Women and the Law
International Women's Day is celebrated in Fiji this coming Tuesday 5 March
Rights Under Written and Unwritten law
By Nazhat Shameem
Address at “Empowering Women to Wellness” Conference,
Suva, 14th and 15th February 2013
The welfare and health of women are bound to the mental well being of women as much as they are to their physical health. The two are inextricably linked. We women rarely prioritise ourselves in relation to our own health. Brought up to multi task, to put everyone else’s welfare before our own, we forget that our own welfare is the back bone of the family. We are often taken for granted, yet our ill health is capable of bringing our entire families to a standstill. Our legal rights have a close relationship with our position in society. Our traditions tell us that we have not always had any rights at all. Burnt at the funeral pyres of our husbands, buried at birth, killed in our mothers’ wombs when it was found that our mothers were carrying girls, and strangled on the death of our husbands, patriarchy has resulted in grave injustices for women and girls for many centuries and in all cultures. The vote was a long time coming, New Zealand taking the lead in giving women the vote followed by other countries when it was impossible to stop the tide of the suffragette movement. Yet changing the law, stating that man and women are equal under the law, does not create equality. Equality lies in our mind and our hearts. And there are many barriers to equality, our cultural practices, the way we have been brought up, the expectation that society has that we will keep our voices low and our eyes down, and the attitudes of those who lead in our societies. In this paper I will explore some significant changes in the law of Fiji which are intended to empower women, and will discuss barriers to the effective implementation of the law. The law can be changed a thousand times, yet if the attitude of those responsible for implementing it does not change, the law is as useful in building a more equal society as a blank piece of paper.
In ordinary cases before the courts, no witness has less or greater weight than any other. The only cases in which witnesses are seen to be inherently unreliable are those involving the evidence of witnesses who are accomplices. However for over a century in the English legal system, the evidence of women in rape cases was considered to be so unreliable that it was dangerous to convict a man on the evidence of the rape victim alone. This was never in a written law. It was a judge made law. For more than a hundred years, judges were forced to tell juries and assessors that the evidence of a rape victim was considered unreliable on its own and that they should look for corroboration of her evidence, in the absence of which they should be careful about convicting. Since it is very unlikely that rapists will commit rape in front of witnesses, it was very rare to get such corroboration and many people charged with rape were therefore acquitted. Even if we are to say that the judges were wrong to make this rule, and should leave law making to an elected Parliament, the fact remains that generations of Parliaments failed to unwrite the law. They let it go, causing injustice to thousands of women who came to court expecting justice. The law was only abolished by the Court of Appeal in Fiji in 20051, following other countries taking that step, and by the passing of the Criminal Procedure Decree 2009 which provides that the law on corroboration in sexual cases is abolished2. The reason for the reluctance is in my opinion clear. Parliaments, all of which are dominated by men, believed as the judges did, that women who complain of rape are probably lying. I am not saying for one minute that women never lie about rape. But so do some women lie about robbery and theft. So do some men, lie about trespass and fraud. Lying is not a specifically female fault. It is a human fault found in some people, male and female. The law of corroboration placed all women in one category as being likely liars. It reflected a stereotype of women, as being weak, manipulative, spiteful, and dishonest. The consequences of such stereotyping are grave for women all over the world. It excludes them from holding positions of responsibility, and keeps them in a constant state of subordination in relation to men.
The law of corroboration was only one problem for women who were raped. A real hurdle was being able to make a complaint at all. A real barrier for women is lack of access to justice. If they do not earn, and are not well educated, the act of walking to the police station to make a complaint is arduous. Once there, they may encounter hostile and insensitive police attitudes. In the court system, they may encounter similar attitudes from the prosecutor and the judge. There are some judges who mourn the passing of the law on corroboration because they themselves believe that women are liars and are unreliable. If we are to talk effectively about empowering women through legislative change, we should first ask ourselves why women encounter so many barriers to access to justice, and why so many barriers exist in the minds of law enforcement officials. I will return to attitudes in the course of this paper.
Although the law on corroboration has been abolished, and the law now prohibits the cross-examination of victims about their previous sexual history3, the law of recent complaint remains. This law is that although previous consistent statements by witnesses are not admissible, in rape cases they are used to strengthen the evidence of the victim. The assumption is two fold; one that she needs strengthening because she is weak as a witness; and the second that a rape victim is expected to complain as soon a she is raped. In fact we know, as women, that it is very difficult to talk to anyone about rape, and in our cultures, the number of people we can discuss it with is limited. Thus the law on recent complaint, again a judge made law, is based on a belief that the rape victim is in a different category to other witnesses and somehow needs strengthening.
However, despite these remaining difficulties, there have been some major significant changes in the law of rape. Rape was defined in the old Penal Code as a crime against morality. In the 2009 Crimes Decree, it is described as a sexual assault4. This forces us to confront the fact that rape is an assault, a criminal offence. Rape used to be defined as an offence which was committed only against a woman by a man, and only by the penetration of the vagina by the penis. Yet the most dreadful sexual assaults have been committed on women and men, which have included anal penetration by the penis, but also by sharp objects such as sticks and iron rods. Such assaults cause lasting and painful injury, yet in the old law, were simply described as indecent assaults for which the maximum sentence was only two years imprisonment. They are now defined as rape. Under the Crimes Decree5, rape is the penetration of the vagina or anus by an object or the penis, or the penetration of a body part with the penis. It is gender neutral so a boy or man can complain of anal rape. The maximum sentence continues to be life imprisonment, but the courts have set sentencing guidelines of 7 to 10 years imprisonment for the rape of an adult, and 10 to 16 years for the rape of children. We have travelled a long way from the era when judges gave suspended sentences for rape, and when reconciliation between the families could lead to a non-custodial sentence for the rapist. The Crimes Decree creates new offences which are not rape, but are described as sexual assaults6. They include forcing a person to watch obscene images for the purpose of sexual gratification. All these offences need evidence of a non-consensual assault. Consent was not realistically defined under the Penal Code. However under the Crimes Decree7, consent is broadly defined and includes consent obtained by threats, intimidation and through the abuse of power. In the case of child rape, children often submit to sexual intercourse because of the power or authority held over them by the rapist. This is included in the Crimes Decree definition of a lack of consent. In a most significant respect the offence of rape and the offences of sexual assault have been reformed in a positive way for victims of rape and sexual assault. Yet the law will only be effective if those who implement it do so in the spirit of equality and objectivity. Sadly, this has not always been the case.
Trafficking in Women and Children
Human trafficking laws were a long time arriving in Fiji. Our Penal Code only included an offence of abduction of girls under 21, and of slavery. However, human beings have been treated as a commodity for many generations. The blackbirders, and the organisers of the girmit were good old fashioned human traffickers. What is trafficking in human beings? It is the movement of people from one place to another in order that they will be exploited or deceived. Because women and children are the most vulnerable in society, they are most likely to be trafficked. We now have trafficking laws in the Crimes Decree8. The sentence for aggravated trafficking is 25 years imprisonment and there have already been two major cases under these sections. One of them, concluded only last week, involved the trafficking of girls from Thailand to Fiji9. The girls were told that they would work as masseurs. When they arrived in Fiji, they found themselves forced to work as sex workers. In sentencing the offenders, all foreign nationals, to terms of up to 11 years imprisonment, the High Court Judge Mr. Justice Madigan said;
“The victims being ladies from poor families in Thailand were very vulnerable and impressionable. They were promised very good money for massage work in a place that was described to them as a paradise,” living by the sea with private yachts moored nearby”; only to arrive here and find themselves isolated, threatened and forced to perform sexual acts against their will while living in small hotel rooms far from the resorts described to them in Thailand.”
It is likely that in any further cases in the future, the judiciary will follow the guidelines for heavy sentences in trafficking cases.
If there is one threat to the wellness and well being of women all over the world, it is domestic violence. It is estimated that two women out of three are the victims of some sort of abuse, physical or psychological from a family member, and that domestic violence has one of the highest figures for unreported crime in the world. Two questions should be asked of all of us; one is; why is domestic violence so grossly under reported when it is a criminal offence? The second is; why are we more in danger from violence from those we love and trust than from strangers? When I was a little girl I was warned about not speaking to strangers and not taking sweets from them. No one told me that our girls are in far greater danger from their fathers, uncles and husbands, than they are from strangers. No one told me, that when such violence does happen within the family, there will be a massive cover up, that some members in the family will pretend they cannot hear the sounds of blows and cries coming from the bedroom, the bruises on their mother and daughter-in-in-law in the morning, or the frequent sick sheets their mother would have to produce to avoid going to work after a severe assault. No one told me that in the rare case where a victim does complain to the police, that the police would not be sympathetic and would not treat the crime as a crime. No one told me that in court, almost all the victims would say they had reconciled with the perpetrator and had forgiven him, causing the case to be terminated and the cycle of abuse to begin again. I wish they had told me, because when I first experienced domestic violence cases as a young prosecutor, I had to learn the hidden sub text of what people were saying in court. I learnt that a woman will do anything, even put up with abuse, to keep the family together and to ensure there is food on the table for the children. I learnt that the words “I forgive him” means, “he is the sole breadwinner, I still love him, I do not want him to go to prison, and I only want him to stop beating me”. I learnt that the court system failed in dealing with domestic violence because of inherent judicial gender bias, and because of the inability of judges and magistrates to read the sub text. I learnt that the police “no drop policy” in domestic violence cases was unhelpful in cases where the police simply did not register the complaint at all, telling the victim to go home and sort out what the police treated as a private issue.
Thus the court system was a failure in dealing with domestic violence. Other countries had experienced what we experienced, and had passed domestic violence legislation long ago. They recognized that because of the way patriarchy exercised power over justice systems and over law enforcement, domestic violence cases needed a new regime to force perpetrators to stop the violence even if the prosecution in court was terminated because the victim did not want to give evidence. Fiji worked on such a draft in the 1990’s. I was then the DPP and recall the hard work that went into the draft by the Women’s Crisis Centre and other women’s lobby groups. Yet the draft never went anywhere. The gender bias and stereotypes which afflict judicial officers, prosecutors and police officers also afflict parliamentarians and government officials. Many probably believed that a man assaulted his wife because she had done something wrong and deserved the assault. Hidden behind that assumption was the belief that a man has the right to punish his wife. This is at the heart of patriarchy – the belief that a woman is subordinate to men.
It was only in 2009 that the Domestic Violence Decree was finally passed. I am going to deal with it in some detail, because I believe it to be fundamental to a woman’s well being and health. Assault and the fear of assault, sap at a woman’s physical autonomy, they make her afraid and timid, and they take away her ability to put her own health as an important priority.
The purpose of the Decree, according to its title is to “provide greater protection from domestic violence, to clarify the duties of the police in that regard, to introduce domestic violence restraining orders, and other measures to protect the safety and well being of victims of domestic violence and to promote rehabilitation of perpetrators of domestic violence and other matters”. The Decree protects those who are victims of family violence. “Family or domestic relationship” is broadly interpreted as “relationship of spouse, other family member, person who normally or regularly resides in the household or residential facility, boyfriend or girlfriend, or a person who is wholly or partially dependent on care and the person who provides such care”. The words “other family member” is defined as “ parent, grandparent, step-parent, father-in-law, mother-in-law, child, grandchild, step-child, son-in-law, daughter-in-law, sibling, half-brother, half-sister, brother-in-law, sister-in-law, uncle, aunt, uncle-in-law, aunt-in-law, nephew, niece, cousin, clan, kin or other person who in the particular circum stances should be regarded as a family member”. This definition is broad enough to cover anyone living at home as part of the family and includes the whole mataqali! This is realistic. The Fijian family is not a nuclear family, and often the most vulnerable to assault such as the live-in house girl needs the same protection as those with blood ties.
The Decree has several important provisions. One is the creation of the Domestic Violence Restraining Order. The Order is not a criminal conviction. It will not count as a previous conviction. It has one purpose and one purpose alone. It is intended to protect the victim of domestic violence from further violence or threat of violence, and to protect the children of the family from any such violence or threat of violence. What is the Restraining Order? It is an Order made by a court (the Magistrates Court, Juveniles Court, the Family Court and High Court) on the application of the police, or the victim, or an interested party such as an NGO or DPP’s Office, to stop the perpetrator from assaulting or threatening or intimidating the victim. In some cases, the court can make additional orders of non-contact and may order no telephone calls, no visits, and no indirect contact through others, to ensure the safety of the family. The Decree, which was passed to fulfill Fiji’s obligations under CEDAW (the Convention on the Elimination of Discrimination against Women), puts the safety and the well being of the victim as the paramount concern. It also provides that cases of domestic violence are not reconcilable. This does not mean that reconciliation is irrelevant. It can still be taken into account in deciding whether to lift the restraining order or in deciding what sentence is appropriate. However the court must first ascertain whether the reconciliation is genuine or whether there is any sort of pressure on the victim to say that she has reconciled. The court can also make orders to urgent monetary relief to ensure that even if the spouse who is the breadwinner has been excluded from the family home, he must continue to pay for the household expenses. This order is not a permanent one. It is there to ensure that the battered spouse is not under financial pressure to reconcile and to ask for the lifting of the Order. All Domestic Violence Restraining Orders have the standard non-molestation orders, and all Domestic Violence Restraining Orders protect the children of the family even if they are not specifically named in the Order.
What is violence under the Decree? We tend to think of violence as physical assault. Yet a man or woman can cause greater psychological harm to a partner by the use of threats, or by stalking or harassing over the telephone. The Decree says that “violence” is;
“Physical injury or threatening physical injury, sexual abuse or threatening sexual abuse, damaging or threatening to damage property of a victim, threatening, intimidating or harassing, persistently behaving in an abusive, cruel, inhumane, degrading, provocative or offensive manner, causing the victim apprehension or fear by – (i) following the victim; or (ii) loitering outside a workplace or other place frequented by the victim; or (iii) entering or interfering with a home or place occupied by the victim; or (iv) interfering with property of the victim; or (v) keeping the victim under surveillance; causing or allowing a child to see or hear any of the violence…..or causing another person to do any of the acts referred to…………..against the victim.”
So, what is the point of the Order? It is intended to stop the violence. It is also intended to achieve a non-violent environment to allow the family to resolve its problems without the violence. It is not anti-family, only anti-violence. Yet: will it be effectively implemented? The Decree provides that the police on attending a domestic violence case must apply for a domestic violence restraining order. At first this was not being implemented as the police worked to understand the ambit of the Decree. Now however, the statistics of applications in the Central, Eastern, Western and Northern Divisions show that they are being applied for by the police. Considering these statistics it seems however that “violence” is not always well understood. The rape of a child in the family is a domestic violence case, and must lead to an application for a restraining order. Not all of them are. However, subject to the need for the police force to have on going training on domestic violence, they are implementing it. The judiciary too is applying the Decree, but my criticism of the judges is the same as my criticism of the police. The sexual abuse cases must be accompanied by Restraining Orders, not only to protect the victim child, but to protect the other children of the family. The Order must be imposed at First Call, and not only at the end of the road, at sentence. The Sentencing and Penalties Decree 2009 also requires the Bench to treat the sentencing of domestic violence cases differently, requiring an inquiry into any genuine remorse and reparation on the part of the perpetrator, and whether reconciliation is genuine.
The implementation of the Decree depends on knowledge of its provisions, and the eradication of a gender incompetent attitude. Both knowledge of the Decree, and gender training must be compulsory for both judiciary and police. I believe that such training is now compulsory in both institutions. We cannot hope for impartiality in the enforcement of the law, until we confront the gender biases which exist in our own hearts. And in this women are not immune from gender bias. After all, we bring up our sons and daughters to have these biases.
Child Welfare and child abuse
Child welfare is as close to our hearts as our own welfare is. The story of motherhood in the time of King Solomon, and the story of the adoptive mother in The Caucasian Chalk Circle10 tell the same story of the sacrificial nature of motherhood. We would rather give our children up then allow them to be harmed. Yet in the area of child abuse, the picture becomes confused. There are many mothers who do not support their own abused children, even when they know that their husbands are the source of the abuse. Whether this is because of conflicting loyalties, or whether it is because financial dependency confuses our own priorities, there are many children who have told the courts that they told their mothers about the abuse they were suffering, but that their mothers did nothing to help them or support them. When I was a judge, many mothers appeared in court to give evidence in support of the abuser and against their own children. It was important not to be judgmental about any person who decides that the truth lies where the family income is, but as a mother myself, I wonder how many children have become cynical and bitter about the worldwide image of an all protecting and ever loving mother.
How do we define abuse? Prior to the Child Welfare Decree 2010, abuse was never defined. Is it only physical abuse? Is corporal punishment child abuse? When is parental chastisement a form of abuse? Is emotional pressure abuse? Is selling your child into prostitution abuse? Does the law protect children from all types of abuse? And, if parents are the source of the abuse, how will the police, doctors and welfare officers ever know that it is happening? Children do not have easy access to justice.
Fiji ratified in Convention on the Rights of the Child many years ago, but one area which consistently led to a failure to respect its provisions was the protection of child victims of abuse. Fiji needed to consider special powers for the medical profession to report abuse to the authorities, for the courts to remove children from the care of their parents, and for one agency to take responsibility for all reports of abuse. Under the old law, there was no obligation on the police or the courts to refer a criminal case of abuse to the Ministry of Social Welfare, and doctors hesitated to report suspected abuse because of their ethical duty to keep patient information confidential.
The Child Welfare Decree 2010 has as its stated reason – “A Decree to promote and protect the health and welfare of children through mandatory reporting”. It creates a regime of mandatory reporting of child abuse, it has a definition of child abuse, and it places the duty to report abuse on doctors, dentists, welfare officers, police officers and lawyers.
Section 4 of the Decree provides;
“Where a professional
(a) becomes aware or reasonably suspects during the practice of his profession, that a child has been or is being, or is likely to be harmed; and
(b) As far as he is aware, no other professional has notified the Permanent Secretary under this section about the harm or likely harm;
The professional must immediately give notice of the harm or likely harm to such child to the Permanent Secretary in writing or by facsimile, email or other reliable means of communication, where necessary the professional may, subject to section 6 give oral notice under this section”.
Abuse then, is defined for the first time, and like the Domestic Violence Decree, it goes beyond physical abuse. The Decree does not speak of injury, it speaks of harm. The Decree also gives powers to doctors to keep children in their care, under a Care and Treatment Order, if they do not want the children to go home with the parents. This is especially important when the parents are the suspected source of the abuse. This gives Social Welfare enough time to take the child from the doctor’s custody without the threat of further harm. This regime of mandatory reporting is especially important in a country like Fiji, where children often do not have a voice, and where reported child abuse figures have increased significantly. Of course, the increase in the figures of child abuse does not mean there is now more abuse. It means that more children/doctors/lawyers/ welfare officers are reporting abuse. This in turn puts a great responsibility on the State to ensure that children’s needs are met in the justice and welfare system.
In this paper I have already referred to the fact that sentences for the rape of children are even higher than they are for the rape of adults. However, the sentence is passed at the end of the case. Is our justice system able to hear the evidence of children in a way that their youth and communication barriers are taken into account? For a long time no laws existed to specifically allow evidence of vulnerable witnesses to be heard in a special way. The Juveniles Act provides for children to give evidence in a closed court where the charge is the sexual assault of the child, but it also provided that a person could not be convicted on the evidence of a child alone. Over the years, the judiciary adapted the law, to try to meet the special needs of children. The judges closed courts for children or heard their evidence on closed circuit television or from behind a screen, using their inherent powers. The section in the Juveniles Act which said that there was a need for corroboration for the evidence of children, and that children who made unsworn statements also needed corroboration was struck down under the 1997 Constitution by Mr. Justice Goundar in 200811. He said that the law discriminated against children, whose evidence should be evaluated by the courts in the same way as every other witness.
However the 2009 Criminal Procedure Decree for the first time acknowledged that there are some witnesses who are considered vulnerable in the court system for whom special steps must be taken to enable them to give evidence without fear. Section 295 of the Criminal Procedure Code allows for such special steps. Of all people who come into the courts, children are most likely to benefit from this law.
Closely connected to the subject of child abuse, is the subject of parental neglect and criminal responsibility. Generally speaking, the criminal law is concerned with acts not with omissions. In other words a failure to act is rarely criminal. An exception to this rule is the offence of failing to supply the necessaries of life to a person to whom you owe a statutory duty. This applies to parents. They have a statutory duty to take care of their children and can be prosecuted for negligence in their duties. This subject has recently been ventilated in the media, with so many cases of children drowning. What is the law on this subject?
Section 241 of the Crimes Decree provides that;
“ (2) It is the duty of every person who, as head of the family, has charge of a child under the age of 14 years being a member of his or her household, to provide the necessaries of life for the child; and he or she shall be deemed to have caused any consequences which adversely affect the life or health of the child by reason of any omission to perform the duty, whether the child is helpless or not.”
Section 240 provides;
“ A person commits an indictable offence if-
(a) the person makes an omission; and
(b) the omission causes the death of another person; and
( c ) the first-mentioned person-
(i) has a duty to the other person in accordance with section 241;
(ii) the omission amounts to a negligent breach of the duty, such omission is or is not accompanied by an intention to cause death or bodily harm”.
How do these sections work? If a mother knows that a child of the house is abused and fails to take the child for medical care, and the child dies, the mother can be charged with manslaughter. Section 241 (which is not a new law, it was also in the old Penal Code) provides that parents have a statutory duty to provide children with those necessities that they need to survive. In modern Fiji, where children die from drowning, and of injury on the roads, these provisions may well be used by the police and DPP’s Office to prosecute negligent parents whose negligence causes the death of their children.
The well being of women, and their empowerment under the law, are closely related. We as women, share a sense of well being, not only when we are free of disease, but also when we are free of violence. There are many barriers to justice for those of us who are victims of violence and rape. Not least of these is the attitude held dear by many police officers, prosecutors and judicial officers, that a man has the right to chastise his wife, and that if she complains about it, it is she who is the bad wife, not he who is the bad husband. Gender stereotyping and gender bias obstruct the equality of justice, and entrench in the minds of society that women are subordinate to men. In our largely patriarchal society, these gender based attitudes prevent women from obtaining justice. Before we convert the world, we must first convert ourselves. As Shakespeare said in “Julius Caesar” – “The fault dear Brutus is not in our stars but in ourselves that we are underlings”12. We must bring our sons up to respect women and treat them as equals, and we must bring our daughters up to be strong, educated and self-reliant. Perpetuating the gender cycle of power and privilege and of dependency and violence will only serve to subject our daughters and daughters-in–law to the violence experienced by many women today. And we must never relinquish our moral authority to insist on equality before the law, and in the courts.
1 Sereima Balelala v. State  FJCA 49
2 Section 129 of the Criminal Procedure Decree 2009
3 Section 130 of the Criminal Procedure Decree 2009 prohibits asking victims in sexual assault cases about previous sexual history except with the leave of the court. The questioner must show to the court that such questions are relevant and in the interest of justice.
4 Part 12 Crimes Decree
5 Section 207 Crimes Decree 2009
6 Section 210 Crimes Decree 2009
7 Section 206 Crimes Decree 2009
8 Sections 112 and 113 of the Crimes Decree 2009
9 State v. Phanat Laojindamanee and Others Suva High Court February 2012
10 A play by Bertoit Brecht
11 A.V v. State HAC 192 of 2008 per Goundar J.
12 Julius Caesar 1, ii, 140-141