The
social issue associated with child marriages is child abuse. Child abuse is an
act committed most often by parents or caregivers which endangers a child or
young person’s physical or emotional health or development. Child abuse is not
usually a simple incident, but takes place over time (HELP Resources Inc,
2005:23). When a child is involved in early child marriage to adult husband they
are prone to abuses associated with physical, emotional, sexual and neglect. The
perpetrator of child abuse in early marriage is usually the adult husband but
sometimes can be from husband’s family. There is a strong relation between
bride price and abuse. Bride price reinforce the notion
that women are men’s property, thus providing an excuse for violence (Amnesty
International, 2010).
Physical
abuse occurs when a person purposefully injures or threatens to injure a child
or young person. This may take the form of slapping, punching, shaking,
kicking, burning, shoving or grabbing. The injury may take the form of bruises,
cuts, burns or fractures.
Emotional abuse is a chronic attack on a child
or young person’s self esteem. It can take the form of name-calling,
threatening, ridiculing, intimidating or isolating the child or young person.
Neglect
is the failure to provide the child with the basic necessities of life, such as
food, clothing,
shelter
and supervision, to the extent that the child’s health and development are
placed at risk.
Child
Sexual Abuse occurs when an adult or someone bigger and/or older than the child
uses power or authority over the child to involve the child in sexual activity.
Physical force is sometimes involved. The
Criminal Code, amended in 2003, prohibits rape including spousal rape. The same
law prohibits sexual harassment and child sexual exploitation (JICA ,2010:6). Contact offences
include touching and fondling through to sexual penetration. Noncontact
offences include verbal sexual harassment, indecent exposure, ‘peeping’ and
exposure to pornography. Therefore the two main components of child sexual
abuse are:
·
An
abuse of the unequal power relationship between a child or young person and an
older,
bigger or more powerful person, which usually includes a betrayal of the
child’s
trust
·
The
sexual activity –actual, attempted or threatened – between a child or young
person,
and
an older, bigger or more powerful person.
“The
commercial sexual exploitation of children (CSEC) is a fundamental violation of
children’s rights. It compromises sexual abuse by the adult and remuneration in
cash or kind to the child or a third person or persons. The child is treated as
a sexual and commercial object. The commercial sexual exploitation of children
constitutes a form of coercion and violence against children, and amounts to
forced labour and a modern form of slavery” (HELP Resources Inc, 2005).
The three primary forms of CSEC
are:
·
child
prostitution;
·
child
pornography; and
·
trafficking
in children for sexual purposes.
Other forms include:
·
child
sex tourism; and
·
child marriage for the purposes of
sexual abuse or sexual exploitation.
PNG
is a country of enormous cultural diversity with 836 distinct indigenous
languages and many areas still very remote and isolated. Degrees of exposure to
and participation in new social and cultural institutions vary across the
country. Citizens’ awareness and comprehension of state law and administration
varies, according to the outreach and effectiveness of the formal government
institutions and staff. People’s accountability to state administrative and
legal systems depends on the extent to which they access and enjoy services, security
and protection from government administrative and legal institutions. It is not
possible to generalise about any aspect of traditional culture in PNG. Levels
of literacy, education, employment, incomes, mobility, contact and
communication with the outside world vary among districts between provinces.
Every setting is different. Sweeping political and economic changes of the last
century have wrought radical social and cultural changes. The extent to which
citizens and communities have been impacted by these changes depends on their
proximity to and participation in new social and economic institutions and
structures, as well as the values promoted, standards advocated and the
behaviours modelled and encouraged by local community leaders (HELP Resources Inc,
2005). Therefore based on these facts it is highly emphasis that if a new law
is to be developed to protect child marriages in PNG it must be effective made
known to all the people of Papua New Guinea. This is because citizen’s
awareness and comprehension of state law is the key to effectively protecting
children against early child marriages.
Traditionally
child marriages were seen normal and culturally right in most or all tribes in
Papua New Guinea. Legal pluralism can be defined as multiple laws co-exist
within a single environment. For example in PNG we have the Traditional Justice
System and the formal justice system. Since legal pluralism exists in Papua New
Guinea children’s rights must be considered when comes to the issue of early
child marriage. The issue of child marriage has made most Papua New Guineans to
come in conflict with the laws under the formal justice system. This is because in the formal justice system
the laws under PNG Marriage Act, §
7 (1963) stated that the Marriageable age is a male person is of marriageable age if he has
attained the age of 18 years and a female person is of marriageable age if she
has attained the age of 16 years. This
formal law on eligible marriage age is quite contradictory with the traditional
justice system laws as most tribes in Papua New Guinea’s traditional laws do
not based marriage time on age but rather based on the physical biological
development of a child. For examples most traditional tribe based eligible
criteria of marriage on puberty; girls having developed breast, having
menstruation and developed pubic hair. For boys is having developed deep voice,
facial and pubic hair.
This
can be supported by literatures as most research shown that many societies in
PNG based marriage criteria or maturity on puberty. Muruans (east of the
Trobriand Islands) celebrated a marriage soon after the intended partners
reached the age of puberty” (Lyons, 1925:p131). According to Lyons (1924:p58),
however, girls were “immediately handed over to the care of older prospective
husbands” and female infants were taken into the care of some female relative
of her affianced “until she attains puberty”.
Sexual
maturity was thought to be facilitated by coitus (Berndt, 1962:p87). South
Coast, describes that the young girl is “subjected at about age eight to ten to
serial sexual intercourse by adult men to procure sexual fluids for rubbing on
the girl’s groom-to-be, “to help him grow”. Herdt, (1985, Guardians of the
Flutes p178-85) reports heterosexual dealings with girl children was believed
to precipitate menstruation. This idea is still commonly encountered by PNGIMR
researchers.
Pre-puberty
intercourse is recorded in Banaro (Middle Keram), where boy’s initiation into
sexual life is experienced at the conclusion of his initiatory rites, with “an
elderly woman” (cf. Haddon, 1920:p255). A minority of societies seem to permit
seduction of boys by older women although in one society where this is thought
to impede the boy’s growth it gives rise to complaints. Strathern, (1979,
p17-8, 21-2) and Thurnwald (1921) relate that wedding customs and puberty
rituals were intimately connected (16-7, 19, 32), specifically, boys were
allowed sexual intercourse only after the rites (p32).
Genital
touching has been recorded by Gillison (1993:p176), Van Baal (1966; cf. Money
and Ehrhardt, 1973 [1996:p132]) and Hauser-Schäublin (1997:p106). Semen passed
from male adults to male children is believed to have many qualities important
to male growth, strength and identity. Boys were inseminated through anal and
oral intercourse either secretly and ritually or more routinely and sometimes
over a long period of time, through puberty and until bearded. Semen could be rubbed
on cuts and during scarification.
Child
betrothal is recorded, however, it does not necessarily mean sexual activity
always took place while the wife was still a child:
•
Betrothal before puberty used to be customary. Goudswaard (1863:p65-6), Gell (1975:p104);
•
Manus girls were betrothed at age 8 or 10 (Mead, 1956:p31);
•
Kewa girls could be married at menarche, but sometimes chosen before puberty
(Franklin, 1965:p417);
•
Kapauku marriageability was measured by “physical appearance” (thelarche), rather
than menarche (Steinberg,
1959);
•
Child marriage was noted among the “Kaowerawédja”, Van Eechoud ([1959]:63) and
among the “Waropen”
Papua
by Huizinga (1937:p436), but this was not noted a decade later (Held,
1947:p99);
•
Gogodala girls usually married when they reach the age of puberty (Lyons,
1926).
However,
with regard to marriage, especially, much social change has occurred since
intense missionisation, especially from the 1920s up till now. There is some
anthropological reference (Janssen, D. F, 2002) to perceptions of younger
children as more exciting sexual partners. However in the contemporary context,
social perceptions have already been greatly influenced by the importation of
Western notions of physical beauty as evidenced in Miss PNG beauty contests,
routine urban nightclub competitions (Ms Wet T-shirt, etc) and the influx of
western and Asian pornography (mainly through pirated DVDs, satellite TV access
and the Internet) (HELP Resources Inc,
2005:23). At a meeting of Oceanic anthropologists (Hawaii, 2005) issues
of gender violence were discussed. Some consensus was reached about the link
between PNG’s deep and widespread social breakdown and increasing crimes of
sexual violence against women and girls, but all agreed that this is an area that
warrants more attention and analysis (HELP Resources Inc, 2005:23).
There is no set minimum age for
customary marriages as this is dictated by physical maturity rather than
chronological age (CEDAW, 2009:92). The government reported in 2009 of girls as
young as 13 and 14 entering into marriages arranged by parents, other family
members, or village chiefs on behalf of the families(CEDAW, 2009:92).‘Bride-price’
which is an exchange of wealth between the groom’s lineage and the bride’s,
continues to be practiced widely in PNG, particularly in the Highlands and
Papuan Coastal societies (CEDAW, 2009:49). The payment is seen as a major
contributor to domestic violence (JICA, 2010:7)
The United Nations reports, based on 1996 data that 21% of
girls between 15 and 19 years of age were married, divorced or widowed. In
1980, 13% of girls aged between 15 and 19 were married, divorced or widowed
which indicates that societal acceptance of early marriage has increased in
recent decade (United Nations Department of Economic and Social Affairs,
Population Division, 2008) UNICEF
reports that early marriage is more common in rural areas, compared to urban
areas on PNG (UNICEF,2006).
Marriage
is a social relationship between the husband and wife and also in a wider
perspective the social relationship within their nuclear and extended family. In
Pacific cultures especially in Papua New Guinea the concept of extended family
is the norm, where the family is expected to consist of more than just parents,
children and immediate relations such as grandparents but it includes all the
other extended social relations. The early child marriage is a social issue and
must be captured quite well in developing any legal framework in protecting a
child. This is because in PNG cultural context these social relationships of
the nuclear and extended family plays a vital part in the upbringing of a child
and what is expected of a child since they are one family. This to an extent
can sometimes be abuse in the case of early forced child marriage. Whether the child
likes it or not she or he must get married. Those social relationships are the
implementer of traditional law of early child marriage. It is strongly emphasis
that the formal law is directed to those social relationships so that it prevents
such forced early marriage. The better laws we have on protecting a child must
be based on guiding all the social relationships to the child.
PNG is lagging far behind in achieving most of the Millennium Development
Goals. Poverty is reported to be increasing in both urban and rural areas. Some
indicators, particularly those for health, show deterioration, while in other
areas, such as education and promoting gender equality, there is little or no progress
towards meeting the targets by 2015 (Asian Development Bank, 2003).
Women’s
role in PNG’s politics and decision making remains very low. Constitutional
provisions for the participation of ‘nominated’ women representatives to all
levels of government, are intended to compensate women’s negligible electoral
success, but are unevenly and inconsistently implemented. Sex scandals among
political, administrative and religious leaders are regularly reported in the
newspapers and involve allegations, protests and court cases regarding alleged
of multiple wives, mistresses, child brides and allegations of sexual assault
committed against women and under-age girls. Public outrage is usually
short-lived and quickly dissipated. Male political and administrative leaders commonly
practice polygamy, or openly have many sexual partners, usually without public
or legal sanction. In many rural areas of PNG, households are headed by women.
This is the lasting legacy of recruitment of cheap male labour for coastal and
island region colonial plantations from 1890-1975, mostly from the Sepik
Provinces and later from the Highlands provinces. Continuous circular male
migration from these areas, regardless of the needs and wishes of wives and
children, has become a family and community norm. Men travel in search for
work, markets and a reprieve from the routine and rigorous manual labour of
village life. The structure of the PNG economy stimulates and sustains male
migration. Most employers do not provide accommodation for employees, let alone
family accommodation. (HELP Resources Inc, 2005:12).The PNG minimum wage is not
adequate to support a family on largely imported, store-bought foods, let alone
other living expenses. Long absences from their families, of men aged 15-50
years, are tolerated and accommodated. Jenkins (1993 and 1994) reports that
male migration facilitates the introduction of new social values, attitudes and
behaviours and erodes old customs, penetrating even the most remote parts of
PNG.
Mixed
historical and social experiences affect the way in which village leaders,
police, village and district courts administer, adhere to, enforce, bend or
bypass domestic laws to protect girls and women, and in particular the laws on
sexual violence. An isolated highlands community, where most conflict and
disputes are handled by the Village Courts, may be governed more by customary
law. Village courts do not have jurisdiction over rape or incest cases, yet
often these cases are not referred on to the appropriate levels of the justice
system. Resolution is based on male biased traditions rather than
constitutional and legal rights and global human rights standards. People from
poor communities in a provincial town may, in theory, have access to state
family welfare services and to the police force and courts tasked with
enforcing criminal law. In reality there is no access to effective welfare
services or legal aid for the majority of Papua New Guineans and most citizens
cannot afford to hire a private lawyer (HELP Resources Inc, 2005:12-13)
PNG’s
serious law and order problems inhibit and prohibit development at many levels
and across many sectors. Crime is a key factor in PNG’s vicious cycle of
underdevelopment, poverty and violence. Women and girls are made increasingly
vulnerable to violence in a gender discriminatory social climate. Leaders and
sometimes magistrates and judges tend to blame women and girls and advise
parents to ‘lock up your daughters’ to guarantee their safety, rather than
focus on prosecuting and punishing the violent and sexually abusive behaviours
of boys and men (HELP Resources Inc,
2005)
Furthermore,
complainants operate in a situation of violent threats, intimidation and
silencing by people who, for various cultural, family, economic or political
reasons choose to protect the offender. All social, economic and political
change and development in PNG is gendered. According to HELP Resources Inc
(2005) a clear example given is the ease with which gender discriminatory and
oppressive aspects of the culture and customs of some parts of PNG (e.g. bride
price, child brides, polygamy and compensation for the families of women
victims of violence) have been adopted and assimilated as normative in
societies where they never existed previously. The resulting generalised low
status and diminished rights of women, throughout most of PNG, has terrible
consequences for the quality of male/female relationships and family life, and
is the central contributing factor to the three most critical social problems
facing PNG:
• slow progress toward gender
equality
• rising levels of gender and
sexual violence and;
• a rapidly growing HIV/AIDS
epidemic.
These
three problems define the context of family and community life and the
gendering experience of children growing up in PNG today. In many parts of PNG,
dual systems of customary and state law and administration, and a dual economy
are maintained. Many men, especially in the culturally most male-dominated
parts of PNG, act to manipulate both the traditional and modern political,
economic and social systems of PNG to their own advantage, and enjoy the male privilege
of both worlds. Women and children are often left behind or caught in between.
Village Court is an active and approved institution (in the Highlands region
particularly) that has little or no impact on high levels of gender violence and
child abuse and the increasing commercial sexual exploitation of children
(Garap 1995, 2004).
There
is a problem with inconsistent and unreliable data collection on all crimes,
including sexual offences and other crimes of gender violence. The quality of
data collection is poor and not comparable across agencies or provinces. A
FSVAC initiated pilot program to improve data collection aims to capture data
on any victim of family and sexual violence and is not particularly focused on
child victims. It does however require the age of the victim and offender to be
entered. Once the data is collected it will be disaggregated by age, amongst
other things. Only a limited number of provincial agencies have demonstrated
commitment and capacity to collect data and pass it on for centralised
collation and monitoring. The best data has come from The East New Britain
Sexual Offences Squad and the East New Britain Family and Sexual Violence
Action Committee as well as the Lae and Port Moresby Family Support Centres
based on the grounds of the cities General Hospitals. This data is informative
but not representative, however, it already clearly shows that girls under the
age of 18 years are the main group of victims and crimes of sexual violence are
the main offences (Wainetti, 2005 in HELP Resources Inc, 2005 ).
Parents
in PNG border villages reported accepting large payments of up to K20, 000 for
handing over their daughters as child brides. In 2004 this involved wealthy
adult vanilla farmers from the East Sepik province who were returning from
successful sales in Jayapura. Even though one of these child victims in this
case had already presented at her nearest crisis counseling service in Maprik,
East Sepik, and the counselors there were making efforts to repatriate her. No
charges were being laid against the exploiters.
In
Vanimo, much information about CSEC was discovered in the provincial court
house, police station and hospital. Court officials and nurses complained that
most CSEC cases only come to light when a girl becomes pregnant and tries to
abort or experiences a difficult, even fatal birth due to the mothers’ young
age and small size. Most of these cases involved girls drawn into relationships
with Asian (Malaysian, Korean) logging workers. The police claim that loggers
bring young girls from very remote areas to work and live with them in the
logging camps. The Catholic Family life counselors confirmed these cases,
adding that young, mostly illiterate girls are disguised as domestic workers
and cooks (HELP Resources Inc, 2005:31) Welfare
officers complained that they had reported many cases to the police but there
has been no action. This is a social issue that needs proper attention by law
to protect the young girl.
Where
local men are the perpetrators, police refer the complainant back to the
village court. In some cases these relationships are permitted by the girls’
family when Asian men pay large sums of money to the girls’ parents. The fact
that many families are complicit and have accepted large payments for their
daughters has been documented in World Bank studies on the social Impact of logging
in many parts of PNG (Romaso, personal communication, 2004 in HELP Resources
Inc, 2005:31 ).
More
than almost twenty such cases were known to the Vanimo court. The Sandaun
Council of Women expressed alarm about this common trend in loggers exploiting
local girls with parents’ complicity. Few of these cases resulted in successful
legal action, including maintenance and custody. The majority of cases are kept
out of the court by large ‘compensation’ payments being made by the perpetrator
to the victim’s family (HELP Resources Inc,
2005:31)
Girls
with disabilities are particularly vulnerable. A young Sepik girl from an
offshore island was raised by her deserted mother and was unable to complete
her grade 4 due to lack of money for fees. She is now 16 years old. Her family
accepted bride price of K1, 200 from a 45 year old man and forced her to go and
live with him. This is an issue of CSA and CSEC that NGOs working in support of
people with disabilities could investigate and act to prevent if they
sensitized their workers to this problem of the increased vulnerability and
potential exploitation of children with disabilities (HELP Resources Inc, 2005:
34-35).
Victimized children have various
experiences with the national criminal justice systems. They cannot always
count on the criminal justice system for protection. In terms of combating
violence against children, there often exists gaps and ambiguities in the laws
criminalizing violence to children. Laws tend to be piecemeal, focusing on
specific forms of violence rather than dealing comprehensively with all forms
of violence to children. When the law is in place, there is often weak law
enforcement. This can lead to victim apathy and distrust and avoidance of the
system. In certain situations, such as trafficking in children, corruption
among police and other enforcement officials is cited as a major obstacle (Coomaraswamy, 1997).
Women in Papua New Guinea lag behind
men on across all indicators of gender equality, including education, economic
opportunity, political empowerment and health (JICA, 2010) Women generally
suffer from excessive workloads, mal-nutrition, poor access to safe water and
healthcare services, excessively repeated pregnancies, and high levels of
gender-based violence (JICA, 2010:2) Discriminatory practices such as polygamy,
early marriage and ‘witch hunts’, based on custom, continue to perpetuate
gender inequality in the family, particularly in rural areas (JICA, 2010:2). Gender
inequalities are very much ingrained into the social and cultural institutions
of the country.
With respect to the country’s
HIV/AIDS infection, girls and women are more vulnerable to HIV/AIDS and this
pattern in the infection is linked to their unequal status (CEDAW, 2009:19)
In PNG its tradition that husbands
have more than one partner, but if a wife challenges this arrangement, she
faces the risk of being beaten (CEDAW, 2009:50).The government reported that in
areas where polygamy was customary, an increasing number of women were being
charged with murdering one of their husband’s other wives (CEDAW, 2009:96).There
are also concerns that the practice of polygamy is contributing to the spread
of HIV/AIDS (JICA, 2010:7).The law in Papua New Guinea grants parental
authority to both spouses, who share responsibilities towards their children.
However, the position of the father as the head of the family is deeply
embedded in the complex system of family relationship (CEDAW, 2009:49). Women’s
rights in marriage are limited because of the lack of laws to validate and
regulate customary marriages. Divorce in PNG is based on fault based criteria
including adultery, desertion and cruelty. Women also face discrimination in
proving fault, particularly cruelty and adultery if they choose not to be
witnesses or they do not wish to attend court proceedings (CEDAW, 2009:92). PNG
has adopted the ‘best interests of the child’ as the paramount consideration in
custody disputes after separation and divorce. However, a lack of economic
independence or an inability to gain custody of their children upon separation
forces many women to stay in violent or difficult relationships (CEDAW, 2009:97).
Although national legislation does guarantee equality to men and women in
inheritance, it does not apply to customary land for which inheritance is based
instead on patrilineal lines and can discriminate against women (CEDAW, 2009:95).
Discriminatory practices such as
polygamy and bride price reinforce the notion that women are men’s property,
thus providing an excuse for violence (Amnesty International, 2010). Women do
not report violence due to shame or fear of further violence. Further, police
do not property investigate or prosecute these crimes, based on the idea that
violence against women is a ‘private’ matter (Amnesty International, 2010). Village courts offer no protection to beaten
wives and treat rape as a matter for compensation to the victim’s male
relatives (CEDAW, 2009:80).
Even in matrilineal societies, there
is a dominance of men who do esteem women and include their views in
decision-making, yet ultimately hold the power. In Bougainville, for example,
men who ran the modern institutions overlooked women’s contributions to the
peace process and domestic and local economies. Men in matrilineal societies
are patriarchal in their ways because they are still leaders, so while descent
and the custody of land is traced through women, the right to rule still
remains the prerogative of the men (CEDAW, 2009).
References
Amnesty International (2010) Papua
New Guinea: Update to the Committee on the Elimination of Discrimination
against Women (the CEDAW), Violence Against Women, available at http://www2.ohchr.org/english/bodies/cedaw/cedaws46.htm, accessed 19 February 2011.
Asian
Development Bank. Millennium Development Goals in the Pacific: Relevance and
Progress, March 2003.
CEDAW (2009) PNG State Report (combined initial second and
third) submitted to the CEDAW Committee May 2009 for consideration by the
Committee at its 46th Session, available at http://www2.ohchr.org/english/bodies/cedaw/cedaws46.htm, accessed 19 October 2013 p.12
Coomaraswamy,
R. The Report of the Special Rapporteur on violence against women, its causes
and consequences, UN doc. E/CN.4/1997/47, 12 Feb 1997 and also Human Rights
Watch, The Human Rights Watch Global Report on Women’s Human Rights (1995) p.
196.
Garap, S: Unpublished Field
report on CSEC / CSA in the Eastern Highlands Province, November 2004
HELP Resources Inc, 2005. A
Situational Analysis of Child Sexual Abuse & the Commercial Sexual
Exploitation of Children in Papua New Guinea (Draft). UNICEF, PNG.
Japan
International Cooperation Agency (JICA) (2010) Country Gender Profile: Papua
New Guinea, available at http://www.jica.go.jp/activities/issues/gender/pdf/e09png.pdf, accessed 19 February 2011
Jenkins, C., 2002, Situation Analysis of HIV/AIDS in
Papua New Guinea
UNICEF (2006) Development
Programming and the Well-being of the Girl Child: Report to Accelerate Human
Rights-based Approach to Development Programming in Papua New Guinea, available
at http://www.unicef.org/eapro/Dev_programming_girl_child.pdf, accessed 19 February 2011.
United Nations Department of
Economic and Social Affairs, Population Division (2008) World Marriage Data
2008, available at http://www.un.org/esa/population/publications/WMD2008/Main.html, accessed 20 October 2013.
