In Papua New Guinea many people have grown up believing that wife-beating is not wrong (within certain limits), therefore the counsellor must take time to explain why wife-beating (and husband-beating) are no longer allowed. It is important that both parties, and any relatives involved, should understand this basic fact. The counsellor should also explain why it is not acceptable. The "Wife-beating is a Crime" poster or leaflet can be useful here. Points to stress are that hitting anyone (except in self-defence and in certain other very limited circumstances) is breaking the law, and that hitting is potentially much more dangerous than people realise. Mild brain damage and impairment of sight or hearing are frequently caused by relatively slight blows to the head, and every year many people with enlarged spleens due to malaria are accidentally killed in domestic disputes. If the woman is pregnant, there is the serious risk of damage to the unborn baby as well as to the mother. It is also important to stress the harmful psychological and physical effects on the children, which most people readily acknowledge once it is pointed out to them. For more information, see Chapter 3 and Appendix 4.

 

Support the victim's decision to stop the violence

 

Another way in which domestic violence counselling needs to be more directive is in reinforcing the victim's decision to do something about the violence. Where it is the wife who is the victim, she may well be consumed with feelings of guilt that she is putting her own needs before family unity, since it is commonly believed that it is up to the wife to ensure happiness in the home. Also, battered wives are often demoralised through feelings of fear, depression, helplessness, hopelessness, inadequacy, etc, which make it hard for them to make a decision and carry it out. The counsellor must therefore constantly assure the woman that she is doing the right thing in trying to put a stop to the violence, and that there could be serious consequences for herself and the children if she continues to put up with it. However, the counsellor should not attempt to tell the woman how she should put a stop to the violence, whether by remaining in the marriage or by leaving it. That choice is the woman's to make.

 

Violence is the responsibility of the person who uses it

 

Counsellors untrained in domestic violence counselling often look for the "cause" of the violence in the behaviour of the victim. They ask what the victim did that might have "provoked" the violence, as if she is to blame for the violence rather than the violent person himself. This "blame the victim" approach does more harm than good and could even contribute to more violence by appearing to justify it. The counsellor must make it very clear that violence is never justified. As stated earlier, the violence itself and the background conflict are both important aspects of the problem and must be addressed separately.

 

It is important for the counsellor to keep this principle in mind, because violent husbands can and do give any number of reasons why their wife "deserved" to be hit. Often the victim did in fact do something that she herself accepts was wrong. The counsellor may sympathise inwardly with the husband for becoming angry, but must remain firm that hitting is not the right way to deal with the situation. However angry a person becomes, he or she should never use violence because violence is dangerous and only makes the situation worse. If a person does choose to use violence, then he or she is the one responsible for the consequences, not the victim.

 

Except in cases of mental deficiency or extreme provocation, a person always has the choice between using violence and not using it. Sometimes this choice is made consciously, but more often it is made unconsciously. For example, very few husbands are violent to everyone when angry, yet they do not recognise that by hitting their wives and not other people who make them angry they are actually exercising a choice. Many husbands consistently injure their wives in particular ways according to whether or not they want the injuries to be visible, yet subsequently deny that they did this intentionally. It is the task of counselling to enable the offender to recognise that he has a choice, to see the violent behaviour as something separate from himself that he can free himself from, and to motivate him to choose to control his violent impulses.

 

Safety first/separation

 

Safety and the prevention of further violence must be the first issues dealt with in any domestic violence counselling situation. Normally this is best achieved by a period of separation, during which both parties can calm down and assess their priorities and options. What many people, including counsellors, fail to realise is that this period of separation can actually strengthen the marriage by enabling the couple to break disruptive behaviour patterns and practice new ones. Unfortunately, it is too often seen as the beginning of the end. Husbands are adamant that their wives should return to them immediately, and often make this a precondition for agreeing to counselling. If the wives do not return, the husbands try other tactics, such as threats, offers of gifts or promises of changed behaviour (see section below on cycle of violence). If the wife does go back at this stage, before any real changes are made, it is just a question of time before the violence happens again.

 

In cases where the wife is undecided about whether to leave her husband permanently, it is important that the counsellor emphasise the long-term benefits to both parties of staying apart until progress has been made in dealing with the husband's violence and with the key problems in the marriage. A period of several weeks is recommended, up to several months, according to the situation. In cases where the wife decides to leave her husband for good, the counsellor needs to support her in her decision and help her face the inevitable pressures from her husband, from relatives, and perhaps from her church and her children, to put her own wishes aside and return to her husband.

 

Special information needs

 

To be able to give effective help in cases of domestic violence, the counsellor must be familiar with the specialised information his or her clients will need. For victims, the counsellor will be need to be able to provide information about:

 

 -         the dangers of domestic violence;

 

 -         the cycle of violence;

 

 -         where to go for safe accommodation in an emergency;

 

 -         how to seek legal protection through the police, the District Court or the Village Court, and the advantages and disadvantages of these options locally;

 

 -         the right of a beaten wife to leave her husband and apply to claim maintenance from him as a deserted wife (called "constructive desertion");

 

 -         the right of a beaten wife to take the children with her when she leaves, if she wishes, and to apply for custody and maintenance orders for them (which the court will decide on according to the best interests of the children);

 

 -         how to obtain a divorce, if necessary, and what rights the wife may have to any property.

 

More details on the legal situation are given in Chapter 14.

 

For offenders, the counsellor will need to be able to provide information about all of the above, as well as:

 

 -         how to recognise the warning signs of his own pattern of anger build-up, so he can remove himself from the conflict situation until he gets himself under control again (as demonstrated in the "STAP ISI" video);

 

 -         alternative ways of dealing with stress and anger.

 

For couples, the counsellor needs to be able to teach:

 

 -         non-violent methods of conflict resolution;

 

 -         skills for direct and indirect communication.

 

Cycle of violence

 

Because of her demoralised state and the pressure from relatives on both sides to keep the family together, a beaten wife who has left her husband may be tempted to go back to him at the first sign of remorse on his part. It is important at this point for the counsellor to be able to explain to her about the cycle of violence and the "honeymoon" or "buy-back" stage, during which the husband apologises for his behaviour and promises never to do it again as a means of getting his wife back. This does not signal a real end to the violence, but is just another phase in the cycle. Unless there have been fundamental changes in his attitude and in the balance of power in their relationship, more violence will inevitably follow sooner or later. The counsellor must clearly explain these facts to the woman and emphasise the strong likelihood of further violence if she goes back to him at this stage. Nevertheless, it often happens that the wife chooses to go back to her husband anyway, either because she feels she has no other options or because she still holds out hope that her case will be different and that her husband really will change (see also section on the cycle of violence in Chapter 2).

 

Frustrations of domestic violence counselling

 

Although domestic violence needs to be more directive in some respects than other types of counselling, the counsellor must still allow the client to make her own decisions without any pressure from the counsellor. Often a counsellor will spend a lot of time and effort helping a beaten wife begin a new life, only to find that the wife returns to the husband. The counsellor needs to understand the pressures on the wife, and the pyschological state she is in after years of maltreatment, in order not to feel resentful and discouraged. Proper training and support from colleagues are helpful in dealing with these feelings. The risks to the counsellor's own safety in dealing with violent offenders must also be acknowledged and precautions taken.

 

Existing counselling services

 

Before going on to discuss proposals for improving counselling in domestic violence situations, a brief description will be given of existing counselling services. These are offered by government welfare services, the churches, the Probation Service, and Lifeline. Of these, the services offered by the churches are the most readily available throughout the country. Some churches offer a specific family or individual counselling service with trained professionals, whereas others rely on their ordained clergy and lay volunteers. Counselling through a church tends to take a conservative approach, emphasising forgiveness above safety. Church workers may have rigid beliefs about the roles of husband and wife, supporting the husband's authority as "head of the family" and expecting the wife to submit to maltreatment in order to keep the family together. The Commission is aware that some of the newer churches take the position that a wife is responsible for any violence her husband inflicts on her, since if she had strong enough faith, God would answer her prayers and make her husband change his ways.

 

Counselling is also offered by welfare officers employed by provincial Divisions of Community Development, but the availability of this service is very limited. In some cases there may be only one or two welfare officers doing casework and counselling for the whole province. Both church workers and government welfare officers do mainly victim counselling. The opportunities for offender counselling and couple counselling are limited, because husbands usually choose not to attend. A further limitation is that not all those doing counselling have been sufficiently trained, and although some have received some instruction on domestic violence as a social problem, none has been trained in the specific counselling techniques for domestic violence situations.

 

Probation officers are the only group of counsellors who are beginning to receive some training in domestic violence counselling, thanks to the foresight of the Chief Probation Officer, Mr. Leo Tohichem. There are plans to increase this training, and to extend it to Voluntary Probation Officers. This offers the hope for some systematic remedial counselling with offenders. The limitation on Probation Service counselling is that it must be ordered by a court and is therefore only available to persons convicted of an offence and their families. Again, the number of staff in each province is small.

 

The organisation Lifeline does some domestic violence counselling using trained volunteers. This is limited to Port Moresby, but written advice is provided to those living elsewhere, and sample letters and replies are printed each week in the national press. Two of these have dealt with domestic violence and have been most helpful. So far, only the Director has received any training in domestic violence counselling.

 

It is clear that the need for counselling falls far short of the supply. Because there are so few people trained in counselling available across the country, many people turn to non-professionals without training for informal counselling and advice. Particularly in rural areas, anyone with above average education, authority or life experience may find themselves involved in doing informal counselling. This includes teachers, health workers, Village Court officials, women's leaders, and government extension workers. If these people could be given some basic training in domestic violence counselling, their effectiveness in improving family life and reducing violence would be vastly increased. This is what the Commission's proposal for training Domestic Violence Resource Persons hopes to achieve.

 

Domestic violence resource persons training scheme

 

In conjunction with the Department of Home Affairs and Youth, the Commission has drawn up a plan for a nationwide training and awareness programme on domestic violence, to be based within the Welfare Division of the Department. The aims of the scheme are 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 about domestic violence 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 techniques for those currently involved in or interested in becoming involved in domestic violence counselling.

 

The programme would be carried out initially by a male National Domestic Violence Training Co-ordinator with extensive experience of domestic violence counselling overseas, in partnership with a male national counterpart. It is important that the programme be led by men at the outset, to maximise its appeal to male decision-makers and the male public. Later, the programme should be led by a male and female together. The two National Domestic Violence Training Co-ordinators would conduct a series of training and awareness workshops in each province. The Assistant Secretary for Community Development in each province would be asked to designate one of the provincial welfare officers to act as Provincial Domestic Violence Training Co-ordinator, to assist in organising the workshops and in follow-up.

 

In each province the programme would begin with a half-day awareness session for provincial policy-makers and opinion leaders, such as the leading politicians and public servants, the presidents of the Provincial Council of Women and the Provincial Youth Council, and leaders of the main churches. This would be followed by a three day workshop to train local "Domestic Violence Resource Persons", to a level at which they would be confident in giving public talks on the subject. Participants would be those who come across domestic violence as part of their work or daily life, such as welfare officers, probation officers, Village Courts training officers, police training officers, provincial Rehabilitation/Law and Order Committee members, provincial women's leaders, youth leaders, church leaders and representatives from the provincial Divisions of Health and Education, provincial legal officers and other lawyers, and magistrates. Some people in these categories will already have received some information about domestic violence as part of their own training, as the Commission has been working with the relevant organisations for some time to ensure that domestic violence is covered in the training of magistrates, social workers, lawyers, police, probation officers, and some teachers and health workers. However, coverage so far has been limited, and even those who have had some training could benefit from a refresher.

 

After the second workshop, those interested will go on to do a three day workshop on domestic violence counselling. Participants would be welfare officers, probation officers, church workers and community leaders. The trainers would return to the province to conduct follow-ups and to encourage the formation of men's self-help groups to act as support groups for those men trying to change their behaviour.

 

Law Reform Commission staff have already piloted a training workshop for Domestic Violence Resource Persons in Port Moresby which was highly successful. The Commission is convinced of the value of this work, and is concerned that it should continue and be expanded nationally. Following the presentation of this Report to Parliament, the Commission's own work on domestic violence will be limited to monitoring the implementation of this Report (although staff will continue to be available to assist the work of other organisations). Meetings of the interdepartmental committee formed by the Department of Home Affairs and Youth to plan the Department's priorities under the new Resource Management System have identified lack of communication skills, alcohol abuse and domestic violence as the three main factors leading to the breakdown of family life in modern circumstances. The Commission therefore recommends that domestic violence training and awareness work become the responsibility of the Department of Home Affairs and Youth, as part of the Family Life Development programme of the Division of Welfare Services.

 

Recommendation:

 

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.

 

NOTE: Recommendation 28 in Chapter 11 also concerns Welfare Services and recommends that the Division of Welfare Services take responsibility for reprinting and distributing annually the "Wife-beating is a Crime" leaflets and posters.

 

CHAPTER 16

 

THE CHURCHES

 

Introduction

 

The churches have a key role to play in combating domestic violence from the national level right down to the grass roots. Papua New Guinea's Constitution states that Papua New Guinea is a Christian country. Almost all Papua New Guineans are members of a church, although not all actively so. In rural areas, particularly, churches play a large part in people's lives. They reach virtually everywhere in the country, and in remote places far from government services they are often the people's only link with the outside world. Churches can therefore be highly influential in breaking patterns of domestic violence throughout the country, both through teaching and through practical action in individual cases.

 

Christianity as a value system provides an alternative to the traditional model of male-female relationships as well as the rationale to motivate change. In answer to the set of customary values which (generally speaking) sees women as inferior to men and wives as duty-bound to obey and work for their husbands because of the brideprice paid for them, Christianity teaches (generally speaking) that women and men are equal in God's eyes and that husbands and wives should love and cherish each other, becoming as close as if they were one person. In other words, churches are able not only to say that husbands must not beat their wives and wives must not beat their husbands, but they can also explain why not and provide a positive model of how couples should treat each other, in the context of Christian values. The churches also possess the material resources (staff, buildings, transport, educational programmes and facilities) that they can use to encourage actual changes in behaviour, as well as changes in attitudes and values. In recent years there has been a growing awareness by church leaders that domestic violence, and particularly violence by husbands against wives, is a cause for serious social concern.

 

The interim report

 

No specific recommendations about the churches were made in the Interim Report, but all non-government bodies (including churches) were requested to participate in awareness campaigns about the harmful effects of domestic violence and what can be done to prevent it, and to encourage a supportive attitude towards victims by the community. The Interim Report was sent out to all the bishops (or equivalent) of the six major churches in Papua New Guinea: Catholic, Lutheran, United, Anglican, Seventh Day Adventist and Salvation Army, and to the Melanesian Council of Churches. The covering letter emphasised that the legal measures recommended in the Interim Report were aimed at improving and strengthening marriages, not at breaking them up. Three kinds of assistance were asked for: firstly, comments on the Interim Report; secondly, co-operation in making available to all congregations the "Wife-beating is a Crime" leaflet and poster about domestic violence; and thirdly, recognition that domestic violence is a serious social problem and co-operation in using Christian teachings to reduce its incidence and the suffering it causes.

 

In addition, a newspaper article ("Face to Faith") written by one of Papua New Guinea's leading Lutherans, Father Paul Richardson, was enclosed. This article points out that the lack of clarity over church teachings on the concept of the husband as head of the family allows some Christian husbands to believe they have a right to assert their authority over their wives using physical force. The letter asked the churches to work towards clarifying the role of the husband/father, to emphasise the partnership aspects of marriage and the duty to lead by love and by example, and to condemn strongly violence within the family. At the same time, the religious service of the National Broadcasting Service compiled an excellent documentary programme covering all these points, which was broadcast nationally several times.

 

Only the Catholic and Seventh Day Adventist churches responded to these requests officially, although a great many lay and ordained workers of other churches gave their individual support, handing out leaflets, preaching sermons about domestic violence, and introducing domestic violence into their marriage preparation and marriage enrichment classes.

 

The Catholic Church is to be congratulated for taking the lead in this field, and it is worth describing developments so far. In 1988 and 1989 public statements were made by the Catholic Bishops' Conference condemning domestic violence, strongly criticising the attitude that bride-price gives a man the right to mistreat his wife in any way, and calling on the country (including Parliament) to support the Commission's campaign to stop domestic violence. These statements were widely reported in the media, and in some cases read out from pulpits.

 

The Conference of 1989 required pastors to make it clear when preparing a young couple for marriage that brideprice or gift exchanges do not make one spouse into the property of the other, and do not allow either spouse to hit or use force on the other. It also approved the distribution to all pastors of forms to be used for granting permission to beaten wives to live apart from their husbands and to seek assistance from the secular courts to obtain maintenance and custody orders if necessary. Following the Conference, its Executive distributed the "Wife-beating is a Crime" leaflets and posters and the awareness video "STAP ISI" to all bishops for use in their parishes.

 

Commission staff have been called on several times to teach about domestic violence during the training of church pastoral workers and seminarians. The National Federation of Catholic Women's Associations has focussed on domestic violence at its last three national general meetings, using technical expertise provided by the Commission. Some local churches around the country are also providing emergency accommodation for beaten wives and their children, although the convents in Port Moresby which were offering this service suspended it after one convent was damaged and the nuns threatened by a government minister trying to get at his wife who was being given shelter there. Both the CBC and the Conference of Women Religious are now considering how the church can give protection to wives in crisis without unnecessarily endangering its own personnel.

 

How the churches can help

 

Policy development

 

As a first step, the churches which have not yet done so need to develop a clear statement of policy on domestic violence. The commonly held belief that the payment of brideprice legitimates wife-beating must be openly challenged. Not that the payment of brideprice is necessarily seen everywhere in Papua New Guinea as giving husbands the right to beat their wives. In some areas, brideprice is seen more as a kind of insurance for the bride against ill-treatment by her husband, or as a measure of the boy's clan's desire for that particular girl in marriage. Nevertheless, many people do believe that the payment of brideprice gives the husband the right to ensure his wife's obedience by force. The churches need to formulate policy which will tackle this potentially dangerous attitude, without necessarily threatening the practice of brideprice where this is seen by women as being for their own benefit and protection. Once formulated, these policies should be publicised widely as a means of raising awareness of the isssue and of influencing public opinion.

 

"Family head" concept

 

Another commonly perceived justification for husbands to beat their wives is that the husband is seen as the "head of the family". Thus even committed Christians may feel that it is legitimate for them to use force against their wives in order to keep discipline, in their role as family head. There is a need for the churches to examine precisely what they mean by "head of the family", and to ensure that there is no misunderstanding of or abuse of this role.

 

A study of male-female relationships among a United Church Tolai population in 1978 found that the United Church's standard booklet on the subject at that time described the family head as "the one who gives a strong lead to his wife and family in the things that are straight and good", and the one who "serves and helps the other members of the family, not just the one who gives the orders". Nevertheless, the most common understanding amongst Tolai young people was that the family head is the one whom everyone obeys without argument. If the churches could clarify their expectations of the father as "head of the family", with more explicit emphasis on the guiding role and the benefits of leading by example, this would help to prevent some Christian husbands from beating their wives under the mistaken impression that this is part of their duty as family head. In fact, the Commission suggests that in fact this concept is outdated. It would prefer to see an emphasis on marriage as a caring partnership between equals in line with the principle of equality of the sexes laid down in the Constitution (see Appendix 3).

 

Domestic violence not a private matter

 

Another necessary attitude change that the churches could greatly facilitate is the recognition that domestic violence is a public, not a private matter. Once a marital dispute goes beyond verbal fighting to physical fighting, lives could be at stake. Outside intervention is therefore called for. This does not necessarily mean intervention by the police or the courts. Intervention should ideally be by the immediate family and friends of the couple, in calming the violent spouse and reminding him or her that violence will not solve anything, is dangerous and will only cause more problems. Intervention should take place at the first signs of violence, before the fight escalates, and preferably before the habit of violence becomes established in the marriage. If family or community intervention is not enough to change the offender's behaviour, assistance should be sought from the courts and/or the police, to ensure protection for the victim.

 

Although Commission research shows that relatives do frequently intervene in domestic fights, it seems that they hesitate to interfere unless there is a real possibility of serious injury (Toft and Bonnell 1985:48-9). What prevents them from intervening earlier is the attitude that husbands and wives should sort out their differences privately. There needs to be a recognition that even minor physical violence can threaten lives and that the earlier the violence is stopped, the greater the safety of all concerned. When fear of violence is removed, the couple stand a better chance of settling their marital problems through verbal communication.

 

Protection before reconciliation

 

There has perhaps been an overemphasis in the past by some churches on the importance of preserving the marriage relationship, with insufficient regard for the harm done to wives and children. This has meant that wives have been advised to accept physical maltreatment as part of their lot, or counselled to try to change their husband's behaviour through prayer. Even today this attitude is still alive. Only recently a pastor announced to a large public gathering in Port Moresby that if men drink, or beat their wives, it is the wives' fault, because a wife who has sufficient faith can turn her husband from his wicked ways by her own example and prayer.

 

Marriage is the foundation stone of society, so it is natural and desirable that a high value is placed on the stability of marriage. However, the Commission believes that a marriage should not be preserved at the expense of the physical and mental welfare of one partner, or of the children. It questions whether a relationship which is held together by violence, and which founders when the husband is prevented from using violence, deserves the name of marriage. The Commission feels that it is not in the interests of society that this kind of marriage be preserved.

 

Protection of the parties' physical safety should be the first consideration. Attempts at reconciliation should not be made unless the safety of the weaker parties has been ensured. In some cases, this may mean that husband and wife must live separately for a while, until tempers cool or until counselling can assist with the underlying problems.

 

A place of safety

 

There is a real need, particularly in urban areas, for accommodation where women and children can find refuge in an emergency, and can stay until they feel it is safe to leave. The churches need to take a more active role in providing such accommodation, and other material assistance to victims of domestic violence. Far from weakening the marriage bond, this kind of positive action against the use of violence in marriage will have the long term effect of strengthening and improving the quality of the marriage relationship.

 

Interpersonal communication skills

 

Poor communication between spouses can lead to the venting of negative feelings through violence. Improving communication between couples by providing training in communications skills is therefore one important means of reducing domestic violence. Admirable work in this direction is already being done by most churches through their marriage preparation and marriage enrichment classes. However, most courses for couples so far do not specifically address the problem of violence in marriage. The official Marriage Enrichment Course handbook of the Catholic Church, for example, provides an excellent setting by explaining that God made Eve from Adam's rib so that she would stand by his side and be his equal partner, and not be above or below him, but it fails to go on to point out that this concept of the marriage partnership is incompatible with violence. In a country where traditional attitudes accept some violence in marriage, particularly by husbands against wives, this problem needs to be focussed on explicitly. If not, confusion will continue to exist among church workers as well as among their congregations.

 

Conflict resolution skills

 

The need for teaching children the skills for resolving conflicts peacefully has already been referred to in Chapter 11 in the context of government-run schools. The same point holds true for educational establishments and Sunday schools run by churches. Christian principles such as forgiveness, tolerance, treating others as one wishes to be treated and so on provide a fitting background, but the specific practical skills of anger management, reflective listening, identifying feelings, problem solving and other techniques associated with conflict resolution need to be formally taught and practised. The benefits not just to the pupils' future marriage stability but to the whole society would be enormous.

 

Counselling training

 

Church workers involved in counselling with cases where there is domestic violence need to be properly trained to handle this issue, otherwise they can increase the danger to victims (see Chapter 15, section on "Limitations on counselling"). Counselling training given by church-run institutions, such as the Christian Institute of Counselling, needs to recognise that the counselling of couples where one partner physically abuses the other requires a specific approach. Counsellors must understand that they are dealing not with one problem, but with two: the underlying problem that led to the violence, and the violent partner's inability or unwillingness to control his or her temper. Counselling where there is violence can only work if the violent partner recognises that the violence is making the underlying problem worse, and if he accepts responsibility for controlling himself. If violence as a response to stress is not addressed as a distinct problem, it will continue to arise in future stressful situations, and the marriage relationship will continue to deteriorate (see Chapter 15).

 

Recommendations:

 

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 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 to prevent 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).

 

CHAPTER 17

 

WOMEN'S ORGANISATIONS

 

Introduction

 

From the preceding chapters it should by now be clear that the Law Reform Commission does not see wife-beating, or any other form of domestic violence, as "a women's problem". Although the primary victims of most domestic violence are wives, the harmful effects extend to the whole family (including the person using the violence). This in turn affects the wider society, disrupting family life and perpetuating both the violence and its accompanying attitudes (see Chapter 3). The Commission therefore sees wife-beating and other forms of domestic violence as a community problem, which all members of the community, not just women, need to be involved in tackling. In fact, since the majority of perpetrators are men, no programme to reduce domestic violence can succeed unless men do become involved. The Commission has therefore made consistent efforts to reach males with its public education campaign, notably through the video and schoolbook, and is encouraged by the response so far. Of the letters, phone calls and offers of assistance received by the Commission, more than half are from men and boys.

 

Although domestic violence should not be seen as an issue for women only, women's organisations do have a very important role to play in combating domestic violence. Yet the Interim Report made no specific recommendations about domestic violence for women's organisations. This was partly for the reason discussed above, that Commissioners did not want domestic violence to be labelled a "women's issue", and partly because at that time the National Council of Women was facing problems of its own that would have made it unable to take any effective action. It was also not clear at that stage whether women's groups in general were prepared to become involved (Bradley 1985:68). Since then, many provincial, district and village women's groups have taken action on their own initiative, and the National Council of Women has reorganised and taken a firm stand against domestic violence.

 

The three main ways in which women's organisations can help reduce domestic violence are:

 

1)        by educating themselves and the general public about domestic violence;

 

2)        lobbying with local, provincial and national leaders for resources and legislative changes; and

 

3)        by providing practical and emotional support to victims.

 

It is also important to point out that because the major underlying cause of wife-beating is the unequal position of women in society (see Chapter 4), anything that improves women's ability to control their own lives and receive equal respect as human beings will eventually help to reduce the violence against them. It is unfortunate that although the goal of equality for women was included as the seventh point of the country's Eight Point National Plan prior to Independence, it was not until over fifteen years later that the first official plan for achieving this was drawn up. The Commission therefore welcomes the first "Women's Policy", recently completed by the Women's Division of the Department of Home Affairs and Youth.

 

Activities so far

 

It was as a result of pressure from the National Council of Women in 1982 that the Justice Minister directed the Law Reform Commission to undertake this work on domestic violence. The National Council of Women, the National Federation of Catholic Women's Associations and particularly the YWCA have made domestic violence a focus of their work, have made public statements to the media on the issue and have participated actively in the public awareness campaign by holding meetings and workshops, screening "STAP ISI" and distributing leaflets and posters. The Women's Division of the Department of Home Affairs and Youth have actively supported these activities around the country and the staff are to be congratulated for their enthusiasm and dedication.

 

At the provincial level, the Commission understands that most Provincial Councils of Women and the provincial bodies of the women's organisations of the major churches have undertaken some public education work using the leaflets, poster and/or video. Some have been particularly active, personally taking leaflets and posters around government and business offices on a regular basis, putting up posters at men's drinking clubs and other places where men congregate, even on trees near the streams where men go to wash. As for lobbying with decision-makers, the Provincial Councils of Women in the Southern Highlands, Madang, East Sepik and East New Britain Provinces and of the National Capital District have held public rallies at which women and some concerned men have expressed their views to panels of invited politicians and senior public servants.

 

Assisting individual victims, however, has been a harder step for women's organisations to take. The Provincial Councils of Women in Simbu, Enga, East Sepik and East New Britain (and possibly others of which the Commission is not aware) have helped victims get legal protection by accompanying them to the police or the courthouse, and have in some cases succeeded in getting court orders against well-known public figures. Some Councils have also given shelter to wives and children escaping violence, allowing them to sleep in the Women's Centre or finding other safe accommodation for them. Several Councils are considering doing this on a regular basis, and are looking to expand their premises for this purpose. In some cases they are meeting with opposition from male provincial leaders, who are alarmed at the prospect of outside interference in family matters and predict that family life will break down if it becomes too easy for wives to escape from husbands who beat them.

 

It is at the village level, however, at which both public awareness and practical assistance to individual beaten wives can be most effective. There are few secrets in village life, and most incidents of domestic violence become known almost immediately to neighbours and relatives. If the village women's groups are sufficiently motivated, they can develop a system of protection and support that can respond to emergencies and also act as a deterrent to future violence. Women in some other countries have used direct action methods effectively to reduce domestic violence. In Peru, for example, several women's groups provided all their members with whistles. If one of them was being beaten by her husband, the other local members would stand outside the house blowing their whistles until the beating stopped. In parts of Africa, women bang saucepans outside the house of a man who is beating his wife. In some villages in Pakistan, the leaders of the women's group visit the husband of a woman who has been beaten to ask him not to do it any more. If this is not successful, larger and larger groups of women visit the husband, until he gives up.

 

The Commission does not necessarily recommend these methods to women's groups in Papua New Guinea, since they were developed in different cultural contexts. It is up to women's groups in each area to decide what would work best in their own culture as a way of showing disapproval of domestic violence and providing practical help to victims. The Commission has heard of some cases in Papua New Guinea in which women's leaders have visited violent husbands and successfully persuaded them to stop using violence. It has also heard of cases in which the women's group stopped the violence by threatening to beat up the husband, but this is certainly not to be recommended. Under the Criminal Code, third parties have the legal right to use a certain amount of force to defend or protect a person who is being assaulted, but they may not use or threaten to use violence as retaliation in the future.

 

Another means of directly helping victims which is being tried in some rural areas of Papua New Guinea is for a group of women to accompany the victim to the Village Court when her case is being heard. In some cases it is necessary for the group to be present even when the woman first makes her request for a hearing. Since Village Court officials are almost exclusively male, they may, as mentioned in Chapter 10, be reluctant to recognise wife-beating as an offence appropriate for action through a Village Court.

 

The National Council of Women

 

Staff of the Law Reform Commission have worked with the National Council of Women to develop a policy on domestic violence which clearly states the Council's attitude toward domestic violence, and suggests activities to be undertaken by member groups at national, provincial and village level. The Council condemns all forms of domestic violence, but criticises wife-beating in particular as a means of keeping women under the control of men. The Council feels that male violence against women creates an image of women as inferior, whereas in reality wife-beating is a sign of weakness and lack of self-control on the part of those men who resort to it. The Council supports the Second National Goal of the country's Constitution, which views marriage as a state of equality between partners, and believes that the payment of brideprice should therefore not be seen as giving a man the right to beat his wife. The Council has also confirmed its support for the work of the Law Reform Commission and the Women and Law Committee in trying to reduce domestic violence, and wife-beating in particular.

 

The Council declared that it would advise or assist its members, the Provincial Councils of Women, to:

 

 -         develop and publicise clear statements of policy, consistent with the policy of the national parent body;

 

 -         hold seminars with provincial leaders to promote discussion and awareness of the problem (as already mentioned, some have already done this);

 

 -         organise workshops on the legal protection available to women (and other victims of domestic violence);

 

 -         assist individual victims by accompanying them to the police and courts, and by continuing to monitor their cases;

 

 -         liaise with the police provincial or station commander if cases of domestic violence are not being properly dealt with by police personnel;

 

 -         check that police stations continue to display the "Wife-beating is a Crime" poster and keep up their stock of leaflets;

 

 -         display the wife-beating leaflets and posters as widely as possible;

 

 -         arrange with the local provincial Peace and Good Order Committee to include domestic violence in its agenda;

 

 -         arrange for local radio stations to broadcast awareness programmes based on the leaflet, with assistance from the Public Solicitor's office, the Provincial Legal Officer (or a private lawyer, if necessary), welfare officer, probation officer, Magistrate, etc.;

 

 -         arrange with provincial Assistant Secretaries of Community Governments to distribute leaflets and posters to all community governments and village courts;

 

 -         arrange with provincial Training Officers of the Village Courts Secretariat to provide training for Village Court Magistrates to recognise domestic violence as an offence and to use preventive orders to protect victims;

 

 -         assist in providing some safe temporary accommodation for women suffering from violence at home;

 

 -         lobby provincial and national politicians to implement the Law Reform Commission's recommendations;

 

 -         promote training in communication and peaceful conflict resolution skills through schools, church organisations and youth groups;

 

 -         sponsor a song competition on the theme of wife-beating;

 

 -         sponsor a local theatre group to develop and perform an awareness play;

 

 -         discuss the implications of brideprice in the local society, and consider ways of reducing any disadvantages involved for women (e.g. by campaigning for fixed limits to brideprice).

 

At the village level, women's groups are asked to:

 

 -         display posters at women's clubs and around the village, and keep a supply of leaflets for members' use;

 

 -         arrange for a church sermon to be preached, condemning violence in marriage;

 

 -         accompany victims to the Village, Local or District Courts to provide moral support;

 

 -         consider taking some kind of direct group action to give immediate support and protection to victims and to deter future violence, particularly with regard to providing emergency accommodation for victims;

 

 -         sponsor a prize for Grade 6 students at the community school for the best essay against wife-beating, to coincide with the class work on the "Let's Talk it Over" book;

 

 -         consider setting local limits on brideprice.

 

Recommendations:

 

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.

 

NOTE: See also Recommendations 32 and 37 in Chapter 13, which cover the need for women's organisations to co-operate with churches in providing emergency accommodation for victims, and for educating their members about acquiring rights in their family homes.

 

CHAPTER 18

 

RESEARCH AND MONITORING

 

This Report has made a useful start in describing domestic violence in Papua New Guinea and in suggesting some ways to reduce the suffering it causes, but this is only the beginning. A great deal more information is needed, and will continue to be needed, as the situation changes as a result of the measures proposed here and of other factors. Research is needed on such topics as the impact of television and video on rural and urban populations (particularly with respect to violence and male-female relations), the cultural meaning of violence in different socio-cultural contexts, the range of community responses to domestic violence, the way in which domestic violence cases are handled in District Courts and Village Courts, the adequacy of the police response, the comparative deterrent value of different forms of outside intervention, and so on. An in-depth evaluation of the public awareness campaign carried out by the Commission with the Women and Law Committee is essential to determine the extent to which attitudes and practices have already changed and to set directions for any future work. Further research is beyond the capacity of the Law Reform Commission to carry out without additional staff and resources. The Commission therefore calls on other research institutions to assist by initiating research in the areas listed above, or by incorporating questions relating to violence and domestic violence into existing research projects.

 

Monitoring and evaluation of the legislative and other measures proposed in this Report will be necessary, particularly of the new Protection Orders and of the effectiveness of Probation and Weekend Detention. Commissioners feel that it would be appropriate for the Law Reform Commission to collaborate with the Division of Welfare Services of the Department of Home Affairs and Youth in monitoring and evaluating the implementation of the measures recommended in this Report for the first year of their operation, and in making further recommendations as necessary. Thereafter, responsibility for monitoring the domestic violence situation would lie with the Welfare Division, preferably through a committee specifically set up for that purpose.

 

Recommendations:

 

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 moitoring 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.

 

APPENDIX 1

 

TERMS OF MINISTERIAL REFERENCE ON DOMESTIC VIOLENCE

 

I, TONY BAIS, M.P., Minister for Justice, by virtue of the power conferred on me by Section 9 of the Law Reform Commission Act, 1975, and all other powers me enabling, refer the following matter to the Law Reform Commission for enquiry and report -

 

Because -

 

1         domestic violence is contrary to the principles of our Constitution; and

 

2         the law does not enable the police and courts effectively to protect women from domestic violence,

 

Enquire into and report to me 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.

 

In undertaking this reference you will -

 

1         consult with such bodies or people as you consider appropriate, including the National Council of Women; and

 

2         consider whether `domestic assault' should be a specific offence in criminal law so that the police are obliged to prosecute even when the victim will not proceed with charges; and

 

3         examine the law of evidence and the defence of provocation with particular reference to domestic assault; and

 

4         consider any other relevant aspect of the topic as may be revealed during the enquiry.

 

When making your reports on the matters the subject of this reference you will attach drafts of any legislation required to give effect to any of the recommendations in those reports.

 

Dated this 18th day of August, 1982.

 

 

APPENDIX 2

 

PAPUA NEW GUINEA LAW REFORM COMMISSION

PUBLICATIONS AND PAPERS ON DOMESTIC VIOLENCE

 

Au R. (1986). Marriage and Domestic Violence in Two Urban Settlements. In: Toft S. ed. (1986) pp 52-75.

 

Bradley S.C. (1985). Attitudes and Practices Relating to Marital Violence among the Tolai of East New Britain. In: Toft S. ed. (1985) pp 72-91.

 

Bradley C. (1987). Wife-beating: The Police Response to the Hidden Crime. Paper presented to the Annual Provincial Police Commanders' Conference, Rabaul, Papua New Guinea, February.

 

Bradley C. (1988a). Wife-beating in Papua New Guinea - Is it a Problem? Papua New Guinea Medical Journal, Vol. 31, No. 4, pp 257-268.

 

Bradley C. (1988b). Information and Resource Materials on Domestic Violence in Papua New Guinea. In: Worldwide Action on Violence Against Women: A Report on the International Women's Aid Conference, Cardiff 1988. Cardiff, U.K.: Welsh Women's Aid, pp 89-104.

 

Bradley C. (1988c). How Can We Help Rural Beaten Wives? Some Suggestions from Papua New Guinea. Paper presented to the Welsh Women's Aid International Conference on Domestic Violence, Cardiff, U.K., 21-23 October.

 

Bradley C. (1989). Wife-beating in Papua New Guinea: Situation Report 1989. To appear in Report on Violence Against Women, United Nations Development Programme.

 

Bradley C. (1990a). Why Male Violence Against Women is a Development Issue: Some Thoughts from Papua New Guinea. Report to UNIFEM, United Nations Women's Programme.

 

Bradley C. (1990b). Wife-beating in Papua New Guinea: Situation Report 1990.

 

Bradley C. (1990c). Should Human Rights Apply to Wives? Wife-beating and the Work of the Papua New Guinea Law Reform Commission. In Legal Service Bulletin (Monash University), pp 18-21.

 

Bradley C. (1990d). Violence in Marriage in Urban Papua New Guinea: The Role of the Churches. In Catalyst (Journal of the Melanesian Institute), Vol. 20, No. 2, pp 137-156.

 

Bradley C. and Willyman A. (1989). Domestic Violence - How Can We Help? Paper presented at the First Pan-Pacific Emergency Nurses Conference, Hong Kong, October 1989.

 

Chowning A. (1985). Kove Women and Violence: The Context of Wife-Beating in a West New Britain Society. In: Toft S. ed. (1985) pp 72-91.

 

Ekeroma A. (1986). Spouse-Beating: A Hospital Study. In: Toft S. ed. (1986) pp 76-       100.

 

Josephides L. (1985). The Politics of Violence in Kewa Society (Southern Highlands). In: Toft S. ed. (1985), pp 92-103.

 

Law Reform Commission (1986). Marriage in Papua New Guinea. Law Reform Commission Monograph No. 4, Boroko.

 

Law Reform Commission of Papua New Guinea. (1987). Interim Report on Domestic Violence. Presented to Parliament 3 March 1987.

 

Ranck S. and Toft S. (1986). Domestic Violence in an Urban Context with Rural Comparisons. In: Toft S. ed. (1985), pp 3-51.

 

Scaglion R. and Whittingham R. (1985). Female Plaintiffs and Sex-Related Disputes in Rural Papua New Guinea. In: Toft S. ed. (1985), pp 120-133.

 

Strathern A. (1985). Rape in Hagen. In: Toft S. ed. (1985), pp. 134-140.

 

Strathern M. (1985). Introduction. In: Toft S. ed. (1985), pp1-13.

 

Toft S. ed. (1985). Domestic Violence in Papua New Guinea. Law Reform Commission Monograph No. 3, Boroko. (Anthropological studies of aspects of domestic violence in Papua New Guinea).

 

Toft S. (1985). Marital Violence in Port Moresby: Two Urban Case Studies. In: Toft S. ed. (1985), pp 14-31, and in Toft S. ed. (1986) pp 101-123.

 

Toft S. ed. (1986). Domestic Violence in Urban Papua New Guinea. Law Reform Commission Occasional Paper No. 19, Boroko. (Results of the urban surveys and comparisons with the rural survey).

 

Toft S. ed. (1986). Marriage in Papua New Guinea. (Student's descriptions of marriage problems in the rural survey villages).

 

Toft S. and Bonnell S. eds. (1985). Marriage and Domestic Violence in Rural PNG. Law Reform Commission Occasional Paper No. 18, Boroko. (Results of the rural survey).

 

Westermark G. (1985). Family Disputes and Village Courts in the Eastern Highlands. In: Toft S. ed. (1985), pp 104-119.

 

APPENDIX 3

 

WIFE-BEATING AND THE CONSTITUTION

 

Wife-beating is clearly contrary to the spirit of the Constitution. Section 1 of the Preamble declares that the first goal of the National Goals and Directive Principles shall be for `every person to be dynamically involved in the process of freeing himself or herself from every form of domination or oppression so that each man or woman will have the opportunity to develop as a whole person in relationship with others.'

 

Goal No. 2(12) affirms `recognition of the principles that a complete relationship in marriage rests upon equality of rights and duties of the partners and that responsible parent-hood is based on that equality."

 

Under Section 55(1) of the Constitution, `all citizens have the same rights, privileges, obligations, and duties irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex.'

 

Section 36(1) provides that no person shall be submitted `to treatment or punishment (whether physical or mental) that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.'

 

Schedule 2.1(2) states that a custom which is inconsistent with the Constitution or a statute, or is `repugnant to the general principles of humanity...shall not be applied or enforced.' All three of these categories apply to wife-beating.

 

APPENDIX 4

 

SUMMARY OF THE HARMFUL EFFECTS

OF DOMESTIC VIOLENCE

 

Effects on the victim (wife)

 

Physical:

 

 -         injuries ranging from cuts, bruises, black eyes, burns, broken bones, internal injuries and brain damage (any blow to the head can cause minor brain damage such as loss of memory, difficulties in concentrating, mood changes etc., or can cause loss of sight or hearing).

 

 -         in the worst cases, death may result (just one blow can kill a person with an enlarged spleen), or the victim may commit suicide.

 

Mental:

 

 -         love for the husband changes into fear of him, and of what might happen;

 

 -         confusion (because she often does not really know what brings on the violence);

 

 -         loss of confidence in herself (because her husband is always telling her it is her fault he hits her);

 

 -         feelings of helplessness (because her husband controls her through his violence);

 

 -         inability to make decisions on her own (in case he does not approve and punishes her); etc.

 

Because of these, a beaten wife finds it hard to help herself: e.g. she may lay charges and then drop them, or leave her husband and then go back to him. This makes people who try to help her feel frustrated and less willing to help again.

 

Social:

 

 -         her work performance suffers, she may be absent a lot and may lose her job;

 

 -         she becomes isolated, as he controls who she sees and where she goes.

 

 

Effects on the children

 

Physical:

 

 -         they may get hurt, even killed, during fights between their parents;

 

 -         they may be neglected, because the mother is upset and may not take such good care of them;

 

 -         unborn babies may die if the mother miscarries because of being hit;

 

 -         some babies are born already injured when the mother was beaten when close to giving birth.

 

Mental:

 

 -         they feel upset, worried about what might happen;

 

 -         their love for the father changes to fear or even hatred;

 

 -         they do not work well at school, are unable to concentrate;

 

 -         they may develop behaviour problems, becoming either aggressive and troublesome, or quiet and withdrawn.

 

Social:

 

 -         they may leave home early and get into trouble ("rascalism" or early pregnancy);

 

 -         when older, they repeat the pattern in their own marriages (unless they seek help to change their behaviour).

 

Effects on the offender (husband)

 

Physical:

 

 -         he may be injured, or even killed, if the wife retaliates;

 

Mental:

 

 -         he feels alienated and insecure as he loses the love and respect of his wife and children, without necessarily understanding why;

 

Social:

 

 -         he tends to stay out more because of tension at home, and may become involved in drinking, or affairs with other women;

 

 -         he may lose his family altogether if the wife decides to leave, or if she finds someone else who treats her better. (The law allows a wife who has been treated badly by her husband to leave him, and to claim maintenance from him for any of the children the court says can stay with her).

 

Effects on the family

 

 -         fear of the husband/father spoils family life;

 

 -         possibility of family break-up: wife-beating is one of the main causes of divorce in Papua New Guinea.

 

Effects on the community

 

 -         disruptive to other families;

 

 -         intimidating for women;

 

 -         may escalate to involve relatives, or whole clan in tribal war.

 

Effects on society

 

 -         helps create a high level of violence in society, as children learn by observation how to use violence to get what they want;

 

 -         leads to family break-up, which creates instability in the society, causes social problems and contributes to the law and order problem;

 

 -         high economic costs, in the many work hours (both garden work and paid employment) lost when victims are not well enough to work;

 

 -         high economic costs, in the services to victims, such as medical treatment, assistance from the police, the courts, welfare services and so on;

 

 -         deprives the country of women's full potential for taking part in development;

 

 -         keeps women in their place as second-class citizens, under men's control.

 

ALL THESE HARMFUL EFFECTS ARE UNINTENDED, AND USUALLY

UNRECOGNISED BY THE OFFENDERS.

 

ALL ARE AVOIDABLE, IF OFFENDERS CHOOSE NOT TO USE VIOLENCE.

 

 

APPENDIX 5

 

COMMON BELIEFS ABOUT DOMESTIC VIOLENCE

 

Some common beliefs about wife-beating, and answers to them

 

1.        "If a man hits his wife, it shows he really loves her."

 

When people hit, they are feeling anger, frustration, jealousy, or other negative feelings, and the hitting shows that they do not know how to control those feelings. Hitting does not show love. If hitting is how a man shows his love, how would he show his hatred?

 

2.        "A husband has the right to hit his wife:

 

a) because he paid brideprice for her

b) because he is the bread-winner

c) because he is the head of the family".

 

a)        Paying brideprice does not mean a man owns his wife and she is his property, to treat how he wants. She is still a human being, and is protected by the law. Paying brideprice does not buy the right to break the law.

 

b)        In towns, the husband may be the bread-winner, but the wife is doing the important work of running the home and bringing up the family. In villages, it is usually the wife whose work produces the family's food, but no-one says that this gives her the right to hit her husband.

 

c)        Being the "head of the family" should not mean being the one who uses force to control his family; it should mean being the one who sets the standards for the family and leads by example and good advice. In fact, many people feel that the family is happier if husband and wife are joint heads of the family, making decisions together.

 

3.        "If a wife gets hit, it's her own fault because she must have done something to deserve it."

 

Sometimes the wife may have done something wrong, but often the husband hits his wife because he is feeling angry about other things, or because he is drunk, or because he is feeling guilty about his own wrong-doing (e.g. if he is committing adultery and his wife finds out about it, or if he has spent too much money on drink and the wife complains because there is no money to buy food for the family).

 

In any case, nobody "deserves" to be hit. There are much better ways of getting people to do the right thing, that are not dangerous and that do not spoil family relationships.

 

4.        "Wife-beating is a private family matter and nobody else should interfere."

 

Family arguments can be private if the people want, but as soon as one person hits another, this becomes a public matter, because it is dangerous and is a crime. Members of the public have a legal right to intervene to prevent or stop violence (s.271 Criminal Code). Since 1987 the police have a duty to interfere in domestic fights.

 

5.        "If a man is drunk when he hits his wife, he can't be held responsible."

 

This is not true. Section 28 of the Criminal Code says that a person is responsible for things they do when drunk, unless they were forced to become drunk against their will.

 

6.        "If a wife lays charges against her husband for beating her and then drops them, it means she doesn't mind being beaten."

 

Wives drop charges for many reasons:

 

-          the husband may say he is sorry and will not do it again;

 

-          he may beat her to force her to drop the charges;

 

-          he may threaten to kill her if she does not drop charges;

 

-          relatives may criticize her for taking her husband to court;

 

-          she worries that he might be sent to jail and will not be able to support the family;

 

-          she worries that he might leave her, or throw her out, or take the children, or pay her back in some other way;

 

-          because of the psychological effects of being beaten, she does not have the confidence to see things through.

 

Wives always mind about being beaten, but usually they are not in a strong enough position to do anything about it.

 

7.        "If a woman is being bashed by her husband, she should rely on prayer and her faith in God to change him, and not do anything else."

 

Prayer may well help, but Christianity teaches that God helps those who help themselves. Some churches have recognised this and are providing practical help to beaten wives. For example, the Catholic church has prepared special forms allowing wives who are beaten to live separately from their husbands, and to get court orders for maintenance and custody of the children if necessary.

 

8.        "Men are naturally aggressive, so they can't help hitting their wives when they get angry with them."

 

Men may be naturally aggressive, but they can control themselves when they choose to: men who hit their wives do not usually hit other people when they are angry, because they know it will lead to more trouble. They hit their wives because they know they can usually get away with it.

 

In any case, Law Reform Commission research showed that one-third of Papua New Guinean men do not hit their wives. These men have learned how to get angry without hitting their wives, so other men can also learn to do the same, if they make up their minds to.

 

9.        "If the wife doesn't leave her husband, it means the bashing can't be very bad."

 

It is very hard for a wife to leave her husband, because:

 

-          she may not be able to support the children on her own;

 

-          she cannot usually find a place to live;

 

-          her family may not want to take her back, or repay any bride-price;

 

-          her husband says he wil not let her take the children, and she does not know that under the law, she has equal rights to them;

 

-          she may still love her husband, and keeps on hoping he will change;

 

-          she feels it is important to try keep the family together;

 

-          all the reasons listed under 6.

 

10.      "If husbands aren't allowed to hit their wives, family life will break down because wives won't do what they're supposed to."

 

This may be true in some cases, but if violence is all that is holding the couple together, it is far better that they split up before someone gets really hurt. But in most cases, the wives will be happy if the violence stops, and will co-operate more so as not to risk losing a husband who does not beat or frighten them.

 

11.      "If a woman is bashed by her husband, she should just put up with it and wait for him to settle down and stop doing it."

 

If the woman does nothing, there will be no reason for the man to stop. He might settle down as he gets older, but he might have caused unnecessary injuries to his wife or children by then, as well as causing bad feelings between them. Often, the man's violence gets worse the longer it is allowed to go on.

 

The best way to stop the violence is by making it clear to the husband right from the first time he hits her that she will not accept this kind of treatment. If she gets help from other people, and he sees she means it, the violence will not get a chance to become a habit.

12.      "Women love men who hit them, because it shows the men are really strong."

 

Hitting someone shows weakness and lack of self-control, not strength. Being able to control one's emotions and being fair to other people are the signs of true strength.

 

APPENDIX 6

 

SUMMARY OF THE CAUSES OF DOMESTIC VIOLENCE

 

There are two types of causes of domestic violence:

 

1.        surface causes: these are the immediate events before the violence that "trigger" the fight at that particular time. They are the reasons that the participants themselves give for their fight.

 

2.        underlying causes: these are the causes that make a person choose violence as a method of solving a problem 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.

 

Surface causes

 

e.g.     - drinking

- jealousy

- money

- sex

- wantoks

- insults

- gambling

- wife does not do what she is supposed to

- husband does not do what he is supposed to

- any kind of domestic argument

 

Underlying causes

 

a)        Unequal position of men and women:

 

-          husband is seen as "boss", due to payment of brideprice and/or beliefs about head of family;

-          wife is expected to be obedient;

-          wife is dependent on husband for land to garden on, and/or earned income;

-          wife is not usually allowed to take the children with her if she leaves her husband (patrilineal custom);

-          prevailing attitudes support male dominance (see Appendix 6).

 

b)        Stress:

 

-          hitting can be a reaction to stress and tension

           (Note: This does not excuse hitting: people can find other ways to relieve their tension without hurting others);

-          rapid social change, such as Papua New Guinea is experiencing, puts a great deal of stress on individuals and marriages;

-          in towns, stress is often worse because the husband has to become the bread-winner, while the wife becomes isolated and dependent as a housewife, and because they face many new kinds of problems over money, "wantoks", security, etc.;

 

c)        Lack of communication between husbands and wives:

 

In the past there was much less need for direct communication and sharing of ideas and feelings between husbands and wives, because of:

 

-          strict separation between men and women in traditional times;

-          husband and wife often lived separately;

-          many customs maintained distance and respect between husbands and wives;

-          marriage was a work partnership, more than a love partnership.

 

Nowadays, husbands and wives want to have a close emotional relationship with each other, but they have not learned the communication skills to help them talk honestly with each other about their feelings, and about how to deal with the many new problems they are facing in modern life.

 

d)        Culture and aggression:

 

-          men are brought up to be more aggressive than women, especially where there is tribal fighting;

-          in some cultures, violence is an acceptable way of settling problems;

-          children who are hit a lot by their parents grow up more likely to hit other people.

-          imported videos, films and TV programmes promote new styles of aggressive behaviour (e.g. Rambo, the A-Team, etc.).

 

APPENDIX 7

 

CONSTABULARY STANDING ORDERS ON DOMESTIC ASSAULT

 

ASSAULTS BY HUSBANDS ON WIVES

 

1.        All assaults are ILLEGAL.

 

An assault by a husband on his wife is no less illegal than an assault by a stranger on another person.

 

2.        The correct action, as outlined below, will be taken by members of the Constabulary on reports of assaults of this nature.

 

3.        In the future, there may be changes in the law which will make our task easier but until then, the following action will be taken every time a report is received of an assault:

 

a.        The report WILL be investigated in a proper manner.

 

b.        Charges will be laid against the offending husband if there is sufficient evidence available.

 

c.        A statement of complaint from the complainant will be recorded provided she is willing to make one. Explain to her that we can only help her by taking her husband before a court. We can only do that if she makes a written statement.

 

d.        The practice of using Section 6 of the Summary Offences Act no matter what injury is caused will cease.

 

e.        The correct charge, from assault, bodily harm, wounding, grievous bodily harm will be laid. (See pages 4-1-2 to 4-1-8 and 4-2-1 of this Manual).

 

f.         The husband will be arrested if there is a possibility that the offence will be repeated after police have left the scene.

 

g.        If the husband is arrested AND there is sufficient evidence, he will be detained to appear before the first available Court.

 

h.        The member attending the complainant will NOT decide whether the assault may be excused, authorised or justified by either law or custom or if there has been provocation. That is a decision to be made by the Court.

 

i.         In the more serious cases, it may be possible to proceed by using evidence other than the statement of the injured person. Each case should be decided on the evidence available and if there is any doubt, reference should be made to the Constabulary Legal Department.

 

 

APPENDIX 8

DRAFT LEGISLATION: POLICE POWERS OF ENTRY

 

INDEPENDENT STATE OF PAPUA NEW GUINEA

 

A BILL

 

for

 

AN ACT

 

entitled

 

Arrest (Amendment) Act 1991

 

BEING an Act to amend the Arrest Act (Chapter 339),

 

MADE by the National Parliament to come into operation in accordance with a notice in the National Gazette by the Head of State, acting with, and in accordance with, the advice of the Minister.

 

1.        New Section 3A.

 

Part II. of the Principal Act is amended by inserting immediately after Section 3 the following new section:-

 

"3A.    Entry onto premises and arrest by a policeman.

 

(1)       Where a policeman believes on reasonable grounds that an offence of assault -

 

(a)       is about to be committed; or

 

(b)       is being committed; or

 

(c)       has been committed,

 

on private premises, he may, without warrant -

 

(d)       enter the premises; and

 

(e)       perform any arrest in connection with the assault; and

 

(f)        remain on the premises for such period as he considers necessary to prevent a breach of the peace.

 

"(2)     Nothing in this section authorises the -

 

(a)       entry onto premises; or

 

(b)       search of premises; or

(c)       arrest of any person; or

 

(d)       remaining on premises,

 

otherwise than in connection with the offence of assault referred to in Subsection (1).

 

"(3)     It is a reasonable ground for a belief under Subsection (1) if a request for police entry onto premises for the purposes of this section has been made by a person apparently residing on the premises."

 

 

APPENDIX 9

 

DRAFT LEGISLATION: COMPELLABILITY OF SPOUSES

 

INDEPENDENT STATE OF PAPUA NEW GUINEA

 

A BILL

 

for

 

AN ACT

 

entitled

 

Evidence (Amendment) Act 1991

 

Being an Act to amend the Evidence Act (Chapter 48) to provide for the compellability of spouses to give evidence in certain circumstances,

 

MADE by the National Parliament to come into operation in connection with a notice in the National Gazette by the Head of State, acting with, and in accordance with, the advice of the Minister.

 

1.        Compliance with Constitutional requirements.

 

This Act, to the extent that it regulates or restricts a right or freedom referred to in Divison III.3C (qualified rights) of the Constitution, namely the right to privacy conferred by Section 49 of the Constitution, is a law that is made for the purpose of giving effect to the public interest in -

 

(a)       public safety; and

 

(b)       public welfare; and

 

(c)       the protection of children and other persons under disability (whether legal or practical).

 

2.        Spouse of accused as witness (amendment of Section 13).

 

Section 13 of the Principal Act is amended by inserting after Subsection (3) the following new subsections: -

 

"(4)     Notwithstanding Subsections (1) and (2), the wife or husband of a person charged with an offence of assault against the other, or against a child of either of them, is a competent and compellable witness in any legal proceedings in connection with the offence, and may be called without the consent of the accused.

 

"(5)     Where a person who is a competent and compellable witness under Subsection (4) makes a statement on oath that -

(a)       a genuine reconciliation has been achieved or is imminent; or

 

(b)       other considerations make it undesirable for the person to be compelled to give evidence,

 

the Court may excuse the person from giving evidence.

 

"(6)     Where a person is excused from giving evidence under Subsection (5), the Court shall record its reasons in writing."

 

 

APPENDIX 10

 

DRAFT LEGISLATION: PERIODIC DETENTION AND PROTECTION ORDERS

 

 

INDEPENDENT STATE OF PAPUA NEW GUINEA

 

A BILL

 

for

 

AN ACT

 

entitled

 

District Courts (Amendment) Act 1992

 

Being an Act to amend the District Courts Act (Chapter 40) to provide for -

 

(a)       a system of periodic detention; and

 

(b)       a system of protection orders,

 

and for related purposes,

 

MADE by the National Parliament to come into operation in accordance with a notice in the National Gazette by the Head of State, acting with, and in accordance with, the advice of the Minister.

 

1.        Compliance with constitutional requirements.

 

This Act, to the extent that it regulates or restricts a right or freedom referred to in Division III.3.C (qualified rights) of the Constitution, namely:-

 

(a)       the right to freedom from arbitrary search and entry conferred by Section 44 of the Constitution; and

 

(b)       the right to freedom of expression conferred by Section 46 of the Constitution; and

 

(c)       the right to privacy conferred by Section 49 of the Constitution; and

 

(d)       the right to freedom of information conferred by Section 51 of the Constitution; and

 

(e)       the right to freedom of movement conferred by Section 52 of the Constitution,

 

is a law that is made for the purpose of giving effect to the public interest in

 

(f)        public safety; and

 

(g)       public welfare; and

 

(h)       the protection of children and other persons under disability (whether legal or practical),

 

and in order to protect the exercise of the rights and freedoms of others.

 

2. New Section 205C.

 

The Principal Act is amended by inserting immediately before Section 206 the following new section: -

 

"205C. Periodic detention.

 

(1)       In this section, "detainee" means a person sentenced to or serving a sentence of periodic detention in accordance with this section.

 

"(2)     Subject to Subsection (3), where, upon conviction for an offence, a Court has imposed upon a person a sentence of imprisonment for three months or less, the Court may order that -

 

(a)       the execution of the sentence be suspended; and

 

(b)       an alternative sentence of periodic detention be imposed.

 

"(3)     An order shall not be made under Subsection (2) unless the person -

 

(a)       consents to the making of the order; and

 

(b)       undertakes to comply with such conditions of the order as may be imposed.

 

"(4)     Subsection (2) does not prevent the Court -

 

(a)       imposing and requiring the fulfilment by the person of any other penalty authorised by law; or

 

(b)       in accordance with any law - disqualifying the person from holding or obtaining a licence to drive a vehicle under the Motor Traffic Act.

 

"(5)     A sentence of periodic detention -

 

(a)       shall be served at a corrective institution; and

 

(b)       unless otherwise provided by the Court where it considers that the circumstances warrant it, shall be served on consecutive weeks,

 

and the number of periods of detention served -

 

(c)       shall equal the number of weeks of the sentence first imposed under Subsection (2); and

(d)       in any case, shall not exceed twelve.

 

"(6)     The time and duration of a period of detention are as prescribed.

 

"(7)     An order for periodic detention shall specify -

 

(a)       the corrective institution at which the sentence is to be served; and

 

(b)       the place or places at which the detainee is to report to serve the periods of detention; and

 

(c)       where the Court specifies a service of sentence other than on consecutive weeks in accordance with Subsection (5)(b) or Subsection 9(b) - the manner of service of the periods of detention; and

 

(d)       any other conditions which the Court considers necessary in the circumstances of the case for ensuring compliance by the detainee with the conditions of his sentence and for his good conduct.

 

"(8)     A detainee may apply to a Court at any time for variation of any of the conditions of the order for periodic detention.

 

"(9)     On the hearing of an application under Subsection (8), the Court, having regard to the information before it -

 

(a)       may vary all or any of the conditions specified in the order; and

 

(b)       where it considers that the circumstances warrant it, may provide that any remaining periods of detention may be served other than on consecutive weeks.

 

"(10)   A detainee who, without reasonable excuse, proof of which lies upon him, contravenes, or fails to comply with, a condition of the order for periodic detention which relates to him, is guilty of an offence.

 

"(11)   Upon conviction of a detainee for an offence under Subsection (10), the Court shall -

 

(a)       discharge the order for periodic detention; and

 

(b)       commit the detainee to serve a period of imprisonment for a number of weeks equal to the unexpired number of periods of the sentence of periodic detention; and

 

(c)       grant any necessary warrant for his committal.

 

"(12)   A police officer who believes on reasonable grounds that a detainee has committed a breach of a condition of the order for periodic detention relating to that detainee may, subject to the Arrest Act and the Bail Act, arrest him without a warrant.

 

"(13)   If, on information, it appears to a Court that a detainee has committed a breach of, or has failed to comply with, a condition of the order for periodic detention relating to him, the Court may -

 

(a)       issue a summons requiring the detainee to appear before it; or

 

(b)       where the information is on oath - issue a warrant for his arrest.

 

"(14)   Where a detainee is sentenced to imprisonment for a subsequent offence, other than an offence under Subsection (10), the Court shall -

 

(a)       discharge the order for periodic detention; and

 

(b)       commit the detainee to serve a period of imprisonment for a number of weeks equal to the unexpired number of periods of the sentence of periodic detention, to be served after the expiry of the term of imprisonment for the subsequent offence; and

 

(c)       grant any necessary warrant for his committal.

 

"(15)   Upon the completion of service of a sentence of periodic detention -

 

(a)       the order for periodic detention is deemed to be discharged; and

 

(b)       the person to whom the order applies is discharged in respect of the offence for which he was originally convicted, as if he had served the period of continuous sentence originally imposed."

 

Note: It is anticipated that amendments to the Regulations will provide for details as shown at the end. Also, the Corrective Institutions Regulation will require amendment of Section 111 to provide for separation of offenders sentenced to periodic detention.

 

3.        Repeal and replacement of Part X.

 

Part X. of the Principal Act is repealed and is replaced with the following:-

 

"PART X. - PROTECTION ORDERS

 

"209.  Interpretation.

 

In this Part, unless the contrary intention appears -

 

"aggrieved person" means a person referred to in Section 210 who, or whose property, is the subject of a complaint for an order;

 

"order" means a protection order or an interim protection order made under this Part.

 

"210.  Protection orders.

 

Where, upon a complaint made in accordance with Section 211, a Court is satisfied on the balance of probabilities that the defendant has -

 

(a)       caused, or threatened to cause, injury to a person; or

 

(b)       caused, or threatened to cause, damage to the property of a person; or

 

(c)       harassed or molested a person; or

 

(d)       persistently behaved in an abusive, provocative or offensive manner towards a person,

 

the Court may make a protection order in respect of the defendant.

 

"211.  Complaints for protection orders.

 

(1)       A complaint for a protection order may be made by -

 

(a)       a police officer; or

 

(b)       the aggrieved person; or

 

(c)       where the aggrieved person is aged less than 18 years -

 

(i)        a police officer; or

 

(ii)       a parent or guardian of the aggrieved person; or

 

(iii)      the Director of Child Welfare or a welfare officer appointed under the Child Welfare Act (Chapter 276); or

 

(d)       any other person by leave, where it appears to the Magistrate that the person has a sufficient interest in the proceedings.

 

"(2) Where a complaint is made at a Court, it shall be made in writing.

 

"212.  Summons or warrant on complaint.

 

(1)       Where a complaint has been made for an order, the Magistrate may -

 

(a)       issue a summons; or

 

(b)       where -

 

(i)        the complaint alleges that personal injury has been caused or threatened; and

 

(ii)       the Magistrate is satisfied that the personal safety of the aggrieved person would be seriously threatened unless the defendant is apprehended and brought into custody; and

 

(iii)      the complaint is in writing and on oath -

 

issue a warrant for the arrest of the defendant as if the complaint alleged the commission of a simple offence.

 

"(2)     A Magistrate may receive a complaint for an order, and may issue a summons or warrant in accordance with this section, at any time, and on a Sunday as on any other day.

 

"213.  Interim protection orders.

 

(1) Where -

 

(a)       a complaint has been made for an order; and

 

(b)       the Magistrate is satisfied that the personal safety of the aggrieved person would be threatened if an interim protection order was not made,

 

the Magistrate may make an interim protection order.

 

"(2)     An interim protection order may be made -

 

(a)       at any time of the day or night; and

 

(b)       at any time before the conclusion of the hearing of the complaint; and

 

(c)       notwithstanding that the complaint has not been made in writing; and

 

(d)       in the absence of the defendant and notwithstanding that he has not been summoned to appear at the hearing of the complaint.

 

"(3)     Where an interim protection order has been made on an oral complaint -

 

(a)       it shall be made for a period not exceeding four days; and

 

(b)       the complainant shall reduce the complaint to writing within four days of the complaint being made.

 

"(4)     Where a complainant has reduced an oral complaint to writing in accordance with Subsection (3)(b), the Magistrate shall issue a summons or warrant in accordance with Section 212.

 

"(5)     Where a complainant fails to reduce an oral complaint to writing within four days, the Magistrate shall revoke the order.

 

"(6)     Where an interim protection order has been made in the absence of the defendant -

 

(a)       it shall be made for a period not exceeding 14 days; and

 

(b)       the Magistrate shall issue a summons or warrant in accordance with Section 212.

 

"(7)     Where a Magistrate issues a summons in accordance with Subsection (4) or (6), the defendant shall be required to appear before a Court -

 

(a)       within 14 days from the date of making the interim protection order; or

 

(b)       on such later date as will permit the summons to be served in accordance with the provisions of Section 47,

 

to show cause why the order should not be confirmed.

 

"(8)     Where an interim protection order has expired in accordance with Subsection (3)(a) or Subsection 6(a), a Magistrate -

 

(a)       may, on application by the complainant, grant an extension of the order until the time for hearing the complaint; and

 

(b)       where the time for hearing is extended - may on application by the complainant grant such further extensions of the order as may be required until the complaint is heard.

 

"(9)     At a hearing under this section, the Court may -

 

(a)       confirm the order; or

 

(b)       vary the order by making a different order in accordance with this Part; or

 

(c)       refuse to confirm the order.

 

"214.  Effects of order.

 

(1)       A protection order or interim protection order may impose any restrictions or prohibitions on the defendant that appear to the Court necessary or desirable in the circumstances in order to prevent the behaviour complained of.

 

"(2)     Without limiting the nature of the orders which may be made, an order may do all or any of the following: -

 

(a)       prohibit or restrict approaches by the defendant to the aggrieved person; or

 

(b)       prohibit or restrict access by the defendant, for a period not exceeding three months, to premises in which the aggrieved person lives, works or frequents, whether or not the defendant has a legal or equitable interest in those premises; or

 

(c)       prohibit the defendant from contacting, threatening, intimidating, harassing, or molesting the aggrieved person, or otherwise behaving towards the aggrieved person in any of the manners set out in Section 210(c); or

 

(d)       prohibit the defendant from damaging the property of the aggrieved person; or

 

(e)       prohibit the defendant from causing another person to engage in conduct restricted or prohibited by the Court; or

 

(f)        prohibit or restrict the defendant's possession of all or any firearms specified in the order or direct the forfeiture or disposal of any firearms in the defendant's possession.

 

"(3)     Before making an order, the Court shall take into account -

 

(a)       the need to ensure that the aggrieved person is protected from injury, harassment or molestation; and

 

(b)       the welfare of any children who may be affected by the order; and

 

(c)       the accommodation needs of all persons who may be affected by the order; and

 

(d)       any hardship that may be caused to the defendant or to any other person as a result of making the order; and

 

(e)       any other matter that, in the circumstances of the case, the Court considers relevant,

 

and shall give paramount consideration to the matters in paragraphs (a) and (b).

 

"(4)     No person, other than the defendant, shall be ejected from leased or tenanted premises by reason only of an order made under Subsection (2)(b).

 

"(5)     An order shall remain in force for the period, not exceeding twelve months, specified by the Court, or until a further order is made.

 

"(6)     An order may recommend that the defendant participate in counselling of a nature specified in the order.

 

"215.  Explanation of orders.

 

Where -

 

(a)       a Court proposes to make an order; and

 

(b)       the defendant is before the Court,

 

the Court shall, before making the order, explain to the defendant, in language likely to be readily understood by the defendant -

 

(c)       the purpose, terms and effect of the proposed order; and

 

(d)       the consequences that may follow if the defendant fails to comply with the terms of the proposed order; and

 

(e)       the means by which the proposed order may be varied or revoked.

 

"216.  Variation, extension and revocation of orders.

 

(1)       A party to proceedings in which an order has been made under this Part may apply to a Court at any time, after reasonable notice to the other party, for the variation, extension or revocation of the order.

 

"(2)     On an application under Subsection (1), the Court may, after all parties have had an opportunity to be heard on the matter, vary, extend or revoke the order.

 

"(3)     In determining whether to vary, extend or revoke an order, the Court shall have regard to the matters specified in Section 214(3).

 

"217.  Breach of an order.

 

(1)       A person against whom an order has been made who -

 

(a)       has been served with a copy of the order; and

 

(b)       contravenes the order in any respect,

 

is guilty of an offence.

 

Penalty:         a fine not exceeding K300 or imprisonment for a term not exceeding three months, or both.

 

"(2)     Where a police officer believes on reasonable grounds that a person has committed an offence under Subsection (1), he may -

 

(a)       without warrant, arrest and detain the person; and

 

(b)       for the purpose of arresting and detaining the person enter, by force if necessary, any premises on which he has reasonable cause to believe the person is present and search the premises for the person.

 

"218.  Concurrent criminal proceedings.

 

Where upon the hearing of a complaint for a simple offence or an indictable offence triable summarily, a Court is satisfied on the balance of probabilities as to any of the matters set out in Section 210, it may -

 

(a)       of its own motion; or

 

(b)       at the request of a person who, or whose property, is the subject of the matter,

 

elect to make an order under this Part in addition to any other order which it may make.

 

"218A. Restrictions on publication of proceedings.

 

(1) Upon the request -

 

(a)       of a person making a complaint under this Part; or

 

(b)       where the complainant is not the aggrieved person, of the aggrieved person,

 

the Court may, if it thinks fit, order that no person shall publish a report of proceedings or the result of proceedings before it under this Part.

 

"(2)     This section does not apply to a publication of a technical nature bona fide intended primarily for circulation amongst members of the legal, medical, psychiatric, psychological or social welfare professions.

 

"(3) A person who contravenes an order under Subsection (1) is guilty of an offence.

 

Penalty:         In the case of -

 

(a)      a natural person - a fine not exceeding K500.00 or imprisonment for a term not exceeding two months, or both; and

 

(b)      a corporate body - a fine not exceeding K2000.00."

 

Note: It is anticipated that the Regulations will also be amended to provide for new Sections as follows, and also for new forms.

 

"5. Transmission of protection order.

 

(1) Where an order is made, varied or extended by a Court under Part X., the Clerk shall -

 

(a)       arrange for the order to be drawn up and filed in court; and

 

(b)       cause a copy of the order to be forwarded to -

 

(i)        the Commissioner of Police; and

 

(ii)       the officer in charge of the police station closest to the place of residence of the aggrieved person."

 

"43A. Duration of periodic detention.

 

A period of detention under Section 205C of the Act shall consist of 44 hours of continuous detention, which, unless the Court specifies otherwise -

 

(a)       shall commence at 6 p.m. on a Friday evening and end at 2 p.m. on a Sunday afternoon, or as soon afterwards as is practicable; and

 

(b)       may be served on a Sunday as on any other day.

 

"43B. Orders of periodic detention.

 

(1)       For the purpose of Section 205C(2) of the Act an order for periodic detention shall be in Form .

 

"(2)     Where an order is made or varied by a Court under Section 205C, the Clerk shall -

 

(a)       arrange for the order to be drawn up and filed in court; and

 

(b)       forward a copy of the order to the officer in charge of the corrective institution to which the detainee is sentenced; and

 

(c)       issue a copy of the order to the detainee.

 

 

"43C. Register of periodic detention.

 

The officer in charge of a corrective institution shall maintain a register of periodic detention, containing:-

 

(a)       name, address and other particulars of each detainee committed to the institution; and

 

(b)       the dates upon which the sentence of periodic detention of each detainee begins and ends.

 

"43D. Evidence of serving of period of detention.

 

Upon a detainee's reporting to the corrective institution at which he is serving his sentence of periodic detention -

 

(a)       the detainee shall sign the copy of the order referred to in Section 43B(2)(b); and

 

(b)       the officer in charge of the corrective institution shall date and witness the signature,

 

and this witnessed signature is evidence that the period of detention identified by the date has been served.

 

APPENDIX 11

 

FUNDING DONORS FOR PUBLIC AWARENESS ACTIVITIES

 

The Law Reform Commission wishes to express its appreciation to the following organisations and individuals for their contributions to the Women and Law Committee's awareness activities on domestic violence and related issues.

 

International Women's Development Agency (Australia)

Australian Freedom From Hunger Campaign

Soroptomists (Australia)

Soroptomists (Port Moresby)

YWCA (Australia)

Herbert Vere Evatt Foundation (Australia)

New Zealand High Commission to Papua New Guinea

Canadian High Commission to Australia

Australian High Commission to Papua New Guinea

CUSO (Canada)

National Law Awareness Committee (PNG)

Ministerial Fund for Law and Order (PNG)

Business and Professional Women's Association of Port Moresby

Lionesses of Port Moresby

Philippine Women's Association of Port Moresby

UNICEF

Community Aid Abroad (Australia)

Mr Brian Bell (PNG)

Mr James Seeto (PNG)

Mr and Mrs Chandra Soekandar (PNG)

Air Niugini

 

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Abraham A. (1988). Women in Urban Areas: How to Respond to the Needs of Women Escaping Domestic Violence. Bombay: Women's Centre.

 

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