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Family Abuse, Dispute Settlement and the Law in Papua New Guinea [2005] MLJ 4; 2005-06 [2005-06] MLJ 7 (1 January 2005)

Family Abuse, Dispute Settlement and the Law in Papua New Guinea

John Y. Luluaki[∗]

Abstract

The centrality of the family in the peace and reconciliation discourse cannot be overemphasized. It is crucially important to recognize this as Venerable Master Chin Kung reminded us in his presentation that "conflicts begin in the fundamental unit of our society – the family." A world comprised of peaceful families is almost doubtless the sine qua non for a peaceful world. Anyone who is serious about world peace must also therefore seriously consider and explore ways of facilitating and enhancing peace at the family level.

It is generally recognized that the 'family', however way one defines it and whatever its composition and functions, will ever become irrelevant and disappear altogether in society. Despite discourse to the contrary, its centrality in society is recognized both at the international level, in the form of Article 16(3) of the Universal Declaration of Human Rights and Article 23(1) and (2) of the International Covenant on Civil and Political Rights of 1966, and the national level, by Goal 1(5) of the National Goals and Directive Principles of the Papua New Guinea Constitution. However, it would seem that one of the major casualties of the present focus on the recognition of individual rights and their protection from the family and sexual abuse, is the family unit itself.

I. THE CONTEXT OF FAMILY ABUSE

1. Introduction

Generally, family abuse includes any form of negative or unwanted physical or non-physical conduct directed by a member at another which results in the latter suffering some kind of physical, sexual, emotional, social or economic injury, hurt or loss. Whether it is physical or non-physical, all abuse hurts in different ways and varying degrees. However, not all forms of abuse are illegal. Non-physical forms of abuse can be either emotional or economic. Emotional abuse is conduct which seeks to control family members by manipulating their emotions, environment, sense of personal safety, and self-esteem. Emotional abuse can be both passive and active. Subtle, or passive, abuse includes behavior such as downplaying or degrading the victim's abilities or ignoring his or her presence. Berating, name-calling, and verbal harassment for purposes of control are examples of noticeable or active abuse.

Verbal abuse is a common (but as yet not properly researched or documented) form of abuse of women by husbands or male partners. This form of abuse, which includes humiliating, threatening, insulting, or intimidating one's partner, is particularly threatening because of the fact that it almost always precedes physical abuse. Such behaviour indicates that physical violence is imminent. Otherwise, the progression to this level of attack may take years or months – or weeks. However, the most common forms of family abuse are domestic violence (both of a physical and/or sexual nature) and sexual abuse of children.

Legal definitions of abuse only address its physical or sexual nature, or abandonment and neglect. This perhaps explains why only physical forms of abuse are illegal while the majority of emotional and economic abuses, which are in essence non-physical such as always keeping track of all her time and monitoring her every movement and whereabouts; discouraging her from having friends; preventing her from attending work, church or school; controlling all the family finances and forcing her to beg for spending money, and then demanding an account for all her spending; and forcing her to lie to friends, pastor and family are not proscribed as illegal under the laws of many Pacific Islands countries, including Papua New Guinea.

Since there are no laws against such abuses, there are no formal processes which victims of such abuses can invoke in seeking redress, while whatever informal processes might be available would generally be unreliable, inadequate or ineffective.

A common myth about the nature of disputes between family members is that it is a 'private' matter, a disagreement they should manage and resolve between themselves or among themselves at times. This kind of thinking applies especially to conflicts between spouses or, as is common nowadays, unmarried partners. The reality, as we all know, is that not all attempts to resolve disputes between spouses turn out to be successful. Sometimes, disputes between persons who are otherwise related can, if not managed properly, degenerate into bitter feuds resulting in physical violence and serious breaches of the peace, sometimes resulting in the death of one of the parties.

Related to this is the thinking that marital or domestic disputes are better managed internally through family processes and that external dispute settlement procedures are generally inappropriate or unsuitable for dealing with such disputes and may, in any case, militate against the successful resolution of such disputes. Conversely, the presence of external processes may be seen as an unwanted or unwelcome interference or being intrusive of the family domain. Unfortunately, it is this type of thinking that accounts for much of the absence of formal structures and legal and administrative processes for dealing with family disputes. It is common knowledge that the official legal system rarely intervenes in family disputes and then only reluctantly. More seriously, however, the absence of such facilities and processes means that the rights and interests of victims of family disputes especially those of family abuse including domestic violence and sexual abuse are not protected. The most direct consequence of the unregulated nature of this 'private' realm is the legitimization of many otherwise illegal conduct against women and children within the family environment. In Papua New Guinea, for example, it is well documented that many women and children suffer serious physical, sexual and emotional abuse at the hands or conduct of those having authority over them sometimes causing their death.

If one accepts that family disputes are unavoidable and that the family is not always the best environment within which to settle these disputes, one must also accept some responsibility in articulating and devising strategies to resolve disputes for which the family is considered to be an unsuitable forum for their resolution. This, to me, is the greatest challenge facing anyone interested in intra-familial dispute settlement generally and restoring family relationships, healing family and individual hurt, and ensuring lasting peace and stability for everyone affected in particular. This responsibility can only be considered as having been discharged when there is present appropriate laws, an effective dispute processing and resolution system which is user-friendly, relatively cheap, easily accessible, available at least-cost to the grievants, and adequately resourced as indicated by the presence of finance and competent personnel.

Obviously, the presence of law itself influences how one responds to a grievance whether as offender, victim or family member. The presence of the police and the threat of criminal sanction through law, the courts and prisons, inevitably determine how one responds to a situation of dispute. Added to this would be the non-penal sanctions of shame, compensation and loss of reputation or standing in the community or amongst peers or at the workplace. Also, the presence of alternative, indeed competing dispute settlement forums, almost always determines the procedure adopted in resolving a dispute. Not only must the grievant make a choice between formal and non-formal processes but also between competing formal, informal or customary processes. Another variable is the cost and benefits of pursuing a particular strategy. If the cost of enforcing rights according to law is greater than the social or economic benefits to be derived, the result may be that the grievant will either abandon insisting on his rights thereby not pursuing the grievance altogether or seek alternative methods to resolve it so as either to avoid the cost or minimize it. Yet, at other times, the victim may seek to maximize the benefits of redress for himself by shopping around for a forum which best or as closely as possible produces this outcome.

2. Domestic Violence and the Family

Domestic violence is commonly presented as the physical manifestation of unequal gender relations. It revolves around the dominant/oppressed paradigms, a relationship in which women are seen as the victims of men's oppression. A major preoccupation of anthropological investigations into cultural aspects of Papua New Guinea societies has focused on the authors' perceived position of gender inequalities similar to the situation in societies to which they belonged. Part of the reason for such conclusions is that they focussed primarily on the relationship between individuals or between the sexes to the exclusion of the family and the overarching cultural context individuals and families existed. In many cultural contexts, the relationship between individuals could only be explained in terms of the wider and long-term interests of the family. As a result, individual rights were subordinate to those of the family which could also be sacrificed for group survival.

Moreover, cultural conditions are interpreted by researchers on their terms rather than on the terms of the societies they pried into and upon which they plied their Western intellectual skills and biases. No serious or sustained attempt was made to interpret the cultures they studied on their own terms so as to anchor them in the context of the cultural legitimacy around which they revolved. The focus is disproportionate, however, compared to other concerns.

Interpretations of phenomena like domestic violence produce both correct and incorrect conclusions. However, while one should never be totally dismissive of domestic violence as being connected with gender based inequalities, this conclusion should not be thought of or accepted as enjoying an exclusiveness. Domestic violence cannot be explained simply and only in terms of gender based inequalities. Depending on the socio-cultural conditions within which the issue must always be considered, it may have other dimensions relevant to society even though they may not be apparent to the inquirer. Indeed, domestic violence can, depending on the form and degree, be an end in itself, as a form of dispute settlement.

Approaches of dispute resolution strategies/processes should aim ultimately to identify and understand the problem or disagreement before devising solutions for them. It is a futility to adopt the cart-before-the horse strategy of devising solutions and then look for problems that fit those ready-made solutions as some kind of prescription. Most of the existing formal and informal mechanisms concerning family and sexual violence are responsive at best and reactive at worst in nature.

3. Nature and Prevalence of Family Abuse

The fact about domestic violence (or family and sexual violence) in Papua New Guinea and elsewhere in the region is that generally it is women who suffer at the hands of their husbands or partners rather than vice versa, and that of all domestic relations it is the marital relationship which provokes or attracts violence. Thus, domestic violence is the physical assault of wives by their husbands or wife-beating. It has been reported for example that "[i]n PNG, wife-beating is so common that it has even been used in courts as proof of marriage, as in a case against a government minister whose defence against charges of raping a young girl in his household was that he considered her to be one of his wives, and this was confirmed by evidence that the girl was often beaten up by him" (Bradley 2001:7. However, one should not be quick therefore to draw conclusions or make easy assumptions about the nature or characteristics of domestic violence in the country. For example, it is too simplistic, and may in fact be indefensible, to assume that one, domestic disputes involve only women, two, men use them as a means of controlling and dominating women, three, disputes involving women are essentially sex related, and therefore four, it is sex that is the cause of domestic violence.

The issues of family abuse generally and family sexual violence in particular continues to be issues of great legal, social and political concern in contemporary Papua New Guinea. While each form of abuse can be distinguished by its nature, seriousness, and prevalence, the common characteristic of all such abuses or violations is that the victims are invariably women and young girls. In 2001, a report emanating from the Institute of National Affairs stated that:

Family and sexual violence are common and widespread in PNG. Within the family, the main forms are wife-beating, marital rape, physical abuse of children by parents or other family members, the sexual abuse of children by relatives or members of the household, the sexual harassment or rape of babysitters or domestic workers, and physical assault between co-wives in polygamous marriages. Forced prostitution of wives by their husbands, and sometimes of children by their fathers or other male relatives, is also known to occur (Bradley 2001:1).

By comparison, the sexual abuse of children generally also continues to pose serious legal and social problems and challenges in the country. Often, but not necessarily, these occur together with other forms of child abuse such as physical and emotional abuse as well as neglect. The extent of child abuse generally is yet unknown and no large-scale or comprehensive studies have been conducted in that regard. However, as regards child sexual abuse, Papua New Guinea's 1994 report to the UN on the Convention on the Rights of the Child states that, "child sexual abuse is a serious problem, now widely acknowledged as commonplace" (GoPNG and UNICEF 1999:94). Unfortunately, the source of some of the most hideous sexual crimes against children is the very institution - the family - which bears the greatest responsibility of ensuring their welfare and interests and protecting them from such and all other forms of abuse. Thus, it has been found for example that "children are at most risk of sexual abuse from members of their families and households, from teachers and from older males in their community" (Bradley 2001:15). The prevalence of cases involving child sexual abuse today is more than simply a legal issue because it also challenges in a real and fundamental way the very fabric of the Melanesian family, its cultures and patterns of social organization.

It is clearly recognized that encroachments of personal liberty and dignity through violence of such kind derogate fundamentally from relevant internationally recognized human rights principles. No one should expect to be excused for beating his spouse, raping her, or suffer inhuman punishment for committing adultery. Such breaches must no doubt be condemned in the strongest possible terms and appropriate retributive justice applied.

Commonly, perpetrators of family violence are men and women their victims. But it is wrong to conclude that it is only husbands (or male partners) who direct such assaults. In Papua New Guinea, women may also experience violence at the hands of fathers, brothers, sons, cousins and kin in general and women may also sometimes be the offending spouse or partner. However, in most such cases, the conduct is either retaliatory or in defence (Bradley 2001:9). Also, abuse of parents by children, especially in the urban communities, is an emerging and growing problem in Papua New Guinea. This too needs to be included in the discourse on family abuse in the country.

Irrespective, however, of the form, nature and degree of the violation perpetrated or its cause, it is invariably the source of immense physical, emotional and psychological stress to the victims. Importantly, too, they also result in the creation of intense intra-familial tension and animosity both between individuals and as well as groups. As is usually the case, children are often collateral casualties of conflicts between adults or between groups of adults. An African saying drives home this message: "When two elephants fight, it is the grass that gets killed."

Nevertheless, it is also recognized that while it may be in order, perhaps even overdue, to proscribe, through appropriate legislative action, such activities, it is impossible to consider a blue print to end all such and similar violations in the future. What is possible, however, as has been the experience of many Commonwealth jurisdictions, is to put in place mechanisms at both formal and informal levels to address this issue in ways that seek to punish offenders, promote deterrence, assist victims recover, and hopefully also help restore shattered pre-violence family relationships. Whether and the extent to which these objectives are met will depend to a large extent on the process and procedure adopted in managing the victim's grievance. The procedure adopted or the forum selected may be formal or informal, or it may combine aspects of both.

However, as is so common the case in Papua New Guinea, for a variety of social, economic and legal obstacles, accessibility to appropriate dispute resolution processes is denied many victims of family violence generally. For them then, their demand for justice both under the law and informally is as elusive as their wish to grow younger. Added to this is the traditional context within which the issue of dispute settlement must be raised and discussed, a context in which gender relations generally and especially between husband and wife have a direct bearing in determining the definition of both 'violence', on one hand, and 'victim' and 'offender', on the other.

4. Customary Perceptions of Family Violence

While acts of wife-beating, marital rape, and other serious forms of physical assaults against wives and partners would clearly constitute domestic violence, it is questionable if all acts appearing to be violent conduct against a wife or partner might be regarded as violence proper. There is presently absent a definition of domestic violence which can be applied to cultures such as those found in Papua New Guinea, Melanesia and the region generally. Despite the presence of considerable volumes of socio-anthropological and related work in the region including some recent ones relating directly to this issue,^[1] I have not found any such definition. But one assumes here that it is possible to provide a definition which may be relevant cross-culturally in the region. I think not, except only in the general sense such as that provided by Counts who suggests that generally, the terms 'domestic violence' and 'family violence' would "encompass behaviour between or directed toward a range of family members including spouses, children, siblings, co-wives, and the elderly" (Counts 1990:1-2). However, to the extent that domestic violence between husband and wife is almost always physical in nature, 'violence' may be defined as "an act carried out with the intention, or perceived intention, of physically hurting another person" (Counts 1990:2). However, while this remains true almost universally, the cultural meanings for each instance of 'violence', as defined, may be as different as the cultures that make up the Oceania region or indeed the world. Even if similar terms are used, the commonality in the use of the English word may not necessarily imply identical meanings or connotations. Like other social phenomena, it cannot be assumed that the word 'violence' has one meaning and one meaning alone, for to do so would be to commit the fallacy of describing the unfamiliar in familiar terms thus effectively distorting the subject of inquiry and ascribing it meanings in respect of which no local equivalents exist. One needs to be reminded here of the danger one commentator observed:

"We cannot translate without comparing. Given that translation requires comparison, thoughtful comparison is doubtless preferable to the thoughtless variety. The richer our comparative vocabulary, the richer our translations are likely to be. If we use only a "them/us" comparison, we able to note only the ways in which "they" are or are not like "us." We reinforce and thus contribute to the persistence of, the "West and the Rest" dichotomy that condemns others to perpetual, and undifferentiated, otherness" (Collier 1980:252-53).

For example, the fact that many Pacific societies might consider it both acceptable and expected for some level of family violence does not render it unacceptable because of the dictates or prescriptions of other cultures. Nevertheless, even within these societies, it is also recognized that such acts of violence must be justified a determination which must depend ultimately on its reasonableness and appropriateness to the circumstances beyond which it becomes unacceptable.

In most cultures and in most situations, violence and love are mutually exclusive categories. Violence is the antithesis of love, peace and harmony. Thus, in the domestic domain, generally the presence of violence is characteristic of a dysfunctional unit or group. But this is not a universal observation in respect of all physical acts of violence. Not all cultures make the link between violence and the domestic realm in this way. Yes, they are acts of violence and yes they are domestic but this congruence does not necessarily make all such conduct domestic violence. In some cultural settings, certain acts of violence might, far from indicating the absence of love, confirm its presence or deepen it. Acts of violent conduct in such situations are expressions of love rather than indications of a pathological marital situation.

In Western societies, love between husband and wife is expressed by overt action such as presenting flowers, holding hands, kissing, or words of endearment such as 'I love you'. By contrast, in societies like Papua New Guinea, there are no overt symbolic acts of love which may be considered as Western equivalents. Love between husband and wife takes on less overt forms. It is considered uncustomary for a husband or wife to express their marital love by overt conduct. They simply do not do that and may attract disapproval from the community if they do, but how do they do that? The absence of symbolic mechanisms informs us instead that traditionally, husbands and wives do not express love in any overt way and may in fact be seen as a sign of weakness bordering on sexual looseness.

Thus, to fill this vacuum, the expression of love may sometimes take the form of what appears as violence. For example, according to Melanesian thought, a man who does not hit his wife denies not only the marriage relationship but also his status as husband and her his wife. Sometimes, a man may hit his wife in the early stages of the marriage to 'cement' the union and their relationship. It also helps the wife to 'know' (and she may demand to know) that she is his wife and for him to assure himself that she accepts him as her husband and she his wife, a functions sex alone cannot perform even if this may follow. Thus, the Fijian husband had to "throw the tea...at her, hit her hard, punch her with his fists and when she fell to the floor kick her" so that "[true love could begin]" (Toren 1994:18-19). Several reminders may follow in the course of the marriage but becoming less frequent as the parties progress in age, maturity, and experience.

According to Chowning (1985:82), Kove women (of West New Britain) believe that their husbands may still be fond of them despite the beating(s) they may get. As a normative statement, it is generally true in all societies that "some" husbands beat their wives frequently while "all" men hit their wives occasionally. Further, all societies recognize that a man may indeed be expected to 'hit' his wife for a whole host of infractions of relevant rules such as if she commits adultery, if she shames him in public, breaches menstrual taboos, or if she reneges on her marital obligations to the husband or other members of the family. Thus, if a man fails to punish his wife for failing to perform her domestic duties, he is himself responsible for the disheveled state of their household because he did not strike her for neglecting her duties. Generally, both men and women accept the use of violence against women to some degree but to a point beyond which it ceases to be acceptable and becomes abusive. It is one of degree and proportionality and one may need to sharply distinguish between 'hitting/striking' and 'beating' even though in most cases of domestic violence it is anything but an act of chastisement, marital assertiveness, or expression of marital fondness.

Discourse in Papua New Guinea on the issue of domestic violence locate and seek to explain it in the context of institutionalized inequalities between male and female. The basic premise is that men occupy a dominant and oppressive position over women who in turn are subservient and subordinate to them. Violence against women then is justified as a means to perpetuate this dominance and inequality in relationships. It is more than simply a matter of women suffering at the hands of their husbands or partners because they are physically, politically, economically and socially weaker compared to their male counterparts. Rules regarding divorce and practices such as widow inheritance (Godelier 1982:11), polygamy and bride price have often been presented as affirmations of this inequality. Some ethnographers have even denied that women had jural rights as persons at all. They have no title to valuable property, rarely participate in public meetings, and are little more than the legal wards of males (Meggitt 1964:220-21; Keesing 1987:43). A document prepared for the World Bank in 1998 reported that traditionally, women in Papua New Guinea were in a position "analogous to the concept of 'jural minor' in English law" (Brouwer et al 1998:11). Many other similar statements (Toft 1985:30; Bradley 1985:39; Chowning 1985:80; Josephides 1985:94) have also been presented as justification for and the underlying causes of male violence against women in traditional societies in Papua New Guinea.^[2] However, the question here is to what extent are these and other similar statements truly representative of the cultures they refer to and how much of these are really manifestations of the investigators' own biases, ignorance and impositions?

Appearance is not reality. Appearances of inequality in Papua New Guinea societies might as much be the result of an imposing ideology or discourse which have their roots in Western cultures as they are of mistaken assumptions by 'experts' whose primary objective is to 'reveal' to others the 'truths' about the societies they study by using familiar terms to describe and, as most often happens, denounce cultural aspects of the societies they observe and ply their expert devices. Women do not always see themselves as being victims of male dominance or oppression in ways they are often represented by ethnographers. Keesing (1987:65) alerts us to the danger that what might be regarded as culturally current expositions or explanations of cultural phenomena might sometimes be imposed by those in power, or by those who have the privileges of skill, experience and background for their own benefit. In the process, the conclusions and assertions they make inevitably become part of the mechanism by which dominance or other subject of academic inquiry is expressed. Thus, despite assertions by experts to the contrary, both men and women in Papua New Guinea societies do not regard women as property. Far from being regarded as "objects only for auction sale or bed" (Loko 1974:6) within the sphere of the dominant/subordinate dichotomy, women are neither objectified in any sense nor denied jural rights as persons.^[3]

Despite the dearth of anthropological and other literature on the issue of sexual inequality in Papua New Guinea, no account has attempted to provide us with a definition of sexual inequality to help us better understand the subject of the discourse in this country. It is of course not proposed here to fill this gap. Suffice it to say, whatever definition of gender based inequality might be considered appropriate for Papua New Guinea, it would seem that it must include elements of equality, inequality, differences and complementarity between the sexes. Such a definition would present the following advantages; first, it would involve the recognition that in all human societies men are unequal in some respects and women are unequal in others; secondly, it avoids the risk of confusing differences as inequalities, and thirdly, it involves the recognition that given their physical, biological, psychological and emotional differences, their functions complement each others, a complementarity that reinforces their inter-dependence rather than of their opposition with the female being mistaken as an extension of the dominant male sex.

As is commonly the case, many who argue for the emancipation of women from cultural bondages commit the mistake of rejecting custom as an evolving social phenomenon. What is needed is rather than rejecting custom or tradition, one needs to rethink it in its proper cultural context and on its own terms. Denouncing it neither causes it to disappear nor alters its significance for those who live by it. It is a false dichotomy to label the position of women under tradition as either 'good' or 'bad'. Tradition is full of 'good' and 'bad' aspects for women as well as for men. Some customs are both 'good' and 'bad' at the same time. It may be good for some purposes and for some people and bad for other purposes and other people. Whether it is one rather than the other depends entirely on how one thinks of it and these views are also bound to be influenced by the insider/outsider paradigms.

But a custom or custom generally cannot be considered as 'bad' simply because it is gendered, simply because men and women are treated differently. One has to be reminded that 'equality' i.e., if it means 'sameness', has been rejected by most feminists today. They argue instead that to argue for 'equality' without also recognizing how they are different from men because of their different biological and social positions, which, in turn, require separate and special consideration and treating them as men, actually discriminates against women (Armstrong 2000:94). Indeed, the model of rights generated by foreign prescriptions and by the experiences local women cohorts who have been educated to want has been tried and found wanting precisely because they have been based on a decontextualization and severance of women from their cultural contexts when in fact it should form the context within which strategies to strengthen women's power position should be considered. Therefore, women, as has been argued, "must subordinate themselves to culture which then reconstitutes them with a status and rights after its own fashion. The general structure of power within the family remains; she is still only a woman, but she has more leverage. Hence the maxim, a fish's strength is in the water' (Maboreke 2000:113).

The significance of discussing the issues of 'violence' in domestic violence and sexual inequality is because of their bearing on the wife or female partner as victim or offender in the management of the resultant dispute. This is because (as we shall see later), as a victim, the variables of the nature of the offending act, her overall position in relation to others including her husband in society and the remedies available will invariably determine not only what kind of redress she will seek but also the form the dispute settlement process will take.

II. FAMILY ABUSE AND THE LAW

The preceding discussions on the general issue of domestic violence indicates clearly that family abuse in Papua New Guinea is mostly domestic violence from which women rather than men suffer at the hands of their husbands of partner. It was also observed that while violence within the family must be considered in its proper cultural context, there is no society which permits a man to physically punish his wife without just cause or to use extreme violence against her as punishment. Nevertheless, despite traditional justifications, the existing domestic laws of Papua New Guinea make provisions for the protection of women from all forms of maltreatment. However, even though there is presently no law dealing specifically with the issues of family and sexual violence, there are provisions available within the general criminal law regime to address these issues, as will be discussed later. In addition, Papua New Guinea is also bound as a State Party to a number of international instruments which impose obligations on her to implement its major imperatives relating to non-discrimination against women generally and their protection from all forms of maltreatment.

1. International obligations

Insofar as Papua New Guinea's international obligations are concerned, the Universal Declaration of Human Rights and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) prohibit the use of violence against women both as human beings and as women. Thus, Articles 1 and 5 of the Universal Declaration of Human Rights declare that "all human beings are born free and equal in dignity and rights" and that "no one shall be subjected to cruel, inhuman or degrading treatment or punishment." By definition, human rights belong to all people and all people have all such rights and enjoy equal status as humans and as such the rights they enjoy are universal, inalienable and indivisible (UNDP 2000:16). As such there are no separate human rights for women and for men. These rights are available to all irrespective of 'race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or status" (UDHR:2.1). Nevertheless, in 1993, the Vienna Declaration and Programme of Action declared the human rights of women and the girl-child as an inalienable, integral and indivisible part of human rights" (VDPA: para. 18).

In addition to the rights established by the Universal Declaration of Human Rights, there are also other international instruments which elaborate on certain aspects relating to particular women's rights issues.^[4] Many of them insist on non-discrimination of any kind including discrimination on the basis of sex. However, the most detailed exposition of the meaning of discrimination against women is to be found in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The CEDAW, which is both universal in reach and comprehensive in scope, binds all State Parties including PNG to take all necessary legal, political and administrative steps to eliminate all forms of discrimination against women in civil, political, economic, social and cultural fields. In 2001, it was reported the there had not been much real improvement to the plight faced by women since Papua New Guinea acceded to CEDAW in January 1995 (Bradley 2001:49).

In relation to gender-based violence of which domestic violence is an aspect, the Vienna Declaration and Programme for Action describes such violence as violations of women's human rights.^[5] The human rights implications of gender-based violence have been given further and greater focus by the 1993 Declaration on the Elimination of Violence Against Women.^[6] In particular, in reaffirming that gender-based violence against women was a violation of the human rights of women, Article 4 imposes a duty on State Parties, Papua New Guinea not excepted, to condemn violence against women and requires them not to invoke or use customary, traditional or religious considerations to avoid meeting their obligations to eliminate such violations of women's human rights. Unfortunately in Papua New Guinea, many customary practices continue to provide the justification of gross violations of these internationally sanctioned obligations.

2. Domestic legislation

In addition to Papua New Guinea's international obligations regarding the removal or elimination of gender-based violence against women, there are also present domestic laws which deal al beit indirectly with the issue of domestic violence by criminalizing certain violent acts against women. However, these laws do not make domestic or sexual violence against women particular categories of crimes or offences. Instead, the issues of physical and sexual violence against women are dealt with under the general provisions of the Criminal Code (Code) and related legislation dealing with crimes generally. These will be briefly stated here.

i) physical abuse. There is presently no definition of physical abuse under the laws in Papua New Guinea. Nevertheless, as was mentioned earlier, it involves the control of others through intimidation, fear, and acts of violence. Its presence is often indicated by the application of some physical force and or the presence of some degree of physical or bodily injury or harm. The most obvious and destructive form of family physical abuse in Papua New Guinea is domestic violence with women constituting almost all of the victims.

However, while domestic violence as a form of physical family abuse is recognized as a continuing major social problem in Papua New Guinea, the law does not recognize it as constituting a particular category of crimes or offences. Instead, existing provisions under the Code dealing with offences against the person have been used to charge and prosecute offenders. Thus, under section 244 of the Code, a person is guilty of 'unlawful assault'^[7] if (s)he applies 'force to the person of another' that has not been authorized by law. All assault is therefore 'unlawful' unless legally excused either by the Code itself or some other statutory provisions or other law. Custom by itself, as recognized by the Constitution or the Customs (Recognition) Act^[8] is not sufficient to provide justification or excuse for assault.

ii) sexual abuse. Even though sexual abuse is widespread in Papua New Guinea today and while it can take different forms, the present law does not provide a definition of sexual abuse. Generally however, sexual abuse includes emotional, verbal, and physical actions, even though it is often thought of only in terms of molestation, indecent assault, incest and rape.

In 2002, following the enactment of the Criminal Code (Sexual Offences and Crimes Against Children) Act, which amended the Code, two important changes were made to the existing laws on sexual assaults on women. One related to the marital rape exemption rule and the other regarding indecent assault of women. Section 17 removed the marital rape exemption rule while section 19 repealed section 349 of the Code and replaced it with a new section 349 under which rape within marriage is a crime. Any person found guilty of this crime is liable to 15 years imprisonment or life if the offence is committed in circumstances of aggravation.

Under section 19, the offence of indecent assault of females created by section 349 of the Code has been changed to 'sexual assault'. Under the new provision, a person who, without a person's consent, "touches, with any part of his body, the sexual parts^[9] of that other person" is guilty of a crime of sexual assault. The punishment for this is up to 10 years imprisonment.

iii) adultery. A major source of conflict between husband and wife is adultery. While the consequences of adultery can range from physical conflict to a mediated outcome including the payment of compensation in accordance with custom, redress can also be had to the Adultery and Enticement Act 1988. Under this Act, an aggrieved spouse can claim compensation from both the adulterous spouse and his/her partner and the District Court can order up to a maximum of K1,000 in compensation (section 14). However, a mediated settlement of the claim or dispute must first be attempted before the court can proceed to hear the claim for compensation (section 10(1)). It is useful to note that the right to seek redress in the form of compensation or other relief is not limited to husbands and wives. It seems clear that the definition of 'spouses' provided by section 1 includes long-term cohabitees.

All the three areas mentioned above can be the subject of relevant criminal or civil court action. Commonly, instances of breaches of family relationships such as these are the cause of many of the problems experienced by families throughout the country. But it would be too simplistic and may be hazardous to draw this conclusion in all such cases. While one recognizes the disruptive potential of such conduct on family and marriage relationships, one must not ignore totally their origin, which may be symptomatic rather than causative in nature. As often happens, many of these instances may be symptomatic of more serious and underlying tensions within the family even though their presence or occurrence may intensify the underlying cause(s) and widen the gulf and differences between husband and wife and relatives. Studies on domestic violence in Papua New Guinea (Toft and Bonnell 1985:20; Rank and Toft 1986:12-18) state a variety of causes of family related problems including marriage problems and inter-spousal conflict.

In relation to marriage related problems, the most common causes of these problems are stated as wife's failure to discharge marital obligations and sexual jealousies. In the urban context, alcohol and money are also recognized as a major source of marriage related problems. However, even though alcohol and money can in themselves be sources of these problems, the extent to which they really were is not clear from these studies because sometimes alcohol and money may be presented as 'fronts' for the underlying causes of problems which may be in reality stem from failures by wife to meet marital obligations, sexual jealousies or other causes. This depends entirely, or almost always, on how the perpetrator of the wrongful conduct perceives the 'injury' that precipitated the offending conduct.

Not surprisingly, failure by wife to meet marital obligations and sexual jealousies are also among the major causes of domestic violence (or wife-beating) in the country (Toft and Bonnell 1985:82). Interestingly, however, breakdown of traditional values is stated as the single most significant cause of domestic violence in the rural communities (Ibid).

III. DISPUTE SETTLEMENT PROCESSES

In Papua New Guinea, all disputes can be settled or resolved by invoking a traditional or non-traditional process. However, in comparing these two processes, while all disputes are capable of being resolved through traditional dispute settlement processes, not all disputes can be resolved through the official judicial process. The two processes can be distinguished in a number of other ways as well. For a start, relevant conflict resolution rules are applied under the traditional and official processes are different; secondly, often, the way in which 'injury' or the 'cause of action' under custom is perceived is different from that under the formal legal and judicial system; and thirdly; what is often regarded under custom as an outcome or remedy for an injury or dispute constitutes the 'injury' or 'dispute' under the official process.

1. The Regulation of Disputes

In discussing the issue of dispute settlement generally, one must be mindful of the fact that while a judicial system and the laws that support and give it its legitimacy may be premised on the principle that all disputes must be regulated, not all disputes are capable of being regulated by law. The types of grievances can be brought to the attention of courts and be subject to a court 'decision' are prescribed by law and the decisions must be made according to law. Thus, a grievant whose grievance is unknown or not already provided for by the law will be without a remedy or redress if he proceeds to court to have it resolved. The official system's limited position in this regard can be contrasted with the generally wider traditional position under which all disputes have the capability of being resolved. It is a position with the greatest potential of settling all conceivable family related disputes including those which may also receive formal attention through the courts. Thus, while customary law places various restrictions on the sexual behaviour of individuals (for example, Luluaki 1992:7-10) breach of which may produce negative consequences for the parties, the official system places no such restrictions and consequently provides no remedies or punishment for such conduct. More particularly, while instances of failure by a wife to tend gardens, look after children and pigs, and cook constitute serious breaches of established marital obligations, there are no corollaries under the official legal system.

2. Customary Rules and Dispute Settlement

There are many ways in which the application of customary rules differ from those of their counterparts under the official or general law. First, the official dispute settlement process, which owes it origins to the English common law, is basically adjudicative while it is mediatory under customary law. Secondly, the common law adjudicative process and the customary mediation process produce very different results as well. Under the former, the settlement process produces a win or lose outcome in which one party wins while the other loses. Under customary law, the process produces a win-a-little lose-a-little outcome except when it is clearly inappropriate to expect such a result. Thirdly, the purpose of dispute settlement is different. Under the official system of law, the purpose of dispute settlement is to settle a single issue in a dispute without necessarily restoring good relations between the disputing parties. This can be contrasted with the situation under custom which primary aim also is to maximize restoring good relations between the disputants. Fourthly, each source of law treats substantive rules differently in the dispute settlement process. Unlike customary law, the application of substantive rules is the center-piece of the common law process. Under customary law, the application of substantive rules does not have a mechanistic character. The rules that exist only set boundaries as to what the parties can expect and give guidance as to the outcome most appropriate in the circumstances, but they are not seen as ultimately determining the issue.

3. Perceiving 'Injury' and 'Remedy'.

Sometimes, conduct that may be considered as constituting a domestic 'injury' under custom may not be similarly or necessarily regarded under the official law. This point is particularly relevant in the context of ongoing relations between and amongst family relations. Perceiving the injury in its proper context, which must necessarily involve elements of its origin, relationships involved, and prevailing and future expectations, is necessary in order to establish the actual 'injury' which is the cause of the dispute. This in turn will influence the process of determining the appropriateness, proportionateness or otherwise of the remedy in relation to the dispute. In many cases, for example, someone who causes 'trouble' may really only be trying to settle or seek a remedy for what he or she considers as a prior injury. Thus, a man who beats his wife or domestic violence is what he considers as the remedy for her prior injury to him in not meeting her marital obligations. In other words, the violence is the result of other conflicts, a consequence of, rather than a cause of, other conflicts. What is commonly considered as a 'wrongdoing' by the official system is the outcome of a customary process. Thus, the act of a man beating his wife is the result of a dispute rather than its cause. The 'injury' or dispute that caused the violence lies elsewhere.

This situation, therefore, involves two categories of conflicts both of which require settlement through the provision of appropriate remedies. In this context, the norm is to regard the 'remedy' for the prior injury as the 'injury' itself. Thus, while domestic violence is what the husband considers as the appropriate remedy for his wife's earlier injury to him, it now constitutes the injury itself which, depending on the severity of the violence and its proportionality to the original grievance, both custom and the official system regulate. To maintain delineation between the traditional and official processes of dispute settlement, we may regard the husband's conduct against his wife as 'unofficial' (as opposed to illegal) remedy and the state remedy for the injury sustained by the wife as a result of the husband's conduct (remedy) as 'official' remedy. The challenge then is to address both situations of conflict so that a truly final settlement of the disputes is reached. The futility of addressing only the consequential 'injury' on ongoing family relationships, stability and concerns are obvious. Unfortunately, a hallmark of the official dispute settlement process through the courts in this country is to focus only on the consequential injury (as prescribed by law) rather than aiming also to addressing the disputes which had caused the 'official' injury.

The perception of 'injury' is also important in another respect. Depending on how the aggrieved party perceives the injury itself, it will ultimately influence, to a greater or lesser extent, the way he or she responds to it in relation to its settlement. In relation to the management of domestic disputes, the decision will involve addressing at least the following three questions: first, whether or not to seek a public forum at all; secondly, if the decision is for a public forum, what form should this process take; and thirdly, what remedy is most appropriate to the circumstances.

4. Responses to Family Abuse

The most direct formal response to situations of family abuse is the use of the law to prosecute and punish offenders. Both the higher and lower courts in the country have power to deal with this matter. However, because of the pluralist nature of the legal system in Papua New Guinea, both formal and informal processes can be used to settle domestic disputes. At the formal level, all courts including the Village Courts have power to deal with and dispose of such disputes. At the informal level, most of the disputes are expected to be handled using traditional processes which emphasize mediation and compromise, a process in which the extended family and elders play a significant role. In many cases, too, the church, welfare officers, and non-government organizations would play both a facilitating and instrumental role in bringing about a resolution of these disputes. It is in this context that the work of the Family and Sexual Violence Action Committee is important and needs to be stressed.

a) The Family and Sexual Violence Action Committee (FSVAC)

Presently, the FSVAC represents by far the single most significant formal step taken by the Government to deal with the growing problem of family and sexual violence in the country.

Established in 2000, the FSVAC is one of several sectoral committees established by the Government under the Consultative Implementation and Monitoring Committee (CIMC) which was established earlier in 1998. The principal objective of the CIMC is to facilitate dialogue between the government, the private sector, and the community to share information on a variety of issues which are of concern to the country and ensuring that there is appropriate effective collaboration in addressing them.

The establishment of the FSVAC owes its origin to a report in 2001 by Christine Bradley (Bradley 2001:50-66). The report contained an Integrated Long Term Strategy to address the issue of family and sexual violence. Its primary mandate however is to facilitate communication between various stakeholder agencies involved in addressing issues concerning family and sexual violence in line with the Integrated Long Term Strategy.

To facilitate the implementation of this Strategy, the report recommended the establishment of the FSVAC comprising six integrated focus areas to combat family and sexual violence. One of the areas that focus groups have been tasked to address relates to the presence of alternative dispute settlement procedures for the settlement of family and sexual violence disputes. The Bradley report did not consider existing alternative dispute resolution (ADR) to be suitable for family and sexual disputes. In particular, it denounces traditional methods of dispute settlement in such matters as being inappropriate and disadvantageous for women at best and, trivializes women as victims of violence and "deprive[s them] of their rights as citizens by forcing them to accept traditional solutions that uphold male control of women", at worst (Bradley 2001:58). In particular, traditional dispute settlement processes revolve around men. It is men's 'business', almost to the exclusion of women, to settle disputes. Thus, men often represent women grievants in dispute settlement processes. Men, not women, are decision makers and any final outcome is influenced principally by the views of her male affines and kin. Their views take precedence over hers including the form of remedy.

Traditional processes do not also adequately compensate women, and focus primarily on maintaining balances in relations within the wider community taking little or no account of the interests of the female grievant or otherwise trivialize abuse or violence against women. The payment of compensation to women, while appropriate and adequate recompense in some situations, is not sufficient punishment for serious violence or abuse against them and tends rather to condone serious violations of a woman's rights as persons and a denial of her right to retributive justice by requiring the husband to account for his conduct through appropriate criminal processes under the law. Also, the dynamics of domestic violence is such that it does little or nothing to deter the perpetrator from re-offending. Traditional dispute settlement processes do not always ensure long-term solutions in respect of a wife's personal safety. Apparent solutions negotiated through mediation for example only provide temporary relief until violence erupts again. There is absolutely no guarantee that successful mediation, his feelings of remorse, repentant actions, or apologies will eliminate it recurrence or prevent its escalation.

Further, women victims also lose when compensation is paid for serious domestic assaults. It is common in such cases for compensation to be paid to the victim's natal group rather than to the victim herself, a practice confirming perhaps the traditionally weaker position of personal interests compared to those of the group she belongs or represents and perhaps also that she is an extension of her family of origin. As such, they and not her as victim should receive compensation when she suffers injury at the hands of her husband.

The report therefore recommended that remedial action be considered through research "to review methods and materials on ADR and identify ways in which these methods discriminate against women and children, to develop guidelines for addressing weaknesses, and incorporate these in the training of those involved in ADR" (Bradley 2001:59).

The responsibility for conducting this research was assigned to the focus group dealing with legal reforms. In December 2004, a mid-term review of the work of the FSVAC since its establishment was conducted by A. McLeod and W. Yakam. It recommended instead that the responsibility for conducting this research be relocated to another focus group while the focus group dealing with legal reforms retained the responsibility of incorporating the research findings into training for those involved in ADR.

This research is still outstanding but will no doubt be a significant contribution to addressing the issue of dispute settlement outside of the formal judicial system. Nevertheless, whatever the foci of the research, an overly focus on individual women's rights (important as they are) should not totally ignore the wider community concern to protect the family and may ultimately do more harm to the concerns it seeks address than good. In relation to the dispute itself, a settlement procedure that ignores altogether the family connection risks a 'final lasting' solution to the dispute. It may instead deepen and continue it or precipitate additional and more serious discord and violence between the spouses themselves involving, as often happens and in varying degrees, other family members. An adjudicative process is unlikely to produce this result and may in the end militate against it.

Further, settlement processes should also reflect the context in which the dispute arises. A single settlement procedure cannot be used to settle a dispute between parties who still wish to continue their marriage as well as when it arises between those who wish to end it even if the cause and circumstances of the dispute are similar. To ensure that the right outcome is achieved, the settlement process must suit the circumstances and continuing interests of the relationship. Thus, a mediated settlement involving the family is more likely to facilitate a lasting outcome in the former situation while an adjudicative procedure might be considered more appropriate for the latter. This not only recognizes the parties' wish to end relations but also facilitates the severance of the marital tie between them allowing them to disengage, readjust and continue their separate lives.

Another issue begging investigation is the extent to which women victims of family and sexual violence resort to the official judicial system to for a resolution. What appears clear today is that unlike the situation in the past, women are, as a result of changes taking place in the country, more likely to take their grievances as plaintiffs directly to the courts for a resolution – sometimes despite family opposition or protests. Litigating through the courts is no longer only men's business but the extent to which, and the nature of grievances in respect of which, women enjoy equality of freedom with men to litigate need to be subjected to inquiry to avoid making assumptions which cannot be supported by relevant empirical data.

Nevertheless, a redirection away from traditional dispute settlement processes to litigation through the courts with the consequential focus on settling legal issues may not result in the elimination of family abuse or violence. It is critical, it seems, that in considering a blue-print for achieving lasting solutions, the root cause(s) of the conduct giving rise to the legal issues which constitute the 'cause of action' must also be considered. It is never enough to simply litigate only for purpose of resolving the legal issues at hand, less so in family situations. Such a strategy may deepen the dispute and escalate the consequential violence rather than resolve it and arrest the violence.

Moreover, and generally, in a country such as Papua New Guinea, it would be futile to discuss individual interests without linking it also to the family to which the individual belongs. The family is the bedrock for self-fulfillment and the launch pad for an individual's external success. An individual finds expression externally on the foundation of the family and the legitimacy he or she derives from it. Belonging to a family is the fuel an individual needs to propel himself/herself forward. Often, traditional dispute settlement processes work against the individual in order to protect the long-term interests of the individual. Further, in many respects, the interests of the group takes precedence over individual interests because it lasts longer and owns the most important resource for subsistence and ultimately survival – land.

b) The Courts and Family Abuse

All courts have power to deal with issues of family abuse under their general criminal jurisdiction. In particular, however, in addition to the criminal powers they possess, the lower Village Courts and District Courts also have preventive powers as well as powers to mediate settlements between the disputing parties. The following is an overview of the powers each of these lower courts has which can be exercised in relation to family abuse cases.

i) Village Courts. In relation to Village Courts, it seems that it has no jurisdiction over the criminal dimension of family abuse. In other words, the Village Courts Act 1988, does not give the Courts direct power to determine the criminality or otherwise of an act of family abuse and punish offenders even though it can achieve this result through the enforcement of a mediated settlement or as punishment for a breach of a preventive order against the continuation of abuse.

In relation to the powers of Village Courts to settle disputes, section 52 of the Village Courts Act states that its primary function "is to ensure peace and harmony...by mediating in, and endeavouring to obtain just and amicable settlements of disputes." Under section 57, in all matters before the Court, the law to be applied is customary law. In relation to mediation in particular, section 53(2) imposes a duty on Village Courts to first attempt mediation in reaching a settlement and that its adjudicative powers under the Act should invoked only if mediation has failed to produce a settlement. However, if, following mediation, a mutually agreed upon settlement of the dispute is reached, its terms will be "treated and enforced as an order of the Village Court as between the parties to the settlement" (section 54). Failure to comply with this 'order' constitutes an offence for which appropriate criminal sanctions will be applied in accordance with the Act.

Under Division 5, Village Courts also have wide preventive powers. The extent of this powers is as prescribed by section 51 of the Act. However, while the power does not in itself give the Courts the power to deal with disputes that have already resulted in breaches of the peace, it can be used to order their discontinuation by requiring all parties connected with the dispute to appear before it with a view to resolving the dispute. During this period, additional orders can also be made requiring the parties from continuing the dispute or from doing things that might further aggravate the dispute. Failure to comply with any of these orders amounts to an offence for which a fine, or a term of imprisonment or both will be imposed (subsection (3)).

ii) District Courts. District Courts have both criminal and civil jurisdiction over all forms of family abuse. In relation to wife-beating and other forms of domestic assaults, under both the Criminal Code (s 335) and the Summary Offences Act (s 6(3)), a person who unlawfully assaults^[10] another person is guilty of an offence breach of which carries a maximum imprisonment period of up to one 2 years. However, if the assault is serious and the victim sustains injury as a result, the maximum possible term of imprisonment is three years (section 340, Criminal Code).

More significantly, however, is the power District Courts have under the District Courts Act to mediate in civil matters. Thus, under section 22B, a magistrate of the District Court has jurisdiction to mediate between the parties in a civil matter at any stage of or before the hearing with a view to the just and amicable settlement of the matter.

If a settlement has bee reached in the process, its terms may be incorporated as part of the Court's decision without further hearing (ss (3)). If mediation fails, however, the proceedings have to be discontinued unless the parties in the proceedings specifically request for its continuation. In the absence of such a request, the proceedings must be transferred to and be dealt with by another magistrate (s 22(C). In order to facilitate and encourage parties to participate fully in the mediation process, statements made in the course of the mediation cannot be admitted as evidence in any subsequent proceedings connected with the matter (s 22D). Thus, any statement made during a failed mediation process cannot be admitted as evidence in any subsequent attempt at mediation or in proceedings of a criminal nature arising from the circumstances of the dispute.

While the non-sexual acts of family violence is the most common form of family abuse, the incidence of sexual abuse of wives continues to increase (Bradley 2001:8). Marital rape, as a form of family sexual abuse, came under legislative scrutiny in 2002 resulting in Parliament abolishing the common law 'marital rape exemption rule'. The new rule, as mentioned earlier, is contained in section 17 of the Criminal Code (Sexual Offences and Crimes Against Children Act, 2002, which defines 'rape' as the sexual penetration of a person without his consent. Unlike the situation under the amended law whereby marriage provided a defence for the offending husband, this defence is no longer available under the new law. Thus, a husband who sexually penetrates his wife without her consent commits rape upon her in respect of which relevant criminal charges will be brought against him.

However, a decision to have recourse to the law and courts as a way of managing family and sexual violence grievances has first to contend with or overcome a whole host of obstacles. As a result, a majority of these 'crimes' do not come to the attention of the law enforcement agencies or before the courts for determination in accordance with the criminal laws of the country.

There are many factors that have to be taken into account when considering the issue of litigating family related disputes through the national judicial system. The extent to which women seek recourse to the law and the courts to settle issues relating to family and sexual abuse is not known although it is not expected to be great. In addition to the various legal, social and economic obstacles, a women may wish not to proceed against her husband or partner for many and varied reasons. It may be the fear that such action would provoke more and greater abuse or violence against her or for fear that she may be shunned not only by her husband and his family but also by her family of origin. A victim wife/partner of violence or abuse may also not want to seek redress through the courts if the benefits of such action are lower than the cost she would incur if she did adopt such procedure.

Even if she wished to institute court proceedings against her husband/partner, attitudes and weaknesses in existing processes related to addressing family and sexual violence issues effectively deny her any legal remedy. Bradley (2001:44-49) informs us of the different types of factors that often work against the proper and effective processing of victims' complaints against family and sexual abuse. The common acceptance of violence as a legitimate expression of anger, as a means of dispute resolution, and a trivialization of family abuse matters as a private matter mean that a victim's right to a legal remedy will not be given the serious attention it deserves. This is not helped by prevailing traditional attitudes about the rights of men to control their wives and the acceptance of violence as a means of expressing such control. Indeed, many regard the time and resources expended on dealing with family disputes as both a waste of precious time, effort and resources which might be better utilized in other more important areas. Further, even though the police continue to be straddled with the perennial financial, manpower and personnel resources problems, they have been accused of shirking their responsibilities through insensitivity, reluctance to enter into the 'private' family domain, and inaction. However, while not all cases of abuse come to the attention of the police, their unwillingness to intervene and deal swiftly with offenders have, to a large extent, contributed to the present unsatisfactory situation facing victims of family abuse.

10. Developing Strategies for the Future

The issue of family abuse has attracted a lot of attention over recent years in Papua New Guinea. It will no doubt continue to be a matter of concern for legislators, policy makers, law enforcement agencies and related stakeholders such as churches and other NGOs for a long time in the future. Existing structures and processes appear to be failing to effectively arrest and dealing with the increasing prevalence of family related abuses in the country. Women, children and other vulnerable groups continue to suffer at the hands of those upon whom society has entrusted the responsibility to provide for their welfare and protect them and from a weak governmental structure. While external procedures and strategies have an increasingly important role to play in confronting the deteriorating state of affairs in that regard, what role can the family itself play for its own preservation? Should the family have a role in all of this and can it be assisted to help itself?

It is clear that one of the major casualties of the present focus on the promotion of individual rights and protection of individuals from family and sexual abuse is the family unit itself. To the extent that family instability often precipitates family abuse, its presence is symptomatic rather than causative. To accept this is also to question if the present focus of resolving disputes should be widened to include strategies aimed at preventing disputes by supporting and equipping the family unit not only to prevent disputes but also resolve those it cannot prevent.

It is generally recognized that the 'family', however way one defines it and whatever its composition and functions, will ever become irrelevant and disappear altogether in society. That this is the case is recognized at both the international and national levels. At the international level, Article 16(3) of the Universal Declaration of Human Rights states that 'The family is the natural and fundamental group of society and is entitled to protection by society and State.

Also, Article 23(1) and (2) of the International Covenant on Civil and Political Rights of 1966 states clearly that

"1. The family is the fundamental group in society and is entitled to protection by society and state.

2. The right of men and women of marriageable age to marry and found a family shall be recognized."

Many domestic legal systems today recognize the centrality of the family in society by making specific legal provision to that effect. In Papua New Guinea, this recognition is provided by the Constitution itself. Goal 1(5) of the National Goals and Directive Principles specifically calls for "the family unit to be recognized as the fundamental basis of our society, and for every step to be taken to promote the moral, cultural, economic and social standing of the Melanesian family."

The question here is, what national strategies are there to protect the family from disintegration, to support it, and promote its welfare in ways that minimize the causes of family related abuses and violence? Maybe the issues of family and sexual violence will not go away until there is in place strategies which support and strengthen the family unit to better equip it to deal with the harmful effects of deviant behaviour that threaten its continued relevance in human society. Unfortunately, compared to the more favourable experience of families in other countries, there is presently absent in Papua New Guinea any serious policy or strategy that support families support themselves despite their continuous (ab)use by national leaders to get into or remain in positions of power especially in the political context.

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^[∗] Associate Professor, School of Law, University of Papua New Guinea, e-mail: [email protected]. This article is based on a paper presented at the ‘Peace, Justice and Reconciliation in the Asia-Pacific Region’ Conference, April 2005, at The Australian Centre for Peace and Conflict Studies, The Barton Centre, Brisbane. The papers are available on CD from the Centre.

^[1] For example, papers appearing in the Pacific Studies, Special Issue on Domestic Violence in Oceania, (1990) Vol. 13, No. 3.

^[2] For a more recent statement, see C. Bradley, 2001, where it is stated: “The underlying factor is women’s subordinate status in society. Women’s lives and bodies are largely controlled by men. Women and girls usually lack the power to protect themselves against violence by males, especially the males in their own families”, 1.

^[3] See M. Strathern, ‘Self-interest and the social good: Some Implications of Hagen Gender Imagery’, in S. Ortner and H. Whitehead (eds.), 1981 Sexual meanings: The Cultural Construction of Gender and Sexuality, 167-191, 168-169, who challenges if the concept of ‘person’ as a legal or political construct is identifiable in cultures such as the Hageners of the Western Highlands of PNG.

^[4] For example, the Convention on the Political Rights of Women (1953); the Convention on the Nationality of Married Women (1957); and ILO Conventions No. 3 relating to the Employment of Women Before and After Birth.

^[5] Para. 18 of the Declaration; para. 38 of the Programme for Action

^[6] General Assembly, Resolution 48/104.

^[7] Section 243 defines ‘assault’ as

(1) A person who –

(a) directly or indirectly strikes, touches or moves, or otherwise applies force to, the person of another, without his consent...or;

(b) by any bodily act or gesture attempts to apply force to the person of another without his consent , under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose

is said to assault that other person, and the act is called assault.

^[8] R v Misam Wapet (1970) N109.

^[9] Defined as including the genital area, groin, buttocks or breasts of a person (ss. (2)).

^[10] As defined by Section 243, Criminal Code, and Section 6, Summary Offences Act.