For the National Congress on Women

October 1998

1.0.A. Overview of Violence Against Women in Fiji and the Pacific Region

Violence against women and children in Fiji and the Pacific continues to be a tremendous problem. Fiji Police Force statistics show that domestic violence cases increased by 149% over a five year period from 1992 to 1996, at an average rate of 30% per annum. Fiji Police Force statistics also show that Offences Against Public Morality, which include rape, attempted rape and indecent assault, increased by 52% from 1987 to 1996. The most significant increase over this ten year period is recorded for Indecent Assault, which increased by 78%. Fiji Police Force statistics from 1992 to 1995 also show that, out of a total of 35 murders in a domestic violence situation, 26 of the victims were female. Fiji Women’s Crisis Centre (FWCC) statistics show that 2799 women accessed FWCC services in 1997 alone. This includes 950 new clients, 1040 repeat clients and 809 calls for telephone counselling.

Despite intensive advocacy and lobbying by women’s human rights organisations in Fiji, the law reform process is slow, if not non-existent when it comes to introducing new legislation to deal with crimes of violence against women. The inadequacy of laws on violence against women as a major constraint to addressing the issue. There was a recognition of the discriminatory effects that the laws and their interpretation has had on women and quite a number of women’s organisations in the Pacific are lobbying for the need to reform these laws.

Sentencing for crimes of violence against women continue to lack consistency. Although there are more members of the judiciary in Fiji who are handing down harsher sentences for violence against women, there is still a great deal of inconsistency in sentencing for domestic violence and sexual assault, and sexist comments made by some members of the judiciary during the summing up of cases still persists.

Throughout the Pacific there is still a great deal of stigma attached to the reporting of sexual assault, sexual harassment, child abuse, domestic violence and other crimes of violence against women. A general problem that affects services and programs to address violence against women is the social, cultural and religious acceptance of and justifications for violence against women. There continues to be a great need to raise gender awareness at all levels of society in order to address the issue of violence against women in Fiji and throughout the Pacific region.

Attitudinal problems are common to all organisations working in the area of violence against women. This includes traditional sexism, lack of recognition of Violence Against Women programs by governments, male colleagues and other women’s organisations, as well as defensiveness, arrogance and embarrassment that prevents people from admitting to the existence of violence against women as a problem that must be eliminated.

Currently there are a number of non-governmental organisations (FWCC, Fiji Women’s Rights Movement and Women’s Action for Change) that have instituted measures to address violence against women and children, including counselling, community education, training, workshops, drama, advocacy and lobbying for law reform and policy changes. The Regional Rights Resource Team (A British Aid Development Project) conducts relevant training for judges, magistrates, and lawyers.

The Fiji Police Training Project, which is funded by AusAID, aims to improve the services the Fiji Police Force delivers to the people. This training focuses on victim sensitivity and includes courses on domestic violence and gender sensitivity. The Sexual Offences Unit (SOU) was set up as a result of this training. Government initiatives to address violence against women also includes the Department of Women and Culture’s funding of the Ba Women’s Crisis Centre and the provision of financial resources towards FWCC’s national research into domestic violence and sexual assault. The Fiji Law Reform Commission is currently looking into the reform of various legislation, including those that effect women.

Despite these initiatives, there is a need to incorporate service-oriented programs, analysis of the issue of violence against women, and action at policy level, to address the issue of violence against women in the region.

2.0.A. Types of Violence Against Women

1. Domestic Violence

Fiji’s criminal legislation does not distinguish between domestic violence and other types of assault and the nature of the charge will depend on the degree of injury inflicted:

a. Common Assault (s244) is punishable by up to one year in prison

b. Assault occasioning actual bodily harm (s245) carries a maximum sentence of five years. (For this offence medical evidence of some injury is required)

c. Grievous bodily harm (s227), where a person unlawfully and maliciously does grievous harm is punishable by up to seven years imprisonment. (This offence requires a serious injury).

Both common assault and assault occasioning actual bodily harm are reconcilable offences under s163 of the Criminal Procedures Code (CPC).

As Fiji does not have specific legislation on domestic violence, domestic violence cases are grouped under the general categories of common assault and assault occasioning actual or grievous bodily harm. This makes it very difficult to gauge the actual incidence and prevalence of domestic violence in Fiji. The Fiji Women’s Crisis Centre has submitted a draft legislation on domestic violence to the Fiji Law Reform Commission (FLRC). The primary importance of putting such legislation in place is to provide a legal mechanism for the purposes of protection from violence within the home and family environment. It is expected that the FLRC will be making recommendations for the introduction of appropriate legislation on domestic violence to the Attorney General’s Department. The introduction of such legislation will ensure that domestic violence is treated as a specific, separate and serious offence that deserves special consideration.

The current legal situation is Fiji is such that domestic violence cases that do go to court rarely warrant custodial sentences. Most sentences for domestic violence are minimal, ranging from suspended sentences to six months to a years imprisonment, depending on the severity of the violence.

In September 1995 the Fiji Police Department introduced the “No Drop” Policy which requires all cases of domestic violence to be investigated. Prior to the introduction of this policy, the police force tended to put emphasis on reconciliation of cases involving domestic violence. Since the policy was introduced it is required that these cases be heard in the Magistrate’s Courts before charges can be dropped. Despite the introduction of the ‘no drop’ policy, the experiences of FWCC show that attitudes of investigating police officers towards women who are victims/’survivors of domestic violence lack sensitivity and there are considerable delays in the investigating process. The ‘no drop’ policy has frequently been found to be ineffective in that cases of domestic violence are still treated as trivial. There is still a reluctance to charge perpetrators of domestic violence because of the expectation that the woman will not want to pursue the complaint when the incident has passed or the parties may reconcile before or during the court process, thereby causing the case to be dismissed. It is important that the implementation of the ‘no drop’ policy is monitored in order to gauge its efficiency in deterring domestic violence and bringing perpetrators to justice.

Women who have been given Non-Molestation Orders (restraining orders) by the Courts for protection from domestic violence, are required to go back to court if the Non-Molestation Order is breached and they wish to press charges for the breach. The Police do not have the jurisdiction to arrest anyone in breach of a non-molestation order unless directed by the courts. This is a lengthy process and leaves the woman exposed to danger for considerable amounts of time.

The Fiji Government has no specific support services for victims/survivors of domestic violence. The Department of Social Welfare has an insufficient number of specialised, trained Welfare Officers given the number of clients they see within a given time. These Welfare Officers provide general counselling services but they lack gender sensitivity and are not trained to deal with women or children who are victims/survivors of domestic violence. They also conduct Marriage Guidance counselling but there is a tendency to promote reconciliation between couples, even if domestic violence is the underlying reason for problems within the relationship.

2. Child Abuse

FWCC and police statistics are by no means an accurate reflection of the actual incidence of child sexual abuse in Fiji. As anywhere else, child sexual abuse is a highly under-reported crime. Fiji, like many other Pacific Island nations, has a strong emphasis on culture, and is bound by many religious and traditional constraints. The issue of sex is considered taboo, children are expected to be seen and not heard and child discipline often takes the form of physical abuse. There is a culture of silence surrounding the issue of child sexual abuse and a reluctance to report incidents either because of a fear of the legal process or the fear of being stigmatised for the sexual abuse.

Under criminal law, child sexual abuse can be prosecuted under any of the following offences: Rape, Indecent Assault, Unlawful Carnal Knowledge, Unlawful Sexual Intercourse or Incest. A specific charge for child sexual abuse is defilement. Section 155 of Fiji’s Penal Code states that anyone found guilty of unlawful carnal knowledge of a girl under the age of 13 is guilty of a felony and liable to life imprisonment. Section 156 (1) states anyone who has unlawful carnal knowledge of a girl between 13 and 16 is a guilty of a misdemeanour and liable to imprisonment for five years.

The legislation regards defilement of a girl under 13 more severely than defilement of a girl between the ages of 13 and 16. A person who defiles a girl under 13 is liable to a maximum sentence of life imprisonment but this sentence is rarely given. Although a girls consent is not seen as a defence for defilement, if she is between 13 and 16 the offender can show that he had reasonable cause to believe that she was over 16 and therefore can be acquitted. The complainants physical appearance can be seen as a mitigating factor. If it can be shown that the complainants looks or behaviour could have led the accused to believe the girl was over 16, and the court agrees, this can be used as a defence. There have been several cases in Fiji where the issue of the girls consent seems to be seen as irrelevant in the face of her look/demeanour.

Other areas where the Fiji Penal Code is deficient when dealing with the sexual abuse of children is the requirement of corroboration, which often requires evidence of injuries sustained. Where there is no evidence of injuries, the lesser charge of defilement is seen as an easier way of obtaining a conviction.

Apart from the inadequacy of the laws, the actual court process itself leaves a lot to be desired. Child sexual abuse cases are prosecuted in open courts. Screens have been introduced by the Director of Public Prosecutions Office, but this is at the discretion of the Magistrate or if the Prosecution specifically asks for it.

Law reforms dealing with child sexual abuse have been very slow to emerge. Until very recently (24 December 1997) Fiji’s Penal Code did not have any provision for pornographic activity involving juveniles. Under this amendment, the Commissioner of Police is required to keep a register of all persons convicted of producing pornographic activity involving juveniles. Persons convicted for this offence for the first time may be fined up to $25,000.00 or imprisoned for up to 14 years. Re-offenders can be fined up to $50,000.00 or life imprisonment or both. This amendment to the Juvenile Act was only made following the recent case on trial.

Support services available for survivors of child sexual abuse are found to be extremely inadequate. There is no one in Fiji who is trained to counsel adult survivors of child sexual abuse. FWCC counsellors are increasingly frustrated by the those who work in government, health, and welfare who should be recognising danger signals but are slow to do so due to lack of training, lack of staff and bureaucratic requirements. The establishment of the Inter-Agency Committee in 1993 meant that there was increasing inter-agency co-operation and case conferencing on child abuse cases but the agency is not functioning as well as it should be.

3. Sexual Harassment

In Fiji there are no laws specifically relating to sexual harassment. The only way a harasser can be prosecuted is under the normal laws of criminal assault, or by a civil action (trespass to the person). Both civil and criminal action can be taken but it is difficult to prove.

Sexual harassment within the workplace is very common in Fiji. During a Fiji Women’s Rights Movement survey, between 80 and 90% of the female police officers interviewed treated offensive jokes or comments as “part of the job”. Complaints of sexual harassment in the work-place are currently dealt with by trade unions or women’s organisations such as FWCC and the Fiji Women’s Rights Movement. Internal policy and procedures for dealing with conspicuous forms of sexual harassment have been put in place by some companies and organisations, including the Civil Service, but procedures for reporting and redress have not been put into place. Employers and employees need to be made aware of these mechanisms.

4. Sexual Assault

Sexual assault is an issue of growing concern in Fiji. What is of even greater concern is that sexual offences are still largely under-reported with many victims/survivors suffering the trauma of being sexually assaulted in silence. One of the major reasons for this is the lack of senstivity displayed by police, medical personnel, courts and welfare services. Often, women who have been raped feel that they have been raped once by the rapist, then violated all over again by the medical examination, the police questioning and cross examinations in court. It is not uncommon that the victim/survivor will be disbelieved, her accounts distorted and her experience trivialised during the reporting process. FWCC experience shows that that the main reason why victims/survivors did not report the sexual assault to the police was fear of the police/legal process.

There are many traditional and cultural reasons why sexual assaults are not reported. Women are dissuaded from reporting the crime because of the stigma and shame it will bring to the family. Cultural practices such as bulubulu may take the decision to report out of the woman’s hand and prevent her from reporting. Fear of the offender is another significant reason why many sexual assaults remain unreported. FWCC statistics show that from 1993 to June 1998, 74% of sexual offenders were known to the victim/survivor and only 24% were strangers.

Many women do not tell anyone that they have been raped because they feel so humiliated and degraded that they cannot bear anyone else to know what has happened to them. As societal attitudes generally suppress women’s sexual expression, there is a reluctance to report sexual offences as this can be construed to indicate promiscuity on the victim’s part, thereby bringing shame to herself and her family.. Many people still believe the myth that women ‘ask for it’ by their behaviour/dress.

Current laws and court procedures in Fiji dealing with sexual offences are inadequate and although courts have to follow legal guidelines, the reality is that rape is the only crime for which the victim/survivor has to prove that she is not guilty and did not invite the rape. Section 149 of Fiji’s Penal Code defines rape as having sexual intercourse with a female without her consent. This definition is simplistic and has many inadequacies:

The legal definition of rape only relates to sexual intercourse. Other forms of rape, such as oral sex, the forced use of an object by the attacker, and the continuation of sexual intercourse when a woman wants it to stop, are not included in the definition.
Rape within marriage is not recognised as a crime. FWCC experience shows that sexual assaults are present in most abusive relationships.
The victim/survivor has to prove that she has been raped. The Law of Corroboration requires a rape victim to prove by independent evidence that she has been raped. This means she has to produce a witness (this is usually unlikely in a rape case), or prove by physical injuries and medical evidence that force was used. For a woman who submitted to rape because the rapist threatened to injure or kill her, this is very difficult to prove.
The victim/survivor’s past sexual history is raised in court even though this has absolutely no bearing on the present case. However, the accused’s past, including previous convictions for similar crimes cannot be raised in court until after the verdict is handed down.
In many rape cases the trials are held in open courts which becomes a kind of circus with everyone coming to stare and talk. This increases the suffering of the victim. Under Fiji law, it is possible for rape cases to be heard in closed court but this has to be requested well in advance and, in fact, rarely happens.
Sentencing for rape often does not reflect the seriousness of the crime and lacks consistency. Although under the law the maximum sentence for rape is life imprisonment, this is never given.
Police prosecutors are not qualified lawyers and, with due respect to them, it is unfair to have them pitted against qualified defence lawyers.

There is an urgent need for reform of rape laws. The current definition of rape is too narrow and perpetuates the myth that rape is an act of frustrated sexuality rather than a criminal act of violence and aggression. The Fiji Women’s Rights Movement has submitted a draft Sexual Offences Legislation to the Fiji Law Reform Commission addressing these issues and we are awaiting a positive response to this initiative.

2.0.B. Costs of Violence Against Women and Children

Studies conducted in other countries indicate that the direct and indirect costs of violence against women and children on victim/survivors as well as the community at large are wide-ranging and extremely high in comparison to the costs involved in running preventative programs and crisis counselling services such as that of FWCC.

The costs of undisclosed violence on the women themselves covers a broad spectrum ranging from the death of the victim to murder of the abuser. Studies undertaken in several countries indicate that there is a strong correlation between domestic violence and homicide. Victims/survivors of violence may suffer from severe injuries and/or psychological damage. “A life-cycle perspective also reveals that violence experienced in one phase can have long-term effects that predispose the victim to severe secondary health risks such as suicide, depression and substance abuse”. In cases of domestic violence, women have less bargaining power with regards to their sex life and so are more likely to have regular pregnancies and less control over family planning choices. Pregnant women in violent relationships risk having miscarriages and may face serious reproductive health problems. Apart from the physical injury and emotional trauma, survivors of sexual assault face the risk of sexually transmitted diseases (STDs), including the Acquired Immune Deficiency Syndrome (AIDS). The possibility of unwanted pregnancy in these cases is also substantial. Some children who observe domestic violence may incorporate violence into their own behaviour, thereby continuing the cycle of violence.

Women who are victims/survivors of violence bear the costs of seeking medical treatment as well as a loss of income or employment due to having to take time off work because of the violence. This leads to loss to employers and decreased productivity caused by absenteeism, and poor performances in the workplace by both the abusers and victims/survivors of violence.

Child sexual abuse remains a problem that is rarely talked about or reported in the Pacific region. Children who are sexually abused generally live with fear, guilt, loneliness and confusion. They often find it difficult to trust or believe people or form good relationships, They suffer from low self-esteem and are emotionally and physically damaged. Children who have been abused and adult survivors of child sexual abuse generally display a wide range of psychological problems that impact on their productivity in work or school environments leading to a loss of earning potential, and emotional problems that continue a long time after they have grown up.

There are many costs born by the community once violence against women and children become reported. The public sector bears the cost of health care which includes doctors, community and welfare workers and hospital costs such as surgery, x-rays, and dental costs. A considerable amount of police time is spent investigating crimes of violence against women and children. Sexual Offences Units are also set up and staffed to deal with cases involving the sexual assault of women and children. Special training is required for personnel in these Units.

Although a vast number of reported cases do not end up in court, once it does, law enforcement costs include the costs of processing restraining orders and the court process itself. The public sector bears the cost in cases where Legal Aid or a Public Legal Advisor is needed by the victim/survivor. In cases where domestic violence has led to the breakdown of a relationship the legal process often extends to maintenance and access cases being heard in the courts. Costs are also accrued if cases are appealed and go to higher courts. Women who leave relationships because of domestic violence bear the costs of relocating and setting up new lives for themselves and their children.

In cases where child sexual abuse cases are reported, Social Welfare Departments bear the cost of investigating these cases, providing counselling for the children, and removing children from danger and placing them in Homes for children. These Homes require staff and expenses to keep them running.

Violence is an obstacle to women’s participation in development projects and the workforce. It diverts women from pursuing their goals and denies developing countries the full talents of their female citizens. “Family control and violence encourage some of the best educated women to leave their countries, contributing to the brain drain and the loss of highly skilled women who could contribute to the development process.”

Violence against women and children comes with many costs to victims/survivors, the public sector and the community. According to a study conducted in New Zealand, in 1994, the annual cost of family (domestic) violence in New Zealand is at least $1.2 billion. In a similar study conducted in New South Wales, Australia, in 1991, it was estimated that at least $800 million is either paid directly by victims or lost to them and those dependent on them annually. Just over $400 million was counted as direct costs to the government, $70 million of which was spent by court and legal systems and through child welfare and family support programs. These costs does not include costs to employers of absenteeism, poor concentration and loss of production capacity, which was estimated at $320 million.

The costs outlined above far outweigh the costs of crisis counselling and preventative measures built into projects such as that of the Fiji Women’s Crisis Centre and other violence against women programs and services in the Pacific region.

3.0 Lessons for Fiji

Violence against women is clearly acknowledged internationally to be a crime and a serious human rights and development issue that impacts on many aspects of society. This has been recognised in several international human rights instruments including the Vienna Declaration and the Beijing Platform for Action. These human rights principles should be translated into policies that focus on social and legal condemnation of violent behaviour and the immediate protection and on-going empowerment of victims/survivors of violence against women.

Studies conducted in many developed countries prove that violence against women can be debilitating for an economy such as ours. We must learn from these experiences and channel our resources into providing more services and improving on existing ones.

4.0 Recommendations for the National Plan of Action

Increase in appropriate support services provided by other agencies – this applies to agencies such as the Public Legal Advisors, Domestic Courts, Social Welfare Departments, Sexual Offences Units, the Police Force, existing counselling services and other non-government organisations in Fiji who work with women and children who are survivors of violence.
A greater percentage of the national budget must be diverted to the establishment of refuges (crisis intervention centres) for deserted and battered women and the provision of appropriately trained staff for the running of the refuges.
Develop a comprehensive range of services to ensure long-term positive outcomes for women escaping violence, which should include safe, secure and affordable housing, access to training and retraining programs and access to micro-credit schemes and other incentives for economic empowerment.
Introduction and implementation of gender sensitive policy – Policy of issues such as violence against women, sexual harassment and child sexual and physical abuse to be introduced and implemented by government agencies, including the Police Force, Education Department, Welfare Department and Legal Aid Commission. There is a need for more involvement of NGOs at policy/decision making level to address the issue of violence against women and children
Legislative Reform on domestic violence, sexual assault, child sexual abuse and sexual harassment, with the principles of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) to be incorporated in all legislation.
Women who are victims/survivors of violence should have speedy and free access to courts and legal services, access to emergency accommodation, and free medical treatment by trained staff.
Changed attitudes on violence against women – this applies to key agencies and social institutions as well as communities so that there is receptiveness to promoting human rights and raising the status of women and children in Fiji. Intensive community education and public awareness raising programs beginning at the school level are required to address this.
Special provisions be made for women with special needs such as the disabled.
All agencies and organisations that deal with women and children, including health workers, welfare workers, sexual offences units and law enforcement agencies need to co-operate and work together to combat violence against women and children. The Inter-agency Task Force on child abuse needs to be revived to ensure regular case-conferencing between organisations such as the Department of Social Welfare, the Child Protection Unit, Sexual Offences Units, crisis centres and health workers.
Gender sensitivity training is needed for all agencies that deal with women and children who are victims/survivors of violence, including health service providers, law enforcement agencies, the judiciary and social welfare officers.
The need for media sensitivity when reporting on cases involving violence against women and children.
Compensation for women and children who are victims/survivors of sexual assault, in the form of the provision of appropriate counselling and treatment programs.
National Task Force on Violence Against Women that includes both government and relevant non-government organisations.
Education and treatment programs for perpetrators of violence against women.
Annual monitoring and reporting by government on the progress made in the implementation of this national plan of action.

5.0 Conclusion

The FWCC welcomes the opportunity, as an NGO, to be part of the National Congress for Women and hopes that the National Plan of Action, to be launched tomorrow, will not exclude recommendations arising out of today’s deliberations. It is also our hope that this document signfies the political will on the part of the government to put into place policies and mechanisms to improve the status of women in Fiji. The onus is also on civil society to ensure that the actions we have planned will not remain mere platitudes.

BIBLIOGRAPHY

Costs of Domestic Violence: NSW Domestic Violence Strategic Plan, NSW Women’s

Co-ordination Unit, July 1991.

Fiji Crime Statistics (1996)

Fiji Penal Code and Criminal Code Procedure

Fiji Women’s Crisis Centre Draft Domestic Violence Legislation

Fiji Women’s Crisis Centre Information Booklets on Domestic Violence, Sexual Harassment, Child Sexual Abuse & Rape.

Finkelhor & Yllo, 1985, Russell, 1982.

Gender Violence: A Development and Human Rights Issue, Charlotte Bunch & Roxanna Carrilo, Centre for Women’s Global Leadership, June 1991.

Law for Pacific Women: A Legal Rights Handbook, P. Imrana Jalal, 1998.

National Strategy on Violence Against Women, The National Committee on Violence Against Women, Commonwealth of Australia, 1992, p. 13.

The New Zealand Economic Cost of Family Violence, Suzanne Snively, Coopers & Lybrand, December 1994.
Violence Against Women: The Hidden Health Burden, Lori L. Heise, Jacqueline Pitanguy & Adrienne Germain, World Bank Discussion Paper 255, Washington, 1994