The National

PORT MORESBY, Papua New Guinea (March 31) – The family of a 14-year-old Papua New Guinea girl from a settlement in Lae has accepted PGK3,120 [US$1,090] as compensation for her rape by six men.

This tragic incident highlights a problem that is daily becoming more visible – the growing gulf between our adopted laws, and the custom of compensation.

Papua New Guinea is heading for a head-on collision between the constitutionally recognised process of the laws adopted at independence, and a resurgence of allegedly traditional laws.

We say "allegedly," because the application of principles of compensation in the Lae case did not strictly follow what is often called the "Melanesian way."

In the past, rapists were rarely allowed to escape the consequences of their crimes through the payment to relatives of traditional equivalents of K3,150.

They were often killed on the spot, or their clansmen were saddled with ongoing obligations that were demanding and long-lived.

The payment of cash as compensation for the crime of rape will be rejected by many readers. In the western world, there is no equivalent to this procedure. Rapists can expect substantial jail terms to be handed down for their crimes.

The logic behind the Lae customary payment was supposedly "to prevent the escalation of ethnic differences in the settlement".

In principal, that may sound acceptable. In practice, it is doubtful that this will be the result of the payment.

There will soon be those who will claim to regard the payment as insufficient for the crime committed; some will be motivated by exclusion from the payment.

Already a relative of the victim has complained that "decisions made by community leaders to deliver justice for such crimes are not always fair".

The outcome of this tragedy could well be the setting of a "price" for rape.

The role of police in this case is also dubious.

They reportedly assisted in the compensation determination and the settlement of this case.

Is that their role? We think not.

The police force exists not to interpret the law, but to make sure it is followed. Interpretation is the role of the courts and the judges and magistrates who are engaged for that purpose.

It appears that the six men involved in this traumatic rape admitted their guilt to the settlement committee, and that the parents of the men involved "requested that the matter be settled out of court."

That request should not have influenced the policemen.

If they were aware that the six accused had confessed to rape, the perpetrators should have been arrested, taken to the police station and charged accordingly.

Instead, it appears that the law enforcers preferred to accept the arrangements proposed by the parents of the guilty men, in what appears to be a travesty of justice for the victim.

In the very week when PNG celebrated National Women’s Day, a 14-year-old child is raped by six men, and the cost of that rape to the individual men is set at K520 each.

Further, that money is to be paid to the victim’s family.

Given that our Constitution recognises the pre-eminence of the system of justice adopted at independence, there can be little doubt of the illegality of this compensation settlement.

In this case, we believe the six men should be arrested, charged with rape, and sentenced at the discretion of the court.

There have been recent cases where courts have taken compensation payments into consideration when determining penalties; that discretion lies with the judges and the courts.

But the charging of these self-confessed rapists would not appear to be a matter of choice, and certainly should not be determined at the "request" of the men’s parents.

Serious attention must be paid to this thorny issue.

The principle of incorporating customary laws into the imported body of the law is already established.

Assuming the Law Reform Commission still exists, this would seem to be an area for the most urgent recommendations from its members.

As far as the Lae case is concerned, PNG cannot afford to perpetuate the impression that a 14-year-old child can be raped by six men in exchange for a minor cash payment.

Have any of the people involved in this case considered the victim?

April 3, 2006

The National: www.thenational.com.pg/

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