Zorn, Proving Rape - Final Published

THE PARADOXES OF SEXISM: PROVING RAPE IN THE PAPUA NEW GUINEA COURTS Jean G Zorn* Rape is a serious problem
in contemporary Papua New Guinea, testing the capacity of this young countrys legal system to enforce the laws and protect Papua New Guineans from violence. Although Papua New Guineas judges have frequently expressed their awareness of the issue, they do not seem able to contribute to a solution. On the contrary, the Supreme Court has created rules that make it harder, rather than easier, to convict rapists, and, when Parliament responded with legislation intended to do away with some of the limitations that the Court had imposed on itself, the judges did not find it easy to comply with the new rules. Until the 1970s, it was not at all unusual for courts throughout the common law world to put up all sorts of barriers to the conviction of rapists. Few legal scholars even noticed this phenomenon, let alone advanced theories to explain it, until feminist scholars began to scrutinize judicial decisions, and to point out that emotion, not just reason, plays a role in judicial decision-making, and that judicial decisions in many areas including the area of rape and other crimes most often perpetrated against women were the products, in large part, of a masculine perspective. That insight of feminist scholarship is supported, in the case of the decisions of the Papua New Guinea courts, by the writings of the judges themselves. The judges do not intend, when they write their decisions in rape cases, to reveal the extent to which sexism colours their view of the victims of rape, but that bias, though perhaps unknown even to the judge, is all the more obvious for being unintended. Sexism creates a host of paradoxes in the typical Papua New Guinea judges view of rape or sexual assault. Judges in Papua New Guinea know that rape and sexual assault are frighteningly prevalent in their country, that rape is not only frequently the focus of a crime, but that it also accompanies almost every robbery or house breaking. And most of them would put an end to rape, if they could. Yet, at the same time, as their legal writings show, they cling to the stereotypes that were prevalent in judicial decisions of an earlier era: presuming, for example, that women cannot be trusted to tell the truth about sex, that they will say they didnt like it when they did, that they dislike men, and will lie about sex for any reason to protect themselves, to make men feel bad or for no reason at all. These stereotypes show up in a number of ways in the decisions of the Papua New Guinea courts in rape cases. For example, the attentive reader can see gender stereotypes operating in the ways in which the judges recount the facts of each case, and this article begins with a demonstration of that. In Parts 1 and 2 of the article, Ill discuss the ways in which narrative and argument operate to reveal, and to hide, the emotions underlying judicial decision-making. Part 3 sets out the legal framework,
*
Professor Emerita, Florida International University College of Law; former faculty member, City University of New York School of Law, University of the South Pacific and University of Papua New Guinea. This article was originally written for a panel of the Association for Social Anthropology in Oceania. I wish to thank all of the panelists for their encouragement and support, and, in particular, Margaret Jolly, Dorothy Counts, and Anna-Karina Hermkens for their very helpful comments, and Christine Stewart, who chaired the panel, for her support, encouragement and sage advice.
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[2010] LAWASIA Journal
describing the way that the crimes of rape and sexual assault are defined in the Papua New Guinea Criminal Code, and the glosses that the Papua New Guinea courts have put on the statutory definitions. All that is prelude, however, to Part 4, the crux of the article, which describes the ways in which gender and racial stereotypes led judges to create for themselves special evidentiary rules that severely limited the number of defendants who would be convicted in rape cases. These judge-made evidentiary rules rules that dont apply to other kinds of violent crimes include, in particular, the uncorroborated testimony rule, which limits the effectiveness of a victims testimony about her attacker, unless she can back up that testimony with other evidence. In Part 4, Ill discuss the history of the rule in Papua New Guinea, as well as the different reasons that judges and feminist scholars give for the rules existence, and, finally, the attempt in 2002 on the part of Parliament to do away with the rule, an attempt that the judges are manfully resisting. Last, but most importantly, Ill describe the consequences of the uncorroborated testimony rule, both to women and to the ability of the legal system to demonstrate that it can deal with difficult social problems. 1. JUDICIAL DECISIONS IN RAPE CASES: NARRATIVE VERSUS ARGUMENT Every case begins with an event, a relationship, a transaction, with some kind of interaction in other words, with a story. Those narratives contain all the elements of good fiction a plot full of drama and conflict, good guys and (sometimes) bad. And, like a novel, they can be written in many ways. The fact statements in some judicial decisions are just that, dry statements detailing the relevant facts; in others, the story unfolds in such a way that it is impossible not to feel for one party or the other (and, almost always, in those cases, the party who has pulled at our heartstrings is the one who wins the case). There are good writers among judges, and those judges seem quite aware of the impression their fact statements are making; but, in many other instances, careful readers suspect that the judges have no idea how clearly their leaning towards one party or the other is revealed by the way in which they recite the facts. The fact statements in many of the rape cases reveal the judges bias. The story of Lucy Kumel,1 with which Ill begin, is a telling example. In this criminal prosecution, everybody, including (I expect) the judges, believed the victim, a young woman, when she said she had been sexually assaulted at work by her boss. Certainly, the trial judge believed her; he sentenced her assailant, Peter Townsend, to prison. But, when Townsend appealed the verdict to the Supreme Court, those judges relied on technical rules of evidence rules that discount the value of the victims testimony and cleared Townsend of all charges. I will tell Lucy Kumels story twice. First, Ill
Ive adapted Lucys story from Townsend v Oika [1981] PNGLR 12; Pacific Islands Legal Information Institute <http://www.paclii.org/pg/cases/PGSC/1981/24.html>. Because not all Papua New Guinea cases are in the official Papua New Guinea Law Reports (PNGLR), and because even PNGLR are difficult to find outside of Pacific research libraries, I have included the Pacific Islands Legal Information Institute (PacLII) internet citations for all cases. PacLII recently began including paragraph numbers in some of the cases, and where those are available, I have provided the pinpoint citation.
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Rape in the PNG Courts
quote the appellate decisions fact statement. Then, Ill retell the story from the very different perspective of feminist legal narrative. The feminist telling focuses on Lucy, on her background, her experience, feelings, and fears. The appellate judges fact statement does not; it is merely a recital, as unadorned and unemotional as they can make it, of the facts. The feminist narrative requires almost twice as many words as theirs. Three appellate judges participated in deciding Lucys case; each wrote a separate decision; altogether, the three decisions take up almost 11 single-spaced pages, of which less than half a page is given to telling the girls story, and that is limited almost entirely to a bare recital of facts of the assault. Moreover, two of the judges dont bother to recite the facts at all; they focus entirely on legal arguments, leaving it up to the third to tell us what happened, and he doesnt even tell it in his own words; instead, he mostly quotes from the trial court decision. 1.1 The Narrative as the Judges Told It
Not only do the appellate judges tell us almost nothing of what Lucy felt or experienced during or after Townsends assault on her; they tell us almost nothing about Lucy herself. We dont know where she went to school, her age, her background, her family, whether she was married or single, living in the village or in town, or anything else about her. This narrative, despite quoting from Lucy herself, manages to erase Lucy almost entirely from the narrative of her own life. Townsend v Oika2 started as a criminal case; the police in Goroka brought charges against Peter Townsend, accusing him of sexually assaulting Lucy Kumel. Townsend was convicted after a trial in the Papua New Guinea District Court and sentenced to pay a fine of K200.00, and in default of payment, to six months imprisonment with hard labour. Townsend appealed his conviction to the National Court. That appeal was heard by Kearney J., who upheld the magistrates decision to convict Townsend. Townsend then appealed to the Supreme Court, where his case was heard by a threejudge panel, consisting of Justices Greville Smith, Pratt and Miles. At the trial level, the case would have been called State v Townsend. On appeal, the case name changed to reflect that the convicted man, Townsend, was appealing against George Oika, the magistrate who had convicted him. The decision Ill be discussing in this paper, and quoting from here, is that final one, the product of the three-judge panel:
Before the District Court the Police case was as follows. The appellant is the Provincial Works Manager based at Goroka. One Saturday morning, the 24th of May, he went to his office. Between 12 noon and 12:20 pm he entered an office where the victim Lucy Kumel was working. She is an accountant machinist; she was alone in the office at the time. After some conversation between them about work matters, the following incident occurred, in the words of the victim Lucy: He kept on staring at me, then he came close to me on my right, and started tapping my hair. I did not have bad feelings. Then he held my two hands and pulled them and holding my shoulders and I said What are you trying to do?
Townsend v Oika [1981] PNGLR 12, PacLII <http://www.paclii.org/pg/cases/PGSC/1981/24.html>.
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He then pulled me out of the chair to the open space, and he started to touch my breasts, and my private part, and I told him I would tell Peter Harold; then he left me and he went out to his car and left. I went to see my boss, he was not there. I then told Thomas about the incident and we told Peter and then we reported the matter to the police. Lucy Kumel testified before the District Court. She said she had been at work that day since 9:30 am; she had been employed there for about a month. She believed the time was 12:20 pm when the appellant came in, because she asked him the time, before the assault commenced. She demonstrated to the court what had happened to her. She said the appellant kept holding me tight on to him, while she was calling out. She thought he held her thus for about five to eight minutes, in the course of which, she said, he tried to put me on the floor with his hands. After the appellant left, she said I cried, as I felt bad. She was at the police station by about 1 pm. The police had opened that in the course of the assault, her pants had been pulled down to her knees, but the witness made no mention of that. The other police witnesses were two of her fellow workers, Messrs Thomas Auis and Avi Boroa. They had also been working at the office premises that morning but had gone to lunch at 12 noon. At the time they left, they spoke briefly with the victim. Later, at their house not far away, the victim came crying to them. The appellant also testified. He said he arrived at the office that morning, at about 11:30 am. He worked in his own office for a while, then took some files to the room where the victim was working alone; he said he had a brief conversation with her, and then left. He said that Lucy had asked him the time, and it was exactly 12:10 pm, and he stayed only three to four minutes in the room with her. He denied any assault upon Lucy Kumel. He arrived home some five minutes walk from the office in time to hear the news at 12:30 pm. In this account, he was supported by his wife, who said he was home by 12:21 pm.
1.2
The Narrative as a Feminist Retelling
Here, instead, are the facts, told, as the judges did not, from Lucys perspective, a narrative which, because the judges left out so much, has required a certain amount of imaginative reconstruction on my part. It was a good job, and Lucy was glad to have it. It hadnt been easy; living with her mothers sisters family, the only place in town her parents thought safe enough for their oldest daughter. The house was crowded; shed come home from work tired, wanting a quiet corner and a rest, but there were no quiet corners, and she couldnt refuse to help her aunt, who had so many mouths to feed, what with the children, and wantoks stopping by all the time, and so little money to do it on. But the job made it all worth it. Just a month out of school, and here she was in a real office, 3 with real work to do and her own desk, right next to a window, in the big central office of the Western Highlands Provincial Works Department. The only drawback was her boss, the works manager.4 He was from Australia, so, though independence was now a reality, nobody dared to cross him. But he made her
3
In the judges decision, Lucys job is referred to as accountant machinist. Since this is just about the only fact about her in the entire decision, Im tempted to leave it in my narrative, but I have no idea what an accountant machinist is. 4 In all fairness to the judges, I have to report that their decision contains few more facts about the defendant than it does about Lucy. So, the personality Ive attributed to him in this paragraph is entirely fictional, and, I hasten to add, not based on any single person, living or dead, but, instead, on a composite of what bosses who assault office workers tend to be like. The judges stay away from
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so nervous. It was his eyes; they kept staring at her. Wherever she was in the office at her desk, at the copier if he was there, she would feel him staring. Even when he was inside his own small office, she could feel him staring. She told herself she was imagining it, but when, walking by his office, she dared to turn and look through the open door, there hed be, looking back. But he hadnt done anything, nothing more than stare, until one Saturday morning late in May. It was shortly after noon, and she was almost finished for the day. In fact, when he came in, she asked him what time it was, because, well, frankly, the minute he walked into the office, she couldnt wait to leave. He, however, took her question as an invitation to chat, and, for lack of anything else they had in common, asked her what she was working on. And, all the time they were talking, he was staring, his eyes devouring her, as if she were a meal. Then, suddenly Ill let her describe what happened. This is from an affidavit in which Lucy told the story of the assault:5
he came close to me on the right, and started tapping my hair. I did not have bad feelings. Then he held my two hands and pulled them and holding my shoulders and I said, What are you trying to do? He pulled me out of the chair to the open space, and he started to touch my breasts and my private part ... [She struggled, and when that didnt work, she called out, but he] kept holding me tight on to him he tried to put me on the floor with his hands.
Later, telling her story to the police, Lucy estimated that the struggle lasted five minutes, perhaps more. All the time, she was crying and calling out. Finally she yelled at Townsend that shed tell his boss what was happening. That had an impact. He scrambled to his feet, pulling on his trousers, and ran to his car. Lucy had struggled, but he was stronger than she, much stronger than shed ever thought he could be. By the time shed succeeded at scaring him off, hed wrested her pants down to her knees; Lucy did tell the police that, but she refused to put it in her affidavit, and she wouldnt discuss it when she was called as a witness at his trial. Perhaps that last, small fact felt just too shameful. The affidavit does not tell us what Lucy felt about her near rape, except, tellingly, for just that single phrase: I did not have bad feelings. I think, by that, she meant, I didnt want to sleep with him. I didnt want to have sex. I didnt get excited or aroused. Whatever else Lucy was thinking, feeling, is not in the courts record. Was she, perhaps, remembering her mothers fear, when Lucy first went off to mission
describing Townsend for essentially the same reason they stay away from describing Lucy; were they to do so, it might influence readers to disagree with their decision in the case. 5 I said Id let Lucy speak in her own words, but I have to qualify that. These are the words from her affidavit that the prosecution prepared, and therefore may not be exactly her own words, though it will be her own story. Lucy would have told the prosecutors what happened, just as shed earlier told the police, she might even have been asked to write the first draft of this statement, but the prosecution lawyers would have tweaked the document, not to change the facts of what she said, but to be sure it was organized in the way that courts expect an affidavit to be organized, that it did not contain too much irrelevant material, and that it did highlight the facts that the lawyers would be focused on at the trial. Lucy would have been asked to read through the final version, or to have it read to her, and, then, if she agreed that it accurately reflected her story, she would be asked to sign it, swearing under oath that everything in it was true. So, it is, in a sense, her words, her story, but it may not be exactly as she would have told the story herself, to her family, friends, even to the police and prosecution.
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school, that, once she was wearing western clothes and doing western things, shed be mistaken for a loose woman, like those Australian women on campus?6 Or was she, perhaps, remembering her grandmothers stories about the kiaps and miners, whod pick a girl from the village, any girl, confident theyd never be denied? Was she remembering her grandmothers story about when she, herself, was picked? How afraid she was, hating the huge, ugly, smelly kiap, but even more afraid to run away, afraid to show how much she feared and hated him. He took her out into his garden, saying she was the dirty one, and soaked her with the heavy, painful spray from his garden hose, laughing as he did it and then, still in his muddy boots, still reeking from sweat and dinner, forced sex on her.7 But the worst indignity for Lucy was yet to come. Telling her story to the police was shaming, but not the worst. They charged Townsend with attempted rape, sexual assault and assault. Telling her story in court was even more shaming, but that, too, was not the worst, even though the District Court convicted Townsend only of assault, the least of the three charges, and sentenced him to his choice of a fine of just K200 or six months in prison.8 No, the worst indignity came when Townsend appealed. He claimed thered been no sexual assault, no attempted rape, no assault of any kind. Of course, thered been no one else in the office when it happened; Townsend would never have done it if there had been. So it came down to her word her voice against his. And, on appeal, his voice won.
Laura Zimmer-Tamakoshi, Nationalism and Sexuality in Papua New Guinea (1993) 16 Pacific Studies 61, 73-4, describes the comparisons that Papua New Guineas elite males drew between the town girls that they worked with, and the single women who came, mostly from Australia, to teach or work in Papua New Guinea. To their eyes, the Australian women were loose, because they were willing to have sex with men they were not married to (and had no intentions of being married to). And, to their eyes, any Papua New Guinean woman who dressed like the Australian women (in, for example, skirts and hose and heels, like stewardesses, like secretaries), who lived on her own like an Australian woman, must resemble Australian women in other ways, in sexual ways, as well. See also Pamela Rosi and Laura Zimmer-Tamakoshi, Love and Marriage among the Educated Elite in Port Moresby, in R Marksbury (ed), The Business of Marriage (1993) 57, 72. Cyndi Banks describes something similar a rapist who presumed that his victim, a woman who was a typist in his probation office, was sexually available to him, because, in his words, you do work with probation and when we call in to report you use to show off. We have intention of making friends with you ladies, but you ladies do show off and always want to marry somebody who is employed. The victim, an Australian woman, who had occasionally typed letters for the rapist when he was in the office, probably had no idea how he perceived her, until the moment he invaded the hostel room where she and her husband were sleeping and, holding her husband at bay with a knife, abducted her. Cyndi Banks, Contextualising Sexual Violence: Rape and Carnal Knowledge in Papua New Guinea in Sinclair Dinnen and Allison Ley (eds), Reflections on Violence in Melanesia (2000) 83, 100. 7 Hank Nelson, The Australians in Papua and New Guinea, in Ron J May and Hank Nelson (eds), Melanesia: Beyond Diversity (2006) 143. 8 The penalty for attempted rape is a prison term of anything up to 14 years. Criminal Code Act 1974 (PNG), s 348 (referred to hereafter as the Criminal Code). A person commits sexual assault when he without a persons consent touches, with any part of his body, the sexual parts of that other person The penalty for sexual assault is imprisonment for a term not to exceed 5 years: Criminal Code, s 349. The sentence that the magistrate imposed on Townsend a fine of K200, and, if he did not pay, imprisonment for six months is the maximum penalty that a court can give for the offence of common assault: Criminal Code, s 343.
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1.3
The Differences Between the Tellings
My narrative is very much from the perspective of the victim; it takes all she said as true, and tells the reader how it made her feel. Frankly, its intended to win the readers sympathy for her. Another version (one not offered here) might tell the story from Peter Townsends perspective, taking him at his word. The judges do this recounting the story from the perspective of the accused rapist in countless cases. But, here, the court adopts neither of these strategies; instead, it tries to play a purely neutral role, casting itself as nothing more than a conduit of the parties allegations. This Olympian perspective is also not at all an unusual stance in fact statements, but this court so completely distances itself from the narrative that two of the three judges dont tell the story at all. And the one who does manages to stay at least two removes from the story; not only does he tell most of the story by quoting from or paraphrasing the parties, but puts in yet another layer between himself and the facts by quoting even those from the trial judges decision. There were, I believe, three reasons why the court in this case chose a stance of so much neutrality and distance. The first is the reason that most judges would give if they even thought there was a need to give a reason. Our ruling, these judges would most probably say, was not based on personal feelings; it was based solely on logic, and on the correct interpretation and use of the applicable law; therefore, any personal facts that did not relate directly to those technical, legal arguments in Townsends appeal were irrelevant. That is not wrong; but it not sufficient. It partly, but not completely, explains why the decision downplays the facts. There is another reason, equally valid, for the judges careful distancing of themselves from the victim: even as they wrote their decisions, the judges were intending to rule against Lucy. Even though, as the fact statement does admit, they believed her story, believed shed been sexually attacked, they were intending to let her attacker go free. They did not wish to allow their readers (nor, perhaps, themselves as well) to develop feelings for her, feelings that might lead to disagreement with their decision. So they related the facts of her case in a way that would keep everyone as removed from her as they could. But the oddest thing about that fact statement is that, though it goes out of its way to appear neutral, as soon as we read it, we know that the decision is going to be in his favor. Precisely because it is so neutral, so distanced, so studiedly disinterested. If this court had intended to uphold the trial judges decision, and declare in favor of the victim, neutrality would not have been necessary. The fact statement points to the outcome of the case is, indeed, a product of the outcome -- but it does not determine that outcome. The fact statement tells us that, in the end, this attacker will win out over his victim. But it does not tell us why. And that is what this article is about; it is about why his voice won out over hers. Not just about the legal rules which the court deploys, but about the culture and myths and history and legal fictions that give rise to those legal rules, that shape the discourse of the courts, and that made it almost inevitable that Peter Townsend would (almost) rape Lucy Kumel and get away with it. In other words, this article is about sexism.
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2.
READING JUDICIAL DECISIONS CRITICALLY
That critical reading (and rendering) of the facts in Lucy Kumels case demonstrates the major strategy of this article, which is to read judicial decisions in an unconventional way. Judicial decisions are usually treated as purely rational documents; the typical readers (most usually, counsel for the parties, counsel in similar cases, or, now and again, legal scholars) read decisions only for the logical and legal reasoning or argument. In this article, we look below that rational surface, to uncover the emotions, leanings, biases that the decision (usually unintentionally) reveals. Doing that, we discover that rulings in rape cases are due, at least as much, if not more, to sexism as they are to logic or the cool, disinterested application of the law. Because this article focuses on cases involving rape and sexual assault, it is focusing on cases that are, by their nature, highly emotional. Terrible acts have been perpetrated, creating unspeakable suffering; and the judges decision, guilty or not guilty, whichever it is, will inevitably cause yet more pain to someone. The law tries to manage all this pain by pushing it, and every other emotion, aside. Judges are counseled to approach the whole thing rationally. The result is only that many of the actors in the legal system deny the emotions they cannot help but feel. Emotions unrecognized and unexpressed are, all too often, emotions uncontrolled and unlimited. One of the reasons why it took so long for the sexism inherent in judicial decisions about rape to become apparent may be that the predominant myth common to almost all formal legal systems is that judges decide cases based solely on reason and logic. Emotion, bias, prejudice and the judges own personal values are presumed to play no part when a judge in a civil litigation chooses between a plaintiff and a defendant, or when a judge in a criminal trial decides whether to find a defendant guilty or not guilty. It is an axiom of the common law that such non-rational factors would detract from the judges neutrality and would come into play only if the judge were unfairly partial to one side or the other. And, in a common law jurisdiction, judges are supposed to be impartial. They are supposed to decide cases on the basis of reason alone; the common law method requires that a judge resolve a case by finding the applicable legal rule and applying that rule to the facts of the case. There is no place for emotion, bias or prejudice in that process; there is no place for personality: the applicable rules are supposed to be applied equally to everyone, regardless of power relations based upon socio-economic class, or race, or gender. All that is supposed to be irrelevant, so irrelevant that the judge is not supposed even to know about it, let alone allow it to intrude upon the decision-making process. Judges believe that, by using reason to decide cases, they are creating legitimacy for their decisions, and, by extension, for the legal system and, therefore, for the state. But, for a judicial decision to operate in that way, it must be communicated, so that the participants in the case, lawyers and judges generally, and eventually the general public, are made aware not only of the judges decision but of his reasons for the decision. Hence, the writings in which judges explain the reasoning that led them to their verdict. These writings (which have, in a jurisprudential example of synecdoche, themselves come to be called decisions or, in the United States, opinions) are intended to convince the parties of the incontrovertible rightness of the judges decision by showing how reason and logic could have led a sensible, disinterested
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person to no conclusion that is more valid than this one. Or, at least, that even though other outcomes were possible, this one was at least probable, and untainted by bias. Judges strive therefore to make their written decisions models of logic and legal reasoning. And judges are not alone in striving to convince themselves that judicial decisions are based solely on reason. A sizeable segment of traditional legal scholarship consists of explicating, analyzing and debating the reasoning to be found in judges written decisions. Thus, the main stream of scholars may argue with a judges reasoning, but they take it for granted that the decision is based on reason. Very seldom, if ever, do such scholars even suggest that emotions, biases, values, or embedded beliefs might have, in any way, infected the judicial decision-making process. Nevertheless, like many governing myths, the myth of judicial rationality is not necessarily grounded in truth. Few legal scholars, and even fewer lawyers and judges, would admit it, but non-rational influences, particularly those springing from class, race or gender-based values and beliefs, play a very large part in judicial decisionmaking. Although these influences are perhaps more significant than reason or logic in shaping judges decisions, their role tends to go unnoticed or, at least, unremarked upon by legal scholars, lawyers, and by the judges themselves.9 But, the best evidence that they do play a significant role in judicial decision-making is contained in the judges own written decisions, the very writings that everyone treats as models of pure, disinterested logic. So, this article examines those writings closely, not, as is typical in legal scholarship, to elucidate or debate the reasoning, the applications of law to facts, or the logic, but to uncover the emotions, biases and prejudices that are actually impelling the decisions. 3. THE CRIMINAL CODE: THE FOUR ELEMENTS OF RAPE
Prosecutions for rape in Papua New Guinea are governed by statute. The Papua New Guinea Criminal Code defines the crimes of rape and sexual assault, and sets the penalties for those crimes. The Code was amended in 2002 in ways that were intended to help rape victims, but, even in its amended version, the Code does not make it easy for a victim to prove that she was raped or who her attacker was. And, in just about every instance where the Codes provisions require some interpretation, the courts have chosen interpretations that make it even harder for rape victims to prove their case, and therefore harder for defendants to be convicted. In addition, the Papua New Guinea courts have adopted for themselves rules about what kinds of evidence are needed to prove those Code provisions, and these court-made evidentiary rules make it immeasurably more difficult to convict. In the following sections of this
9
The generalizations in this and the preceding paragraph require some qualification. Although it is true that the vast majority of articles in law reviews treat legal argument and judicial decision making as if they were based solely on reason, there is also a significant body of work pointing out that legal decisions are equally influenced by emotions, values, biases and experience. Scholars writing from this perspective include critical legal scholars, feminists, critical race theorists, and others, loosely grouped under the rubric Outsider Scholarship, a term which in itself suggests how far from the mainstream this view still is. Francisco Valdes, Afterword, Theorizing OutCrit Theories: Coalitional Method and Comparative Jurisprudential Experience (1999) 53 University of Miami Law Review 1265; Mary I Coombs, Outsider Scholarship: The Law Review Stories (1992) 63 University of Colorado Law Review 683; Brian J Foley, Applied Legal Storytelling, Politics, and Factual Realism (2008) 14 Journal of the Legal Writing Institute 17, 26.
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article, I will first discuss the substantive provisions of the Code, showing how the courts interpretations of these provisions make it difficult to establish the crime of rape. I will then discuss the evidentiary rules that the courts have adopted, showing that these make it even more difficult for a victim to convince a court that she was raped. The particular part of the Code that defines the crime of rape and sets the penalty for the crime is s 347,10 which defines rape: A person who sexually penetrates a person without his consent is guilty of a crime of rape.11 The statute contains four elements four facts, that is that must be proved (in that hoary phrase, they must be proved beyond a reasonable doubt) in order for a court to find the defendant guilty of the crime. It is the prosecutors job to convince the courts of each of these elements.12
10
Peter Townsend, the defendant in Lucy Kumels case, was not charged with rape, probably because a successful conviction on the crime of rape requires that the defendant have sexually penetrated his victim (see n 11 and 13, below, and the text accompanying them), and Lucy Kumel never even alleged that her attacker succeeded in doing that. She did allege, however, that he was trying to do so, and probably would have succeeded in doing so, had not her threat to tell his boss scared him off. As a result, he was charged with attempted rape, under s 348 of the Criminal Code. In most jurisdictions, to be found guilty of an attempt to commit a crime, a defendant must have intended to commit the crime and must have done some act in furtherance of that intent before being prevented from carrying out the crime. Section 348 of the Criminal Code, as currently in force, provides that attempted rape is itself a crime punishable by imprisonment for a term not exceeding 14 years (a maximum just one year short of the maximum term now provided for non-aggravated rape). As is often the case, the prosecution charged Townsend not only with attempted rape, the most serious of the crimes hed committed, but also with two lesser crimes that hed also committed sexual assault and common assault - as a sideeffect of trying to rape his victim. As Ive discussed above, he was convicted only of common assault, the least serious of the crimes with which he was charged and then that conviction was overturned. 11 Yes, the anti-woman bias starts right here in the very language of s 347 of the Criminal Code. In Papua New Guinea, masculine pronouns are used whenever a reference to both sexes is meant. The male encompasses the female; the female refers explicitly only to itself. So, although s 347 seems to refer only to the rape of men, it actually encompasses the rapes of either men or women. And that, as is explained in n 16 below, is an advance from earlier versions of the statute. What I have quoted here is the current version of s 347. Prior to the 2002 amendments, rape was defined as follows: A person who has carnal knowledge of a woman or girl, not being his wife without her consent is guilty of the crime of rape. So, prior to 2002, men could not be rape victims. Nor could wives. 12 The requirement that the prosecutor must prove each and every one of the elements has been expressly adopted in Papua New Guinea in State v Rape [1976] PNGLR 96, PacLII <http://www.paclii.org/pg/cases/ PNGLR/1976/96.html>. (The match between the name of the defendant in this case and our subject matter is purely coincidental, though it does complicate internet searches.) That case has been cited for the proposition in literally hundreds of cases since. To give just one of many, many typical examples, in State v Vevo [2007] PGNC 1, PacLII [12] <http://www.paclii.org/pg/cases/PNGLR/1976/96.html> the court cited to Rapes Case, saying:
The principle is simply this: If, after the close of its case the State has failed to adduce evidence in support of one element of the offence charged, there is no case for the accused to answer and as a matter of law he/she must be acquitted.
Defendants, on the other hand, dont need to prove or disprove anything; they just need to point out to the court the prosecutions failure to prove any one of the elements. This bias in favour of defendants is not an artifact of gender; it exists in all criminal trials, regardless of the crime. It is a Constitutional and common law rule intended to provide some measure of protection for criminal defendants against the superior power of the state. Whether the relation between the state prosecutors and counsel for defendants in Papua New Guinea is quite so unbalanced is open to question. And it is certainly the case in Papua New Guinea, as elsewhere, that the rules against focusing on the defendant are a considerable help to defendants in rape cases, aiding and abetting the natural tendency of male judges, anyway, to focus their suspicions obsessively on the victim.
26
First, the prosecutor must prove that sexual penetration occurred;13 second, that it was without the victims consent;14 third, that the act was done by a person and that said person was the defendant;15 and, finally (and utterly inconsequentially, which is why Ive left it to last) that the rape victim was also a person. 16 Each of the elements lends itself to slightly different kinds of proof. That last element, the identity of the victim herself, is seldom, if ever, at issue. Penetration is normally proven by medical evidence, though in the absence of a prompt visit to a hospital or doctor, it can be proven by the testimony of people who spoke to the victim shortly after the rape took place, or even by the testimony of the victim herself.17 When defendants argue that penetration did not occur, they may be making either (or both) of two arguments. They may be saying, as Bill Clinton did, that they might have played around, that sexual-type actions might even have occurred, but that, for one reason or another, the act of penetration did not happen.18 If they are successful at this argument, they may, depending on the circumstances, still be found guilty of sexual assault or other, lesser crimes. The second argument
13
Prior to the 2002 amendments, the statute did not refer to sexual penetration but to carnal knowledge. The Victorian attempt to avoid saying what was meant, caused the courts difficulties, when sexual assault consisted of anything other than the straightforward penetration of a womans vagina by a mans penis: in those cases, under that prudish statute, was it or was it not rape? The more explicit, and therefore much more helpful definition of sexual penetration now at s 6A of the Criminal Code, has three purposes: first, to eliminate the vagueness; second, to clarify that penetration is not a matter of inches, but occurs no matter how minimal the bodily invasion; and, second, to broaden traditional definitions of rape, which tended to limit rape to penetration of the vagina by the penis, by providing that penetration occurs (a) when the penis is introduced into the vagina, anus or mouth, or (b) when any object is inserted into the vagina or anus. 14 The pre-2002 version of the rape statute does not define consent, except to say, at s 347, that consent is not real if obtained by force, by the threat of force or by fraud. The courts were therefore free to make up their own definitions of consent. The courts often held that a woman who did not fight back against her rapist, or who did not scream and cry, had probably consented. The 2002 version of the statute overturns these presumptions, explicitly providing, at s 347A, that a person is not to be regarded as having consented to a sexual act just because he did not physically resist and that the absence of spoken consent should be construed as non-consent. 15 Most courts use shorthand in describing the elements of rape, stating that there are only two elements sexual penetration and consent because those are the two that are most often contested by defendants. See, for example, State v Mausen [2005] PGNC 95, N 2870, PacLII <http://www.paclii.org/pg/cases/ PGNC/2005/95.html>. However, there are quite a few cases in which the victims identification of the defendant as her rapist is at issue. See, for example, State v Tibong and Some [1982] PGNC 30, N361, PacLII <http://www.paclii.org/pg/cases/PGNC/1982/30.html>, discussed below at text accompanying n 24. 16 Actually, the notion that rape victims can be any person, regardless of gender or marital state, is an advance over earlier versions of the statute. As discussed at n 11 above, prior to the 2002 amendments, men could not be rape victims. Nor could wives. 17 In Didei v State [1990] PNGLR 458, PacLII < http://www.paclii.org/pg/cases/PGSC/1990/9.html>, the Supreme Court overturned a National Court conviction of a rapist, largely because the prosecution had not put a medical report into evidence, so there was no independent proof of penetration. Contrast this with State v Benson [1997] PNGLR 185, PacLII <http://www.paclii.org/pg/cases/PGNC/1996/162.html>, in which several witnesses (including a hotel security guard and two police officers) found a girl on the grounds of the hotel and saw blood flowing from her legs and trousers, and, in addition, the report of the doctor whod examined the girl and found lacerations in and around her vagina. Even though the victim herself did not testify in that case, Acting Justice Passingan had no hesitation in convicting the defendant. There are also cases in which hospital records were non-existent or inadequate, but penetration was proven to the satisfaction of the court by other evidence, such as the girls statements, appearance or demeanour. 18 But, under the 2002 amendments to the Criminal Code, penetration can be slight, need not be of the vagina, and need not be by the penis. See n 15 above.
27
defendants frequently make is that they were not doing anything remotely connected with sex. This is the argument Peter Townsend made:
He said he arrived at the office that morning, at about 11:30 am. He worked in his own office for a while, then took some files to the room where the victim was working alone; he said he had a brief conversation with her, and then left. He said that Lucy had asked him the time, and it was exactly 12:10 pm, and he stayed only three to four minutes in the room with her. He denied any assault upon Lucy Kumel. 19
A similar argument can be found in State v Sipi,20 where the mother of an 8-year-old girl caught the defendant, one of her husbands wantoks, having sex with the little girl; he categorically denied that any such thing had occurred, saying that the child had made him lie down with her, but that nothing sexual had happened: I did not do anything. I was playing cards with that small girl and later we got the bed sheets and pillows and we slept. The child herself did not testify; the court weighed the likelihood that the mother would falsely subject her child to a rape trial against the likelihood that the man was telling the truth and found him guilty. Another burden that the courts commonly put on victims was the requirement that she promptly report the rape to some third party if not the police, then relatives, friends, a teacher or counselor. In numerous cases not only in Papua New Guinea, but also in England, Australia and the United States judges have held that they simply could not believe that a rape had occurred absent evidence that the victim had told someone about it, right after it happened.21 Numerous studies have shown conclusively that the typical rape victim, especially if she is a young girl, is too frightened and ashamed to tell anyone what has been done to her.22 Nevertheless, Papua New Guinea judges still require the victim to have made a prompt complaint to the authorities or to her parents, before theyll believe that a rape occurred. In State v Seigu, for example, decided in 2005, Justice Sevua did not believe a 13-year-old school girls claim to have been raped, because, though she went home on weekends to visit her parents, she did not tell them about it until, several weeks later, the same assailant raped her again.23 The identity of the defendant can also be difficult to prove (or, for that matter, to disprove). A defendant can plausibly deny that he was the rapist if the victim did not know her assailant, especially if she did not have a chance to get a good look at him. In State v Tibong,24 for example, the victim, a university student, was abducted and raped by a rascal gang who forced her into the back seat of her own car and drove away with her; she was able to see her rapists only for a few seconds and, then, not
19
Townsend v Oika [1981] PNGLR 12, PacLII <http://www.paclii.org/pg/cases/PGSC/1981/24.html>. 20 [1987] PNGLR 357, PacLII < http://www.paclii.org/pg/cases/PGNC/1987/64.html>. 21 For an overview of the history of the prompt complaint requirement in a variety of jurisdictions, see Michelle J Anderson, The Legacy of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary Instructions on Campus Sexual Assault (2004) 84 Boston University Law Review 945. 22 Morrison Torrey, When Will We Be Believed? Rape Myths and the Idea of a Fair Trial in Rape Prosecutions (1991) 24 University of California at Davis Law Review 1013; Katherine K Baker, Sex, Rape and Shame (1999) 79 Boston University Law Review 663. 23 State v Seigu [2005] PGNC 98, N2852, PacLII <http://www.paclii.org/pg/cases/PGNC/2005/ 98.html>. 24 [1982] PGNC 30, N361(M), PacLII <http://www.paclii.org/pg/cases/PGNC/1982/30.html>.
28
well -- when the interior lights of the car were briefly turned on. The court believed that the young woman had been raped, and by at least five people, but believed itself unable to find defendant Tibong guilty, holding that the brief glimpse shed had of him was not adequate to say definitely she recognized [the] man on her left as the defendant.25 Even if the victim did see her attacker clearly, zealous defense attorneys may remind the court that the victim could nevertheless be mistaken in her identification of the defendant as her attacker. A number of studies have shown that, contrary to what the common belief might be, eyewitness testimony is inherently untrustworthy, especially when the eyewitness is himself or herself the victim of the crime.26 Eyewitness testimony is likely to be more accurate, however, where the victim knew the defendant prior to the crime. Unfortunately, this does not deter some defendants from arguing that the victims identification of them as the rapist was mistaken and that they were not the perpetrators of the rape. However, in these circumstances, courts will usually accept her testimony as the more credible, and convict the defendant. In State v Wape, for example, the rapist broke into a hostel room, overpowered the victims husband and dragged the victim to a remote spot in the hotel gardens, where he raped her; not only did the victim get several long, clear looks at the rapist, but she recognized him as someone who had several times come into the office where she worked. She had seen him before; she knew his name; she knew his voice. The defendant still tried to assert mistaken identity, but, not surprisingly, the trial judge found against him.27 Defendants also often argue the consent element, conceding that they did engage in sex with the victim, but alleging that it was consensual.28 One reason that counsel for defendants find this element congenial is that the defendant does not need to prove that the sex was consensual; the prosecutor must prove that it was not. It is never easy
25
Justice Kidu cited to an earlier Papua New Guinea Supreme Court case, Beng v State [1977] PNGLR 115, PacLII <http://www.paclii.org/pg/cases/PGSC/1977/3.html>, in which the court had said, It has long been recognized that there are dangers inherent in eye witness identification evidence. See also State v Guma [1976] P.N.G.L.R, 10, PacLII <http://www.paclii.org/pg/cases/PGNC/1975/27.html>; and State v Rau [1997] PGNC 1, N1509, PacLII <http://www.paclii.org/pg/cases/PGNC/1997/1.html>. In the latter case, a police officer was acquitted of rape of a female prisoner, on grounds that the prisoners uncorroborated testimony as to the identity of the man who raped her was unreliable, because she said her rapist was in uniform, and defendant was not in uniform at the time. 26 For a roundup of the studies, see Jennifer E Laurin, Rights Translation and Remedial Disequilibration in Constitutional Criminal Procedure (2010) 110 Columbia Law Review 1002, 1035, who writes, The universe of current literature in the legal, social science, and law enforcement administration fields that analyzes the risks of identification evidence, and, critically, the failure of existing criminal procedure regimes to control for those risks, is vast. 27 State v Wape [1994] PGNC 24, N1281, PacLII <http://www.paclii.org/pg/cases/PGNC/1994/24.html>. 28 Prior to the 2002 amendments, the Criminal Code did not define consent, leaving that burden to the courts. In what is now s 347A of the Code, consent is defined as free and voluntary agreement, and, in further explanation of that phrase, the Code now includes a list of eleven circumstances in which a victim could not have consented, including submission to sex because of fear of harm, or when asleep or unconscious, or through a mistake about the sexual nature of the act or the identity of the rapist. Section 347A also provides that consent, once given, can be withdrawn, and the withdrawal can be expressed either by words or by actions. (For a case that held similarly, even before passage of the 2002 amendments, see Justice Dohertys thoughtful decision in State v Charles [1990] PNGLR 63, PacLII <http://www.paclii.org/pg/ cases/PGNC/1990/89.html>.)
29
to prove a negative, and, since rape is by its nature an act usually done in secret, it is usually only the rapist and his victim who can truly know what happened. So testimony as to this element at trial often takes the form of two conflicting stories, one from the defendant and another from the victim, and therefore a decision on this element often turns on the credibility of the two parties. Which of the two defendant or complainant does the court find more believable? For centuries, courts in England, Australia and, therefore, in Papua New Guinea, were extremely hesitant to accept a woman at her word when she said that she had not consented to sex. And, the more sexually experienced a woman was, the less likely the courts were to believe her when she said that, this time, she had not consented. As a result, rape trials often turned into a trial of the victim, questioning her about her sexual activity, as if each and every time shed had sex, she was committing a crime. Even when a woman could prove her reputation spotless, however, judges were still inclined to believe shed consented, unless she could support her story with physical evidence such as cuts and bruises, a torn vagina, or reports from passersby that they had heard screams confirming that she had been forced into sex and that she had tried to fight off the defendant.29 Feminist legal scholars have been demonstrating, since at least the early 1970s, that, just because a woman consents to have sex with one person, doesnt mean shes consented to have sex with another, or even with that same person at a different time; and that many women are too frightened (or too wise) to fight back, or even shout, when they are attacked.30 The requirement of contemporaneous reporting is also raised in relation to the consent element, many courts holding that a woman will be presumed to have consented to sex unless she can show she told someone about the attack very shortly after it happened. As recently as 2007, in State v Solomon, 31 defense counsel argued that his client should be acquitted because the victim had not reported his repeated rapes of her to the authorities, thereby showing her consent; in that case, the defense did not prevail, because the court pointed out that there was also evidence that he continually beat her, sufficient proof that the sex had not been with her consent. In 2002, Parliament amended the Criminal Codes provisions on consent to take account of recent sociological research.32 As amended, the Code now provides that lack of consent cannot be inferred from the fact that the victim did not physically resist, or did not sustain a physical injury, or that, on an earlier occasion, the victim
29
See, for example, Justice Greville-Smiths comment in State v Birch [1978] PNGLR 79, PacLII <http://www.paclii.org/pg/cases/PGNC/1978/17.html>: ... as a matter of common sense and reasonable inference, if no force was used then it follows that there was no resistance, and if there was no resistance then there was consent. Unless, as a matter of common sense and reasonable inference, no force was needed, because fear did the job. 30 Nancy Levit and Robert R M Verchick, Feminist Legal Theory (2006) 179-89; Catharine A MacKinnon, Rape: On Coercion and Consent in Toward a Feminist Theory of the State (1991) 171-8; Michelle J Anderson, Revising Resistance in Rape Law [1998] University of Illinois Law Review 953. 31 [2007] PGNC 148, N3215, PacLII [35] <http://www.paclii.org/pg/cases/PGNC/2007/148.html>. 32 The new version of s 347A of the Criminal Code provides that silence should be taken as a refusal to consent (not as consent), and that a person is not regarded as having consented to a sexual act just because he did not physically resist; or he did not sustain physical injury; or on that or an earlier occasion, he freely agreed to engage in another sexual act with that person or with some other person.
30
had engaged in sexual intercourse with some other person or even with her attacker.33 But the amendments to the Code have not stopped a significant number of Papua New Guinea judges from still requiring proof that a woman resisted her attacker, or that she immediately reported the attack, before theyll accept her allegations. For example, in State v Lahu, decided in 2005, Justice Sevua refused to find the defendant guilty, holding that the victim had failed to prove that the sex was non-consensual, because the accused had been sitting with her on the bus on their way home, she got off a bus at the same stop as he, and, because she did not shout as she was being dragged into the vanilla garden, she did not shout when her clothes were being removed, and she did not shout when the accused had sex with her, it is difficult to imagine there was not consent.34 Similarly, in State v Sopane, decided in 2005, Justice Lenalia refused to find the defendant guilty of rape because his victim had not cried out to her friend, who was sleeping outside the house where the rape was occurring; nor did she report the rape to her husband until the next day. 35 In 2007, in Balbal v State, a three-judge Supreme Court panel referred to the contemporaneous reporting requirement as settled law.36 However, that view might be dictum, because the court went on to hold that the requirement would not apply where, as in that case, the victim was a child, too young even to understand the significance of what had been done to her and the need to report it. An approach to the consent element more sympathetic to womens realities is unusual, but does occasionally occur in the Papua New Guinea courts. Examples include two cases decided long before the Code was amended: State v Charles37 (in which Justice Doherty, at that time the only woman on the Papua New Guinea bench, held not only that a womans consent must be expressly stated, but also that a woman can give consent and then withdraw it); and State v Tovue38 (in which Justice Kearney held that consent obtained by fraud is not true consent). Also of interest is State v Jokar, 39 decided in 2008, in which the court held that consent given out of fear is also not true consent. In that case a young village woman, whose parents had divorced and who lived with her mother, submitted to sexual intercourse several times over a period of months with an older man. She neither resisted nor reported him, and he claimed she had consented, but the court responded that his position as Village Councilor gave him such power and authority over the girl, indeed over the whole village, that she did not freely give her consent but, instead, was frightened into submission. The rape statute is a foreign implant into Papua New Guinea; like the rest of Papua New Guineas Criminal Code, it was adopted, essentially without alteration, from an
33
Criminal Code, s 347A. The new Code section also includes a substantial list of circumstances in which, by definition, there was no consent. See discussion at n 28 and n 32 above. 34 State v Lahu [2005] PGNC 161, N2851, PacLII <http://www.paclii.org/pg/cases/PGNC/2005/ 161.html>. 35 State v Sopane [2006] PGNC 45, N3024, PacLII <http://www.paclii.org/pg/cases/PGNC/2006/ 45.html>. 36 Balbal v State [2007] PGSC 16; SC860, PacLII [22] <http://www.paclii.org/pg/cases/PGSC/2007/ 16.html>. 37 [1990] PNGLR 63, PacLII <http://www.paclii.org/pg/cases/PGNC/1990/89.html>. 38 [1981] PNGLR 8, PacLII <http://www.paclii.org/pg/cases/PGNC/1981/59.html>. 39 State v Jokar (No. 1) [2008] PGNC 64; N3361, PacLII [27] <http://www.paclii.org/pg/cases/PGNC/ 2008/64.html>.
31
early version of the Queensland Criminal Code.40 A rape statute more closely representative of Papua New Guinean values might have contained different elements. Nowhere is this more obvious than in connection with the consent element. At least in this era of history, it is considered both immoral and criminal in most western cultures to have sex with a woman (even, in most cultures, ones wife) who does not want to have sex with you; in many customary Papua New Guinean societies, however, or so the anthropologists tell us, the attitude of the woman was considered irrelevant. Men chose when to have sex, and with whom, and women put up with it; if not actually the practice, that was, at least, the prevailing norm.41 So the very insistence in the Papua New Guinea Criminal Code on consent as an element of rape is problematic. As the above discussion demonstrates, the Code, even in its amended version, does not make it easy to prove that a rape has occurred, or who did it. And the Papua New Guinea courts have chosen to interpret and apply the Code in ways that make it all the harder. Moreover, as the next section of this article will demonstrate, that does not end the prosecutors difficulties. The Papua New Guinea Supreme Court has added yet another level of difficulty by decreeing that, while trial courts may accept into evidence the testimony of rape victims about what happened to them, the courts should view this testimony as inherently untrustworthy, unless it is corroborated by another person or by physical evidence. 4. PROVING RAPE: CORROBORATION
The major purpose of criminal trials like that of Lucy Kumels boss, Peter Townsend, is to ascertain whether the prosecution has met its burden of proving all the elements which is, usually, the laws way of saying that the purpose of the trial is find out whether this defendant committed this crime. In order to accomplish this, the trier of fact (the term the formal legal system uses to refer to the jury or, when there is no jury, a magistrate or judge the person who determines what actually happened, what the facts of the case actually are) is often required, as the magistrate was in the Lucy Kumel case, to determine which of two opposing witnesses is telling the truth. When the defendant says he didnt do it, and the victim says he did or when the defendant says she consented, and she says she didnt -- which of them is to be believed? Because there is seldom anyone present except the rapist and his victim when a rape occurs, proof of any of the elements can be difficult. Admittedly, it is not always easy for a judge to decide, when there are two equally plausible stories, which one is the truth. To help decide between these conflicting stories in legal terminology, to help them decide which party is more credible the courts have invented various procedural rules (called rules of practice) for themselves. These rules are supposed to be guidelines or touchstones, compiled from the judges practice and experience, that offer insight into whether a person is telling the truth. Sometimes they merely express perceptions that trial judges have garnered, after years of observing from the bench as people give testimony: for example, judges will now commonly say, in describing
Jean G Zorn and Bruce L Ottley, Code or Custom: Criminal Law in a New Nation (1981) 31 American Journal of Comparative Law 251. 41 Banks, above n 6, 94; Anou Borrey, Sexual Violence in Perspective: the Case of Papua New Guinea, in Dinnen and Ley, above n 6, 105-118, 107.
40
32
why they preferred the testimony of one witness over another, that truthful witnesses tend to speak clearly and answer promptly, whereas liars will stumble over their answers, or fail to respond to the question. Because the rules of practice are based on anecdotal observation and on untested preconceptions, they are actually far from accurate. One result is that the rules themselves conflict, which can be a bit embarrassing to the court when this is pointed out, but also serves to give judges a rule they can quote, however they decide the case. For example, the decisions in which judges say that truthful witnesses speak clearly whilst liars stumble, are probably no more frequent than those in which the judge, with equal confidence, opines that truthful witnesses tend to speak haltingly, and to stumble, whilst the liar is all too quick and glib in answering. Many practice rules are based upon judges worldviews, on the preconceptions about so-called human nature that they bring with them to the bench, from the milieus in which they were raised. It is not surprising then, since most judges are men, to find that the practice rules which are supposed to lead the court to the correct answer all too often lead the court, instead, to the answer that favours the male party. This is, unfortunately, especially true and especially problematic in rape cases. Ive mentioned already a few court-made rules that militate against women. One is the requirement that, for a court to believe that a woman did not consent to sex, she must be able to show that she shouted or screamed or fought back in other words, that there were physical signs that she resisted her attacker. Another is the presumption that no assault occurred unless a woman even a young girl reported it immediately. One of the most difficult practice rules for women in rape cases to overcome is the uncorroborated testimony rule, which was created by the courts in Papua New Guinea specifically for rape trials. That rule cautions a court to treat the allegations of a rape victim as suspect, unless she can find someone to corroborate her story but does not require the court to treat her attackers uncorroborated testimony with the same distrust. Given that, by its very nature, rape is almost always a crime without witnesses, this rule becomes an almost insurmountable barrier for women trying to prove that they were raped. The uncorroborated testimony rule governed the Papua New Guinea courts for about twenty years, until 2002, when Parliament tried to do away with it by statute. The attempt to do away with the rule has not been entirely successful. In the following sections of the article, I will first discuss the courts creation and use of the uncorroborated testimony rule, and then the courts reaction to the 2002 statute which attempted to do away with it. 4.1 Uncorroborated Testimony: The Common Law Rule
The version of the uncorroborated testimony rule adopted by the Papua New Guinea courts is, actually, not as draconian as it might have been. The Papua New Guinea rule merely requires that courts treat an uncorroborated womans testimony with distrust; in some jurisdictions, at some periods of legal history, the rule totally prohibited courts from convicting a defendant if his victims testimony was not
33
corroborated.42 The Papua New Guinea courts adopted the less stringent version of the rule, which allows courts to convict a defendant, even where the victims testimony is uncorroborated, but only if the court has expressly stated in its written decision that it is aware of the dangers in doing this. The notion that judges must, in writing, remind themselves of the potential dangers of their actions, is odd, to say the least. The practice began in England, in the late seventeenth century, where it was aimed at primarily at juries. 43 It was thought, I suppose, since the members of juries arent usually trained in the arts and stratagems that courtroom lawyers adopt, that they might be more gullible than a legal professional, more likely to believe the evidence of a woman without putting it to any test, and might therefore benefit from a reminder about the dangers of uncorroborated statements. Michelle Anderson points out that the requirement was instituted at a time when other protections of defendants, such as the presumption of innocence and the standard of proof beyond a reasonable doubt did not exist. But the rule became distinctly questionable when it was imported into Papua New Guinea, where there are no juries. Judges themselves act as the triers of fact. And, since judges can be presumed to know the rules of evidence, and to have an appreciation for standards of evidentiary credibility, one might presume that the requirement of a written warning could be dispensed with. Not so. There have been a number of cases in Papua New Guinea in which the guilt of the accused seemed quite certain so certain that the trial judge found him guilty and nevertheless, because the trial judge failed to write a sentence in his decision showing that he had reminded himself or herself of the dangers of uncorroborated testimony, the conviction was set aside and the accused acquitted.44 4.1.1 The Uncorroborated Testimony Rule in Lucys Case Townsend v Oika (the case we know as Lucys story) is among the more egregious examples of a courts use of the uncorroborated testimony rule. At the trial level in that case, the magistrate found Townsend guilty of sexual assault. The case was appealed to the National Court, where the magistrates decision was upheld. But, then, it went to the Papua New Guinea Supreme Court, which overturned the trial court decision solely on the ground that the magistrate had failed to include a passage in his decision, explicitly warning himself about the dangers of relying upon the uncorroborated testimony of a victim of rape or sexual assault. That Supreme Courts decision is especially questionable because that Court overturned not only the
42
For an overview of the origins and development of the uncorroborated testimony rule in England, Canada and Australia, see Bruce Feldthusen, Civil Liability for Sexual Assault in Aboriginal Residential Schools (2007) 22 Canadian Journal of Law and Society 61. 43 The origins in England of the requirement that judges must warn the trier of fact to treat uncorroborated testimony with suspicion, and the adoption of the requirement by a number of US courts in the nineteenth century, are thoroughly discussed in Anderson, The Legacy of the Prompt Complaint Requirement, above n 22, 959-60. 44 See especially, Townsend v Oika [1981] PNGLR 12, PacLII <http://www.paclii.org/pg/cases/PGSC/ 1981/24.html>, the case from which I have drawn Lucys story. Other cases in which convictions were overturned on the basis that the trial judge failed to warn himself include McCallum v Buibui [1975] PNGLR 439, PacLII <http://www.paclii.org/pg/cases/PGNC/1975/17.html>; Didei v State [1990] PNGLR 458, PacLII <http://www.paclii.org/pg/cases/PGSC/1990/9.html>.
34
magistrates verdict, but also the intermediate appellate decision of Justice Kearney, who had expressly and explicitly considered the issue of whether the magistrate ought to have written a warning to himself. And had decided that it was not necessary for the magistrate to have done so, because It is clear that he [the magistrate] believed Lucy Kumels account and disbelieved [Townsends]. They were both testifying before him and he was of course in a position to assess their truthfulness and accuracy of recall.45 It is impossible to determine with any precision the extent of the impact of the uncorroborated testimony rule on victims or defendants, because trial judges do not tell us, at least not in so many words, whether the rule affected their decision. There are cases in which the Papua New Guinea courts convicted defendants even though the only evidence against the defendant was the victims testimony.46 But there are also a significant number of cases in which the rule might have played the major role in influencing the court to choose the defendants story over the victims.47 Testimony is uncorroborated when, in essence, there is no other evidence that either supports or rejects it. And testimony can be corroborated in a number of ways: through the testimony of a bystander or an accomplice,48 say, or by medical evidence showing forcible penetration;49 occasionally, by the rapists own confession. All too
45 46
Townsend v Oika [1981] PNGLR 12, PacLII <http://www.paclii.org/pg/cases/PGSC/ 1981/24.html>. There were five cases in which defendant was convicted, even though the victims testimony was uncorroborated and the court gave itself the proper warnings: State v Tovue [1981] PNGLR 8, PacLII <http://www.paclii.org/pg/cases/PGNC/1981/59.html>; State v Varuko [2002] PGNC 12, N2372, PacLII < http://www.paclii.org/pg/cases/PGNC/2002/12.html>; State v Guma [1976] PNGLR 10, PacLII <http://www.paclii.org/pg/cases/PGNC/1975/27.html>; State v Sam [2003] PGNC 9, N2521, PacLII < http://www.paclii.org/pg/cases/PGNC/2003/9.html>; State v Mausen [2005] PGNC 95, N2870, PacLII <http://www.paclii.org/pg/cases/PGNC/2005/95.html> . 47 There were four cases in which, after warning itself to distrust a victims uncorroborated testimony, the courts then acquitted the defendant: State v Rau [1997] PGNC 1, N1509, PacLII <http://www.paclii.org/pg/ cases/PGNC/1997/1.html>; State v Sopane [2006] PGNC 45, N3024, PacLII <http://www.paclii.org/ pg/cases/PGNC/2006/45.html> (judge says he wasnt satisfied by victims testimony); State v Lahu [2005] PGNC 97, N2851, PacLII <http://www.paclii.org/pg/cases/PGNC/2005/161.html> (judge says victim not believable because she didnt cry out for help while defendant was having sex with her); State v Seigu [2005] PGNC 98, N2852, PacLII <http://www.paclii.org/pg/cases/PGNC/2005/98.html> (judge says the teenage victim was not believable because she didnt immediately tell her parents and because she had a boyfriend with whom shed had sex). 48 An example of bystander testimony is found in Balbal v State [2007] PGSC 16, SC860, PacLII <http://www.paclii.org/pg/cases/PGSC/2007/16.html> (the victim was the rapists 5-year-old daughter; her testimony was corroborated by the testimony of her little brother, who heard his sister crying and then saw his father carrying his sister with blood coming down her legs, and her mother, who, after assuring her daughter of protection from the rapist, heard the daughters story of the rape). An example of accomplice testimony is found in State v Guma [1976] PNGLR 10, PacLII <http://www.paclii.org/pg/cases/PGNC/ 1975/27.html> (which presented the judge with an interesting conundrum, in that evidentiary rules in effect at the time prohibited the conviction of defendants either on the basis of a victims uncorroborated testimony or on the basis of an accomplices uncorroborated testimony; here, Justice Raine held that, though neither such testimony would have been satisfactory alone, together they were sufficient to enable him to convict). 49 State v Charles [1990] PNGLR 63, PacLII <http://www.paclii.org/pg/cases/PGNC/1990/89.html> (doctor examined victim shortly after the rape, and testified to her physical condition); State v Wape [1994] PGNC 24, N1281, PacLII <http://www.paclii.org/pg/cases/PGNC/1994/24.html> (the victims testimony was corroborated by the medical evidence, which did confirm that there had been a rape and physical assault; however, the issue in the case was not whether the victim had been raped, but whether defendant was her rapist: which seems to me to make the medical evidence irrelevant).
35
often, however, in rape cases, none of these exist. A frightened girl is raped, either by an individual in a totally solitary spot or by a rascal gang, none of whom will give evidence against the others; in Papua New Guineas understaffed hospitals, medical evidence can be spotty at best, or, as often happens, the girl is too frightened or shy to go to the aid station or hospital until the evidence has disappeared; and, rapists seldom confess. 4.1.2 Sexism in the Uncorroborated Testimony Rule The very existence of the uncorroborated testimony rule hints at sexism, at fear and distrust of women. It is telling that the uncorroborated testimony requirement exists only in rape cases, and not in trials involving other crimes; it is even more telling that the rule is addressed solely to the uncorroborated testimony of the rape victim, and never to a defendants uncorroborated story. Now, the fact that the defendants testimony is not subject to corroboration is in large part the result of the requirement a requirement grounded in natural justice that it is up to the prosecution to prove its case, not up to the defendant to disprove it. But, this requirement applies to any kind of criminal case, not just to rape trials, and, in cases involving just about every other kind of crime robberies, for example, or assaults, murder even the victims testimony is not required to be corroborated in order to convict, even though it is now generally agreed that eye witness identification testimony is not nearly as infallible as was once believed.50 A major hypothesis of this article is that sexism lies at the root of the uncorroborated testimony rule, and this hypothesis is bolstered by the fact that, in the courts own explanations for the rules existence, the rights of the defendant, under natural justice, are never mentioned. Instead, from the earliest uses of the rule in eighteenth-century England to contemporary discussions in Papua New Guinea, the courts have focused not on the rights of defendants but on stereotypes about the supposed unreliability of women arguing, in particular, that, whenever a woman is found having sex with someone other than her husband, shell lie about whether she consented to it. This dark suspicion of women has underpinned the uncorroborated testimony rule from its beginnings in eighteenth-century England. Feldthusen describes the antiwomen views that prompted eighteenth-century English judges to originate the rule:
The idea that women and children were inherently untrustworthy when they testified about sexual matters had deep roots in Anglo-Canadian legal traditions. Most authorities credited eighteenth-century English jurist Sir Matthew Hale as the source, citing his famous adage that rape was an accusation easily to be made, and hard to be proved, and harder to be defended by the party accused, though never so innocent.51
The rule that Lord Hale created and the suspicion of women that underlay it -- took hold on the imagination of judges throughout the common law world. It existed for over two centuries in England, and was received into a number of Australian and American states. Once enshrined in treatises and judicial decisions, Hales biased
50
Lisa Dufraimont, Regulating Unreliable Evidence: Can Evidence Rules Guide Juries and Prevent Wrongful Convictions? (2008) 33 Queens Law Journal 261; Sandra Guerra Thompson, Beyond a Reasonable Doubt? Reconsidering Uncorroborated Eyewitness Identification Testimony (2008) 41 University of California at Davis Law Review 1487. 51 Feldthusen, above n 43; Anderson, above n 22.
36
views became settled legal doctrine. In the twentieth century, new arguments in support of the rule were added, polishing it up for contemporary consumption by references to the supposed findings of that newest of the sciences psychiatry. Wignore, for example, one of the pre-eminent writers on evidentiary matters, explained the need for the rule thusly:
Modern psychiatrists have amply studied the behaviour of errant young girls coming before the courts in all sorts of cases. Their psychic complexes are multifarious, distorted partly by inherent defects, partly by diseased derangements or abnormal instincts, partly by bad social environment, partly by temporary physiological or emotional conditions. One form taken by these complexes is that of contriving false charges of sexual offenses by men. 52
Wigmores statements were, in turn, quoted by numerous judges, all of whom, like Wigmore himself, ignored the many psychiatric studies that had found exactly the opposite of what he reported.53 Hales rule and the distrust of women that underlay it existed almost entirely without criticism in England and Australia until the mid-1970s, when feminist legal scholarship on the jurisprudence of rape trials began to be published.54 Given the strength of the doctrine in England and Australia until that time, it is not surprising that judges in Papua New Guinea repeated the same refrain: human experience has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute.55 And, given that, in colonial and post-colonial situations, the periphery colonies often adhere to beliefs and values of the colonizing country long after the center has discarded them, it is probably not surprising that Papua New Guinea adopted the doctrine just about
52
Wigmore, Evidence in Trials at Common Law (3rd ed, 1940) 9. John Henry Wigmore, an American academic, published the first edition of his treatise on evidence in 1904. It was extremely influential in its day, cited in literally hundreds of court decisions throughout the common law world. Many rules from Wigmores treatise are still quoted, approvingly, by judges to this day, though usually on topics other than the psychology of women. 53 Judith Lewis Herman, Father-Daughter Incest (1981) 11 notes that in his Treatise on Evidence Wigmore unfairly purported to draw upon the pronouncements of eminent psychiatric authorities adding: [w]here their published case reports suggested the possibility of real sexual abuse, Wigmore, like Freud, falsified or omitted the evidence. But see Harvey, Tremeear's Criminal Code of Canada, (5th ed, 1944) 1264. Both of these sources are cited and discussed in Feldthusen, above n 42. 54 See, among many others, the following, all cited in Feldthusen, above n 42: G Geiss, Lord Hale, Witches and Rape (1978) 5 British Journal of Law and Society 26; Jocelynne A Scutt, Law Reform and Child Sexual Abuse in Australia in Penelope Hetherington (ed), Incest and the Community: Australian Perspectives (1991) 117, 125-134; Connie Backhouse The Doctrine of Corroboration in Sexual Assault Trials in Early Twentieth Century Canada and Australia (2001) 26 Queens Law Journal 306-7; Kathy Mack, Continuing Barriers to Womens Credibility: A Feminist Perspective on the Proof Process (1993) 4 Criminal Law Forum 327; Rosemary Hunter, Gender in Evidence: Masculine Norms v Feminist Reforms (1969) 19 Harvard Womens Law Review 10; Wendy Larcombe, Cautionary Tales and Telling Anxieties: The Story of the False Complainant (2002) 16 Australian Feminist Law Journal 95; Denise Lievore, Victim Credibility in Adult Sexual Assault Cases (2004); Dorne Boniface, The Common Sense of Jurors vs the Wisdom of the Law: Judicial Directions and Warnings in Sexual Assault Trials (2005) 28 University of New South Wales Law Journal 261. 55 The quotation is from McCallum v Buibui [1975] PNGLR 439, 441, PacLII <http://www.paclii.org/pg/ cases/PGNC/1975/17.html>. This was probably the first Papua New Guinea case in which the uncorroborated testimony doctrine and these arguments for adopting it - appeared. However, the quotation is older than that; the judge in McCallum v Buibui is quoting from an English decision by Lord Salmon, R. v Henry (1968) 53 Cr App R 160, 163. From 1975 on, just about every Papua New Guinean case involving uncorroborated testimony of a rape victim cites McCallum v Buibui, and quotes that easy to fabricate difficult to refute refrain.
37
the time it was coming under question in England and Australia, and continued to adhere to it long after most English and Australian courts had discarded it. The case of Townsend v Oika56 (Lucys story) is important not just because the Supreme Court cited to the uncorroborated testimony doctrine in reversing Townsends conviction, but equally because it is one of the few Papua New Guinean cases in which the bases for that doctrine are discussed in some detail. Probably because of that, it has become one of the leading cases on the question of corroboration in rape cases and, as such, is referred to again and again by judges in later cases.57 The major discussion of the perfidy of women, and the consequent need to distrust their uncorroborated testimony, is contained in the part of the decision written by Greville-Smith J:
On a charge of sexual offence, such as rape, indecent assault, or homosexual offence, it is the practice to instruct the jury that it is unsafe to convict on the uncorroborated evidence of the alleged victim. There is sound reason for this, because sexual cases are particularly subject to the danger of deliberately false charges, resulting from sexual neurosis, phantasy, jealousy, spite, or simply a girls refusal to admit that she consented to an act of which she is now ashamed. Of these various possibilities, the most subtle are those connected with mental complexes. Wigmore, who recites a number of instances where women have brought false sexual charges against men, explains one of the motivations as follows:
The unchaste (let us call it) mentality finds incidental but direct expression in the narration of imaginary sex-incidents of which the narrator is the heroine or the victim. On the surface the narration is straightforward and convincing. The real victim, however, too often in such cases is the innocent man; for the respect and sympathy naturally felt by any tribunal for a wronged female helps to give easy credit to such a plausible tale.58
Greville Smith seemed to accept Wigmores views without question, certainly without research, although he would not have had to look far to discover that, in the decade preceding his decision in Townsend v Oika, numerous scholars had demonstrated the total lack of any empirical support for Wigmores pronouncements on the feminine
56 57
[1981] PNGLR 12, PacLII <http://www.paclii.org/pg/cases/PGSC/1981/24.html>. The case, and its reasoning, are quoted approvingly, for example, in Didei v State [1990] PNGLR 458, PacLII <http://www.paclii.org/pg/cases/PGSC/1990/9.html> (victim said she was raped by her cousin-brother, who denied it; trial judge convicted without giving himself a warning, and appellate court overturned the conviction, saying Allegations of this sort are easy to make but difficult to refute. It may be relatively easy for a girl to implicate a man in an allegation of rape and often so very difficult for a man to do anything but deny it). But see State v Sipi [1987] PNGLR 357, PacLII <http://www.paclii.org/pg/cases/ PGNC/1987/64.html>, which concerned the attempted rape of an 8year-old girl. The sole witness was the girls mother, and the court found an ingenious way to hold that the non-corroboration rule did not apply, reasoning that the rule was meant to refer only to the testimony of women claiming themselves to be the victims of rape, and not to other witnesses, even the victims mother. 58 Greville Smith is not citing directly to Wigmores treatise. He is quoting from an article by an English academic, Glanville Williams, Corroboration Sexual Cases (1962) Criminal Law Review 662, which in turn quotes Wigmore. One of the many unfortunate consequences for Papua New Guinea of having a judiciary so long dominated by foreigners (in particular, by Australians) is that the judges felt utterly justified in looking for key rules and applications, to English, and sometimes American or Australian, cases, treatises and articles, whilst almost totally ignoring judicial decisions from countries, such as other Pacific Island nations, or even from African jurisdictions, where the circumstances might be more like those of Papua New Guinea. The justices of the Papua New Guinea bench felt so keenly the rightness of citing always to England that, as with Greville Smith in this case, they hardly ever felt the need to explain why they were doing it, or even to mention that they were.
38
psyche.59 Indeed, these scholars had discovered that Wigmore had misstated what some of his sources said and simply fabricated some of his so-called evidence. Townsend v Oika was a Supreme Court decision, heard by three expatriate justices Greville Smith, Pratt and Miles JJ. All three wrote decisions, but only Greville Smith J wrote a justification for the uncorroborated testimony rule. Pratt J wrote only that he agree[s] with the reasons and conclusions of Greville Smith.60 He did not state why he agreed. Pratt J also wrote that he consider[s] this rule of the common law appropriate to the circumstances of Papua New Guinea and [I] have not heard on this appeal, or elsewhere for that matter, any reasons which would substantiate a submission that it was inappropriate.61 Again, he didnt share with the reader any of the reasons that had convinced him of the particular appropriateness of the rule for the Papua New Guinean milieu. Miles J, rather diffidently, tried to draw his fellow judges attention to recent social science and feminist scholarship which was calling into question the very theories of feminine psychology that his colleagues were relying upon:
[T]here is in other countries at the present time, well-articulated criticism of the corroboration requirement particularly as applied to rape cases and in principle to all cases of sexual assault on women. It is claimed that the existing rules discriminate against women, lumping them together with children and criminals. In some of the American States where formerly there could not be a conviction for rape without corroboration (and where there was an extraordinarily low conviction rate by Papua New Guinea and, for what it is worth Australian, standards) the corroboration rules have been thrown out altogether. Moreover, the principles of modern psychology outlined by Wignore and expanded by Glanville Williams are under attack in the post-Freudian era. A proper consideration of these matters and their implications for Papua New Guinea awaits argument at another time. 62
Why did Miles J wish to wait for another time? It is hard to know what better time there could have been for consideration of these matters than the case at hand, since the argument had been joined. But Miles J may have felt, given the misogyny of his colleagues and their adamancy, that he could go no farther in his support for women. Indeed, he must have felt even the little way hed gone was way too far, because he
59 60
See, for example, those cited above at n 54. Townsend v Oika [1981] PNGLR 12, PacLII <http://www.paclii.org/pg/cases/PGSC/1981/24.html>. 61 Ibid. Counsel for the State attempted to analogize to earlier cases in which the Supreme Court had held that the rule requiring corroboration of accomplice testimony, a rule of long standing in the common law of England and Australia, was not appropriate to the circumstances of Papua New Guinea. For example, in one of those earlier cases, State v Fineko [1978] PNGLR 262, 263, PacLII <http://www.paclii.org/pg/cases/ PNGLR/1978/262.html>, Prentice CJ had written that corroborative evidence is unnecessary in Papua New Guinea because In Papua New Guinea, the evidence of accomplices, in the experience of the judges, is usually given not in a spirit of vindictiveness [as, the courts believe, is the case in England and Australia]; but with a sense of justice very much in mind. It is more than possible that in many cases, it is done also with an intent to avoid a pay-back upon the unconvicted mans family or clan. 62 Townsend v Oika, [1981] PNGLR 12, PacLII <http://www.paclii.org/pg/cases/PGSC/1981/24.html>. Ive omitted from the quotation in the text the social science and feminist sources that Miles J cited. They are as follows: Jocelyne A Scutt, Reforming the Law of Rape: The Michigan Exchange (1974) 50 Albany Law Journal 615, 619; Jocelyne A Scutt, The Rape Corroboration Requirement (1972) 81 Yale Law Journal 1365; Susan Brownmiller, Against Our Will (1975) 278, 372; B Toner, The Facts of Rape (1977) 112, 202; Australian Law Reform Commission, Reform of Evidence Law (1980) 3.
39
ended this less than staunch support by concurring in quashing the conviction, thus acquitting a man who, it is clear, Miles J pretty firmly believed had committed a sexual assault. Would he have been so timid about disagreeing with his seniors if Townsend had actually raped Lucy Kumel, instead of just copping a quick feel? One would like to think so. 4.1.3 Racism in the Courts Approach to Uncorroborated Testimony Although this paper is primarily about the role that sexism plays in shaping the courts approach to rape cases, I do not want to leave the reader with the misapprehension that sexism is the only issue. Racism also plays a significant role in these cases. Papua New Guinean women are caught in a double bind, for they are the victims not only of sexism, but of racism as well. Racism entered Papua New Guinea with the advent of colonialism, and, although its operation has always been subtler than sexism, which was a product both of traditional cultures and of the colonial period, it is today equally endemic. Amongst the consequences of racism in colonial Papua New Guinea was the sexual abuse that Papua New Guinean women suffered at the hands of white kiaps and planters. Many district officers wrote at the time, without a trace of guilt or shame, of sexual encounters with women from the village. 63 It is obvious, though usually unspoken, that the women had no choice in the matter, either because their fathers or other family members forced them into it, or because the village presumed that the white man could take whatever he wanted. The double bind occurs because the men who took advantage of these women excused their own actions by looking upon the women as soiled goods, as immoral and promiscuous, and because the women were viewed as immoral and promiscuous, men took advantage of them. Papua New Guinean women are victimized by sexism, by racism, and by the intersection of racism with sexism. African-American and Aboriginal women have experienced a similar double bind, and their experience sheds light on the similar predicament in which Papua New Guinean women are placed. In the slave states of the American south, slave owners were permitted, even expected, to make free sexual use of their female slaves. One result is that American is today truly a melting pot in which very few people are either entirely black or entirely white. Another result is that women who are designated as black are also designated as sexually promiscuous, because, as Kimberl Crenshaw tells us, white slave owners did not take the blame for their sexual assaults; instead, blame was shifted from the white master to his black slave, resulting in a characterization, which continues to the present, of black women as wanton:
Because Black women face subordination based on both race and gender, reforms of rape law and judicial procedures that are premised on narrow conceptions of gender subordination may not address the devaluation of Black women. Much of the problem results from the way certain gender expectations for women intersect with certain sexualized notions of race, notions that are deeply entrenched in American culture. Sexualized images of African Americans go all the way back to Europeans' first engagement with Africans. Blacks have long been portrayed as more sexual, more earthy, more gratification-oriented. These sexualized images of race intersect with norms of women's sexuality, norms that are used to distinguish good women from bad, the
63
Edward P Wolfers, Race Relations and Colonial Rule in Papua New Guinea (1975) 127-128, 135; C S Belshaw, The Great Village: The Economic and Social Welfare of Hanuabada, an Urban Community in Papua (1957) 237-9; Amirah Inglis, Not a White Woman Safe: The White Womens Protection Ordinance (1974).
40

madonnas from the whores. Thus Black women are essentially prepackaged as bad women within cultural narratives about good women who can be raped and bad women who cannot. The discrediting of Black women's claims is the consequence of a complex intersection of a gendered sexual system, one that constructs rules appropriate for good and bad women, and a race code that provides images defining the allegedly essential nature of Black women. If these sexual images form even part of the cultural imagery of Black women, then the very representation of a Black female body at least suggests certain narratives that may make Black women's rape either less believable or less important. These narratives may explain why rapes of Black women are less likely to result in convictions and long prison terms than rapes of white women.64
A result of this shifting of the blame from the attacker to his victim is that black women are not accorded as much sympathy when they are raped as white women are. Nor are they as easily believed when they say they were raped or assaulted. Since Papua New Guinean women were similarly treated during the colonial period, it is not surprising that the paradoxes of sexism and racism can also be found in the Papua New Guinea courts conflicting approach to rape. For many years, the great majority of judges in Papua New Guinea were foreigners, primarily from Australia, and these judges did not made a particular effort to understand Melanesian cultures, let alone be influenced by them,65 so they were as likely as other colonial officials to believe that Papua New Guinea cultures were generally inferior to those of the west, and the Papua New Guineans themselves were childlike, over-emotional, and lacking in reasoning capabilities.66 The systemic belief that Papua New Guinean women somehow suffered less emotional trauma from rape, and were therefore less deserving of protection from unwanted sexual advances, coloured the approach of most expatriates, including judges, to rape cases. This is immediately evident when one compares the fact statements that judges write in decisions in which the victim was a white woman with those in which the rape victim was a Papua New Guinean. In most cases involving white women, the fact statement overflows with compassion; the judges concern for the young woman, their empathy even, is evident. In cases involving Papua New Guinean women, the fact statements tend to be cool and distant, like the one about Lucy Kumel that I quoted above.67 Compare that fact statement with the following description by the judge in the case of the rape of a white woman:
On the evening of Tuesday, 1 April 1986, Gary and Christine Hallard were at their residence at the Garden Hills Estate, Kaeme Street, Hohola. They resided in the upper flat of a duplex, the lower flat at the time being empty. Both Gary and Christine had retired early for the night around 8:30 pm. At around 10:00 pm, both were awoken by the sound of voices and sounds of people climbing over the security fence at the back of the flat near the bedroom. Both could hear the sounds of their clothing being
64
Kimberl Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color (1991) 43 Stanford Law Review 1241, 1270-71. 65 Jean G Zorn, Customary Courts and Customary Law: A Comparison of Papua New Guinean and American Indian Approaches in Jonathan Aleck and Jack Rannells (eds), Custom at the Crossroads (1995) 71; Jean G Zorn, Common Law Jurisprudence and Customary Law in Rudy W James and Ian Fraser (eds), Legal Issues in a Developing Society (1992) 103; Jean G Zorn, Making Law in Papua New Guinea: The Influence of Customary Law on the Common Law (1991) 14(4) Pacific Studies 1. 66 Jean G Zorn and Bruce L Ottley, Code or Custom: Criminal Law in a New Nation (1983) 31 American Journal of Comparative Law 251. 67 Townsend v Oika [1981] PNGLR 12, PacLII <http://www.paclii.org/pg/cases/PGSC/1981/24.html>.
41

pulled off the washing line. At this stage, Gary Hallard got up and dressed and checked that the house was secure and all doors locked. As things went quiet, Mr Hallard returned to bed. Around 10:30 pm, both could hear the sounds of the security fence being cut outside the bedroom. Mr Hallard, on hearing this set off a small internal alarm. By this time, there was a number of people outside pushing objects through the windows. An order was given to turn off the alarm, which Mr Hallard did. Sounds could be heard of attempts to break open both the front and rear external doors of the flat. Mrs Hallard then hid herself in the cupboard in the bedroom and Mr Hallard locked the bedroom door and held the door. Entry was then gained to the flat and then attempts were made to break into the bedroom. Mr Hallard held on to this door, but realising that eventually they would gain entry, he opened the door and stepped out into the entrance whereupon he was immediately grabbed and pulled into the lounge area. There he observed some four or five persons, one of whom was armed with a rifle. Mr Hallard after indicating where the key to his car was, was then hit on the back of the head and thrown to the ground, semi-conscious. His watch was removed and he was tied up. The house was then at this stage ransacked and items of the property as listed in the schedule of property, were removed. After a while, the house was quiet and Mr Hallard was able to look around and found no-one present. He heard the cars being driven away. After managing to untie himself, Mr Hallard discovered his wife Christine was no longer in the house. He subsequently found the two security guards who had been on the premises were tied to trees outside the security fence where they had been taken and tied up. Both security guards had been beaten, one receiving a knife wound to the head, and the other a cut above the eye; both required sutures. Both were also injured due to being tied very tightly to the trees. Christine Hallard had been found in the cupboard during the ransacking of the house and pulled out and made to sit on the floor in the bedroom. Several men were in the bedroom and had pieces of cloth over their faces. One man approached her with a rifle and threatened her, demanding money. During this time, property to the value of K10,630.00 was removed from the house. Several of the men at this time touched Christine and tried to kiss her, which she resisted. She was then told to go outside to the garage downstairs, walking past her husband lying on the floor in the lounge, tied up. At this stage, Christine was put in one of their cars, a Honda, four men got in with her, one of these being the prisoner Michael Amuna Koupa. Property removed from the flat had been loaded into their other car, a Suzuki, which carried the other men. Christine was then driven to the Hohola Demonstration School where both cars stopped and the men got out. Christine was still in the Honda car when the man with the rifle approached her and after threatening to kill her, raped her. Christine was then raped by the other men, in all she was raped seven times. All were armed with bush knives. One of those present was Michael Amuna Koupa. After this, a discussion took place and then the Suzuki left. The Honda vehicle with Christine in it was then driven to Erima Community School Basketball Grounds, where she was again raped by the three men with her; the prisoner, Michael Amuna Koupa was one of those to rape her. By this stage, the victim was screaming and was told that she would be killed if she did not remain quiet. After this, the three men with Christine drove back towards Hohola, on the way there they were intercepted by the police vehicle and chased. Eventually, the vehicle was abandoned and the police then apprehended Michael Amuna Koupa as he tried to run away. During the course of his arrest, he was shot in the leg by the police. One of the other men, Raphael Haro, was shot dead. The other man escaped, but was later arrested. The police found the prosecutrix in the back of the Honda, naked and in severe shock. Subsequent medical examination confirmed that sexual intercourse had occurred. Subsequently
42

to this incident, the prosecutrix has suffered serious external and physical problems. She has been receiving psychiatric treatment since the incident. 68
Admittedly, a pack rape by violent and unknown assailants, in the middle of the night, is more horrible than a near rape by ones boss at midday at the office. So one would expect the language and emotion to be somewhat heightened. But the difference in tone and texture goes beyond that. Telling Lucys story, the court calmly presents what happened, and then only in general terms; the reader is not privy to any of the details of Townsends actions, nor are we told very much at all about how it made Lucy feel. Christines story, however, is encrusted with details. We know even that their flat was on the second floor, and that the ground floor flat was empty. Lucys story is told impersonally, first by a disinterested narrator, and then using quotations from Lucy and her attacker. But, even the quotations are as dry and impersonal as possible, garnered from affidavits not from testimony, and, where those might verge into feeling, the court substitutes paraphrase for direct quotes. The telling of Christines story is quite different: the reader is thrust right into the story, which does indeed read more like a story than like a fact statement; the reader almost experiences what happened, as the story is told, first, from her husbands point of view and then, vividly, and terribly, from hers. Over and over, we are prompted to share her fear. We are even told, at the end, that she is still afraid and that, in a last telling emotional detail, she has sought psychiatric help. Another way to demonstrate the importance of racism in the development of the uncorroborated testimony rule would be to compare the outcomes of cases in which the victim was a white woman with those in which she was a Papua New Guinean. However, of the eleven cases in this survey of the uncorroborated testimony rule (being, I believe, all of the cases from 1981, when the rule was established in Papua New Guinea, to 2002, when Parliament sought to abolish it), all the victims were Papua New Guinean, and all the rapists except one were also Papua New Guinean (uncorroborated testimony was not at issue in the case involving the rape of Christine Hallard), preventing any meaningful comparison, beyond the anecdotal note that the sole white defendant, Peter Townsend, was one of only three whose conviction was overturned on appeal. In recent years, more of the judges are Papua New Guinean. But that has not led to as great a difference in approach to rapists and their victims as one might hope. Instead, it seems, as Kimberl Crenshaw might have predicted, the racial prejudices of Australian society have come to intersect with the gender prejudices of Australian and Papua New Guinean cultures. Reflecting the views of both white and black (male) societies, the judges subject Papua New Guinean (female) victims to a double bind, hesitant to believe the complainants were raped, and quick to presume that they deserved it.
68
State v Koupa [1987] PNGLR 208, 209, PacLII <http://www.paclii.org/pg/cases/PGNC/1987/43.html>.
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4.1.4 Effects of the Uncorroborated Testimony Rule In Papua New Guinea, judges do not write decisions about every case, nor are all their decisions published or otherwise accessible, so any overview of judicial decisionmaking is necessarily incomplete. With that caveat in mind, however, some conclusions can be broached, at least tentatively, on the effects of the uncorroborated testimony rule. Including the three leading cases in which judges established the rule governing the uncorroborated testimony of rape victims,69 I located about eleven cases70 that applied the rule prior to 2002.71 The courts adherence to the rule had the result of allowing some rapists and other sexual offenders who might otherwise have been imprisoned to go free. In doing so, it added to womens perspective that government, as exemplified in its police and courts, was not in existence to help them, and that it was all but useless to complain to the authorities about rape. Although only three of the eleven case surveyed resulted in a reversal of the conviction on the grounds that the trial judge or magistrate had failed to warn himself about the dangers of uncorroborated testimony,72 the very existence of the rule probably had a chilling effect on judges, not to mention on the victims of rape, and a concomitantly heartwarming effect on defendants and their counsel. Although there was only one case in which the trial court decided not to convict the defendant, after giving itself the warning about uncorroborated testimony73 there were only two cases in which trial courts did convict defendants where the only evidence available was the victims uncorroborated testimony.74 In three cases, the trial judge convicted the defendant, but did so by finding that the complainants testimony was, after all, corroborated.75 And in two cases, the court held that the rule about uncorroborated
69
McCallum v Buibui [1975] PNGLR 439, PacLII <http://www.paclii.org/pg/cases/PGNC/1975/17.html>; State v Guma [1976] PNGLR 10, PacLII <http://www.paclii.org/pg/cases/PGNC/1975/27.html>; Townsend v Oika [1981] PNGLR 12, PacLII <http://www.paclii.org/pg/cases/PGSC/1981/24.html>. 70 One can never be quite sure that one has found every Papua New Guinea court decision. Before the early 1990s, when computers were fewer and the internet much less reliable, many decisions were neither saved nor shared. Despite the heroic efforts of law librarians and court employees to unearth and catalogue decisions, resources to do so were scarce, and many typed manuscripts accumulated in judges chambers and in the offices of the Supreme Court. Even in this computerized era, internet connections, even the presence of a working computer, cannot be guaranteed in all places and times in Papua New Guinea, so decisions may be lost, misplaced or unreported for a time. 71 As discussed herein, in Papua New Guinea, the uncorroborated testimony rule was invented by judges, who imposed it on themselves. That rule was revoked by statute in 2002. That statute, the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (PNG) and the effect it had on judicial decision-making in rape cases is discussed below. 72 McCallum v Buibui [1975] PNGLR 439, PacLII <http://www.paclii.org/pg/cases/PGNC/1975/17.html>; Townsend v Oika [1981] PNGLR 12, PacLII <http://www.paclii.org/pg/cases/PGSC/1981/24.html>; Didei v State [1990] PNGLR 458, PacLII <http://www.paclii.org/pg/cases/PGSC/1990/9.html>. 73 State v Rau [1997] PGNC 1, N1509, PacLII <http://www.paclii.org/pg/cases/PGNC/1997/1.html>. 74 State v Tovue [1981] PNGLR 8, PacLII <http://www.paclii.org/pg/cases/PGNC/1981/59.html>; State v Varuko [2002] PGNC 12, N2372, PacLII <http://www.paclii.org/pg/cases/PGNC/2002/12.html>. 75 State v Guma [1976] PNGLR 10, PacLII <http://www.paclii.org/pg/cases/PGNC/1975/27.html> (defendants accomplices corroborated victims testimony); State v Charles [1990] PNGLR 63, PacLII <http://www.paclii.org/pg/cases/PGNC/1990/89.html> (victims injuries were held to corroborate her testimony that she had not consented to sexual intercourse with the defendant, as were the circumstances a deserted, rundown house - in which sexual act took place); State v Wape [1994] PGNC 24, N1281, PacLII <http://www.paclii.org/pg/cases/PGNC/1994/24.html> (victim identified
44
testimony didnt apply, because the uncorroborated testimony in question was not that of the victim.76 4.2 Uncorroborated Testimony: The Sexual Offences Act
In 2002, Parliament passed the Sexual Offences Act, an omnibus bill that made numerous changes in the Criminal Code in areas having to do with rape and other sexual offences against men, women and children.77 It both broadened the definition of rape and gave needed clarity and exactness to the definition of the crime.78 Most particularly, for our purposes, s 352 of the Criminal Code, as amended, did away with the uncorroborated testimony rule:
On a charge of an offence against any provision of this Division [Division V7: sexual offences and abduction], a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself that it is unsafe to find the accused guilty in the absence of corroboration.79
The statutes absolute prohibition on a judges even mentioning the supposed dangers of rape victims testimony is crucial because, even in those cases in which defendants were convicted, the judges written decisions still managed to endanger women by singing a refrain (women lie) that only served to remind men and women, too of the alleged inferiority, and general untrustworthiness, of women as a class. In this section, I will discuss first the judges reactions to this new rule, and then the judges evolving views of women, as those views are demonstrated in their decisions about the new rule. But, again, I want to begin with a story that will illustrate many of the points Im going to make. And, once again, Im taking the story from a case, from a judges written description of the facts in the case, and, once again, my telling of the story will focus on the woman, on who she was and how she must have felt, a perspective all but ignored in the official version of the decision that the judge wrote and that is in the law books: 4.2.1 Margarets Story80
Margaret is a widow in her 40s. She was originally from Chimbu, but she has lived for many years with her husband and her, now grown, children on the oil palm project
defendant as her rapist; court held her identification was corroborated by her husband, who testified hed heard defendants voice when defendant abducted victim and also by victims injuries, which showed forcible sexual penetration). 76 State v Sipi [1987] PNGLR 357, PacLII http://www.paclii.org/pg/cases/PGNC/1987/64.html> (testimony by victims mother); State v Sam [2003] PGNC 9, N2521, PacLII <http://www.paclii.org/pg/cases/PGNC/2003/9.html> (testimony by defendant himself). 77 The Criminal Code (Sexual Offenses and Crimes Against Children) Act 2002 (PNG) became part of the Criminal Code, adding some new sections and replacing a number of old ones. 78 For a discussion of the relevant changes made by the amendments, see n 11, 13 ,14 and 16 above, and accompanying text. 79 A similar provision was also included in the part of the Code relating to sexual assaults on children; Criminal Code, s 229H. 80 This story is taken from State v Mausen [2005] PGNC 95, N2870, PacLII <http://www.paclii.org/ pg/cases/PGNC/2005/95.html> at 16 July 2010, decided by Justice Cannings. Margaret is not the complainants real name; the judge does not give her name in his written decision.
45
near Kimbe, East New Britain.81 After her husbands death, her daughter Lucy and son-in-law Max Muto moved back to the family home to live with her. On the morning of 11 March 2004, Margaret walked to the town market to shop and gossip. On her way home in the early afternoon, she detoured by her garden to pick some tapioca for dinner.
She found some near Section 2 and was about to pull it out of the ground when she noticed a person standing nearby. She was very surprised. It was a young man. He was wearing a black cap and a black tee shirt across his face, a pair of cut jeans and a pair of orange slippers.82
Despite the clumsy disguise, Margaret knew who it was. She recognized him right away, from what she could see of his eyes and face through the tee shirt, and his voice, even though it, too, was masked strange, slow, slurred, as if hed been taking drugs. It was Noutim Mausen. Shed known his father Danny Mausen for years. Danny had come from the Sepik, years ago, not long after Margaret and her husband, and, in the early days, before theyd all built houses on their own blocks, theyd even stayed together for a while. Noutim was about 20; Margaret had seen him around the blocks all his life.
[Noutim] told her to take hold of his penis. She told him she could not do that as she had cancer and the doctors told her not to do that sort of thing. She was too old for him anyway. She was old enough to be his mother. He then asked her why she was saying things like that and whether she could see his face. She replied, Yes, I know you, you are Noutim, I am not new here. She then cried and begged him to leave her alone. He told her that she would not die and that she should just let him hold her for a little while. She still resisted, so he pointed the knife at her and forced her to the ground and had sexual intercourse with her. 83
As soon as his hold on her slackened, she scrambled up and dove for her bilum, pulling her own bushknife out of it. [S]he told him to leave her alone as she was not the same size as him. She said again that she was not a young woman. They struggled, and he grabbed her bushknife. She believed then that she was about to die, but he just stood there for long minutes, holding the knife, and then, tossed it to her, and disappeared into the bush. She tried to run home, but she was shaking. Her hands were shaking, even her legs. She almost fell on the bush track. Luckily, two friends appeared, Ben Kwaling and his wife. She was gasping for air, her clothes torn, leaves and grass all over her. They could see that something terrible had happened to her, even before she cried out to them that Noutim had raped her. The Kwalings helped her home. Her son-in-law Max was there. Everybody agreed the police should be notified right away; Margaret
81
This was one of the Australian colonial administrations attempts to wean people from their customary life styles, to convert land held by customary groups into individually owned parcels held under Torrens Title, and to move indigenous Papua New Guineans away from subsistence farming and into cash cropping activities. A number of reports have been written about this project; the first, and perhaps still the most complete, was probably J P Longayroux, Hoskins Development: The Role of Oil Palm and Timber, New Guinea Research Bulletin No 43 (1972). 82 State v Mausen [2005] PGNC 95, N2870, PacLII <http://www.paclii.org/pg/cases/PGNC/2005/ 95.html>. 83 Ibid.
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was still too upset to go, so Max went. Two officers came back to the house to question Margaret, and then Ben and Max brought them to Margarets garden, where they found her assailants jeans and thongs. The police said that Margaret should go to hospital; she insisted she was fine, no longer shaking, but they explained that a medical report was needed in order for there to be proof shed been raped, so, the next day, when she was feeling a little better, she went. The police arrested Mausen and charged him with rape. At his trial in the National Court, Mausens counsel did not dispute that Margaret had been raped, but argued instead that Mausen wasnt the rapist.84 Hed been at home, his advocate argued, building a house with his brother Paul; Paul testified that his brother had been with him the whole day, and theyd never left the property, oh, except once when they went into the bush, or maybe just Mausen went into the bush. The court did not find the testimony either of Mausen or his brother very convincing. However, there was no real corroborative evidence for the prosecution either. The medical examination showed only that sex had occurred, not who had done it, or even whether it was forced or consensual. And, although Margaret had immediately told her friends that shed been raped, they hadnt seen her rapist, could not be sure it was he. 85 However, the judge found Margarets testimony very believable, especially when weighed in the balance with the statements of the Mausen brothers, so he convicted Noutim Mausen of the rape. Wed like to think that this case demonstrates that the Sexual Offences Act has been victorious not only in vanquishing the uncorroborated testimony rule but in doing away in general with the discriminatory treatment of women in rape and sexual assault cases. Unfortunately, that is not so. As the following section of this paper will demonstrate, judges are adept at watering down the effects of statutes that they dont like. Even in the Mausen case, where the judge found Margarets uncorroborated testimony so inherently believable that he convicted Noutim Mausen on the strength of it, he still went out of his way to express his disagreement with the new statute and to suggest that, exceptions such as Margaret notwithstanding, most women are not to be trusted. But more on Mausens case after Ive described how judges have responded to the Sexual Offences Act in the cases immediately preceding it.
84
The case raised three legal issues that Justice Cannings discussed in some detail: first, because Mausens brother testified that he and Mausen were together all day, the judge discussed the legal rules involving the weight to be given alibi testimony, before holding that, in this case, the brother was not a credible witness, so his attempt at an alibi could be ignored; second, because the case involved Margarets statement that she recognized her assailant, the judge also discussed the validity of eyewitness identifications, holding that, despite the studies showing that eyewitness testimony is uncertain (see above n 50 and accompanying text), this one could be relied upon, as Margaret had known her attacker for so many years; finally, the judge discussed uncorroborated victim testimony, citing the new statutes rule that it should be accepted without comment. 85 Margarets counsel argued that her testimony had been corroborated both by the medical evidence, showing that forcible penetration had occurred, and by her statement to the friends who found her, a statement that she made immediately after the rape took place. The trial judge found that, because of the new statutory rule on uncorroborated testimony, there was no need to rule on whether these would constitute corroboration, but suggested that, had he been required to rule on that issue, he would have held that they did not. Although judges in the Papua New Guinea courts question a womans credibility when she does not immediately tell people about the rape, or when she fails to have a medical exam, this judge would not have given credit to a woman who did do both.
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4.2.2 How the Courts Interpret the Sexual Offences Act Courts are supposed to be subservient to statutes. The role of the judge is not to ignore or change a statute, even when the judge disagrees with it, but merely to interpret and apply it. However, judges have ways of defeating Acts that they dont like, ways that may be obvious (for example, declaring that an Act is void because it violates natural justice or the Constitution) or subtle (for example, interpreting the Act in a way that takes the teeth out of it). Statutes have effect only to the extent that courts are willing to enforce them, so, for example, the likelihood that the Sexual Offences Act will redress the gender imbalance in Papua New Guineas rape jurisprudence will be determined by how the Act is interpreted and applied by the National and Supreme Courts. And, to date, many of the judges have demonstrated antipathy towards the Act, especially towards its changes to the uncorroborated testimony rule, and have looked for ways, both obvious and subtle, to avoid enforcing it. Between the date that the Act took effect and the date of writing this article, the Papua New Guinea courts issued fourteen decisions86 in which the victims testimony was uncorroborated and managed to go against the statutes stated goal in all but two of them. In those two decisions, the judges simply referred to the Acts existence and moved on, the surest way of applying it properly. 87 In the other twelve decisions, however, the courts have used three major strategies to subvert the Act ignoring its existence, declaring it unconstitutional, and pretending to follow it while actually undermining it. 4.2.2.1 Ignoring the Acts Existence In three cases, trial judges just continued to comment on the dangers of uncorroborated victim testimony; as if the Act had never come into existence.88 It is difficult to determine in two of those, whether the judge did this intentionally or whether he just didnt know about the Act; both were decided by Sevua J. In State v Lahu,89 the victim said that shed been on a bus returning from the market, that defendant had sat next to her on the bus, that, when they got to the stop nearest to their village, they both got off, but defendant had gone ahead along the track, waited
86
There were two distinct cases - State v Balal (No. 1) [2005] PGNC 134, N2820, PacLII <http://www.paclii.org/pg/cases/PGNC/2005/134.html>; and Balbal v State [2007] P.G.S.C. 16; SC860, SC860, PacLII [22, 30] < http://www.paclii.org/pg/cases/PGSC/2007/16.html>, with names that were the same, but for one letter, and with somewhat similar facts, in that both involved the rape of a daughter by her father. But the judges in the two cases reacted to the existence of the new statute very differently. In State v Balal, a National Court case, the trial judge applied the statute properly, by refraining from saying anything about the danger (or lack thereof) of uncorroborated testimony; he didnt even mention that the victims testimony was uncorroborated. In Balbal v State, however, a Supreme Court case, the three justices on the appellate panel managed to remind themselves and anyone else who read their decision that uncorroborated testimony can be dangerous even while sanctimoniously quoting the new statutes ban on doing just that. 87 In addition to State v Balal, ibid, see also State v Urareo (No 1) [2005] PGNC 173, N3086, PacLII [13] <http://www.paclii.org/pg/cases/PGNC/2005/173.html>. 88 State v Sam [2003] PGNC 9, N2521, PacLII <http://www.paclii.org/pg/cases/PGNC/2003/9.html>; State v Balal, ibid.; State v Lahu [2005] PGNC 97, N2851, PacLII <http://www.paclii.org/pg/cases/PGNC/ 2005/161.html>; State v Seigu [2005] PGNC 98, N2852, PacLII <http://www.paclii.org/pg/cases/ PGNC/2005/98.html>. 89 State v Lahu, ibid.
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for her to catch up and, when she did, grabbed her, pulled her into a garden, tore off her clothes, and raped her. Defendant claimed that they got off the bus together and that their sex was consensual. Not only did Sevua J seem not to know that the new Act was in effect; he also seemed not to know the common law rule that the Papua New Guinea courts had been used up to then. He held, contrary to both the new statute and the old common law rule, that Corroboration is necessary for a conviction.90 He acquitted the defendant, partly because there was no corroboration of the victims story, partly because he didnt believe her story anyway:
When one considers that the accused sat with the prosecutrix in the bus on the way home and they were conversing prior to being dropped off and she did not shout as she was being dragged into the vanilla garden, she did not shout when her clothes were being removed, and she did not shout when the accused had sex with her it is difficult to imagine that there was no consent. 91
Sevua J is not alone; it is all too common for judges to disbelieve women when they are raped by someone they knew, particularly when the woman was on a date with that person. But, stranger rape is actually less common; in well over half of all rape cases, the victim knew her attacker.92 But Sevua J seems deeply distrustful of every woman who testifies in his courtroom. To him, the victim in State v Lahu was not a victim at all:
She is not a well educated villager and she obviously does not appreciate the importance of a criminal trial and the necessary elements of the crime of rape. I would not go as far as describing her as a liar. I think it is important to appreciate her level of education and degree of sophistication and these are matters which directly contribute to ones misdemeanour [sic] and credibility.93
Just a few days later, in State v Seigu,94 Justice Sevua again found unbelievable a girls uncorroborated statement that shed been raped. The victim, a 12 to 13-year-old girl, was raped twice, six months apart, by an uncle, a man old enough so that he had a son her age. He gained access to her because she was living with his family whilst attending a primary school three hours walk from her parents home. She didnt tell anyone after the first rape, because hed threatened to hurt her if she told on him. After he did it a second time, however, she told her parents, who brought her to the hospital. She was examined by a graduate Health Extension Officer, undergoing his residency training, who found tears to her vagina. In regards to the first rape, Justice Sevua admitted that corroboration is not required as a matter of law, but proceeded to act as if it is required, stating that there was no complaint [by the victim to family or friends], no medical examination and no corroboration To my mind, the prosecutrixs evidence on the first [rape] is a mere
90 91
Ibid. Ibid. 92 Jenny Mouzos and Toni Makkai, Womens Experiences of Male Violence: Findings from the Australian Component of the International Violence against Women Survey, Australian Institute of Criminology Research and Public Policy Series No 56 (2004); Alan Clarke, Jo Moran-Ellis and Judith Sleney, Attitudes to Date Rape and Relationship Rape: A Qualitative Study, Great Britain Court of Appeal, Sentencing Advisory Panel (2002). 93 State v Lahu [2005] PGNC 97, N2851, PacLII <http://www.paclii.org/pg/cases/PGNC/2005/161.html>. 94 [2005] PGNC 98, N2852, PacLII <http://www.paclii.org/pg/cases/PGNC/2005/98.html>.
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assertion that she was raped.95 Since uncorroborated testimony is always a mere assertion, it is pretty obvious that Justice Sevua will never convict any rapist on the basis of a womans uncorroborated statement. In addition, as with every other woman hed encountered, he found her testimony about the first rape unbelievable: For a girl of tender age, one would have expected that she would have reported the incidents to her parents or the school principal or teacher.96 Actually, studies show thats the last thing one should expect a young girl to do, especially one who has been threatened by the man whom her parents nominated to take care of her.97 There did seem to be corroboration of the second rape: the girl complained to her parents immediately, and there was medical evidence. However, Justice Sevua was at pains to take away any possible corroboration from that testimony as well. He insisted that the medical evidence was unconvincing characterizing the Health Extension Officer as a trainee HEO whose evidence is quite pathetic and unreliable to say the least.98 He could not understand, he said, how there might be a tear to a girls hymen when thered been an earlier rape.99 If one repudiated the medical testimony, and also ignored her report to her parents (which, the judge did, a strange omission considering how important the lack of a report of the first rape was to him), that left the complainants statement uncorroborated. Once hed gotten rid of the corroborating evidence, the judge was able to dismiss her statements out of hand. Not because of anything she did or didnt do at the time, but because, sometime between the first and second rapes, the assailants son and the victim became boyfriend and girlfriend, and had sex with one another. Justice Sevua is not the only man to believe that women who have sex outside of marriage are not worthy enough to be rape victims; the pity is that, unlike most of the men who believe this, he is a judge.100 In the third case that Ive placed in this category, State v Sam,101 the trial judge, Justice Lenalia, did mention the Act, though he found a time-honoured (by judges, that is) way of avoiding having to apply it; he refused to make it retrospective, holding that because the rapes happened from 1998 to 2000, prior to the effective date of the Act, its new rules did not apply, even though the defendant was not brought to trial until after the Act came into effect. The defendant was accused of forcing sex upon his daughter at least nine times over the course of two years. She was a child, probably frightened and shamed, and did not testify at the trial; the only testimony consisted of the defendants own confession to the police. His counsel made a novel argument, suggesting that, just as the uncorroborated testimony of a victim was a dangerous basis on which to convict, so too should be the uncorroborated testimony of the rapist himself. Justice Lenalia seemed to agree with this position; at any rate, he gave himself a version of the common law warning about the dangers of uncorroborated testimony: The court now warns itself of the dangers involved in convicting the accused on the uncorroborated evidence not by the victim but the
95 96
Ibid. Ibid. 97 Anderson, The Legacy of the Prompt Complaint Requirement above n 21; Baker, above n 22. 98 He criticized every test the Health Extension Officer performed, as well as the lack of a written report, and the decision to have the tests done by a Health Extension Officer instead of a doctor. You would think Justice Sevua was a CSI instead of a lawyer. 99 Tears in that area of the vaginal wall are quite common results of sexual assault, regardless of whether the victim has had sex before. 100 Torrey, above n 22; Clarke, Moran-Ellis and Sleney, above n 92. 101 [2003] PGNC 9, N2521, PacLII < http://www.paclii.org/pg/cases/PGNC/2003/9.html>.
50
evidence of admissions made by the accused from his own mouth. Despite the warning, however, Justice Lanalia found the defendant guilty and sentenced him to imprisonment for 17 years. 4.2.2.2 Finding the Act Unconstitutional Judge Lenalia, who, in State v Sam, had hardly even mentioned the existence of a new Act, suggested two years later, in State v Sopane,102 that the Acts prohibition on questioning the reliability of uncorroborated testimony was unconstitutional:
In sexual cases prior to the [Sexual Offences Act] there was a requirement not in law but in practice that the judge or magistrate should warn himself or herself of the dangers of convicting an accused on uncorroborated evidence of the victim alone . because when a woman has made a complaint to someone in authority, it is hard to refute such sexual allegations. It is my view that the [new rule] is unconstitutional in the sense that it goes against the grains [sic] of s.37(4)(a) of the Constitution which provides for the full protection of law and the right to a fair hearing. Although I agree with part of that section where it says that a person may be found guilty on the uncorroborated testimony of one witness, I am not comfortable with the latter part of the section saying that a Judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration.103
The constitutional argument is a difficult one to make this late in the game, because, though the old rule, requiring that judges warn themselves, had been followed in many cases, none of these cases had made a constitutional argument in support of it. Quite the contrary. The courts had gone out of their way to point out that it was a rule of practice, not of law, found neither in statutes nor in the constitution, but solely in judicial decisions. As a result, in arguing for the statutes unconstitutionality, Justice Lenalia found it necessary to make tortuous and unrelated arguments. First, he mentioned that there was a long list of cases in which the uncorroborated testimony rule had been established and used. He could not, however, point to a case in that long list that had held that such use was constitutionally mandated, because none of those cases said that. So, he was forced to bring up another kind of case entirely; he did produce a list of cases that have held that the prosecution has the heavy burden of proving every element of its case beyond a reasonable doubt. But, none of those latter cases were about uncorroborated testimony, so they dont actually prove that the prosecutions burden in rape cases is satisfied only if testimony is corroborated. As a result, even Justice Lenalia had to end his discussion of the rules constitutionality on an ambiguous note:
Due to the foregoing reasoning [about the constitutionality of the Act], I am unable to instruct myself in terms of [the Act], particularly in relation to the uncorroborated testimony of the victim regarding the rape allegation.104
Then, he wrote an exceedingly interesting paragraph, interesting because in it he was giving himself the danger warning, without really giving it:
The court cannot speculate from the prosecution evidence and form conclusions based on uncorroborated evidence of the victim alone unless the evidence of the victim is corroborated in
102 103 104
[2006] PGNC 45, N3024, PacLII <http://www.paclii.org/pg/cases/PGNC/2006/45.html>. Ibid. Ibid.
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some material particular. If the court forms the view that such uncorroborated evidence is worthy of belief then by all means, it can accept it without any further proof. 105
Thus, the judge had it both ways. He was covered: if the Supreme Court were to find the statute unconstitutional, which would mean that the warning was still required, hed given the warning. Equally, he was covered if the statute were found to be constitutional: his warning was stated sufficiently obliquely that he could indeed, almost in good conscience, say that he had obeyed the statute and not actually instructed himself. But the courts did not take Justice Lenalias bait. The Supreme Court did not hear the Sopane case on appeal. Nor has either the National Court or Supreme Court questioned the constitutionality of the Act in any other case. 4.2.2.3 Following the New Act Sort Of The category in which fully seven decisions the largest number by far belong comprises those cases in which courts quote the new Act, say that they are following it, but immediately, and thoroughly, undermine it by quoting the old rule.106 By the very act of quoting the old rule in full in particular, the old rules warning that the uncorroborated testimony of a victim is not trustworthy judges are doing exactly what the new statute says judges should not do: they are giving themselves and everyone who reads their decision -- the warning that uncorroborated testimony cannot be trusted. It is a very judicial way of subverting the intent, purpose, even the plain meaning, of the Act. In fairness to the court, it should be pointed out that, in at least one of those seven decisions, the judges quote the old rule almost inadvertently, or, at least, in so rote a manner that they may not have realized that, by doing so, they were actually bringing to the attention of their readers the very warning that the statute had tried to bury.107 In two of them, Justice Devani expressed a considerable understanding of what rape
105
Ibid. State v Mausen [2005] PGNC 95, N2870, PacLII <http://www.paclii.org/pg/cases/PGNC/2005/ 95.html>; Balbal v State [2007] PGSC 16, SC860, PacLII [22, 30] <http://www.paclii.org/pg/cases/PGSC/ 2007/16.html> at 16 July 2010; State v Gemung (No 1) [2007] PGNC 29, N3135, PacLII [12-14] <http://www.paclii.org/pg/cases/PGNC/2007/29.html>; State v Jokar (No 1) [2008] PGNC 64, N3361, PacLII [26-27] <http://www.paclii.org/pg/cases/PGNC/2008/64.html>; State v Lakai [2007] PGNC 50, N3153, PacLII [39] <http://www.paclii.org/pg/cases/PGNC/2007/50.html>; State v Magum [2009] PGNC 102, N3725, PacLII [29-30] <http://www.paclii.org/pg/cases/PGNC/2009/102.html>; State v Tenta [2009] PGNC 86, N3684, PacLII <http://www.paclii.org/pg/cases/PGNC/2009/86.html >. 107 One of those cases is Balbal v State, ibid, a Supreme Court case in which the three-judge appellate panel said at [30]:
106
...in sexual offence cases, until the very recent amendments to the Criminal Code, generally, the prosecution did not easily get a conviction if all it produced was the uncorroborated evidence of the victim of such offences. However, provided the Court could appropriately warn itself of the dangers inherent in proceeding to convict on the uncorroborated evidence of the victim, it could proceed to convict in some cases [citations omitted]. The recent amendments to the Criminal Code now make it possible for a court to convict on the uncorroborated evidence of a victim of a sexual offence as corroboration is no longer required.
52
victims go through, as well as a lack of patience with the old generalizations, although he expressed an equal degree of impatience with the new rule.108 Fully three of the seven decisions are by the same judge, Justice Cannings, and are text book examples of how to undermine the force, power and intent of an Act while ostensibly obeying it.109 They are also examples of what happens when a judge seems most of the time to begin from the premise that, quite aside from what the law says, the testimony of a woman should always be treated with suspicion and distrust. In State v Lakai,110 the complainant was a mentally retarded young woman who functioned at approximately the level of a 10-year-old; she said shed been raped, while the defendant said that she had consented to have sex with him. The case could have been decided on the simple grounds that a woman with the mind of a 10-year-old is incapable of consent. The judge preferred not to. Instead, in order, he said, to determine which party was telling the truth on the consent issue, he subjected her testimony to piercing scrutiny, pouncing on every discrepancy, every forgotten or misstated date, every detail changed or omitted from one telling to another, crowing that these proved she could not be believed and could very well be lying. Not surprisingly, he acquitted the defendant. In State v Magum,111 however, Justice Cannings reacted very differently. He found the defendants testimony utterly untrustworthy (and, as a result, he pronounced the defendant guilty). But the judge also had very few words of blame for the victim; perhaps because she was a school girl, and the defendant was her uncle, her mothers brother, charged with taking care of his sisters children. And, now, back to Margarets case:112 it is of interest, in this context, because it is the one case in which Justice Cannings did seem to accept the complaining witness story as credible perhaps because she was an older, settled woman of obviously excellent social repute; or, perhaps, because there was so much in the defendants testimony, especially when he and his brother begin to tell conflicting stories, that made his version incredible. But, regardless of how Justice Cannings felt about the witness and the defendant, he did not much like the new law, and he did a thorough, and thoroughly invidious, job of damning it with faint praise. He began by forcefully reminding his readers that the old common law rule had required judges to warn themselves of the suspect nature of uncorroborated testimony:
Prior to 2003, the general practice was that the court was required to warn itself of the dangers of entering a conviction for rape based on the uncorroborated testimony of the complainant the rationale being that rape is a serious charge, easy to allege and difficult to refute.113
108
State v Gemung (No 1) [2007] PGNC 29, N3135, PacLII [12-14] <http://www.paclii.org/pg/cases/ PGNC/2007/29.html>; State v Jokar, (No 1) [2008] PGNC 64, N3361, PacLII [27] <http://www. paclii.org/pg/cases/PGNC/2008/64.html>. 109 State v Mausen [2005] PGNC 95, N2870, PacLII <http://www.paclii.org/pg/cases/PGNC/2005/ 95.html>; and, State v Lakai [2007] PGNC 50, N3153, PacLII [39-40] <http://www.paclii.org/pg/cases/PGNC/2007/50.html>. But see State v Magum [2009] PGNC 102, N3725, PacALII [29-30] <http://www.paclii.org/pg/cases/PGNC/2009/102.html>, where the judges mention of the statutory ban seems directed merely at refuting defense counsels attempts to discredit the victim. 110 [2007] PGNC 50, N3153, PacLII < http://www.paclii.org/pg/cases/PGNC/2007/50.html>. 111 [2009] PGNC 102, N3725, Paclii [34, 41] < http://www.paclii.org/pg/cases/PGNC/2009/102.html>. 112 State v Mausen [2005] PGNC 95, N2870, PacLII <http://www.paclii.org/pg/cases/PGNC/2005/ 95.html>. 113 Ibid (emphasis added).
53
Why, one has to wonder did he find it necessary, or even useful, to give the rationale for a rule that was no longer in effect? Especially when he actually did believe in the truthfulness of the complainant in this case. The only possible answer to that question is that, much as he believed in Margarets veracity, he also believed in the old rule, believed that it applied to most women, and believed the rationale for it quite convincing. In effect, though he said he was just recounting history, he had, to all intents and purposes, given the warning that was no longer supposed to be given. But Justice Cannings then went on then to quote the rule from the new statute not just once, but twice. Had he changed his mind? Had he decided he liked the new rule after all, so much that he wanted to be sure his readers would understand it fully. Perhaps, but thats not the impression his decision gives. As you read this double quotation, you begin to realize that he wasnt emphasizing the new statute because he believed it was correct, but as a backdoor way of saying, over and over, how untrustworthy women are, and therefore how wrongheaded the new statute is. This was evidenced, first, by his choice of certain words to italicize: a person may be found guilty on the uncorroborated testimony of one witness, he wrote, and a Judge shall not instruct himself that it is unsafe to find the accused guilty in the absence of corroboration.114 Then, he quoted the new rule yet again, this time even breaking its elements out into bulleted clauses, so that his reader was being reminded, over and over, yet again, that uncorroborated victims testimony is likely to be untrue.115 And then, despite his emphatic renderings of the rule, he mentioned the supposed dangers of uncorroborated testimony yet again but in a way designed to enable him to remind everyone that women are untrustworthy whilst evading sanctions for disobeying the strictures of the new rule. He did it by writing the following ingenious sentence: I do not warn myself that there is any danger in convicting the accused on the basis of the complainants uncorroborated testimony.116 I expect that sentence is not what the drafters of the statute had in mind when they said that judges ought not to issue the warning to themselves. But it does have the effect of maintaining the subordination of women inherent in the old common law rule, whilst acting as if it is not.
114 115
Ibid (emphasis in the original). Having already quoted the statute once in full, heres how Justice Cannings then parsed the statute (the bullets are his):
The principles of evidence to apply perforce of Section 352A are: if the complainants evidence is regarded as uncorroborated, it is still possible to find the accused guilty; the judge is not required to instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration; on the contrary the judge must not give an instruction of that sort; if such an instruction is given, an error of law will be committed.
116
Ibid (emphasis added).
54
5.
CONCLUSION: SEXISM IN RAPE TRIALS
Defendants were convicted in nine of the fourteen cases decided after the Sexual Offences Act came into effect, and acquitted in only five, which might suggest that, despite the judges unwillingness to obey the Acts prohibition on warnings about uncorroborated testimony, the Act has already had some success in making judges slightly more likely to believe womens stories. Or, it might just mean that those nine defendants were so obviously guilty that there was no denying it. I lean towards the latter explanation, particularly when one considers the internal evidence the judges own discussions and analyses of the facts. For quite some time, feminist scholars have been pointing out that, in rape trials as in other forms of litigation, judges often based their decisions on inferences drawn from unproven generalizations about the supposedly typical behavior of women generalizations that, as often as not, turn out, when surveys are actually done, to be unfounded. For example, it was for many years a prevailing cultural myth that women who really wanted sex would still say to a man that they didnt, so men were justified in presuming a womans consent to sex, unless she fought back physically. Only with the advent of feminist inquiries into rape trials, beginning in the 1960s, did it become clear not only that most women who said no meant it, but also that many women who desperately did not want sex would nonetheless not say no, not fight back, usually out of fear that worse would happen to them if they did.117 The mistaken generalizations about womans behavior, and about what that behavior meant, were based upon a double-edged view of gender. In western (that is, English, Australian and American) mythology, women were portrayed either (and sometimes simultaneously) as shy and demure creatures, utterly uninterested in sex, and/or as wicked temptresses, egging men on, teasing them.118 Men, in western mythology, tend to be portrayed as good guys, but sexually voracious, hardly able to control their sexual urges, dependent on good women to keep them safe. This view of male behaviour was compounded in Papua New Guinea, where racism led whites to view Papua New Guinean females as wanton and Papua New Guinean men as unable to control their sexual urges.119 The reality was (and still is), of course, quite different.
117
John Dwight Ingram, Date Rape: Its Time for No to Really Mean No (1993) 21 American Journal of Criminal Law 3, 12; Matthew R. Lyon, Comment: No Means No? Withdrawal of Consent During Intercourse and the Continuing Evolution of the Definition of Rape (2004) 95 Journal of Criminal Law and Criminology 277. 118 Among the first Australian writers to point out the prevalence of this myth and to discuss its relevance to political and legal decision-making was feminist historian Anne Summers, Damned Whores and Gods Police: The Colonization of Women in Australia (1975). Australian feminist historians who have followed her lead include Ann Curthoys, Identity Crisis: Colonialism, Nation and Gender in Australian History, (1993) 5(2) Gender and History 165 and Marilyn Lake, The Ambiguities for Feminists of National Belonging: Race and Gender in the Imagined Australian Community in Ida Blom, Karen Hagemann and Catherine Hall (eds), Gendered Nations: Nationalisms and Gender Order in the Long Nineteenth Century (2000). American feminist scholars who discuss the double-natured portrayal of women include Sherry B Ortner, Is Female to Male as Nature Is to Culture? in Michelle Zimbalist Rosaldo and Louise Lamphere (eds), Women, Culture and Society (1974); Cynthia Eagle Russett, Sexual Science: The Victorian Construction of Womanhood (1989); Kathleen Ferraro, Neither Angels nor Demons: Women, Crime and Victimization (2006). 119 Edward P Wolfers, Race Relations and Colonial Rule in Papua New Guinea (1975) 135, quotes from the Handbook on New Guinea Living for Lutheran Missionaries (1959) 48-49: Missionaries must
55
Papua New Guinea cultures vary considerably in their own myths about what gender makes people do. According to the Huli people of the Southern Highlands, for example, exemplary men are by nature cool, reserved, reasonable, seldom wanting sex, whereas women generally are hot blooded and unable to control their tongues, their emotions or their sexual urges.120 Whatever the dominant gender myth may be, every culture, whether it be English, Australian, Papua New Guinean or any other, presumes that its own ascribed gender attributes are universal and natural. And most cultures believe that the roles they ascribe to gender roles are immutable, because they are tied to biology: the dominant myths hold that men act and think and feel the way they do because their biology compels them to, and women are the same. It is a very unusual culture that understands that biology plays only a minor part in moulding males and females into their respective gender roles, and that culture and socialization play the major part in this process. And, despite the many differences in the way gender roles are delineated in different cultures, most cultures seem to share one characteristic: when it comes to forced sex, they all seem to find a way to make men the relatively innocent (or, at least, justified) victims of womens temptations, and women the seducers who deserve all the blame. Judges are a product both of the culture in which they were raised and of a legal/judicial sub-culture. And that sub-culture, in turn, takes many of its values from the larger culture in which it exists. Judges, whether or not they understand or acknowledge that they are doing it, rely on the gender definitions of their cultures (both the larger culture and the legal culture) in deciding cases, including, perhaps especially, cases having to do with rape, sexual assault and other expressly gender driven issues. The judges can be said to have been inoculated with a double dose of sexism, because the legal/judicial sub-culture is, if anything, even more masculinist than are any of the cultures in which it is embedded. Traditionally, the law was a profession primarily for men, and, despite a recent influx of women into law schools and the lower ranks of the profession, the core values, beliefs and customary behaviors of the profession are still based on masculinist views.121 Logic is valued above emotion, aggression above nurturance, and men are generally considered more honest and less blamable when it comes to sex than are women.122 It is not surprising that these views have found their way into the rape cases. In every one of the five cases decided under the new Act in which defendants were acquitted, the judge decided on acquittal because he did not believe the victim when
beward of becoming too friendly with the opposite sex. The native has very strong sexual drives which he often is unable to control. 120 Holly Wardlow, Wayward Women: Sexuality and Agency in a New Guinea Society (2006). 121 American Bar Association Commission on Women in the Profession, The Unfinished Agenda: Women and the Legal Profession (2001) 14; Deborah L Rhode Gender and Professional Roles (1994) 63 Fordham Law Review 39; Deborah L Rhode Myths of Meritocracy (1996) 65 Fordham Law Review 585; Gwen Hoerr Jordan, Agents of (Incremental) Change: From Myra Bradwell to Hillary Clinton (2009) 9 Nevada Law Journal 580; Kennth G Dau-Smith, Marc S Galanter , Kaushik Mukhopadhaya and Kathleen E. Hull Men and Women of the Bar: The Impact of Gender on Legal Careers (2009) 16 Michigan Journal of Gender and Law 49. 122 Catharine A MacKinnon Tilting the Scales: The Changing Roles of Women in the Law and Legal Practice (2007) 31 Nova Law Review 225, and other articles in the symposium on Directions in Sexual Harassment Law in that issue.
56
she said shed been raped.123 Moreover, despite the fact that studies demonstrating the fallibility of traditional gender stereotypes are at least 40 years old now, in each of these cases, the judge found the complainants testimony unbelievable not because there was any direct contrary evidence, proving or even suggesting she was lying, but because her actions did not conform to the judges stereotypes of how good women the kind of women who, in the judges worldview, do not consent to casual sex; that is, the only kind of women for whom sex could be rape act, think and feel about sex. In State v Lahu (the case in which a woman claimed to have been raped by a man who sat next to her on the bus ride home to their village from the market) the trial judge, Justice Sevua, acquitted the defendant based, first, on the myth that men rape strangers, not women they know; and, second, on the incorrect notion that a woman will scream, cry out or fight if shes being raped. Similarly, in State v Seigu, the trial judge, again Justice Sevua, found a defendant not guilty because his victim did not meet the cultural stereotypes: though only a school girl, she was not a virgin, and she did not immediately tell her parents or teachers that shed been raped. Thus, in two ways, she violated the myth that only good girls get raped. A good girl would be an obedient, respectful girl, who would confide everything in her parents. And good girls never have sex unless it is forced upon them. Bad girls (i.e., girls who do have sex) want it all the time; a man doesnt have to force it on them. (Or, perhaps, it is, ultimately, their own fault if men do force sex on them; they asked for it, didnt they?) In State v Lakai, another trial judge, Justice Cannings, held a mentally-retarded girl to the same standard of reportage that Justice Sevua had required of his school girl: whatever her infirmities, she ought to have been smart enough to tell somebody what had happened; any girl who doesnt tell must be hiding something. A fourth case, State v Sopane, concerned yet another bad girl, this time a woman who got drunk at a party in her home on New Years Eve and found herself late at night being raped by one of the men whod been drinking with her at the party. The judge in that case, Justice Lenalia, hardly even bothered to explain why he wasnt satisfied with the victims testimony. She was a bad girl; that was enough. State v Tenta involved similar facts: a 15-year-old girl, out on the town for a night of partying, went into a hotel with a taxi driver; that was enough for the court to brush off her testimony that she was raped. This judges opinion of the new rules supposedly prohibiting judges from de-valuing uncorroborated testimony: thats just a suggestion, and, besides, uncorroborated testimony is untrustworthy, we all know that. Numerous studies have discredited all of these stereotypes: rape happens as often between friends or acquaintances as it does with strangers; women are often too frightened to scream and usually too physically overwhelmed to fight back; girls are
123
State v Lahu [2005] PGNC 97, N2851, PacLII <http://www.paclii.org/pg/cases/PGNC/2005/161.html> (decided by Justice Sevua); State v Seigu [2005] PGNC 98, N285, PacLII <http://www.paclii.org/pg/ cases/PGNC/2005/98.html> (also decided by Justice Sevua); State v Sopane [2006] PGNC 45, N3024, PacLII <http://www.paclii.org/pg/cases/PGNC/2006/45.html> (decided by Justice Lenalia); State v Lakai [2007] PGNC 50, N3153, PacLII [47-48] <http://www.paclii.org/pg/cases/PGNC/2007/50.html>(decided by Justice Cannings); State v Tenta [2009] PGNC 86, N3684, PacLII <http://www.paclii.org/pg/cases/ PGNC/2009/86.html> (decided by Justice Paliau)
57
usually too shy or ashamed to report a rape, especially to their parents or teachers; and, bad girls girls who have had sex, girls who go to parties, girls who drink are as liable to be raped as are good girls.124 (Nor does the Criminal Code distinguish between the rape of a virgin and the rape of a woman who has had sex.) Yet, the judges in Papua New Guinea continue to credit the stereotypes when discrediting victims testimony. They do so because the stereotypes have resonance for them, speaking to an inherent mistrust of women. And since judges, like other men, mistrust women and believe that women lie especially about sex the judges, like other men, continue to believe in the stereotypes, no matter how many times we prove them wrong.
124
Brownmiller above n 62; Rosemary Hunter, Gender in Evidence: Masculine Norms vs Feminist Reforms (1996) 19 Harvard Womens Law Journal 127, 157; Kathryn M Stanchi, The Paradox of the Fresh Complaint Rule (1996) 37 Boston College Law Review 441, 474-76; Peggy Reeves Sanday, A Woman Scorned: Acquaintance Rape on Trial (1997); Torrey above n 22, 1014-15.
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Zorn, Proving Rape - Final Published

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THE PARADOXES OF SEXISM: PROVING RAPE IN THE PAPUA NEW GUINEA COURTS Jean G Zorn* Rape is a serious problem

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Rape in the PNG Courts

Townsend v Oika [1981] PNGLR 12, PacLII <http://www.paclii.org/pg/cases/PGSC/1981/24.html>.

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The Narrative as a Feminist Retelling

Rape in the PNG Courts

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Rape in the PNG Courts

The Differences Between the Tellings

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READING JUDICIAL DECISIONS CRITICALLY

Rape in the PNG Courts

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Rape in the PNG Courts

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Rape in the PNG Courts

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Rape in the PNG Courts

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Rape in the PNG Courts

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Rape in the PNG Courts

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Rape in the PNG Courts

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Rape in the PNG Courts

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Rape in the PNG Courts

State v Koupa [1987] PNGLR 208, 209, PacLII <http://www.paclii.org/pg/cases/PGNC/1987/43.html>.

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102 103 104

[2006] PGNC 45, N3024, PacLII <http://www.paclii.org/pg/cases/PGNC/2006/45.html>. Ibid. Ibid.

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Ibid (emphasis added).

Rape in the PNG Courts

CONCLUSION: SEXISM IN RAPE TRIALS

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Rape in the PNG Courts

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