Child Sexual Abuse in PNG

Chapter 1
Introduction
Abuse1 is one of the way people use to get what they want done immediately. Different types
of abuse include Physical abuse, Emotional abuse, Sexual abuse, Financial Abuse, Digital
Abuse, Verbal abuse, Elder Abuse, spiritual abuse and stalking etc.
This write up will mainly focus on sexual abuse especially CHILD SEXUAL ABUSE (CSA).
It will expose the threat established by child sexual abuse from abroad to PNG context and
recommend suitable solutions to this problem using Criminal Code Act as amended in 2002.
The United Nations International Children's Emergency Fund (UNICEF) describes the
children in PNG as some of the most vulnerable in the world. 2 Nearly half of reported rape
victims are under 15 years of age and 13 % are under seven,3 while a report by ChildFund
Australia citing former parliamentarian Dame Carol Kidu claimed 50% of those seeking
medical help after rape are under 16, 25% are under 12 and 10% are under eight.4 It is
classified that the related child sexual abuse takes the form of rape, incest, and child sexual
exploitation.
Up to 50% of girls are at risk of becoming involved in sex work, or being internally
trafficked.5 Many are forced into marriage from 12 years of age under customary law. 6 One
in three sex workers are under 20 years of age.7
The Conventions on the Rights of the Child (CRC) under Article 34 creates an obligation for
the state to protect the children from all forms of sexual exploitation and sexual abuse. The
CRC urges the nation to take all appropriate national, bilateral and multilateral measures to
prevent the inducement or coercion of a child to engage in any unlawful sexual activity; the
exploitative use of children in prostitution or other unlawful sexual practices; and the
exploitative use of children in pornographic performances and materials.
Chapter two of this write-up will take us into the foundation of CSA. Convention on the
Rights of Child (CRC) in 1993 has established the foundation of CSA in PNG. Since PNG is
a developing country, most of the people lives under poverty. That has causes the citizens to
react in an aggressive manner to find ways to sustain themselves. That struggle of living
resulted in creation of more undisciplined young people causing high rate of social disorders
in the community.
This presentation will define child sexual abuse from the legal perspective and PNG concept
to narrow down the understanding of CSA in the society. It will also discuss the constitution
of CSA from the perspective of Criminal Law as amended in 2002.
1
Definition: Treat with cruelty or violence, especially regularly or repeatedly.
2
UNICEF (2014)"Child Protection". Retrieved 12 February 2014.
3
UNICEF (2008) "UNICEF strives to help Papua New Guinea break cycle of violence". UNICEF. 18 August
2008. Retrieved 26 February2014.
4
Wiseman H (August 2013). "Stop Violence Against Women and Children in Papua New
Guinea" (PDF). ChildFund. p. 5. Archived from the original (PDF) on 27 August 2015. Retrieved 18 May 2015.
5
Ibid n2
6
Ibid n2
7
Ibid n2
1
Additionally, criminal law create offence for such activities. There are charges available
under Criminal Code Act to punish people who commit sexual crimes or sexually abused the
children under the age of consent.
The consequence of CSA will be discussed in chapter 3. It is divided into three segments
which are Sexual Abuse in PNG, Sexual Abuse of Children and Commercial Exploitation of
Children. The discussion will pave way for the other actions under law regarding the offence
to be instituted using the proper medium of agency.
It is now an established law with wide application of the provisions under Criminal Code
(Sexual Offences and Crimes Against Children) Act 2002. It was amended with the aim of protecting
children in the community hence the provisions in the Act is very clear expressing offences in clear
terms. Chapter 4 will unveil the criminal nature of the offence as created under new Criminal Code
Act exercising its protective role for vulnerable population of the community.
It will further discuss the Criminal Laws and its applications in protecting the children related
to sexual abuse and associated offences. The involvement of police in doing investigations
and prosecuting offenders under law with the assistance of lawyers in the court to seek justice
is what the new Criminal Law intends to maintain.
The law has two faces, one is the written laws and the other is the traditional customary laws
which have been in operation since first settlement of human being in this part of the world. It
has been practiced from generation to generation hence have very strong foundation.
There are some customary laws which help compromised the act of child abuse in PNG. We
may identify it as legal under customs but according to Criminal Law it is an offence. Such
cases includes customary marriages where female person under the age of 14 years may be
married under customs. This is prohibited under Criminal Law. Persons under the age of 14
years lacks capacity to consent to or contract a marriage regardless of her wishes and physical
conditions.8 Therefore person purports to have marital sexual intercourse with her would be
unlawful. However, most customary laws accepts it as lawful under customs.
Therefore it is a sensitive area where this paper will discuss taken into considerations the
exceptions available to the offence itself under both Criminal and Customary laws.
The protection measure of CSA buoys down to each one of us. We as a citizen have a
responsibility to help maintaining safe and secured country for every citizen to live. In
Chapter 5, we will unleash the ways in which the governments will come in to protect its
citizens through legislation and courts. Impose harsh punishments for those that involve in
abusing innocent children and also providing avenue for it people to be informed of the CSA
that is happening in our region.
The Constitution has mandated the police force to preserve peace and good order in the
community under s.188. They also have special duty to prosecute and charge offenders in
respect to the offences under s.197 (2) of the Constitution. They are identified as main player
in the protection of our children thus their duty is required.
There are also other organisations which are keen to step in at all cost. This is because they
consider it to be more important than any other issues. Those organisations are UNICEF and
8
JY Luluaki ( 2003-04) 29 Melanesian Law Journal 117
2
Conventions on the Rights of the Child (CRC). They are the international organisation hence
have established offices and set funds to fund themselves in protecting the children in abuse
cases.
We need to modify our laws and customs to work in union, so that we can have a stringent
measure to deal with those who abuse our children in a harsh way so that they will learn a
lesson from it and would not involve in doing it again.
There are issues before us and these issues will be now directed to the rightful agencies for
remedies. No offence under law does not have remedy therefore chapter 6 will discuss on
protection measures and agencies which are mandated to protect citizens especially children.
The government have the overriding powers to make law and address an issues using the
legislations. On the other hand, Judiciary also have constitutional duty to carry out justice
under section 158 (2) of the Constitution.
It is also very important to consider Article 19 of CRC and implement the guided principles to
counter fight the degrading issues of our community – Child Sexual Abuse. In this case, this
chapter will discuss on how education systems could be used to help prevent such prevailing
issues and also it customary implications on protection of children regarding abuse or breach
of taboo in the communities.
Finally Chapter 6 will propose some of the way to help in protecting our children and citizens
from abuse. It is a proposal where CSA is imminent; we need some creative ways to address
them. This problem is not the only problem faced by PNG; it is a worldwide problem and
needs world wide effort to address them. However, we need to start address in on local basis
and help minimize the CSA in our country before we participate globally. It is not to
eradicate but atleast we try our best to stop the epidemic of CSA in our country.
3
Chapter 2
Basis of child sexual abuse and its definition
A. INTRODUCTION
Papua New Guinea became a state party to Convention on the Rights of Child (CRC) in
1993. However, it was not until 2000 that it was able to provide an initial report to the UN
Committee on the Rights of the Child. Also it was not until 2002 that the first and major
legislative step was taken to enact new, and amend existing laws to implement a major
imperative of CRC, in the form of Articles 19 and 34, to provide greater protection to
children from Sexual Abuse and Exploitation (Luluaki: 2003-04).
Child Sexual Abuse (CSA) take up different forms in PNG. From the legal standpoint, child
sexual abuse crimes fall under one of the following three categories. (a) Sexual penetration of
a child (b) indecent touching of a child, and (c) indecent act directed at a child. Section 2 of
the Criminal Code Act provides the definition of the sexual penetration.
These main offences against children is very common in PNG due to increase crimes and
social disorders in our country.9 Rape is an act involving the sexual penetration of a person
without his/her consent. However if the victim is under the age of 16 years, the offence
changes from rape to sexual penetration of a child.
Unlike rape, incest is only committed by person who are related by blood to each other with
the victim as defined under s. 223 of the Criminal Code. Child phonography or commercial
sexual exploitation of children includes any form of image that involves a child 16 years old
or younger in some sexually explicit manner may be considered pornography.
B. LEGAL DEFINITION OF CHILD SEXUAL ABUSE
In Papua New Guinea, Criminal Code Act deals with child abuse especially Child Sexual
Abuse. There was an amendment to the Criminal Code Act in 200210 but there are no clear
definition for the term ‘Child Sexual Abuse’ or ‘Sexual Abuse.’ This is because given the
difficult situation of all forms of child abuse within a single universally applicable definition
although any such attempt must reflect both the emic (the cultural viewpoint) and the etic (the
outsider viewpoint) perspectives11.
The abuse can take different forms and be regarded and defined differently by different
societies depending on the socio-cultural context in which it arises.12 In PNG, certain sexual
acts directed at children are clearly prohibited by Criminal Code Act. However there are no
clear definition of CSA. Therefore sexual abuse from non-legal perspective has been defined
as:
9
The World Bank (2014) The cost of Crimes and violence in Papua New Guinea, Available at :
https://www.worldbank.org/en/news/feature/2014/08/15/the-costs-of-crime-and-violence-in-papua-new-guinea
10
Criminal Code (Sexual Offences and Crimes Against Children) Act 2002
11
See further Luluaki, above, n8 at p3.
12
Ibid
4
the involvement of dependent, developmentally immature children in sexual activities that they do not
fully comprehend and therefore to which they are unable to give informed consent and/or which violate
the taboos of society.13
In contrast with non-legal definition, Child Sexual Abuse in legal sense refers to all acts of
sexual contact with children under the age of consent. They are regarded unlawful regardless
of the presence or otherwise of consent. These acts have been variously described by terms
such as ‘unlawful carnal knowledge’, ‘indecent treatment’, ‘defilement’ and now, under the
amended Criminal Code Act, ‘sexual penetration’, ‘sexual touching’, and ‘indecent act’.14
Obviously the law does not provide the definition of either Child Sexual Abuse or Child
Abuse. However the law prohibits different acts or circumstances under which ‘sexual
activity’ with a child or children is involved.
Although, Article 19 and 34 of CRC impose obligation for state parties to take all appropriate
measures to protect children from physical or mental violence, injury or abuse, including
child sexual abuse. It does not define sexual abuse or child sexual abuse. Therefore it is
important to look into the legal system to identify the different circumstances under which
‘sexual activity’ with a child is prohibited.15
C. WHAT CONSTITUTES CHILD SEXUAL ABUSE
The composition of CSA varies from one place to another. It is very important to notice that
child abuse has no universal definition. Importantly, what constitute abuse both from the
perspective of children’s rights in a culturally and socially heterogeneous world and from the
perspective of the existing domestic laws on the matter16 is diverse.
In one culture, some activities can be classified as child abuse while in others, it may not.
That depends very much on the culture and nature of the activities. For instance, in PNG
society, the father or mother of the male child may kiss their children’s genitalia areas in
appreciating and showing their love towards their children. The surrounding communities
would understand that it is the action that shows their love towards the children. However
that same act in western countries would constitute child abuse.
It doesn’t mean that because one culture has no proper definition of abuse, there are no
abuses. There are certain acts or omissions directed at children which cannot anywhere be
considered as acceptable regardless of the social and cultural context in which they arise. 17
The classical assaulted, burned, or starved child looks sadly similar regardless of nationality,
racial classification, or ethnicity falls under abuse. However, the majority of cases of child
maltreatment, fall into a grey area and require an appreciation of the cultural context in which
acts of omission or commission result in harm to the child.18
13
Krugman R, Jones D P H (1987) Incest and Other Forms of Sexual Abuse (From The Battered Child, P 286-
300, 1987, Ray E Helfer and Ruth S Kempe, eds. -- See NCJ-111195) Accessed: 02/08/19 From:
http://www.ncjrs.gov/App/publications/abstract.aspx?ID=111209)
14
Ibid n8
15
J Y Luluaki( 2003-04), above n8 at p4
16
Ibid
17
Ibid
18
See further Korbin (1987) above n8 as quote by Prof JY Luluaki
5
Abuse can take different forms and be regarded differently by different societies depending
on the socio-cultural context in which it arises.19 The child sexual abuse includes any
sexually related act directed to children with an intention of deriving pleasure. Although
certain sexual acts with or directed at the children are clearly proscribed by law 20, there is no
express term written as ‘sexual abuse’ in any of the laws and legal system in PNG.
Therefore, from non-legal perspective, child sexual abuse has been defined as:
the involvement of dependent, developmentally immature children in sexual activities that they do not
fully comprehend and therefore to which they are unable to give informed consent and/or which violate
the taboos of society.21
It is a sexual behavior or a sexual act forced to a child without his/her consent. It includes
abuse of children by a man, woman other children. Justice Susame, in State v Dennison22
stated in paragraph 41 that;
Sexual abuse, also referred to as molestation is usually undesired sexual behavior by one person upon
another. It is often perpetrated using force or by taking advantage of another. When force is
immediate, or short duration, or frequent, it is called sexual assault. The offender is referred to as a
Sexual Abuser or (often pejoratively) Molester. The term also covers any behavior by an adult or older
adolescent towards a child to stimulate any of the involved sexuality. The use of a child, or other
individuals younger than the age of consent, for sexual stimulation is referred to as child sexual abuse
or statutory rape.
Sexual abuse is an act of violence which the attacker uses against someone they perceive as
weaker than them. It does not come from an uncontrollable sex drive, but is a crime
committed deliberately with the goal of controlling and humiliating the victim as that in the
case of State v Dennison23. The accused (the victim’s brother in law) had on three separate
occasions shown his penis to the girl (victim). That on one occasion when she was having
shower he had held his penis in a masturbating motion directed at the girl. Having control of
the victim, the accused also on one occasion, had entered the room got himself naked and laid
on top of the girl and penetrated her vagina using his finger, without her notice.
The activities may involves, forcing or enticing a child or young person to take part in sexual
activities, not necessarily involving a high level of violence, whether or not the child is aware
of what is happening. It may involve physical contact, including assault by penetration (for
example, rape or oral sex) or non-penetrative acts such as masturbation, kissing, rubbing and
touching outside of clothing. They may also include non-contact activities, such as involving
children in looking at, or in the production of, sexual images, watching sexual activities,
encouraging children to behave in sexually inappropriate ways, or grooming a child in
preparation for abuse (including via the internet).This would include prostitution and sexual
exploitation of a child for commercial or financial gain.24
19
Korbin (1987) above n17
20
Criminal Code Act 1974
21
Krugman and Jones, Above n12 at p286
22
State v Dennison (2018) PGNC 238; N7325
23
State v Dennison, above, n21
24
Lucy Faithfull Foundation (2008) What is child sexual abuse Accessed: 02/ 06/019
From:https://www.parentsprotect.co.uk/what-is-child-sexual-abuse.htm
HM Government has produced guidance for professionals, entitled Working Together to Safeguard Children
(DCSF- Department for Children Schools and Families 2010)
6
Those activities listed above are the core of child sexual abuse in two dimensions namely
physical contact and non-physical contact. On one hand, physical contact is when the abuser
actually laid hands on the victim (Child). Such crime are provided for under Criminal Code
Act (as amended) sections 229A, 229B, 229C, 229D, and 229E. On the other hand, the non-
physical contact crimes are provided for under sections 229K, 229M, 229N 229O, 229R, 229S
and 229T. Generally crimes involve physical contacts are found under Division 2A offences
while non-physical contact sexual crime are found under Division 2B of the Criminal Code
Act (as amended). Any activity that falls under one of those category listed is a sexual abuse
and therefore constitute CSA.
The legal system and laws in Papua New Guinea identifies some circumstances as sexual
crimes against children under Criminal Code (Sexual Violence and Crimes against Children)
Act 2002. As stated earlier, these circumstance involve acts that have been variously
described by terms such as ‘unlawful carnal knowledge’, ‘indecent treatment’, ‘defilement’
and now, under the amended Criminal Code Act, ‘sexual penetration’25, ‘sexual touching26’,
‘commercial sexual exploitation27’ and ‘indecent act’28. Sexual penetration of any means is
seriously prohibited by law. As opposed to the customs, sexual touching of the child is also
prohibited and if committed, it is a police matter despite customary rituals and justifications.
Furthermore, indecent act and commercial sexual exploitation falls under non-physical
contact sexual abuse and is very serious as physical sexual abuse or sexual penetration.
Therefore, the law regards all acts as sexual offences against children and commercial sexual
exploitation of children under new Division IV, 2A and 2B of the Criminal Code Act.
D. THE HARD FACTS AND ROOT OF CHILD SEXUAL ABUSE
Papua New Guinea unlike other countries in the world have numerous surprising aspects of
livelihood. The most obvious one that I will discuss on is the way in which children grow.
Childhood in PNG is far distinct from that of the western world. In the first half of the
twentieth century much of the anthropological attention to PNG was focused on child rearing
and how offspring are socialized to be members of a cultural community. It would never have
occurred to anthropologists like Margaret Mead, for example (who wrote Growing Up in New
Guinea [1931]), that children in PNG would invoke the governmental protections so
necessary today.29 Mead saw in PNG children an independence and resilience that gave them
special skills lacking in western children at the time. She described how Manus children
benefit from a collective support structure in the village, such that their needs are fulfilled by
an array of relatives, not just their mother and father. Love for children was described as
unconditional and constant, and shown to create confident and strong willed youngsters, and
ultimately responsible adults. Without dwelling on the particulars of Mead’s work, or the
work of those who followed her to the field, we can take solace in the fact that many of these
observations remain true across PNG today.
Visitors to PNG are quick to notice the discipline, selflessness and cheerful disposition of
kids in the villages, and to recognize some of that in the street kids that are now part of town
life. These ‘children in street situations’ (CSS) or ‘working street children’ are fundamentally
25
Criminal Code Act 1974, s. 299A,
26
Ibid at s.299B
27
Ibid at Division IV-2B
28
Ibid at s.229C
29
Nancy Sullivan (2013) Desk review of child protection services in PNG today for World Vision, November
2013.
7
different from their counterparts in Latin America, Africa, and elsewhere in the Pacific—
largely because they remain quintessentially ‘kids’ in the PNG sense. Unlike western children
for whom selling snacks and biros on the street might represent the depths of despair, PNG
children on the streets lack the anger and self-identifying criminality of their ilk elsewhere.
They are largely members of displaced families, migrants from domestic abuse or tribal
conflicts in the village, and so they continue to behave much as they would back home: as
breadwinners and socially connected individuals.30
But there are now second and third generation migrant families in many towns of PNG today.
A dependence upon the cash economy, where there are few jobs and soaring costs of living,
has reshaped the nature of family life such that the ‘wantok’ network of rural life gets
whittled down to the nuclear family. Mothers and fathers must adapt to the needs of 24-hour
childcare, which was hardly a concern in the village. They must fulfill the child’s every need
in ways that were unheard of during their own childhood: buying food daily, getting
checkups and vaccines, paying school fees, monitoring homework, scheduling after school
activities, and so forth. Modernity involves an enormous new load of parenting obligations,
and few migrant families can shoulder them all. In the best-case scenario, a young relative
from the village joins the family as a child minder (often willing to sacrifice his or her own
education for that of the bigman or meri’s offspring). In the worst cases, both parents work,
children are neglected, domestic violence and sexual abuse erupt, and so forth. Regardless of
the immediate circumstances, CSA is the most common symptom of the shift to a cash
economy.31
Childhood in the west now has several public dimensions. There are demographic
subcategories of consumers now: from pre-K to ‘tween, preteen and teenager, each stage of
development is characterized by specific needs, desires and intellects.32 Similarly, there have
long been legal subsets for children--juveniles (or adolescents) in need of supervision, wards,
foster children, biological and non -biological offspring, heirs, legatees, and so forth—which
embody roles and responsibilities. As countries like Papua New Guinea, predominantly rural
and traditional, leapfrog into the 21st century with mobile telephony, laptops, social media
and more, more and more young people find themselves imperfect fits with these western
concepts.33
There simply hasn’t been enough time for parenting and childhood in PNG to desegregate
these ideas into imagined communities. Young people from Wabag in Enga Province
generally feel like all other young people from Wabag, whatever their educational or age
grade. Where you live is still the most important determinant to individual identity, even as
that ‘place’ may be an admixture of traditional and non-traditional cultures. Kids in Wabag
town have slightly different identities to those in the village; but the individuation of self has
not been elaborated enough to make these incompatible. Similarly, migrant/settler
communities in the capital city of Port Moresby share their own subcultures, whatever the
traditional cultural origin of their members. Thus nine mile kids are largely (but not
exclusively) from Kerema in Gulf Province and unlikely to identify with Boroko or Gerehu
kids in any but superficial ways. Their concentric identities include province of father,
province of mother, residential area, and direct relatives. Life in town everywhere also
involves the cross-cutting class identities, so that educated kids identify with their school,
30
Nancy Sullivan (2013), above, n28
31
Nancy Sullivan (2013), above, n28
32
Ibid n28, Above
33
Ibid n28, Above
8
their sports team, their social network as much as they do with their traditional cultural
background; moreover, they are more likely to find each other in a supermarket or sports oval
than less fortunate children from their parents’ home province.34
This fact makes a significant difference in the way children view themselves, and the way
government and non-government agents handle them. Indeed, there hadn’t been much
government attention paid to ‘children’ as a special category of citizen (under age 18) until
the Lukautim Pikinini Act was passed in April 2007, and PNG needed to find a way to
conform to the Convention on the Rights of the Child. In 2010 the Act was updated to focus
on prevention and family strengthening, rather than institutional care, to better reflect the
‘consocial’ status of children and their need to remain part of a family network.
In Papua New Guinea, disturbing levels of family and sexual violence are directed towards
women and children. Such violence is a global problem, with one in three women worldwide
experiencing some form of sexual or intimate partner violence,35 and one in ten girls under
the age of 20 experiencing forced intercourse or other forced sexual acts.36 Nevertheless, rates
of abuse in Papua New Guinea are estimated to be some of the highest in the world outside a
conflict zone.37
1. Statistics from Port Moresby General Hospital – Family Support Centre
The Family Support Centre (FSC) located at the Port Moresby General Hospital is an
extension of Social Work Department of Port Moresby General Hospital. It specifically
provides treatments, care and counselling to survivors of family sexual violence victims in
Port Moresby.
Family and Sexual Violence (FSV) together with Child Sexual Abuse (CSA) in its various
forms is an epidemic that is endemic in communities around the country. Organisations
across the country have been creating massive awareness and advocacy programs to educate
communities that all forms of FSV and CSA are violations of basic human rights. However,
the shocking revelations by Medecins Sans Frontiers (MSF) in its March 2016 Report,
illustrates that
‘in PNG, women and children endure shockingly high levels of FSV and CSA
respectively, with rates of abuse estimated to be some of the highest in the world
outside a conflict zone’38
According to MSF Report 2015 - Return to Abuser based on Tari and Port Moresby (Pom)
FSC, more than half of all MSF consultations for survivors of sexual violence in Tari and
Pom in 2014 and 2015 were with children. FSC statistics reveals that 56% (587/1,046 cases)
34
Nancy Sullivan (2013), above, n28 at p6
35
World Health Organization (WHO), (2016) ‘Violence against women: Intimate partner and sexual violence
against women’ WHO Fact sheet No. 239 [online] Available from <http://www.who.int/mediacentre/
factsheets/fs239/en/> [10 January 2016]
36
United Nations Children’s Fund (UNICEF) (2014) ‘Hidden in Plain Sight: A statistical analysis of violence
against children’ UNICEF Division of Data, Research. [online] Available from <http://www.unicef.org/
publications/index_74865.html> [10 January 2016]
37
Medecins San Frontiers (2016) RETURN TO ABUSER: Gaps in services and a failure to protect survivors of
family and sexual violence in Papua New Guinea, March 2016
38
Hadibaiatok (2016) FAMILY & SEXUAL VIOLENCE ACTION COMMITTEE , Newsletter – Aug-Oct-
2016
9
of the survivors seeking medical and counseling at FSCs are children aged 10-infancy. At
Pom 69% are rape cases of these 81 % are children under the age of 15 while 22% are
children under the age of 5.
The country’s 2015 Child Welfare Policy39 acknowledges that information on sexual violence
against children is limited, reporting that only “one small-scale study indicates that 55% of
children experience some form of sexual abuse” but that “evidences from different FSC
indicate that between 49 and 74 percent of cases of violence presenting at FSCs are children
less than 18 years.”40
According to MSF data from its Family Support Centres in Tari and Port Moresby, it
confirms the risk of sexual violence faced by children of all ages, from 18 years down to
infancy. More than half of all MSF consultations for survivors of sexual violence were with
children – 56% (587/1,046). Four out of five of these children – 86% (506/587) – had been
raped, including 361 children under the age of 15 (71% of all children), and 46 children (9%)
under the age of five.41
In the Port Moresby centre, more than two out of three – 69% (307/442) – consultations for
sexual violence were for children. The vast majority – 81% (248/307) – were under 15 years,
and one in five – 22% (69/307) – was under five. In Tari, at least two out of five survivors of
sexual violence were children – 46% (280/604); 65% (181/280) were under 15 years, while
almost one in eight - 12% (33/280) - were under five.42
2. Eastern Highlands Provincial Hospital – Child sexual abuse statistics
Child sexual abuse is a severe form of human rights abuse and the worst form of exploitation.
It occurs throughout the world and is recognized by paediatricians and others to be common
in the Eastern Highlands Province (EHP) of Papua New Guinea (PNG).43There are many
factors which lead to a child becoming a victim of sexual abuse. The low status of women
and children, poverty, the lack of educational and employment opportunities, and inadequate
protective legislation, support services and regulation were cited as contributing to Pacific
children’s vulnerability to sexual violence (Mond.C, Ilomo. H, & Vince. J.D: 2016).
According to paediatric study of CSA in children’s outpatient at Goroka General Hospital,

girls at at higher risk of CSA than males (male: female ratio of 1:13). Penile penetration of
the vagina – child rape – was the commonest form of CSA in that study, occurring in 28
(80%) of the 35 female victims.44
Other types of sexual abuse includes fonding, forced paraphimosis, penile penetration of anus
and foreign object inserted into vagina occurs at the moderate rate of 20% at average.45 68 %
of those children were abuse while being under the care of their biological parents. Other 42
39
Papua New Guinea Ministry for Youth, Religion and Community Development (2015) ‘National Lukautim
Pikinini (Child Protection) Policy’ Papua New Guinea: Port Moresby p15
40
MEDECINS SAN FRONTIERS (2016) RETURN TO ABUSER: Gaps in services and a failure to protect
survivors of family and sexual violence in Papua New Guinea, March 2016
41
MEDECINS SAN FRONTIERS (2016), above, n39
42
MEDECINS SAN FRONTIERS (2016), above, n39
43
Mond.C, Ilomo. H, & Vince. J.D ( 2016) Child sexual abuse at Eastern Highlands Provincial Hospital: a
prospective descriptive study, PNG Med J 2016 March – Jun; 59 (1-2): 12-19
44
Mond.C, Ilomo. H, & Vince. J.D ( 2016), above, n40
45
Refer to Appendix 1, table 1: Types of sexual abuse
10
% of children abused were under the care of their adoptive parents, grandparents, and step
parents.46 It has poses a great risk that children are not safe even under their biological
parent’s care.
It is apparent from the study done in Goroka that most of the perpetrators (53 %) were the
blood relatives and other relatives. Abused by acquaintance is the second highest with 42 %
and only 2 % is done by an unknown person.47
In the PNG village setting children roam freely believing they are ‘at home’ and in a safe
environment. In our study 36 children (95%) were abused by a relative or acquaintance. A
previous study in Port Moresby found that 61% of the victims were abused by a relative or
acquaintance (Medecins San Frontiers : 2016).
3. Public Prosecutor’s figure
In Papua New Guinea, both customary laws and legislations operate side by side. It leads to
provide a system of courts where citizens can chose which path to take in solving a dispute.
There are range of options to resolve disputes and they are; Traditional Mediations,
Compensation payments, Village Court, District Court, National Courts, Court Annexed
Alternative Dispute Resolution and Non court annexed Alternative Dispute Resolution.
The cases formally reported to police station for investigations and prosecutions are the ones
that the government and police have records of. Others that falls outside the radar of our
formal investigation and legal system is not accounted for in the data.
According to Médecins Sans Frontières discussion in February 2016 with Mr. David Kivu,
State Prosecutor and Prosecutor in Charge at the Office of the Public Prosecutor, Family and
Sexual Offences Unit in Port Moresby, the Public Prosecutor estimates that 55 percent of all
sexual violence cases that have reached the courts since 2012 have dealt with the abuse of
children under 16.48 That statistics confirms that those who face sexual violence are the ones
who cannot speak for themselves in the community.
The statistics reveals that from the total cases registered from 2012 to 2016, 55 percent of all
sexual violence cases are CSA cases dealing with minors.49 Hence there are growing trend of
sexual related offence in PNG every year according to the statistic.
E. LEGISLATIVE FRAMEWORK OF CHILD SEXUAL ABUSE
In Papua New Guinea’s legal system, there is only one law that seriously addressed and deals
with sexual offences against children. Any offence related to sexual offence or rather criminal
46
Mond.C, Ilomo. H, & Vince. J.D ( 2016), above, n40. Also refer to appendix 1, table 2: care givers of subject
at the time of abuse
47
Mond.C, Ilomo. H, & Vince. J.D ( 2016), above, n40. Also refer to appendix 1, table 6: Relationship between
subject and the perpetrators
48
Médecins Sans Frontières discussion in February 2016 with Mr. David Kivu, State Prosecutor and Prosecutor
in Charge at the Office of the Public Prosecutor, Family and Sexual Offences Unit, Port Moresby. Note: The
Family and Sexual Offences Unit was established within the Office of the Public Prosecutor in 2012
49
Médecins Sans Frontières discussion in February 2016 with Mr. David Kivu, State Prosecutor and Prosecutor
in Charge at the Office of the Public Prosecutor, Family and Sexual Offences Unit, Port Moresby. Note: The
Family and Sexual Offences Unit was established within the Office of the Public Prosecutor in 2012
11
offence is a police matter and the state is oblige to take charge and prosecute the perpetrators
through the police force.
In considering the only law that protects the sexual offences against children, it is necessary
to first consider the background of that law. It is therefore proper to consider the provisions
of the old Criminal Code50 and the legal considerations that went into shaping and developing
the present provision51.
Correspondingly Cybercrime Code Act appears to work parallel with Criminal Code Act
since its passage in 2016. The provisions under Cybercrime Code Act also refers to
provisions of Criminal Code Act especially when dealing with child related crimes as
provided under sections 18 and 19 of the Cybercrime Code Act 2016.
1. The old Criminal Law (Criminal Code Act 1974)

The Criminal Law of PNG52 has a colonial link to Queensland, Australia. That is because the
current Criminal Code of PNG was adopted from Queensland. It has took place in different
times in different protectorate at that time in British Papua and German New Guinea during
colonial administration period.
During the colonial period, no substantive changes were made to the Criminal Law until
1974, when self-government was granted by Australian Government. The Criminal Code was
repealed and replaced by the Criminal Code Act, 1974. In relation to the provisions relating
to the sexual offences, no changes were made to the original law adopted from Queensland
Criminal Code. It also survived various other changes that were made after 1974 and
Independence in 1975.53 There were no substantive changes until March 2002 when the current
changes were effected by Parliament.54
The old Criminal Code used old-fashioned language such as ‘defilement’, ‘carnal
knowledge’, ‘against the order of nature’ and provided inconsistence and class of protection
for boys and girls. It also made no special or proper provision for the protection of young
children form commercial sexual exploitation including prostitution and pornography55.
The separate offences were created for sexual abuse of boys and girls under old Criminal
Code. It was provided under s.211 that a person who unlawfully and indecently deals with a
boy under the age of 14 years is guilty of a crime. The penalty is an imprisonment for a term
up to seven years. S.211(1) refers the meaning of the term ‘deal with’ to constitute assault if
done without consent as defined in s.243 of the Criminal code Act 1974 except for this crime
that the assault must be ‘indecent’. The provision does not cater for an act of sodomy
committed against a boy below the age of 14. Despite its grossly indecent nature, s.211 only
regard it as an assault. However such act was regarded as unnatural offence and falls within
the ambit of the general provision of s.21056 which proscribed unnatural offences between
persons57. Under the same provision, the canal knowledge of a person ‘against the order of
50
51
JY Luluaki ( 2003-04), above n8
52
The Criminal Code Act 1974 as known today
53
Chalmers (2001) at p97 – 108, in JY Luluaki ( 2003-04), Above n8
54
JY Luluaki ( 2003-04), Above, n8
55
JY Luluaki ( 2003-04) , Above, n8 at p9
56
57
JY Luluaki ( 2003-04), Above, n8 at p9
12
nature’ was a crime punishable by a period of imprisonment of period up to 14 years and
attempting it would also attract another crime which is punishable by a period of up to 7
years. These are the provisions concerning boys under the age of 14 years, no other offences
were recognized by the Code concerning boys under 14 years of age. By contrast, the Code
recognized four different sexual offences that could be committed against girls. Most of these
offences involved penetrative abuses or of having ‘unlawful carnal knowledge’58.
The term ‘canal knowledge’ is widely used in old Criminal Code however it does not provide
its definition. Section 6 only gave the hint of the stage in which ‘canal knowledge’ or ‘canal
connexion’ is complete and it is on penetration, even if only slightly and the hymen is not
ruptured.59 The definition became clearer in R v Brombley60 where Philip J stated that
‘Carnal Knowledge means sexual intercourse, and sexual intercourse is complete upon
penetration of the female organ by the male organ61’.
The definition provided above only refers to penetration of female organ by penis. The
penetration of female organ by means of other object was not captured under this definition.
Luluaki (2003-04:9) resolved that;
Penetration of female organ by means other than by the penis did not constitute carnal knowledge or
sexual intercourse. This appears now to have been too restrictive and not in line with the real situation
today in which women suffer at the hands of men who use non-penile methods to sexually penetrate
women.
Many have reported suffering at the hands of men because of forced anal penetration and
penetration by objects such as beer or wine bottles, the handle of a rake, a torch, knives and
sticks.62 Such was not provided for by the Criminal Code thus needs change that can
appropriately reflect the reality of current circumstances in dealing with sexual violence
against women and children.
The law prohibits unlawful canal knowledge of girls under the age of 12 years under s.213.
The punishment of the crime under s.213 was subject to judge discretion to impose shorter
punishment in accordance with s.19 of the Criminal Code. It also provides that attempting it
would also constitute the offence under 213(2) with penalty of imprisonment not exceeding
seven years. It further created a separate and specific offence of attempted ‘unlawful canal
knowledge’ under s.215 of the Criminal Code and imposed harsher punishment depending on
the age of the victim. The punishment for the victim of age less than 10 year was considered
serious and the maximum imprisonment was 14 years. While under s.216 of the Criminal
Code, the same offence committed against the girl under the age of 16 years was punished for
maximum imprisonment term of 5 years. Generally, the offence under ss. 213, 215 and 216
provides ascending imprisonment terms on descending age of the victim. In other words, the
punishment increases as the age of the victim decreases. Defence available to accused in
s.216 was not available under s.213. This implies that offence committed against younger
victims were more serious.
58
JY Luluaki ( 2003-04), Above, n8
59
R v Yoka Kiok (1970) No.607
60
(1952) Q.W.N. 32
61
R v Brombley (1952) Q.W.N. 32, at 36, in JY Luluaki ( 2003-04), Above n8
62
See further UNICFEF, Sexual Offences Against Women and Children. Issues for Discussion on
PNG Criminal Code Reform, September 2001, Port Moresby, 30. Cited in JY Luluaki ( 2003-04) 29 Melanesian
Law Journal 117, p18
13
In contrast with the discussion of ss.213, 215 and 216 of the code, s.217 prohibits indecent
treatment of girls under the age of 16. It is a misdemeanour if done without consent and
would constitute an assault as defined under s.243 of the Criminal Code Act 1974. If the
victim was above the age of 12 years. The accused was liable for maximum of 2 years.
However it was a defence to this charge to prove that the accused believed, on reasonable
grounds, that the girl was of or above that age. If the girl was below the age of 12 years, no
defence arose and the accused could be imprisoned for period of up to 5 years.
Under old Criminal Code Act 1974, all these provisions have been repealed and preplaced by
new provisions enacted by the National Parliament in March 2002. The related provisions of
sections 223 and 347 of the Code was retained. It is vital to read the repealed provisions
together with the retained provision relating to crimes of incest and rape because in many
situations of sexual violence against children, the offence of incest and rape have also been
committed together with other sexual offences.
2. The new Criminal Law (Criminal Code (Sexual Offences and Crimes
Against Children) Act 2002)
In 2002 the parliament made laws and amendments on two legislation. They are Criminal
Code Act 1974 and the Evidence Act63. The Criminal Code was known as Criminal Code
(sexual Violence and Crimes against Children) Act64. The number of sections repealed were
sections 30(3), 211, 213, 215, 216, 217, and 244. The parliament also make new laws by
inserting the following new sections of the Criminal Code Act; Sections 1(Complainants), 6
(Sexual Penetration), 6A (Relationship of Trust, Authority or Dependency) 21A (Victim
Impact Statements), Division 2A – Sexual Offences against Children (Section 229A – 229I),
Division 2B – Commercial Sexual Exploitation Children (Section 229J – 229V), 347A, 347B,
349, 349A, 349B, 352 and 352A.
The new law have used more generalised language unlike old law in describing the young
persons who may be the victim of a sexual offence. Previously the word ‘boys’ or ‘girls’ was
used under specific ages to describe young people however, the new law amalgamate both to
called ‘child’. The word ‘child’ was defined only for the purpose of the provisions
prohibiting the commercial sexual exploitation of children, there is no general definition of
the word ‘child’ provided by the new law. However, in the absence of its definition, the
international law provides the support of the domestic laws in which it is submitted that the
term ‘child’ must necessarily be restricted to and can only be understood as meaning young
persons under the age of 18 years. This is consistent with both the structure and purpose of
the new legislation and the definition provided by the CRC Article 165.
Amongst several changes, there are three major aspects of old law changed by new law.
Firstly, the term ‘canal knowledge’, which has been rejected in most Commonwealth
countries, has been replaced by the term ‘sexual penetration’ and given a definition that is
wider than the traditional definition of vaginal intercourse using the penis (Luluaki, 2003-
04:11). The term ‘Canal knowledge’ used in the previous Criminal Code was too shallow that
63
Amended by Act number 14 of 2002. I will not discuss further on that amendment but my focus will be on
Criminal Code Act. Although some of the provisions in Evidence Act was repealed to suit the Criminal code
Act, I will not touch on that until the subject rises in the discussion.
64
Amendment Act, amended by Act Number 27 of 2002.
65
Article 1 of the Convention defines ‘child’ to mean a person under the age of 18 years.
14
it was not covering the act done using other body parts such as fingers or tongue or other
objects. The new term (sexual penetration) which replaced ‘canal knowledge’, now covers
penetration of the anus or mouth of another person by any object including the penis. Thus, it includes
the introduction of any other part of one’s body such as fingers or tongue or other object into any of
the specified areas of another’s body. This of course does not mean that the non- penile penetration of
the vagina or penile penetration of the mouth is illegal if it involves consenting adults. No offence
would be committed in all such situations.66
Sexual penetration between consenting adults is not an offence. It only becomes an offence
when there is no consent or if the act involves children under the age of 16 67 or 1868 years as
prescribed under the new legal arrangement69. According to old law, unlawful sexual
penetration of children was regarded as rape. However, same offence was now regarded
under new law as ‘sexual penetration of a child’. Thus the new law was stringent when a
child under the age of 16 or 18 years was involved, regardless of his/her sex, it is, almost
without exception, unlawful.
Secondly, the new law profoundly provides the platform for the perpetrators to be captured.
The new law recognizes that both males and females can be held criminally responsible for
sexual penetration. Finally, the new definition of sexual penetration applies to all sexual
offences established by this law including penetrative sexual offences against children, rape
and incest.70
3. Cybercrime Code Act 2016
Papua New Guineas Cybercrime law was formally formulated and drafted in 2011 as part of
the general drive within the pacific region to reform and develop the regions ICT laws. In
September 2016, parliament passed the Cybercrime Code Act (CCCA).
The CCCA is defined as acts or omissions constituting offences committed through the use of
information and communication technology, and for related purposes. The provision that
links the Cybercrime Code Act with Criminal Code Act is none other than section 18 of
Cybercrime Code Act 2016.
Section 18. Child Pornography
(1) A person who, intentionally and without lawful excuse or justification, or in excess of a lawful
excuse or justification, uses an electronic system or device to commit any of the offences prescribed
under Sections 229R, 229S and 229T of the Criminal Code Act (Chapter 262), is guilty of a crime.
Penalty:
 (a) In the case of a natural person, a fine not exceeding K100,000.00 or
imprisonment for a term not exceeding 25 years, or both; and
 (b) In the case of a body corporate, a fine not exceeding K1,000,000.00.
66
JY Luluaki ( 2003-04), above n8 at p11
67
S.229A of Criminal Code Act, persons under the age of 16 years are deemed legally incapable of consenting
to sexual act.
68
In accordance with s.299E if a relationship of trust, authority and dependency between the perpetrator and
child exists.
69
70
Ibid
15
excuse or justification, uses an electronic system or device to access child pornography, whether or
not for the purpose of downloading or transmitting it either to himself or another person, or, for the
purpose of giving effect to or facilitating the commission of any of the offences in Subsection (1), is
guilty of a crime.
Penalty:
 In the case of a natural person, a fine not exceeding K100,000.00 or imprisonment
for a term not exceeding 25 years, or both; and
 (b) In the case of a body corporate, a fine not exceeding K1,000,000.00.
(3) It is a defence to a charge for an offence under this section if the child pornography was for a
bona fide law enforcement purpose or for the benefit of the public.
(4) Whether the doing of an act referred to in this section is for the benefit of the public, is a question of
fact.
(5) For the purposes of this section, if child pornography is stored for a bona fide law enforcement
purpose, all traces, copies, or storage of such pornographic material shall be removed, deleted or
otherwise destroyed once it is no longer lawfully required
Section 19. Child Online Grooming.

excuse or justification, uses an electronic system or device to befriend, invite, induce, persuade, or in
any way procure, or offer to engage a child in -
 sexual intercourse or sexual contact; or
 a sexual or obscene performance; or
 any other sexual conduct,
is guilty of a crime.
Penalty:
 In the case of a natural person, a fine not exceeding K100,000.00 or imprisonment for a term
not exceeding 25 years, or both; and
 In the case of a body corporate, a fine not exceeding K500,000.00.
(2) Where the offence under Subsection (1) is committed in respect of a child under the age of 16 years,
the offender is guilty of a crime.
Penalty:
 In the case of a natural person, subject to Section 19 of the Criminal Code Act (Chapter 262),
imprisonment for life; and
 In the case of a body corporate, a fine not exceeding K1,000,000.00.
(3) A person who knowingly receives any financial or other reward, favour, benefit, compensation, or
any other gain from the commission of an offence under this section, is guilty of a crime.
Penalty:
 In the case of a natural person, a fine not exceeding K100,000.00 or imprisonment for a term
not exceeding 25 years, or both; and
 In the case of a body corporate, a fine not exceeding K1,000,000.00
The Cybercrime Code Act in PNG is much stronger in terms of penalty compared to other
countries in the pacific region.71The important issues which the law has touched in this
Cybercrime Code is the provision of ‘Child Pornography’. Child Pornography has already
been banned in 2002 with the amendment to the Criminal Code. That signifies that protection
to our vulnerable young generations have already started then in 2002. Also under Lukautim
Pikinini Act 2015, the law tried to give prominence to children and protect their rights.
71
Helen Tarawa (2018) National News Paper, October 26, 2018
16
It is obvious that protection of children in PNG is of high priority. In terms of legislative
framework to protect the children, PNG have some form of protection available.
4. Lukautim Pikinini (Child) Act 2015
The laws on protection of children takes measures to update every time as the society moves
further in development and changes. The previous Lukautim Pikinini Act 2009 was reviewed
and replaced by new Lukautim Pikinini Act 2015 (LPA) as it lacks key provisions in child
protections in PNG. LPA passed in 2015 was the act which gave a twist on how rights of
children should be addressed by the government, parents and other organisations in the
country. Children are the most important part of the society because they are dependent and
cannot speak for themselves. Consequently, most children are abused and deprived of their
basic rights to live with their parents.72
The Act73 generally ensures children are protected, have access to their rights, emphasises
parental responsibility and duty to maintain a child. The law established that and calls for all
children to have the right to be protected from all forms of abuse, neglect, maltreatment and
have access to equal opportunity and access to education. It specifies that where any conflict
arises between the interest of the child and other person, the interest of the child are
paramount.74
Also, the preferred environment for the care and upbringing of a child is his own family and
the responsibility for the care and protection of the children rests primarily with their
parents.75 In deciding what action is necessary to protect a child from harm, the course to be
followed must be the least intrusive intervention in the life of the child and the child’s family
that is consistent with the paramount concern to protect the child from harm.
Comparatively, law states that the interventions should be aimed at remedying the harmful
situation and providing a plan to return the child to his family, unless to do so is contrary to
the child’s best interest. Likewise if a child is temporarily or permanently deprived of his
family environment, or cannot be allowed to remain in that environment in his own best
interest, the child is entitled to special protection and assistance from the office for the Child
and Family Services.
Importantly, it renders marriage of a male and/or female under the age of 18 illegal. The
primary motivation for revising the LPA was an alarming increase in orphans and ‘street kids’
– homeless children or children who remain in family but neglected there and who beg and
steal and who are vulnerable to sexual exploitation. Like the original Act, the revised LPA
emphasises children’s right (to protection from abuse and neglected and to equal opportunity
and education) but also parental responsibilities and duties.
Section 8 states;
(1) It shall be the duty of parent, or any person having custody of a child to maintain that child
and, in particular that the duty gives a child the right to -
72
Lukautim Pikinini Act 2015, section 7
73
Lukautim Pikinini Act 2015
74
Nellie Setepano (March 15, 2016) Post Courier Newspaper, March 15, 2016
75
Ibid n62 at, section 7
17
(a) Adequate nutrition; and
(b) Immunization; and
(c) Clothing; and
(d) Shelter; and
(e) Education and guidance; and
(f) Medical attention.
(2) It shall be the duty of any person having custody of a child to protect the child from
discrimination, violence, abuse, neglect and exploitation.
As stated in the above provision, the children have rights to access the following from the
parents or any person having custody to maintain that child thus creates obligation for the
parents to comply.
Children who are neglected or abused in their family situation may be removed and placed in
the care of the office for Child and Family Services, which the Department of Community
Development would create to implement the revised LPA. Also provincial – level child and
family services committees will be formed to assure children’s welfare throughout the
country.
5. Family Protection Act 2013
The Family Protection Act 2013 (FPA), a law initially drafted in the early 1990s, criminalises
domestic violence and set new penalties for family violence, making it a punishable crime for
the first time in Papua New Guinea.76
Under the FPA, domestic violence is an offence (s.6, FPA). Domestic violence occurs when
someone does one of the following to a family member:
 Assault (whether physical or otherwise)
 Psychological abuse, harassment or intimidation
 Stalking
 Offensive or indecent behaviour
 Damage to property
A ‘family member’ is:

 A spouse
 A child or step child
 A parent or parent in law
 A grandparent
 A brother or sister or brother or sister in law
 Any other person who is treated as a family member.
Penalty: A fine of up to K5000 and/or imprisonment for up to two years and compensation.
Although this law does not strictly require regulations before the Act can be implemented,
many officials are unwilling to commit to full implementation without regulations in hand.
76
18
Thus four years later the government drafted the regulations for the effective implementation
of the Act.
Notably, the domestic violence offence is only intended to be used for less serious matters.
Other serious offences like: serious physical harm or committing sexual assaults or child
sexual offences are dealt with under the Criminal Code, which has higher penalties, although
the Family Protection Act may still be used to obtain Interim Protection Orders or Protection
Orders in these cases.
6. Juvenile Justice Act 2014
In 1991, Papua New Guinea does not have a comprehensive juvenile justice system hence
passed the Juvenile Courts Act 1991 through parliament to address the special needs of
children coming into conflict with law. However, the Act has major challenge in the area of
juvenile justice reforms including inadequate reflections of concepts and innovations such as
diversion, restorative justice and statement of general principles.
It has been a major challenge for the country to integrate the justice system and policy that
would reflect the appropriate measure to punish children having considered their rights under
CRC. The cabinet has finally approved the introduction of the national juvenile justice policy,
the police juvenile justice policy and protocols and minimum standards for juvenile
institutions in 2007.77 The policies and minimum standards have helped clarified roles and
responsibilities, reduced confusion, provide guidance and justification for the need to review
the Juvenile Courts Act thus resulting in the amendments to repeal the Act in 2014.
Therefore parliament has passed the Juvenile Justice Act proposed by PNG Attorney General
& Justice Minister Kerenga Kua. It is done as a measure of child protection in fulfilment of
the dire need in children’s justice system. It corrects deficiencies in the previous Act and
incorporates articles of the Unite Nations on the Rights of a Child (CRC) and the United
Nations Minimum Standards Rules for the administration of Juvenile Justice and reflects
what is contained in the National Juvenile Justice Policy (NJJP).
The Juvenile Justice Act 2014 replaces the previous Juvenile Courts Act 1991 with new
regime which provides comprehensive juvenile justice system based on the principles of
restorative justice, Melanesian tradition and contemporary justice practices.
It generally address the special needs of the children coming into conflict with the law thus
addressing law and order and maintaining peace in society. It aims to minimise the use of
formal court proceedings and encourages the involvement of parents, the victim and the
community in holding juvenile accountable for their actions and requiring them to do
something to repair any harm that they may have caused.
Importantly, it promotes diversions and mediations, drawn from traditional Melanesian and
restorative justice values as an alternative to imprisonment; rehabilitation; fast tracked police
processing of juveniles and the reduction of unnecessary pre-trial detention; the prevention of
abuse of juveniles within the criminal justice system; increased monitoring of juvenile
77
Papua New Guinea Today (2019) PNG Parliament passes Juvenile Justice Bill, Available at:
https://news.pngfacts.com/2014/02/png-parliament-passes-juvenile-justice.html
19
conditions within police lock-ups and CIS facilities through regular inspections by Juvenile
Court Magistrate; and training juvenile police officers and voluntary juvenile court officers.78
Amongst others, the Juvenile Justice Act 2014 was established to ensure that the rights of the
juveniles charged with or alleged to have committed an offence are fully respected and
protected.79
78
Nellie Setepano (March 15, 2016), above, n64
79
Juvenile Justice Act 2014, section 5 (c)
20
Chapter 3
Child Sexual Abuse in PNG
A. INTRODUCTION
The child sexual abuse in Papua New Guinea is overwhelming according to the research
provided by the UNICEF. Nearly half of reported rape victims are under 15 years of age and
13 % are under seven,80 while a report by ChildFund Australia citing former parliamentarian
Dame Carol Kidu claimed 50% of those seeking medical help after rape are under 16, 25%
are under 12 and 10% are under eight.81According to MSF report 2015, MSC statistics
reveals that 56 % of all cases reported are children age 10-infancy. The same source reveals
that of all rapes cases, 81% are children under 15 years while 22% are children under the age
of 5. It is classified that the related child sexual abuse takes the form of rape, incest, and
child sexual exploitation. This research are done using the reported cases.
However the extent of CSA is not known partly because there is no effective reporting
system and also because most of these abuses are carried out in secret and are perpetrated
upon a vulnerable group of people who are helplessly dependent upon their adult counterparts
to take some form of remedial or corrective measures (Luluaki: 2003-04).
This is true when a case was handed down on 29th March 2018, the Goroka National Court
sentenced a 35 year-old man to 23 years imprisonment with hard labour for kidnapping and
sexual abused of a minor (7 years for Kidnapping and 16 years for Sexual Abuse)82.
This chapter will identify and discussed the sexual abuse of children and commercial sexual
exploitation limited to Papua New Guinea circumstances. It will further directs the vulnerable
populations to the issue of sexual abuse and commercial sexual exploitation and the Criminal
Code (Sexual Offences and Crimes Against Children) Act 2002 that deals with such offence.
B. SEXUAL CRIMES AND ABUSE OF CHILDREN
The overwhelming cases of CSA has hasten the legislatives to repeal the provisions relating
to sexual abuse of children under the age of 16 years in the old Criminal Code Act. The new
law also replaced the old law completely with new offences. The two new Divisions under
s.15 establishes separate category of crimes against children. Division 2A establishes sexual
offence against children while Division 2B, establishes provisions dealing with the
commercial sexual exploitation of children or child prostitution or pornography.
Crimes under Division 2A are further divided into two categories. One comes under actual
penetrative intercourse of a child under the age of 16 years and the other involves non-
80
See UNICEF(2008), above n3
81
See further Wiseman H (August 2013), above n4
82
Femili PNG’s Case Management Centres (CMC) support survivors of family and sexual violence, Available
at http://www.femilipng.org/client-stories/http://www.femilipng.org/wp
content/uploads/2015/01/3516443241_21cf3a4352_z.jpghttp://www.femilipng.org/wp. Ruthy, a six year old
girl was lured by a stranger when she was upset by her mother who did not by her an Ice cream. The stranger
tricked her and pretend to be her uncle. He took her to Eastern Highland Province where she was kept captive
and there the abuse began.
21
penetrative abuses. Non-penetrative abuse includes touching a child in sexual ways and for
sexual purpose.
1. Penetrative sexual crimes
The Criminal Law under section 229A creates the offence of ‘Sexual Penetration of a Child’
and also provides for the term of imprisonment if the offence is committed. It clearly sets out
in a way that the actual penetration of child under 16 years of age definitely attracts penalty
of imprisonment term not exceeding 25 years. However the term of imprisonment may
increase depending on the age and relationship of the victim and the accused. S.229A (283)
sets the maximum age of child in which an offender against subsection (1) will be liable to
without any question. If the offence under subsection (1) is committed to any child of age
below the age of 12 years will attract punishment prescribed under section 19 especially
imprisonment for life.
The younger the child victim and the closer the relationship between the child and the
offender, the penalty increased according to s.229A (2) (3). The new provision under criminal
law provides as follows:
(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is
guilty of a crime. Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25
years.
(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and
is liable, subject to Section 19, to imprisonment for life.
(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency
between the accused and the child, an offender against
Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life .84
The important element for this offence is penetration. In order for the offence to be
committed, there must be a penetration. If no penetration, there is no offence. The sexual
penetration was defined under s.6 of the Criminal Code Act previously as ‘canal knowledge’
and now replaced by new s.6 as ‘sexual penetration’. The new provision provides wider
meaning than the previous as previous section only deals with penetration of female organ by
the male organ and thus does not include penetration of female body apart from vagina
(mouth, Anus) by means of other than by penis (finger, tongue, bottle etc.).
The new provision which replaces old s.6 defines the expression ‘sexual penetration’ or
‘sexually penetrates’ from a wider perspective and defined in a manner where elements of it,
is complete where there is:
(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another
person; or
(b) the introduction, to any extent, by a person of an object or part of his or her body (other than the
penis) into the vagina or anus of another person, other than in the course of a procedure carried out in
good faith for medical or hygienic purposes.85
83
84
Ibid n46 at s.229A
85
JY Luluaki ( 2003-04), above n8
22
It is provided under s.229A purposely for the sexual penetration of a child86 where adult is
engaged. The commission of crime under s.229A only occurs when a child is involved
however, if the crime is committed against an adult by an adult, then it falls within the
definition of s.347 of Code87 hence the offence of rape has been committed.
The offence is restricted to the children under the age of 16 years and below. It cannot be
committed outside the age limit given in the code. If it is committed outside the age limit,
then it is considered as rape. However, if the relationship of trust, authority and dependency
exists, the offence of breach of that relationship has been committed as provided by s 229E88.
Any attempt made in this regard is not a crime of attempted unlawful canal knowledge as
created by old criminal law under ss.215 and 21689. It is evident in State v Yape90 where
prisoner was not charged for attempted penetration, although he attempted to penetrate the
vagina of a 6 year old girl with his penis. He was only charged for sexual touching under
s.229B (1)(a)(4)91. When that provision was repealed, there was no equivalent provision in
the new criminal law. Thus there is no offence of ‘attempted sexual penetration’ under new
law.
2. Non-penetrative sexual crime
The Criminal Code Act (CCA) sets out the non-penetrative sexual crimes directed at children
in two levels. The crimes are found as stipulated under ss. 229B and 229C of the CCA. They
are ‘sexual touching’ and ‘indecent act directed at child’ respectively.
This two types of non-penetrative sexual crimes appears in our society to be a non-serious
offence, however it drastically affects the pillars of our society by deteriorating the mindset
and instil fear in the minds of our young generations. Therefore CCA considers such acts to
be a crime.
Sexual touching is a crime committed when a person, for sexual purpose, touches with any
part of his/her body, the sexual part of a child under the age of 16 years, or compels a child
under that age to touch the sexual parts of that person with any part of his/her body. Section
229B (2) defines that phrase ‘sexual parts’ to include the genital area, groin, buttocks or
breasts of a person.
The penalty for the offence is imprisonment of a period up to seven years. However if the
victim is under the age of 12 years or is in relationship of trust with, authority under or
dependency on the accused, the maximum penalty is 12 years regardless of the age of the
victim.92 The sentencing trends for charges of Sexual touching vary from case to case
depending on the facts of each case. For instance in the case of State v. Kagewa Tenang
(2005) N2941 Kirriwom J said:
“Recent cases of similar nature have attracted between 3 and 5 years imprisonment. In the State v.
Kiddi Korari [2004] N2553 (29.04.04) the offender, a young boy aged 14 years was sentenced to five
86
The age range of a child is 18 years of age and below. However the criminal law considers child for those
who are under the age range of 16 years and below.
87
Criminal Code Act, 1974
88
Ibid at s.229E
89
Ibid at ss.215 and 216
90
State v Yape [2016] PGNC 73; N6316
91
Criminal Code (Sexual Offences and Crimes against Children) Act 2002
92
State v Yape, above, n80 at p14
23
years after he pleaded guilty to rubbing his fingers around the victim’s vagina. The victim was aged 6
years old and suffered no physical injuries. The other case is the State v. Paul Nelson [2004] N2844,
the offender aged 65 years was sentenced to 3 years” 93.
In addition to that, Justice Lenalia sentenced a revival pastor on two counts of touching the
vagina of a 10 year old girl in State v. Thomas Tulalin (2006) N3006.
Another non-penetrative sexual crime as stipulated under s.229C of the Code is ‘indecent act
directed at the child’. In order for a crime to be committed, the act must be direct to a child
and it must be indecent in nature. However, ‘indecent act’ was not defined in the code.
Whether it include or exclude acts which involve some degree of physical contact was not
clarified in the code94. However, the meaning can be derive from Judicial interpretations of
analogous terms such as ‘indecent treatment95’ and ‘indecent assault’ indicate that some
degree of physical contact is necessary for this offence to be committed96 It is very important
to note that the indecent act must be directed to the child. If the indecent act is directed by the
child to the adult person, then it is not a crime under s.229C of the Code97. The act of the
accused must be indecent meaning, if he/she physically interferes with the child under the age
of consent in indecent manner would constitute a crime. Thus if the accused inserts his finger
into the vagina of a young girl98, applies his hand on or over her vagina, cups or otherwise
touches her breasts or takes the penis of a young boy in his hands 99, an indecent act directed
at a child has occurred100.
The case of State v Dennison101 describes the behaviour of the accused as indecent act on
four occasion. Firstly, the accused committed an indecent act by holding his penis and
showing it to the girl (victim) while having his bath. Secondly, the accused followed the girl
out and approached her as the girl was urinating and switched on the torch light on his penis
for the girl to see. Thirdly, the accused entered the kitchen while the girl was cooking and sat
on the bench, removed his trousers in front of the girl and pulled out his penis and show it to
the girl. Finally, the accused went into the girls’ room naked and laid ontop of the girl while
she was sick and asleep and penetrated her with his finger without her notice. Such is an
example of indecent act directed at a child.
Moreover, the physical contact is not necessary for the crime. Any indecent communication
directed at the child would also constitute an indecent act thus an act of inviting a child to
sexually touch the accused or asking the child’s permission to sexually touch him/her would
93
Other similar cases includes State v. Thomas Tulalin (2006) N3006, State v. Francis Keta (CR No. 548 of
2007) State v. Bradly Maki (15.11.06) N3391, State v. Kuse (2011) N4304 (2.6.11), State v. Pokas (2011)
N4375, and State v. Taitus Ukil (2016) N6195.
94
JY Luluaki ( 2003-04) above n8, p13
95
The State v Andrew Tovue [1981] PNGLR 8
96
Chalmers (2001) p249 256; 337 above n8 as quote by Prof JY Luluaki
97
JY Luluaki (2003-04) above n8, at p15. The mere inactivity by the accused would not constitute an act
amounting to the offence created by this section even if the act itself might be considered reprehensible and
indecent. Thus, if an accused invited a child to touch his penis or to masturbate him and this occurs, an indecent
act has not been directed at a child and hence an offence has not been committed. This is because in each such
case, the indecent act is being directed by the child at the accused rather than by the accused at the child even
though the act was clearly solicited by or committed at the behest of the accused.
98
The preferred course of action would be to charge the person for sexual penetration.
99
That could also be considered as or be charged under sexual touching.
100
Ibid n56 at p15
101
State v Dennison [2018] PGNC 238
24
be an indecent act directed at a child102. It is purposely to protect the child from indecent
exposure by a perpetrator of his sexual parts103. It is further submitted that the offence would
also be committed if the perpetrator exposes indecent pictures or photographs such as
pictures of their own ‘sexual parts’ or those of other persons and pictures of persons
committing indecent or sexual acts including homosexual acts104.
3. Persistent sexual abuse
The Code under s.229D(1) states that ‘A person who, on two or more occasions, engages in
conduct in relation to a particular child that constitutes an offence against the Division, is
guilty of a crime of persistent abuse of a child’. The crime is committed only when offences
discussed above occurs on two or more occasions. Such situations mostly occurs in family
settings where father, Elders or uncles and aunties are involved (Dr Batia Phil, Personal
Communication, October 15, 2019).
The case of Kankan105 illustrates the persistent sexual abuse in the family settings. The
accused George Gior Kankan, the grandfather of the complainant was pleaded guilty to one
count of persistent sexual abuse an offence against s. 229D (1) (6) of the Criminal Code
(Sexual Offences and Crimes Against Children) Act 2002. The offence was committed on five
various unknown dates between June and October 2012. The accused (victim’s grandfather)
would sexually penetrate the complainant three or many times in one week over a period of
time between 2012 and 2013. The prisoner consistently abused the victim until she was
pregnant in August 2013. Although, offenders in this crime are liable for 15 years, he was
sentenced for a term of 10 years imprisonment.
Moreover, in State v Tigi106, the prisoner was charged with one count of persistent sexual
abuse of a child under the age of sixteen over a period of nine months which involved sexual
touching and sexual penetration of the victim through her vagina and mouth by insertions of
tongue, fingers and penis on different occasions.
It is an offence whether the act complained of is of same nature or not, as long as it is

committed on different occasion107. However, if actual penetration occurs during one of those
occasions, a person found guilty is liable to life imprisonment108. Considerably, the court has
a duty to be ‘satisfied beyond reasonable doubt’ that the evidence establishes that offence had
been committed on at least two separate occasions and that they occurred on separate days
during the relevant period and that the accused was involved on all those occasions109 in
order for the offence to be committed.
102
. It is altogether irrelevant that there was no actual physical contact between the child and the perpetrator. It is
only necessary to show that a communication accompanied by circumstances of indecency by the accused to the
child did take place.
103
‘Sexual parts’ as defined under s.229B(2) which includes the ‘genital area, groin, buttocks or breasts of a
person’, applies equally to the offence established by this section
104
Ibid n56 at p16
105
State v Kankan [2019] PGNC 25; N6630
106
State v Tigi [2013] PGNC 114; N5307
107
S.229D(2) of the Criminal Code Act, 1974
108
Ibid n64 at s.229D(6)
109
Ibid n64 at s.229(5)(a)
25
4. Abuse of trust, authority or dependency
The new Code inclusively provides for abuse of trust, authority or dependency under s.229E
which was not previously provided. It only applies to children between the age of 16 and 18
years purposely to protect them. It prohibits the acts of sexual penetration or sexual touching
of children by the people whom the children trust or depend on110. Those people who are in
charge of children and who have the duty and responsibility of caring, raising and generally
providing for the welfare of those children in their care are targeted by this offence. These
persons include parents, step-parents, adoptive parents or guardians, school teacher, religious
instructor, counsellor or youth worker, health care professional, and police or prison
officer.111
It doesn’t matter if the child is consented to the act, it is a crime unless, at the time of the
offence, the accused believed, on reasonable grounds, that the child was aged 18 years or
older.112 The crime carries the penalty of imprisonment for a term not exceeding 15 years.
However, the penalty may increase depending on the aggravating factor contingent on the
offence committed.
C. COMMERCIAL SEXUAL EXPLOITATION OF CHILDREN
1. Child prostitution
The children are the feeble population in the society hence child prostitution is very serious
and much more deferent from the adult prostitution. It is not only a wicked form of abuse,
but a clear violation of child’s right. Children have rights to be protected from such
exploitation hence child prostitution constitute contemporary form of slavery113. Child
prostitution is forced either by person having authority over them or by circumstances of
needs such as poverty, hunger and survival.114
Considering the importance and specialty of the child prostitution, special laws were created
by the new Division 2B of the Code115 in 2002. It specifically address and distinguish the
issues of child prostitution from adult prostitution116.
Although Summary Offence Act has created and dealt with the offence of prostitution, it does
not deal with the child prostitution specifically. It generally applied to all forms of
prostitution irrespective of whether children were also involved 117. Therefore the new law
provides special protection for children under Division 2B relating to the sexual exploitation
of the children. The new law defines child prostitution as any sexual service provided by
child118 in return for ‘financial or other reward, favour or compensation’ regardless of
whether the reward or compensation is paid to the child or to some other person. Other
related offence includes obtaining the services of the child prostitute, or invite, persuade or
110
Ibid n64 at s.229E(1)
111
JY Luluaki ( 2003-04) above n8, p16
112
Ibid n64 at s.229E(2)
113
Optional Protocol to the Convention on the Rights of the Child.
114
The National Academic Press (2019) Confronting commercial sexual exploitation and sex trafficking od
minors in United States, Available t: https://www.nap.edu/read/18358/chapter/6
115
Commercial sexual exploitation of children.
116
Ibid n68 at p21
117
Ibid n68
118
‘Child’ as defined by the new law, is a person under the age of 18 years.
26
induce a child to engage in an act of prostitution with him, her or any other person and
offering or engaging a child for prostitution.119
It is also a crime under s.229N to knowingly receive benefits from a child prostitutes or
permit premises to be used for prostitution. Knowledge is an important element of this crime.
Therefore if a person knowingly accept gifts or permit activity of prostitution in his/her
premises will be liable for the maximum imprisonment of 15 years.
2. Child pornography
Pornography is a prevailing form of commercial sexual exploitation in PNG. Pornography

does not involve sexual penetration or touching but is as serious as a violation of child’s right
as child prostitution.120 Today with the latest sophisticated technology, pornography can take
many different forms. The forms it take was recognised by the law under s.229J of Criminal
Code Act (as amended). It stated that any photographic, film, video or other visual
representation that show a person who is or who is depicted as being under the age of 18
years and is engaged in, or is depicted as engaged in, sexual activity is a child pornography.
The new law introduces three different offences each dealing with a separate aspect of child
pornography as defined above. The first offence is stated under s.229R of the Act. It relates to
the use of children for the sexual purpose. Section 229R prohibits a person from using
children for production of pornography or cause the child to be used for pornography or
allow the child to be used for the production of pornography being having custody of the
child. The penalty is imprisonment for a term not exceeding 15 years.
The second one is the production, distribution and possession of child pornography. Section
229S of the Act prohibits a person to (a) knowingly produces, distributes, prints or publishes
any child pornography; or (b) knowingly imports, exports, sells or shows any child
pornography; or (c) knowingly possesses any child pornography for the purpose of
distributing, publishing, exporting, selling or showing it. If anyone does that, it is a crime and
carries the penalty imprisonment term of not exceeding 10 years.
Finally, the third one is the possession of child pornography. It is provided for under s.229T
of the Code that a person who knowingly possesses any child pornography is guilty of crime.
And is liable to imprisonment for a term not exceeding five years.
The same Code also provide defence under certain circumstances. Sections 229U and 229V
states that it is a defence if it is for the innocent purpose or for official use respectively. Thus
there are always defence in every situations of crimes as provided and is the point of our next
discussion.
D. DEFENCES
The Code is very specific in addressing the issues of child sexual abuse as discussed above
and provides no defence for those who deal indecently with the children. Thus under s.209 of
the Code;
119
Sections 229K, 229L and 229P of the criminal Code Act 1974
120
27
Except as otherwise expressly stated, it is immaterial, in the case of any of the offences specified in this
Division committed with respect to a person under a specified age, that the accused person did not
know that the person was under that age, or believed that the person was not under that age.
Generally, that provision has provided no defence for those that would be charged of
committing a sexual offence against a child. As adopted laws, Common law jurisdictions
have set an age below which a child is deemed incapable of consenting to a sexual act121. In
different jurisdictions, the age varies although it is generally between the ages of 14 and 16
years.
Thereby, the age of consent to sexual intercourse or penetration is 16 years. Thus any sexual
intercourse performed to a person under the age of 16 years would be a criminal offence and
be punished accordingly considering the age of the victim and the presence of any
aggravating circumstance in relation with the wider definition of sexual penetration according
to new law.122 Therefore the age of consent is 16 years. If a person sexually penetrates a
child, or sexually touches the child or is touched by him/her, or direct an indecent act at the
child under the age of 16 years is guilty of an offence even if the child is consents to the
act123.
In our jurisdiction, there are three (3) situations in which exceptions may be made in favour
of the accused, to the general rule concerning sexual offences against children124. The first
one concerns a honest mistake to the actual age of the child, where the offender is an adult.
Old law provides protection under s. 216 but was repealed and this equivalent provision was
found under s.229E (2) of the code. It stated that ‘It is not a defence of a charge under this
section that the child consented unless, at the time of the alleged offence, the accused
believed on reasonable grounds that the child was aged 18 years or older’125. The onus to
prove that the accused believed on reasonable grounds that the victim was of or above the age
of 16 lies with the defence and this must be discharged on the balance of probabilities126. The
distinction must be made between a belief regarding chronological age and the victims’
physical appearance and ability.
The second relates to sexual relations between persons both of whom are, or one of them is,
below the age of consent. The victim and the offender must have an age difference of two (2)
years in order to regard the sexual contact as an experiment between children as provided in
many common law jurisdictions. It is a normal part of growing up thus it would be
inappropriate to criminalize it.
Finally, the third one is the protection provided to the accused as a result of marriage to the
victim child127. There must be a marriage or existing marriage. The state of being married to a
person under the age of consent at the time of objectionable sexual act is not a crime 128.
121
122
Amended Criminal Code Act 1974 called Criminal Code (Sexual Offences and Crimes Against Children) Act
2002
123
Ibid n77 at p17
124
Ibid
125
S.229E (2) of the Criminal Code Act as amended in 2002.
126
R v Ulele [1973] PNGLR 254
127
UNICFEF, Sexual Offences Against Women and Children. Issues for Discussion on
PNG Criminal Code Reform, September 2001, Port Moresby, 30. Cited in JY Luluaki ( 2003-04) 29 Melanesian
Law Journal 117, p18
128
Section 45(4),Victoria Crimes Act,1958(Australia); s.5 Criminal Code Act Cap 42 (Nigeria); s.229G,
Criminal Code Act, 1974 (As amended) (Papua New Guinea)
28
Marriage is a defence under s.229G of the Code as amended129. However, before this
defence can apply, the child must be atleast above the age of marriage as set by the Marriage
Act, Ch.280.130In relation to that, the age of consent under the Code is 16 years. The
provisions in Marriage Act 1963 and Code implies that although a girl could get married at
the age of 14 years, she cannot have legitimate marital intercourse until she reaches the age of
16 years131.
Customary law may allow young girl to married at the age less than 14 years under
customary marriage as opposed by Marriage Act. This depends on the physical appearance of
the girl. If she is physically fit, than the girl can get married. However, customs also
recognizes that young children are considered too young for the hardships of marriage and
need to be protected. The physical, psychological and social hardships of early marriage and
marital sex and the serious negative impact of premature and hazardous132. Thus the custom,
to some degree has prohibited the early marriage of the child.
Furthermore, Lukautim Pikinini Act has outlawed child marriages and provides that child
marriages or children under 18 years cannot be married in PNG. It is a breakthrough for PNG
because back in the villages, young girls get married at an early age133.
The general view as prescribe under s.229G applies to all marriages. Lawful ‘marital’
intercourse cannot take place between them until the girl reaches the age of 14 at least 134. In
situations where very young girls were force to get married under custom is inhuman and
should not be enforced according to Sch 2.1 of the Constitution135.
E. RAPE
The sexual penetration of a person without his/her consent is a rape according to s.347 of the
Code. The normal penalty of rape under s.347 applies when the person against whom the
crime committed is above the age of 16 years. However, if it involves a person under the age
of 16 years, then it constitute a new offence of ‘sexual penetration’ of a child regardless of
the presence or otherwise of consent136.
In relation with the previous Criminal Code which state ‘Carnal knowledge’ to restrict the
penetration to the penile penetration of the vagina. The amened Code has now expanded the
meaning of the penetration to include penile as well as the non-penile penetration of the
vagina, anus or mouth of the person against whom the offence is committed137. Now the
offence can be committed by both sexes thus both males and female can be the victims in the
129
Section 229G of the Criminal Code Act 1974, provides that “A person is not criminally responsible for an
offence against this Division in respect of an act if, at the time of the act, the child was of or over the age of 14
years and the person was married to the child.”
130
The child must be atleast 14 years or above in order for the protection of the Marriage to apply.
131
Any sexual activity within the marriage before the girl reaches the age of 16 years is an offence against the
Criminal Code Act, 1974.
132
133
Eric Kwa (2018) National News Paper October 26, 2018, Helen Tarawa Editor.
134
R v Ulele [1973], above n82 at p20
135
Custom will not be applied and enforced if, and to the extent that, it is inconsistent with the Constitution, or a
statute, or ‘repugnant to the general principles of humanity’. Additionally, s 3 of the Customs Recognition Act,
Ch. 19, provides that customs which, if applied and enforced would result in injustice, or infringe public interest
requirements or be contrary to the best interests of a child under the age of 16 years will not be recognized.
136
137
Ibid n91
29
society. Therefore, the new law138 caters for the change in the society by including both
genders.
The offence carries a penalty of imprisonment up to 25 years or imprisonment for life

depending on the age of the child and aggravating circumstances. It is expressly stated under
s.347 (2) of the Code.
F. INCEST
The Criminal Code Act, 1974 previously provides under s.223 about incest. It provides that
incest could only be committed by persons who are related by blood to each other. Thus
excludes sexual intercourse between a man and his stepdaughter, adopted daughter, niece,
first cousin or aunt.
However, the amended Code139 under s.223(2) widened the meaning of incest by including
‘close blood relative’ to mean a parent, son, daughter, sibling (including a half-brother or
half-sister), grandparent, grandchild, aunt, uncle, niece, nephew or first cousin, being such a
family member from birth and not from marriage or adoption 140. It is obvious from s.223 (2)
that sexual penetration of adopted or stepchild is not captured in the new law hence it is not
an incest. However, appropriate charges may be laid for any crimes against children under the
new law.
It is intended that the new law or provision of incest are meant to apply only to the consenting
adult ‘blood’ relatives. They are not meant to cover situations of incestuous rape or when the
act of incestuous sexual penetration is committed against a child 141. If the situation turns out
to be an incestuous rape or incestuous act of sexual penetration is inflicted upon a child under
the age of 18 years, the relevant provision under new law will apply to hold the culprit
accountable respectively.
As discussed above, the Post Courier of Tuesday 26th June 2018 reported with headline, ‘Man
gets 27 years for incest’. That was a classic example of incestuous rape or sexual penetration
in our country. The facts revealed that his incestuous relationship with his daughter led to her
conceiving and giving birth to 7 children, the youngest was 5 months old at the time of
reporting. From this incestuous relationship the perpetrator again subjected his eldest
daughter/granddaughter to forceful sexual intercourse that resulted in her giving birth to a
baby boy at the tender age of 14. The 47-year-old man was sentenced to 27 years
imprisonment after he pleaded guilty to 2 counts of incest.142
The Presiding Judge, Justice Frazer Pitpit, added that ‘’the offence is prohibited by the three
sources of laws namely, criminal, Christian principles and customary law throughout the
entire country.’’ This act of incest has been perpetrated across 2 generations by the very
person who has been entrusted with their care and upbringing, who has for reasons known
138
Amended Criminal Code Act 1974 called Criminal Code (Sexual Offences and Crimes Against Children) Act
2002
139
Criminal Code Act (as amended), above n127 at s.223
140
Ibid n127 at s.223(2)
141
142
Femili PNG’s Case Management Centres (CMC) support survivors of family and sexual violence, Above
n50 at p4
30
only to himself or for self-gratification has left emotionally scarred children who will be
subjected to the ridicule and stigmatisation of something that was not of their doing.143
143
31
Chapter 4
Laws and Criminalisation of Child Sexual Abuse in PNG
A. INTRODUCTION
The Criminal Code Act specifically provides the platform to criminalise sexual abuse of
children specifying their age limit under Criminal Code (Sexual Offences and Crimes Against
Children) Act 2002. The amendment mainly protects the rights of the children from sexual
abuse and violence in the criminal justice system and also replace the outdated colonial
provisions with a new set of offences.
Likewise, the customary law also chip in to coin with criminal law in prohibiting incestuous
behaviour. The Criminal Code as amended under s.223 criminalised the act of incest. The
same was also a taboo under customary law and is forbidden from the society. Sexual
relations between parent and child and between brother and sister are, with very few
exceptions, universally forbidden and everywhere not mentioned without a shudder (Luluaki:
2003).
B. CRIMINAL LAW AND ITS APPLICATIONS
The Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 – Amended by
Act No: 27 of 2002 is the current law in force, thereby any offences committed will be
prosecuted using the aforesaid law. The provisions which are not repealed or amended
remained in full force together with the new provisions provided under amendment No: 27 of
2002.
The amendment of Criminal Code144 was intended to give more protection for the vulnerable
children the protection they deserve in the society regarding sexual abuse and related offence.
It is therefore tightening up the provisions concerning sexual associated offences that relates
or involve children.
The Criminal Code was amended, Dame Kidu presented the bill and argued; first, that the
reforms created the opportunity to remove and replace the colonial origins of the previous
law, which was not reflective of local culture and tradition; secondly, that the reforms
enabled PNG to meet some of the international obligations created by ratification of CEDAW
and the CRC and at the same time provided the opportunity to introduce a contemporary
human rights approach to sexual violations against women and children; thirdly, that such an
approach had already been integrated into the criminal legislation of Commonwealth
countries, including the former colonisers, and that the reforms would provide PNG with an
opportunity to join Commonwealth countries on an equal footing; and finally, that the
reforms would acknowledge and reinforce the important role of Parliament in ‘shaping the
changing values of PNG’ and ‘re-defining the limits of acceptable behaviour’.145
The criminal law existed to define the limits of acceptable behaviours in the society. It is to
prevent unacceptable behaviour and gender – based violence. The target is to limit the sexual
violence of all forms in the society. Although there are other provisions regulating
144
Criminal Code Act, 1974
145
PNG, Hansard, National Parliament, 11 October 2001, 30–2 (Dame Lady Kidu)
32
unacceptable behaviours, sexual offences are the most prevailing issues thus the focus is on
limiting sexual violence offence.
The amendment of Criminal Code proves the government’s commitment to address

prevailing issues affecting vulnerable population in the society is addressed. Despite social
statute and other level of category a person occupies in the community, they are all subject to
the same Criminal Law.
C. CUSTOMARY LAWS
There are always taboos in every society. They identify certain, though not all, forbidden
forms of sexual congress as particularly dreadful, attracting both human anger and
punishment.146 Customary Law strictly prohibits the sexual relations between close blood
relatives. It is an incest taboo and with very few exceptions, universally forbidden.
The taboo extends to operate together with customary law suitable for each society to prohibit
sexual relationship with very young children by older person. There are few exceptions and
this is related to child sexual abuse. Children could be allowed to undergo initiations when
the foreskins are circumcised for boys and tattooing of the young girl’s thighs and breast in
preparation for the performance of customary ceremonies. Anything apart from customary
recognised and organised activity is a taboo (Elizah Harol, Personal Communication, July
26th, 2014).
D. EXCEPTIONS RELATED TO CRIMINAL LAWS AND CUSTOMARY

LAWS
Generally, there are no exceptions under Criminal Code. It is evident under s.209 of the
Code (as amended) which expressed that;
Except as otherwise expressly stated, it is immaterial, in the case of any of the offences specified in this
Division committed with respect to a person under a specified age, that the accused person did not
know that the person was under that age, or believed that the person was not under that age.
If the offence are committed against a person under a specific age which the law categorised
it as child in PNG, then the accused person have no exception to face the full force of law
according to the severity of the case.
In cases where the victim reaches the age of consent, the exceptions may available but limited
to certain circumstance. The age of consent varies considerably between and amongst
jurisdictions although generally it is between the ages of 14 and 16 years.
In PNG, there are only three situations in which exceptions may be made or considered, in
favour of an accused, to the general rule concerning sexual offences against children. Firstly,
it is related to an honest mistake as to the actual age of the child. The accuse accused believed
on reasonable grounds that the child was of or above the age of 16 years. Thus, as was the
case under the old law,147 s.229F of the new law states that ‘it is not a defence to a charge
146
JY Luluaki (2003) Incest and Marriage Prohibitions: Implications of recent changes to the law against incest
under Papua New Guinea’s Criminal Code. Republished by permission of the International Survey of family
Law.
147
S.216, Criminal Code Act
33
under the Division that the child consented unless, at the time of the alleged offence (a) the
accused believed on reasonable grounds that the child was aged 16 years or older’.
Secondly, it is related to the ages of offender and victim. This exception is due to recognition
of sexual experimentation by young children as part of growing up under many common law
jurisdictions. It would be inappropriate to criminalize it. However, such exceptions are
available to children with age difference of two (2) years.148
Finally, the third one is related to marriage. The state of being married to a person under the
age of consent at the time of the objectionable sexual act has been recognized by the law 149 of
many countries as operating to protect the offending person from criminal prosecution150
Comparably, the customary law also have some exceptions relating to the issues of child
sexual penetration and abuse. Customary law allows a child to get married disregarding the
age as long as the girl is physically fit and capable of performing her responsibilities as a
married woman. In that regard, sexual penetration is protected despite the age of the child.
However, Criminal Code only protects the child of or over the age of 14 years 151 and if the
child is less than 14 years, the operation of law still applies to the offender of the adult
husband. The same view is stated by Luluaki that:
It is commonly held view, customary law also prohibits the marriage of very young girls and that
instances of betrothal which have often been confused with marriage have in part been responsible for
this conclusion. Instances where marriages have taken place involving very young girls are therefore
exceptions to the rule and it is clearly inappropriate to convert this into something amounting to a
norm or rule.152
Importantly, the customs recognised the hardship of young children to involve in marriage
due to physical, psychological and social hardships of early marriage and marital sex thus
providing an exceptions where only the ones that are physically fit may get married.
E. CHILD RIGHT UNDER INTERNATIOAL AND DOMESTIC LAWS
Human rights are inherent to all human beings, regardless of nationality, place of residence,
sex, sexual orientation, or ethnic origin, colour, race, political belief, economic status,
religion, age, language, or any other status. We are all equally entitled to our human rights
without discrimination (Universal Declaration on Human Rights).
The PNG Constitution is the supreme law of the land. Parliament must ensure that all laws
are consistent with the Constitution. It gives the rights and freedom to every citizens. These
rights are categorize under Basic Rights (s.32 – s.34 of Constitution), Fundamental Rights
(s.35 – 37 of Constitution) and Qualified Rights (s.38 – 56 of Constitution).
These are the basis of human rights and includes women and children because the
Constitution provides for the equality of citizens under section 55153.
148
S.229F(b)
149
For example, s. 45(4), Victoria Crimes Act, 1958 (as amended) (Australia); s.5, Criminal Code Act, Cap 42
(Nigeria)
150
JY Luluaki ( 2003-04) 29, above n8 at p19
151
S.229G of the Criminal Code (as amended)
152
153
PNG Constitution, s.55
34
Section 55. Equality of Citizens.
(1) Subject to this 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.
(2) Subsection (1) does not prevent the making of laws for the special benefit, welfare, protection or
advancement of females, children and young persons, members of underprivileged or less advanced
groups or residents of less advanced areas.
(3) Subsection (1) does not affect the operation of a pre-Independence law.
Therefore child rights are engraved into our Constituion and is not isolated from the
international conventions that are discussed hereunder.
1. International Conventions and Instrument
International Conventions are legal instruments in which notion of peace and security are
essential elements for the realisation of the right to development. All state that are member of
these conventions do adopt certain provisions into their domestic laws in areas which best
suit their citizens need.
Papua New Guinea convinced that the full and complete development of a country, the
welfare of the world and the cause of peace require the maximum participation of women and
children on equal terms with men in all field.154
Therefore, women and children require special attention to be levelled with their input in
developing a country. In that circumstance, the international conventions do play an
important role in protecting women and children and promote their rights.
1.1 Convention on the Rights of Children
The Convention on the Rights of Children (CRC) is the most widely ratified human rights
convention. It deals with the child specific needs and rights. There are specific protection
rights in the convention which include protection from all forms of child abuse, neglect,
exploitation and cruelty.
Articles 34 and 35 of the Convention says governments should protect children from all
forms of sexual exploitation and abuse and take all possible measure to ensure children are
not abducted, sold or trafficked.
The provisions in the Convention are improved by the Optional Protocol on the sale of
children, child prostitution and child pornography.
According to the General Assembly resolution 44/25 of 20 November 1989, 194 countries
have ratified the Convention, including every member of the United Nations except the
United States.155
154
United Nations (1979) Convention on the Elimination of All Forms of Discrimination against Women New
York, 18 December 1979
35
1.2 Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) is a milestone document in the history
of human rights. Drafted by representatives with different legal and cultural backgrounds
from all regions of the world, the Declaration was proclaimed by the United Nations General
Assembly in Paris on 10 December 1948156 as a common standard of achievements for all
peoples and all nations. It sets out, for the first time, fundamental human rights to be
universally protected and it has been translated into over 500 languages in the world (UN
UDHR: 1984).
As it relates to the child rights, Article 1 dictates that all human beings are born free and
equal in dignity and rights. Everyone including children are entitled to all the rights and
freedoms set forth in this Declaration, without distinction of any kind, such as race, colour,
sex, language, religion, political or other opinion, national or social origin, property, birth or
other status.157
Also Article 25 and 26 provides the basis of child protection for himself and of his family,
including food, clothing, housing and medical care and necessary social services, and the
right to security in the event of unemployment, sickness, disability, or other lack of livelihood
in circumstances beyond his control. Furthermore, their rights to education shall be free, at
least in the elementary and fundamental stages.
Therefore, children have rights to be protected and be educated as stated earlier and also
stipulates in Article 28 of UDHR.
1.3 Convention on Elimination of all forms of Discrimination Against Women
The Convention on Elimination of all forms of Discrimination Against Women (CEDAW) is

an international treaty adopted by United Nations General Assembly in 1979. The convention
is structured in six parts with 30 articles.158 CEDAW is a global human rights treaty that
should be incorporated into national laws as the highest standard for women’s rights. All UN
member states have ratified it to set in place mechanism to fully realize women’s rights.
There are two resolutions made and they are Resolution 1325 and Resolution 1820. The
Resolution1820 links sexual violence as a tactic of war with the maintenance of international
peace and security. Hence the security councils of CEDAW has adopted a strategy to make a
concrete protection and prevention of sexual violence.
155
European Commission (n.d) The United Nations Conventions on the Rights of the Child (CRC), Available
at: https://ec.europa.eu/anti-trafficking/legislation-and-case-law-international-legislation-united-nations/united-
nations-convention-rights_en
156
United Nations (1948) Universal Declaration of Human Rights: Shaping our future together, Available at:
https://www.un.org/en/universal-declaration-human-rights/
157
Universal Declaration of Human Rights, Article 2
158
Convention on the Elimination of All Forms of Discrimination against
Women. www.ohchr.org. Archived from the original on 7 May 2015. Retrieved 8 May 2015.
36
The parts of convention that really includes sexual violence are Part I (Articles 1-6) focuses
on non-discrimination, sex, stereotypes, and sex trafficking. Other parts of the convention
generally describes economic and social rights of women. It also outlines their rights to
equality in marriage, politic, representation and decision making.
Papua New Guinea has adopted most of these international conventions and integrate them
into its law. Thus those international conventions are important as our domestic legislations.
2. Domestic laws
The domestic laws and policies on child protection is vital in our region as most of the abuse
cases are of domestic nature. Although there are international conventions on child
protection, there is no guarantee that those convention would be enforced until they are
adopted into our domestic legislations.
For that matter, adoption of international convention into our laws are very important. The
key provisions in international convention could be adopted into our legislation for possible
enforcement and application.
2.1 Constitutional basis of child rights
The PNG Constitution specifically grant the rights to every citizens. The fundamental right
stipulated under section 36 of the Constitution protects all citizens including women and
children from torture (whether physical or mental), or to treatment or punishment that is cruel
or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human
person.
Children have rights under the Constitution to be free from inhuman treatment (s.36
Constitution), freedom from forced labour (s. 43 Constitution), freedom from expression
(s.46 Constitution) and equality (s.55 Constitution).
In line with the Constitutional provision, CSA has been considered to be the most prevalent
issues which responsible for the degradation of human dignity especially those who fall
victim to the crime. According to Industrial Psychiatry Journal 2017, the victims of CSA
suffers multiple effects of physical and psychological problems both medically explained and
unexplained.159
Another aspect of the child protection lies with the current laws of the country. Children are
human beings and deserved the same protection of law as that of adult citizens. It is appellant
from section 37 of the Constitution that every person has the right to the full protection of the
law.
Hence other forms of resolutions and/or mediation (compensation payments for criminal
matter) especially that of CSA and related crimes should be abolished and accorded to the
full force of the law and judiciary for remedies.
159
K. S Amresh, B.K Sagar, S.S Sushma, A.D Avinash (2017) Child Sexual Abuse and development of
psychiatric disorders: a nerobiological trajectory of pathogenesis, Industry Psychiatry Journal 2017, Available
at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5810166/
37
2.2 National Child Protection Policy
The National Child Protection Policy (NCPP) promotes child protection within PNG. It exist
to protect children from imminent harm and works to ensure effective response if harm to a
child is ever suspected or detected.
The NCCP contains informations that is useful for the guidance and protection of the children
in PNG taken into consideration, the principles of United Nations Convention on the Rights
of the Child (CRC), PNG law (including the Lukautim Pikinini Act 2015) and contextual
knowledge and experience.
In addition to its primary function of child protection, it ensures that child protection is
clearly promoted to all citizens in order for them to facilitate the prevention of child abuse
occurring within PNG. It also promotes organisational culture of child safety and ensure that
all parties are aware of their responsibilities for identifying possible occasions for child abuse
and for establishing controls and procedures for preventing such abuse and/or detecting such
abuse when it occur.160
Moreover, it provide a clear statement forbidding any such abuse and clear guidelines for
child protection incidents or allegations. Hence NCCP is a handy tool that has CSA reduction
mechanism which PNG could uphold.
2.3 Early Childhood Care and Development Policy
Early Childhood Care and Development Policy (ECCDP) was an important step taken by the
national government in 2007 to address child welfare and literacy problems. It is important to
equip the children at an early age with basic education so that when they grow, they can grow
with and develop their learning further. Early childhood care and development is the effective
way of educating children on the danger of CSA and where to get help if they fall victim of it.
The introduction of elementary education by the Department of Education was also a way
forward for PNG because qualified teachers are engaged to educate the children at their early
age. Other private early childhood learning centres are now joining hands with the
governments in private – public partnership to harness and the education capability of the
children to lower the low illiteracy rate and instil basic education for the young children in
PNG (Harricknen: 2009).
Now that more mothers are joining workforce, their children cannot be left alone at home for
predators. It is very dangerous for children to be at home alone since being alone has a
greater risk of child been abused.161
Therefore early childhood learning center and elementary schools are of greater value to
parents who are both employed to provide quality, homely care and learning environment for
the children.
160
FemiliPNG (2016) Lukautim Pikinini Gut Long Birua: Child Protection Policy, last updated: 5 November
2016
161
Helen Harricknen (2009) Early childhood education, the way forward for PNG, The Nationalnewspaper,
September 18th 2009, Available at: https://www.thenational.com.pg/early-childhood-education-the-way-
forward-for-png/
38
Chapter 5
Agencies involved in law enforcement
A. General law enforcing organizations
There are number of agencies involved in protecting the vulnerable population of the
community. The obvious ones that are established under Constitution162 to protect and bring
justice to the society are Police Force and Judiciary163. Another state agency that plays vital
role in states part to take care of offenders who are sentenced to prison is the Correctional
Services (CIS). Their role is not dominant but the part they play poses an important portion of
the offender’s rehabilitation.
The current specified division of Police Force called Family Sexual Violence Unit (FSVU) is
now mandated to specifically deal with family sexual related violence. This unit is intended
to be a police station entry point where specially-trained officers can respond to cases of
family and sexual violence in an appropriate and sensitive manner, as well to refer victims
towards essential services and police departments for further investigation.164
The courts specifically National and Supreme courts165 provides justice for the victims and
punishes the offender accordingly. It acts as the only hope where victims of sexual abuse
could find remedies. Only the courts weigh out the cases and charge the offenders
accordingly. The offenders who are sentence are sent to correctional institutions for
rehabilitation programme.
Furthermore, Non-Government Organisation (NGO) are also actively involved in child

protection. The obvious NGO that is vibrant in child protection is United Nations
International Children's Emergency Fund (UNICEF). It supports the Government to
strengthen national and sub-national child protection systems and also aid the law and justice
sector, including the informal village court services, to establish a more child-friendly and
gender-sensitive justice system for all children who come into contact with the law.166 On the
other hand, Conventions on the Rights of the Child (CRC) was a push factor that influence
the involvement of all agencies and passage and amendment of Criminal Code Act.
Other NGOs that responsibly participate in child protections are FamiliPNG, Save the
Children, OXFAM, and World Vision PNG.
1. Authority authorised under constitution
The state services involved in protecting the vulnerable population of the community are
Police Force and Judiciary. They are apparently established under Constitution to protect and
bring justice to the society. The Police Force as established under s.188 (b) of the
162
Constitution, section188(1)(d)
163
Ibid at section 99(c)
164
Justice Services and Stability for Development Program (2015) “Investment Design for the Justice Services
and Stability for Development” Australian Department of Foreign Affairs and Trade [online] Available at
<https://dfat.gov.au/about-us/grants-tenders-funding/tenders/business-notifications/Documents/investment
design-png-law-justice-support.pdf> [10 January 2016]
165
Constitution, section 163
166
UNICEF (n.d) Papua New Guinea Child Protection, Accessed: 23/05/19 , Available at:
https://www.unicef.org/png/activities_4362.html
39
Constitution have the primary responsibility to preserve peace and good order in the country
and enforce the law in an impartial manner. They also have special functions to lay, prosecute
or withdraw charges in respect of offence under s.197 (2) of the Constitution. The current
specified division of Police Force called Family Sexual Violence Unit (FSVU) is now
mandated to specifically deal with family sexual related violence.
The courts specifically National and Supreme courts are established under Constitution s. 163
and are given judicial authority in interpreting the law and give paramount consideration to
the dispensation of justice in prosecuting the abusers under s.158 of the Constitution. The
other courts established under s.172 of the Constitution also have duty to step in where
required from time to time.
2. Judiciary and Courts
The National Judicial System is the judicial arm of the Government of Papua New Guinea
and is established by the Constitution, various Organic Laws and enabling Acts of
Parliament. The other two "arms of Government" under the Constitution are the Legislature
and the Executive.167
The National Judicial System consists of the following:
1) The Supreme Court of Justice;

2) The National Court of Justice;
3) Other Courts established under Section 172 of the Constitution, including the entire
District Courts and Local Courts, Military Courts, Taxation Courts, Coronial Courts,
Mining Warden Courts, land Courts, Traffic Courts, Committal Courts, Grade five
courts, etc.
In order for the National Judicial System to effectively plan and exercise the people's judicial
powers and functions, it held a number of strategic planning workshops and retreats involving
the judges and the management of National Judicial Staff Service. From those retreats and
planning sessions, the national judicial system mission statement, core values, goals, and
strategies were designed, developed and adopted.168
3. Government organisation
The foundation of the development strategy was first laid in 1973 at the self-government
period. Chief Minister Micheal Somare (Currently Grand Chief Sir Micheal Somare)
commission the development of what became known as the Eight Aims and later renamed
Eight Point Plan. It was a statement of intent by the founding fathers of our nation who
wanted to build a peaceful and harmonious society as well as to prosper and empower our
people. The objectives under the Eight Point Plan are:
 Increased indigenous participation in economy;

 Equality amongst ethnic groups, gender and between areas;
 Greater attention to rural and village development; and
167
National & Supreme court of PNG (2017) About The Court: Judicial administration, Papua New Guinea,
Available at: https://www.pngjudiciary.gov.pg/about-the-courts
168
Ibid
40
 Self-reliance
Now the same Eight Point Plan was transformed into Vision 2050. This is to chart a new
development course to fulfil the dreams of our founding fathers and to ensure that the correct
mechanisms are in place for our country’s future.
This mechanism refer to are development policies and service delivery guidelines which the
government departments are solely responsible. The National Goal and Directive principle
number 2 – Equality and Participation, as embrace by vision 2050 is the goal PNG will work
to achieve.
Therefore government departments are the national sign post obligated to archive the society
free from abuse and harassment and ensure equality in every opportunity for every individual
to participate. Prevalence of CSA and FSV at high rate is of bad sign and PNG government
through its departments need to seriously address the issue aggressively to the achievement of
vision 2050 and other short term development plans.
4. Other organisation
Papua New Guinea has many non-governmental organisations (NGOs) involved in all sectors
of national development, notably in education, health, the environment and infrastructure
development. Civil society plays a key role in Papua New Guinea’s development strategy.
Some of the primary local NGOs include World Vision PNG and FamiliPNG which provide
skills and capacity development for community base sexual violence advocates, Family
Support Centre (FSC), which specialised in providing special care for those who fall victims
of sexual violence and child abuse in the community; and the Individual and Community
Rights and Advocacy Forum (ICRAF), an NGO based in Port Moresby that deals with human
and land rights issues.
There are also other international NGO who are committed in reducing escalation of family
sexual violence and CSA in PNG. Those international NGOs include OXFAM International,
Medecins San Frontiers (MSF), UNICEF, CRC, World Vision International and Save the
Children.
B. STATE SERVICES
1. Police
The Royal Papua New Guinea Constabulary (RPNGC) has mandated by the Constitution
under s.188 to preserve peace and good order in the country and enforce the law in an
impartial manner. It is the responsibility of the police force to investigate into any criminal
matters committed against the state. As Child Sexual Abuse169 is a criminal offence, it is the
responsibility of the police personal to investigate and prosecute on reporting of cases by
victims.
The inclusion of FSV170 unit in the police hierarchy is an achievement and indication of the
higher rates of sexual violence and abuse in our region 171. The prevailing issue of sexual
169
Includes sexual penetration, Pornography, Sexual grooming, child prostitution etc.
170
Family Sexual Violence Unit
41
violence is the result of traditional system and belief held the view that women and children
were properties and is normal for husband to assault their wives and beat up their children.
The police force have the constitutional duty to ensure that justice prevails against those who
are caught committing the punishable offence.
It is because of the financial power imbalance between husband and wife or children that
cause the women and children to ignore the sexual abuse in the home. 172 As a result most of
the case were unreported or if it reaches the court, the women withdraw the case (Abeid. M,
Muganyizi. P, Pia.O, Darj,E: 2014).
The police force have a vital role in collection of information and evidence in preparation for
prosecution. They have the limit in pursuing cases. Where they stops, public prosecutor takes
over and prosecute the offenders in courts. Therefore, it is very important for the police and
public prosecutor to work in unity for the successful deliberation of justice to the victims of
CSA.
1.1 Lack of police services
A lack of legislative protection and support, combined with a general lack of confidence in
the police and formal justice system, also contribute to the under-reporting of family and
sexual violence.
Survivors need dedicated spaces within police stations for trained officers to respond to
family and sexual violence cases in an appropriate, sensitive and effective manner. However,
while FSVUs were created for this purpose, some provinces still do not have any (14
provinces out of 22 have established Family and Sexual Violence Units) with a total of only
17 for the whole country173
In addition, Papua New Guinea’s entire police force is understaffed. The UN recommends a
ratio of 1 to 400 police officers to the population, but in PNG it is three times lower, at 1 to
1200.174 Furthermore, stories from survivors reveal that police officers outside the Family and
Sexual Violence Units and Sexual Offences Squad remain under-trained or under-committed
to deal appropriately with this type of violence.
Incidents of police misconduct also fuel distrust in the formal justice system, leading to
continued disengagement from reporting and pursuing criminal proceedings. In the last three
months of 2015 alone, 41 officers in the capital, Port Moresby, were suspended on
171
Since 2006 provinces reported 14, 000 cases of Family Sexual Violence (FSV), at the 18 FSV units and 46
desk nationwide. NCD alone reported 2013 FSV cases between December 2017 and October 2018. Out of the
reported cases, 195 arrest were made, 11 convictions were reported and 203 Interim Protection Order (IPO)
were issued and some arrest were made for IPO breaches. 960 cases were referred to several referral partners
such as the FSC, Welfare, Safe house, Village Court, lawyers and police. (Post Courier, December 11 th 2018 )
172
Abeid. M, Muganyizi. P, Pia.O, Darj,E (2014) Community perceptions of rape and sexual abuse: A
qualitative study in rural Tanzania,(online) Available at:
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4144322/ .
173
Consultative Implementation & Monitoring Council (2015) ‘Guidelines for Family and Sexual Violence
Providers in Papua New Guinea, Annex H’, Institute of National Affairs, Papua New Guinea: Port Moresby
174
Chandler, J. (2014) ‘Violence against women in PNG: How men are getting away with murder’, Lowy
Institute for International Policy, [online], 29 August 2014, Available at: <http://www.lowyinstitute.org/
publications/violence-against-women-png-how-men-are-getting-away-murder> [07 January 2015]
42
misconduct charges, while more than 1,600 complaints of police abuse were reported over a
seven-year period.175
Many survivors of family and sexual violence have told MSF staff that their dealings with
police were met with apathy or dismissive attitudes, at best, and with corruption, aggression
and even violent abuse, at worst. It is telling that one in ten adult women – 10% (13/129) –
who sought treatment in the Port Moresby centre following sexual violence in 2014 and the
first six months of 2015 reported that the perpetrator was a member of the police or military
(Medecins San Frontiers : 2016).
Even when police do follow up a case and it makes it to court, the prosecution of perpetrators
remains ad hoc, as shown by statistics from Lae, Morobe province, where the probability of a
sexual violence case involving a female being successfully prosecuted was just 1 in 338,
while one involving a child was 4 in 192.176
Sexual Offences Squads are in charge of investigating sexual offences and incidents of major
physical violence. However, there are not enough Family and Sexual Violence Units or
Sexual Offences Squads in the country, there are not enough adequately trained police
personnel, and there are too few police stations in rural areas.
1.2 Family and sexual violence units and sexual offences squad
Family Sexual Violence Units (FSVUs) and Sexual Offence Squad (SOS) within PNG police
force was the main attempt to improve the response towards survivors to access justice. It
was mainly funded under AusAid programme particularly through the PNG-Australia Law
and Justice Partnership (PALJP).
The aim was to establish as many FSVUs in the police station nationwide. In 2015
specialised Family and Sexual Violence Units had been established in 17 police stations.177
The FSVU is intended to be a police station entry point where specially-trained officers can
respond to cases of family and sexual violence in an appropriate and sensitive manner, as
well to refer victims towards essential services and police departments for further
investigation.178
175
Radio New Zealand International (2016) ‘41 police officers suspended in PNG's capital in three months’
[online] [5th January 2016] Available at: <http://www.radionz.co.nz/international/pacific-news/293542/41-
police-officers-suspended-in-png's-capital-in-three-months> [10 January 2016]
176
Howes, S. and Lokuge, K. (2013) ‘Sexual violence in Lae: impunity and resistance’ Development Policy
Centre [online] Available at: <http://devpolicy.org/sexual-abuse-in-lae-impunity-and-resistance-20130319/>
[10 January 2016]
177
Department for Community Development, (2014) ‘Papua New Guinea National Review on the
Implementation of the Beijing Declaration and the Platform for Action and the Outcomes of the 23rd Special
Session of the General Assembly’, p.23 cited in Human Rights Watch (2015) ‘Bashed Up: Family Violence in
Papua New Guinea’, [online] 4 November 2015, Available from
<https://www.hrw.org/report/2015/11/04/bashed/family-violence-papua-new-guinea> [10 January 2016]
178
Justice Services and Stability for Development Program (2015) “Investment Design for the Justice Services
and Stability for Development” Australian Department of Foreign Affairs and Trade [online] Available at
<https://dfat.gov.au/about-us/grants-tenders-funding/tenders/business-notifications/Documents/investment
design-png-law-justice-support.pdf> [10 January 2016]
43
A recent evaluation of FSVUs provides that they are not allocated resources in police budgets
and also not formally recognised within official police structures. Additionally, they are
under-staffed, and in some cases, under-trained.179
According to Sergeant Ruth Murup, many perpetrators of FSV and CSA were being allowed
to walk free due to gaps in the police response to the FSV. On many occasion, many did not
make it to prosecution in court. This could be for reasons such as the lack of correctly filled
out paperwork or the absence of crucial documentation, such as medical reports (Legend FM:
2018).
However, positive changes are underway. A strong committed individuals from different
organisations are trained and will be deployed to their respective provinces and regions for
improved coordination (Abraham Cletus, Personal Communication, October 30th, 2019).
As part of the efforts to improve FSV services, RPNGC and Office of Public Prosecutor
(OPP) recently organised an FSV Investigation and Prosecution Training for 32 police
officers and staff from the public solicitor’s office and office of public prosecutor based in
Lae180.
Moreover, FSVUs and Sexual Offence Squad (SOS) are equipped and specialised in the
police department to deal with FSV and CSA related offences. They receive complaints,
investigates cases, assist survivors to obtain protection orders and connects survivors to
another service providers.181
Serious assaults such as those that are sexual in nature (including child sex offences) are
referred to the Sexual Offence Squad (SOS) or, in its absence, the local CID. In making
investigations, it is also important to involve lawyers to identify important evidence for SOS
and CID to make investigation on so that those evidence could be vital in prosecution.
Therefore, Chief Superintendent Anthony Wagambie Junoir expressed that FSVUs, SOS,
CID, OPP and lawyers should work together in combating FSV, CSA and other sex related
offences in PNG for successful results (Legend FM: 2018).
2. Courts
The courts' function is to adjudicate legal disputes between parties and carry out the
administration of justice in accordance with the rule of law. The courts' role is to determine
disputes in the form of cases which are brought before them.
One of the major functions of the courts is to give justice to the people whenever they may
approach it. It awards punishment to those who after trial are found guilty of violating the
laws of the state or the rights of the people.
179
GDH Pty Ltd (2015) Evaluation of the RPNGC Family and Sexual Violence Units, Available at:
180
Legend FM (2018) Lawyers and police officers set to prosecute family and sexual violence cases, Media
release, October 24, 2018, Available at: https://www.legendfm.net/blog/lawyers-and-police-officers-set-to-
prosecute-family-and-sexual-violence-cases
181
Legend FM (2018), Above, n170.
44
2.1 Village Court
In Papua New Guinea, traditional village courts sit within the formal system and are legally
not authorised to determine criminal matters such as rape or murder, which should always be
referred to the district or national courts (Francis Kako, Personal Communication, September
19th, 2019).
Due to the costs, insecurity and time associated with travel create disincentives to use the
formal system for some, and render it impossible for others. The police also face their own
logistical and budgetary barriers to enforcing the law in remote areas – due to shortages of
fuel or vehicles182 or reluctance to travel to areas with little government presence where
police are not welcome.
However, interview with Korfena Village Court Magistrate183 reveal that these logistical
barriers are merely one factor in the complex, interconnected reasons for the continuing
under-reporting of violence against women and children and the strong reliance on the village
court system, including for serious domestic and sexual crimes.184
As with domestic violence, cases of physical abuse of children are also often dealt with by
village courts. Sexual violence cases should not be tried by a village court, but in practice this
also still occurs.
Village courts need increased training to take survivor-focused realities more fully into
account. Deeper awareness is required among parents and guardians of children who have
been sexually abused about the importance of pushing for legal proceedings rather than
simply accepting compensation, in order to protect the child from further distress and danger
if the perpetrator remains in the community or household.
Moreover, most of the cases relating Child sexual Abuse are settled in village courts. This is
because of the relationship between the abuser and the victim or to protect the integrity of the
community and the tribesman or clan. However in such cases, village courts do face difficulty
in deciding remedies. In most cases, remedies decided by village courts are based on customs
and does not fully help the victim recover from the trauma faced.185
2.2 District Court
The district courts in PNG are located only in provincial capitals, and with more than 80% of
the population living in rural areas, a journey to the police or court can mean several days of
travel. Hence access of District Court is a costly exercise.
Sexual violence offences mainly falls under criminal law and are considered to be a crime
under criminal law. Therefore any sexual related offence follows the normal court procedures
in District Court.
182
Human Rights Watch, (2015), ‘ Bashed Up: Family Violence in Papua New Guinea’, Human Rights Watch
Report Summary (online) (4th November 2015) Available from
https://www.hrw.org/report/2015/11/04/bashed/family-violence-papua-new-guinea [10 January 2016]
183
Francis Kako, personal communication, September 19 th, 2019, Korfena Village Court Magistrate, Eastern
Highland Province.
184
Ibid n168
185
Ibid n168
45
In District Courts the case is called by the police prosecutor. The defendant takes their place
in the dock. The charge is read by the court and the defendant enters a plea. If the plea is a
“guilty” plea, the police prosecutor reads the statement of facts, then both the defence and the
police prosecutor make submissions on the appropriate punishment.
If the defendant pleads “not guilty”, the police prosecutor will open the prosecution case by
presenting evidence through witnesses. In a hearing, the evidence is presented and then
witnesses may be cross-examined or asked questions about their story. The prosecution tells
their story first, and then the defence may cross-examine the witness. Because people take an
oath or affirmation to tell the truth, it is important that all evidence given or presented is the
truth. Where it is suspected that the evidence is false, the witness can be charged with a
serious offence called “perjury”.186
At the close of the prosecution’s case, the defence may make a no case to answer submission
if they hold the view that there is not enough prima facie evidence to call the defendant to
answer the charge. The magistrate will then make a ruling on whether or not the defendant
has a case to answer. If the magistrate rules that there is no case to answer, the charge against
the defendant is dismissed.187
If the magistrate rules that there is a case to answer, the defendant can elect to do one of the
following. The defendant can elect to say nothing and remain silent, give an unsworn
statement from the dock which means they are not subject to be cross-examined, or give a
sworn statement from the witness box and be subject of cross-examination.188 In addition, the
defence may call other witnesses to give evidence in support of the defence case. Where the
witnesses give sworn statements, they are also subject to cross-examination by the police
prosecutor.
Submissions on verdict are then made to the court and the magistrate will decide on whether
there is sufficient evidence of proof beyond reasonable doubt to find the defendant “guilty” or
“not guilty”. If “guilty” the magistrate passes the appropriate sentence or penalty. If “not
guilty”, the case is dismissed and the defendant is discharged.
The defendant in a committal case does not formally enter a plea in open court. The
magistrate however, considers whether there is sufficient evidence from the police hand-up
brief and decides to either refuse to commit, or to commit the defendant to the National Court
for trial before a judge. The magistrate will only send the accused to the National Court for
trial if there is prima facie evidence. Bail may be reviewed at the first mention in the National
Court.189
However, through a request of the Police Prosecutor or a complainant, the Public Prosecutor
on looking at the evidence in an indictable case may decide to present an ex officio
indictment to the National Court. In that case, the defendant may stand trial, and the
witnesses will be required to give evidence.190
186
Office of Public Prosecutor (2008) GOING TO COURT: A guide to understanding the criminal court
processes in Papua New Guinea.
187
Ibid
188
Ibid
189
Ibid
190
Office of Public Prosecutor (2008), above, n167
46
In relation to summary offences, or an indictable offence triable summarily, the defendant
may plead either “guilty” or “not guilty”. If the defendant pleads guilty, the facts are read to
the court, and if satisfied, the magistrate convicts the defendant. Then there is consideration
by the magistrate of the good things about a defendant that can help in deciding to reduce the
penalty.191 The prosecutor will outline the matters the magistrate should take into account on
sentence, including the impact of the crime on the victim and the appropriate type and range
of sentence. Either the defendant or their lawyer may also outline matters that a magistrate
can take account of when sentencing. Then a decision is made by the magistrate about the
penalty.192
2.3 National Court
The National Court is a Court of original jurisdiction, and can deal with all sorts of cases,
both criminal and civil cases, except for those types of cases that are restricted to the
Supreme Court. However, in reality it cannot deal with all cases it is capable of hearing due
to jurisdictional limitations placed by various statutes.193
All the cases that come before the National Court are of Criminal or Civil Nature. In other
words they are either a civil case or criminal case.
The CSA offence falls under criminal cases, hence, prosecuted by the State while in the civil
case; it is the plaintiff who prosecutes their case to get the remedy they claim for in their
complaint.
The offence of CSA starts off with a complaint in police station like any other criminal cases
in the National Court and there the police investigate and then lay appropriate charges against
a person for an Offence. The person is then brought to the district court committal process. At
the end of this process, once the police investigation files are ready, this is then submitted to
the district court Magistrate who will go through the file. The Magistrate then decides
whether there is a case for the accused person to answer in the national court. If it is decided
that there is a case for the accused to answer, that person is then committed to the National
Court. If not, the accused person is released of the charges.
Almost all criminal charges are brought about under the Criminal Code Act (as amended).
So, in the National Court, the criminal case prosecution process commences when a person is
committed to the National Court194.
191
Office of Public Prosecutor (2008), above, n167
192
Ibid
193
For instance, it cannot deal with criminal cases under the Summary Offences Act or deal with civil cases, the
monetary value of the claim is up to K10, 000-00. This is because the District Court Act gives jurisdiction to the
District Courts to deal with them.
194
National & Supreme Courts of Papua New Guinea(2017) Criminal Cases, Accessed: 6/08/19 Available at:
http://www.pngjudiciary.gov.pg/national-court/criminal-cases
47
C. STATE AGENCIES
1. Hospitals
In CSA cases, medical report of sexual penetration is very important for prosecution. As
developing country in the southwest Pacific region, CSA remains a neglected and under-
reported problem. Even if it was reported to the appropriate authorities such as the police,
there is often a lack of appropriate channels within the law and justice sector to appropriately
address CSA due to lack of evidence (Abraham Cletus, Personal Communication, October
30th, 2019).
The United Nations Children’s Fund reports PNG as being a country with a significant
burden of community based physical abuse ranging from 40 to 75%.195 However, there have
been no published data on the burden of child maltreatment presenting in the form of sexual
abuse, physical abuse and neglect leading to hospitalization in this setting.196
CSA is a dangerous form of abuse in our community and to combat such issues needs
cooperation from different agencies involve. Thus the General Hospital in PNG should have a
designated ward or section dedicated to deal with only sexual abuse medical checks and
treatment. That will help produce evidence for the police to pursue the cases in courts and
punish the perpetrator accordingly.
Since 2013, Family Support Centre (FSC) was established by the Provincial Health Authority
or Hospital Management to combat high rate of family sexual violence in PNG.
Thereafter, National Department of Health published an essential tool to guide hospitals

throughout the country on how to establish FSCs. These centres have been established in a
number of the country’s provincial hospitals, with a commitment to adopt and provide the
minimum ‘five essential services’ as their model of care.197
Many provinces in the country still do not have a FSC providing the minimum package of
five essential medical services. The National Department of Health considers that 16 FSCs
exist in the country,198 but acknowledges that of these, only seven are fully functional, while
the others are reported to function partially or not at all.199
2. Family and Sexual Violence Action Committee
The Family and Sexual Violence Action Committee (FSVAC) is a sectoral committee of the
Consultative Implementation and Monitoring Council (CIMC). FSVAC is mandated to look
into the problems associated with family and sexual violence and to come up with concrete
195
UNICEF. Measuring and monitoring child protection systems: proposed core indicators for the East Asia
and Pacific Region. In: Strengthening Child Protection Series No 1.Bangkok: UNICEF EAPRO: UNICEF,
2012.
196
Journal of Tropical Paediatrics, (2016) The Burden of Child Maltreatment Leading to Hospitalization in a
Provincial Setting in Papua New Guinea. Accessed: 30/07/19 Available at:
https://academic.oup.com/tropej/article-abstract/62/4/282/2223588 by guest on 12 April 2019
197
198
Papua New Guinea’s National Department of Health (NDoH), (2015) ‘Mapping of Family Support Centres
in Papua New Guinea’ - document provided by the NDoH to MSF on 31 July 2015
199
ibid
48
ways of addressing the problem in Papua New Guinea (PNG). CIMC-FSVAC is comprised
of representatives from the government, private sector, non-government organizations,
churches and development partners in which World Vision Papua New Guinea (WV PNG) is
a member.200
Guidelines for Family and Sexual Violence Providers in Papua New Guinea are coordinated
by the National FSVAC, with partners including MSF, these guidelines were designed to
assist provinces to develop their own referral pathways – i.e. linkages between key services,
agencies and groups needed to work together to assist survivors of violence to access the full
range of services required.201
In urban areas, application of the referral pathway remains inconsistent. In rural areas, a
meaningful pathway does not exist in most provinces.202 CIMC-FSVAC in partnership with
WVPNG is also implementing the legal literacy project under the Papua New Guinea
Leadership Against Gender-Based Violence funded by European Union.203 Their approach is
designed to involved community advocates and educators to corroboratively work to reduce
family sexual violence, CSA and other gender base violence.
3. Consultation Implementation and Monitoring Council
The Consultative Implementation and Monitoring Council (CIMC) as the name suggest, is an
independent organisation that brings together civil society, the private sector and government
partners to develop policy and directly influence and monitor government decision making
for the long-term development of Papua New Guinea.204
It was established for a purpose of consultative mechanism so that recommendations made by

the wider community would be followed up within government circles by the CIMC and
ensure their implementation through law and policy205.
The goal of the CIMC is to ensure that dialogue, through the ongoing consultation processes,
is sustained between government, private sector and the community at large and the
recommendations made to government through this process are implemented.206
It is administered by the Institute of National Affairs, a private non-profit research institute

providing alternate advice to that provided by the public service to ensure it is efficient and
free from political influence. CIMC is considered a relevant mechanism to facilitate policy
and development because it creates dialogue platform for private sector and civil society to
express their opinions concerning government policy and legislation and to bring government
to the people.
200
CIMC (2016) Introduction to Human Rights Law – Papua New Guinea
201
Medecins San Frontiers (2013) Comprehensive response to family sexual violence is critical, Press release,
25 November 2013, Available at: https://www.msf.org/papua-new-guinea-comprehensive-response-family-and-
sexual-violence-critical
202
Human Rights Watch (2015) ‘Bashed Up: Family Violence in Papua New Guinea’, [online] 4 November
2015, Available from <https://www.hrw.org/report/2015/11/04/bashed/family-violence-papua-new-guinea> [10
January 2016]
203
Ibid n171 at p5
204
CIMC (2014) CIMC News, Available at: http://www.cimcpng.net/index.php/about/what-is-cimc
205
Ibid
206
Ibid
49
In such situation, there are opportunity for private sector and civil society to contribute in
development of policy and legislation. This is where NGO and civil societies pushed on to
legislate laws relating to FSV and CSA in PNG.
CIMC also blows out awareness of different issues affecting our country. The most
outstanding awareness is on sexual abuse. Family sexual violence leading to wife beatings are
the worst topic which the CIMC is readily making awareness on.
4. Government Departments
In Papua New Guinea, there are several government department collectively involved in
successful reduction of sexual violence and CSA. These government department help
provides data and information for effective policy making in their respective areas to comply
with international obligation under CRC, UDHR, and CEDAW especially Part I (Art 1-6) of
Resolution 1820.
The department that is currently leading in youths and child protection policy drafting and
reviewing of legislations is the Department for Community Development and Religion. There
has been an apparent amendment and repealing of legislations such as Criminal Code Act and
Lukautim Pikinini Act to ensure that women and children are protect in the society.
This departments that are discussed hereunder are the ones that have input in some kind of
policies or legislation drafting and dissemination of those information and laws to the general
population of the country with or without the national governments fund.
4.1 Department for Community Development and Religion
The Department for Community Development and Religion (DfCDR) is the major
government department that is at the fore front and leading in proposal of legislations and
amendment of existing legislation like criminal laws, Lukautim Pikinini Act and Juvernile
Act.
There are also policies that are constructed under its supervision. These policies integrate
important international conventions on child welfare and rights. The policies include Early
Childhood Development Policy (ECDP) and National Child Protection Policy (NCPP).
It also establishes National Office of Child and Family Services (NOCSF) which basically
provide guidelines to protect the rights of children and welfare issues of family. Its prime
functions is to implement LPA and child protection policy within the state bodies.
4.2 National Office of Child and Family Services
The National Office of Child and Family Services (NOCFS) is a custodian to statutory
functions on Child and Family Services (CFS). The office has significant responsibilities
within the Department and the State. NOCFS protects the rights of children and welfare
issues of families through provisions of services by implementing the Lukautim Pikinini Act
(LPA) and the Child Protection Policy. The National Child Protection Policy embraces and
guides LPA.
50
The Department for Community Development and Religion (DfCDR) oversees the activities
conducted by NOCFS since it has been structured to work under DfCDR. This gives the
direction to NOCFS to implement and embrace DfCDR policies.
NOCFS gives prominence to the vision statement of the National Child Protection Policy;
‘Protect Children, Secure Future’ with specific policy definitions surrounding the primary
objectives and core principles of the LPA to guide the implementation of programs.
It also take lead in mobilising local communities and marginalised groups in order to enhance
productive living and an ongoing process of human development in such a way that would
reduce FSV and CSA.
4.3 Department of Education
Papua New Guinea Department of Education mainly controls and supervise the
implementation and teaching of subjects in the school. Under the education system, there are
certain levels of education.
First level is the elementary education level where first stage of formal education begins. It
consists of an Elementary Preparatory Grade, Elementary Grade 1, Elementary Grade 2 in the
language of the child’s community. These three years of education prepare a child for entry
into primary school at Grade 3.207
The subject taught where English, Mathematics, Language and Culture & community. There
are no substantive subject related to sexual abuse and related matter though it could be
included in culture & community (Tanumei Personal Communication April 25th, 2019).
Another level of education is primary education. Primary education begins at Grade 3 and
finishes in Grade 8. The sub – category in primary education are called lower primary and
upper primary. Lower primary comprises grade 3 to 5 and upper primary from grade 6 to 7.
Subjects taught in lower primary are Language, Arts, Maths, Health, Environmental Studies
and Physical Education. In upper primary, Language 1&2, Arts 1&2, Maths 1&2, Science
1&2 Making a Living 1&2, Personal Development 1&2 are taught.208
The third level of education is called secondary. It is also subdivided into 2 category called
upper secondary and lower secondary. Lower secondary ranges from grade 9 to 10 and upper
secondary starts from grade 11 to 12. The subject components slightly varies.
Lower secondary are taught agriculture, arts, business studies, design technology, English,
mathematics, personal development, science and social science while in upper secondary,
subject taught are accounting, applied English, Natural Resource Management, Applied
Science, Biology, Business Studies, Chemistry, Design Technology, Economics, General
Mathematics, Geography, Geology, History, ICT, Language & Literature, Legal Studies,
Music, Personal Development, Physical Education, Physics, Theatre Arts, Tourism, and
Visual Arts.209
207
PNG Department of Education (2018) Papua New Guinea Education News: List of PNG School syllabus,
Available at: https://edu.pngfacts.com/png-education-resources/list-of-png-school-syllabus <29/10/19>
208
PNG Department of Education (2018), above, n192
209
PNG Department of Education (2018), above, n192
51
It is noticeable from the subjects listed that there is no specific subject listed as sexual abuse
or related subject. Although it may be assume to be included in other subject likes personal
development or physical education, it will not provide substantive knowledge for the children
at the secondary level because this is where most of the children are abused (Tanumei
Personal Communication April 25th, 2019)..
Having looked at the different levels of education in PNG. There are no specific subject that
could help educate the children about the basics of sexuality and sexual abuse behaviours.
That is the most probable reason for increasing issues of CSA and related violence in PNG.
4.4 Department of Health
The Department of Health (DoH) as the prime health regulatory body in PNG has an
important role in dissemination of health services and health regulations policies. It has a role
in reduction of CSA and FSV since these problem at most results in physical injury.
Currently the major hospitals in PNG does not have specialised unit where CSA and FSV
victims could admit for their medical examination, consultation and counselling. Since CSA
and FSV involved a lot of psychological problems, the victims needs urgent counselling upon
medical examination. The FSC established in some of our hospitals are funded by NGOs
specifically Medecins San Frontiest (Dr Batia Phil, Personal Comunication, October 15,
2019).
It is important for the DoH to create specialised unit in our existing hospitals for the CSA and
FSV victims because most victims never attempted to be examined and counselled in fear of
being stigmatized.
Therefore creating specialised unit for the CSA and FSV in the current existing hospitals
would encourage the victims to admit and access counselling and other health services to
restore them.
In doing so, the medical examination will ensure that their medical reports will be available
for other remedies that the victim or state may want to pursue. It will also help the hospital to
record the data. These data will help the national government in its planning and other health
service delivery plans.
D. NON-GOVERNMENT ORGANISATION
The government agencies that are mandated to protect and secure safe society for the citizens
were not performing their duty as expected. We have authorities like police, Judiciary, and
legislative arms of government to help draft, passed and execute laws. However, due to lack
of funding, most of their core functions were not executed.
Having financial problem and lack of management has contributed to the escalating law and
order problem, resulted in rape, child sexual abuse, child pornography and other related
issues discussed above.
The non-government organisation in our regions are the most reliable agencies most victims
turned to and this are to name a few, FemiliPNG, FSVAC Secretariat, UNICEF, CRC,
52
OXFAM International, World Vision International and Save the Children. The UNICEF has
involved a lot in supporting national efforts to improve legal and policy frameworks
including the development of the Child Protection Act and Child Protection Policy &
Strategy.210 Additionally, UNICEF has supports the establishment of provincial Family and
Sexual Violence Action Committee, Juvenile Justice Technical Working Group as well as the
Child and Family Services Council.211
The CRC has established the core of child protection internationally and PNG is not an
exception. It is for this reason, both the government and non-government organisations are
oblige to do whatever they can to minimise the cause of child abuse and increase the avenue
to protect the vulnerable population in the society. The result of the needs identified has
encouraged other local NGOs like Agape Child care, Ginigoada Foundation Inc and Humpty
Dumpty Kindergarten to rise.212
Save the Children has given its support in educating the children by improving learning
outcomes for children aged 4-8 through improved school readiness, enhanced quality of
teaching in literacy and numeracy and a focus on school completion for girls and children
with disabilities213. The focus of the organisation is to help children know what is wrong and
could be reported and what is right for them. It also includes the awareness of their rights as a
child.
Their teams comprises of ambitious, professional and experienced people and spread across
NCD, Morobe, East Sepik, Eastern Highlands and the Autonomous Region of Bougainville.
210
UNICEF, Papua New Guinea Child Protection, Accessed: 23/05/19 , Available at:
211
Ibid n111 at para 10, p2
212
Child care centre located in Port Moresby, Boroko.
213
Papua New Guinea - Save the Children's Resource Centre, Accessed: 01/08/19 From:
https://resourcecentre.savethechildren.net/countries/papua-new-guinea
53
Chapter 6
Summary and Recommendations
Child Sexual Abuse is an ongoing issue faced by many countries even developed countries.
The cause differs according to the needs and situation of the perpetrator. In PNG, most sexual
abuse occurs within the family settings or clan where elderly clan or family members take
advantage of their imbalance of power to suppress younger ones (Tanumei, Personal
Communication April 25th, 2019).
Although, child sexual abuse is a criminal offence, most of them never reached National
Court due to fear exerted from the family survival if the father is the perpetrator. The weight
of looking after family without father in situations where father is the only bread winner
influence most cases to be withdrawn from the courts even the serious cases in fear of the
father being sent to the prison.
Sometimes, illiteracy contributes a lot in commission of child sexual abuse. Most of the
sexual abuse occurs intentionally, however only few occurs unintentionally. Sometimes
children sexually interact with each other. That is normal as it is part of growing up but it is
not normal when adult person is interacting with a child.
Therefore, it is very important for every individual to have basic knowledge on what is child
sexual abuse and its related behaviour which will constitutes sexual abuse of other forms.
Recommendations
1. The Police Unit of Family Sexual Violence currently existing in the police
Department be revised and include a unit specialised in Child Sexual Abuse so, the
specialized unit could concentrate on any child sexual related cases reported until the
offender is brought to court.
2. Improving and strengthening the application of Criminal Code Act to Child Sexual
Abuse and clarifying police powers relating to the offence of sexual abuse
investigation and if offence occurs in the family premise, consider appropriate charges
to charge the offender by ensuring that offenders cannot pressure victims into
dropping charges and by introducing more appropriate sentencing.
3. The content and forms of abuse be included into the syllabus of our education system
so that the schools can teach the children from early stage, the forms of child abuse
and where in the community, towns and cities the victims can seek help and also
where to and whom the abuse can be reported to in the community.
4. All traditional or customary remedies (eg: Compensation) to child sexual abuse

should be prohibited by a national legislation. The same legislation should authorise a
system in which child sexual abuse cases should be managed starting from the time
when the case is reported to the police station, hospital, parents as related to the
recommendation 3 above.
54
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Chapter 1

B. LEGAL DEFINITION OF CHILD SEXUAL ABUSE

C. WHAT CONSTITUTES CHILD SEXUAL ABUSE

D. THE HARD FACTS AND ROOT OF CHILD SEXUAL ABUSE

1. Statistics from Port Moresby General Hospital – Family Support Centre

2. Eastern Highlands Provincial Hospital – Child sexual abuse statistics

According to paediatric study of CSA in children’s outpatient at Goroka General Hospital,

3. Public Prosecutor’s figure

E. LEGISLATIVE FRAMEWORK OF CHILD SEXUAL ABUSE

1. The old Criminal Law (Criminal Code Act 1974)

3. Cybercrime Code Act 2016

Section 18. Child Pornography

Section 19. Child Online Grooming.

4. Lukautim Pikinini (Child) Act 2015

5. Family Protection Act 2013

A ‘family member’ is:

6. Juvenile Justice Act 2014

B. SEXUAL CRIMES AND ABUSE OF CHILDREN

1. Penetrative sexual crimes

2. Non-penetrative sexual crime

3. Persistent sexual abuse

It is an offence whether the act complained of is of same nature or not, as long as it is

C. COMMERCIAL SEXUAL EXPLOITATION OF CHILDREN

Pornography is a prevailing form of commercial sexual exploitation in PNG. Pornography

The offence carries a penalty of imprisonment up to 25 years or imprisonment for life

B. CRIMINAL LAW AND ITS APPLICATIONS

The amendment of Criminal Code proves the government’s commitment to address

D. EXCEPTIONS RELATED TO CRIMINAL LAWS AND CUSTOMARY

E. CHILD RIGHT UNDER INTERNATIOAL AND DOMESTIC LAWS

1. International Conventions and Instrument

1.1 Convention on the Rights of Children

1.3 Convention on Elimination of all forms of Discrimination Against Women

The Convention on Elimination of all forms of Discrimination Against Women (CEDAW) is

2.1 Constitutional basis of child rights

2.3 Early Childhood Care and Development Policy

Furthermore, Non-Government Organisation (NGO) are also actively involved in child

1. Authority authorised under constitution

2. Judiciary and Courts

The National Judicial System consists of the following:

1) The Supreme Court of Justice;

 Increased indigenous participation in economy;

1.1 Lack of police services

2.2 District Court

2.3 National Court

Thereafter, National Department of Health published an essential tool to guide hospitals

2. Family and Sexual Violence Action Committee

3. Consultation Implementation and Monitoring Council

It was established for a purpose of consultative mechanism so that recommendations made by

It is administered by the Institute of National Affairs, a private non-profit research institute

4.1 Department for Community Development and Religion

4.2 National Office of Child and Family Services

4.3 Department of Education

4.4 Department of Health

4. All traditional or customary remedies (eg: Compensation) to child sexual abuse

Criminal Code Act 1974

Batia Phil (2019) Personal Communication – Gynaecologist in Port Moresby General

Elizah Harold (2014) Personal Communication – President-Central Student Association,

Books and Articles

Allanie Rero,Jimmy Aipit,Tina Yarong-Kote,Villa Watch,John W. Bolnga, Robert

Australasia Sexual Health and HIV Conference (2016) NATIONAL RESPONSE TO

CIMC (2016) Introduction to Human Rights Law – Papua New Guinea

Convention on the Elimination of all Forms of Discrimination against women (2015)

Hadibaiatok (2016) FAMILY & SEXUAL VIOLENCE ACTION COMMITTEE ,

Hayes. S,(n.d) SEXUAL VIOLENCE AGAINST INTELLECTUALLY DISABLED