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Sexual Offences in Vanuatu under the Light of Custom and Law: “An Avenue for Restorative Justice”

Abstract

This paper will focus on the Republic of Vanuatu’s society and customs relevant to this topic. I will consider the laws made by the legislature to deal with sexual offences in Vanuatu and how they are being implemented or enforced. I will also discuss the different provisions under the law whereby accused persons have an option to actually compensate the victim of the offence and how it is being used in Vanuatu in relation to sexual offences. This paper will also look at how Vanuatu’s culture influences the prosecution or the sentencing of sexual offences or dealing with such crimes in the first place. This will reveal whether Vanuatu’s customary approaches to sexual offences actually support the state’s laws to punish such offenders and if a more fair and just process is needed where the voices of the offender as well as the victim are heard. Custom usually does not allow the victim to speak, and the victim’s parents and the elders of the community decide how the offender should be dealt with. Neither the formal court process nor the customary reconciliation process seem to take into account the wishes and interests of the victim and the offender. The flaws within the legal system and customary laws in addressing victims’ and offenders’ issues will be examined and an alternative process of restorative justice will be discussed.

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Notes

  1. State v Volavola [2003] FJHC 72

  2. State v Volavola [2003] FJHC 72

  3. Goulding and Steels (2011) Communitarian models of restorative & transformative justice for adult offenders in Metropolitan and Rural Magistrates’ Courts, a paper which engages the experience of these two researchers as they developed, established, serviced and researched the communitarian model within the structure of the Magistrate’s court and the Department of Justice.

  4. 89A. For the purposes of this part, sexual intercourse means any of the following activities, between any male upon a female, any male upon a male, any female upon a female or any female upon a male:

    1. (a)

      the penetration, to any extent, of the vagina or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorized by law; or

    2. (b)

      the penetration, to any extent, of the vagina or anus of a person by an object, being penetration carried out by another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorized by law; or

    3. (c)

      the introduction of any part of the penis of a person into the mouth of another person; or

    4. (d)

      the licking, sucking, or kissing, to any extent, of the vulva, vagina, penis, or anus of a person; or

    5. (e)

      the continuation of sexual intercourse as defined in paragraphs (a), (b), (c) or (d); or

    6. (f)

      the causing, or permitting, of a person to perform any of the activities defined in paragraphs (a), (b), (c) or (d) upon the body of another person.

  5. Section 90, Penal Code Amendment Act, (Vanuatu)

  6. Penal Code Amendment Act (Vanuatu).

  7. Public Prosecutor v Johna Nasip [2010] VUSC 6 http://paclii.org.vu

  8. Public Prosecutor v Jaffery [2010] VUSC 41 http://paclii.org.vu

  9. Public Prosecutor v Sam [2010] VUSC 101 http://paclii.org.vu

  10. Section 91, Penal Code Amendment Act (Vanuatu)

  11. INCEST is defined as:“95.

    1. (1)

      Incest is sexual intercourse between:

      1. (a)

        parent and child (including an adopted child);

      2. (b)

        brother and sister, whether of the whole blood or of the half blood, and whether the relationship is traced through lawful wedlock or not; or

      3. (c)

        grandparent and grandchild, where the person charged knows of the relationship between the parties.

    2. (2)

      No person of or over the age of 16 years shall commit incest.

      Penalty: imprisonment for 10 years.

    3. (3)

      Upon the conviction of any male of an offence or attempted offence under subsection (2) against any female under the age of 18 years, the court may divest the offender of all authority over such female, and, if the offender is the guardian of such female, remove him from such guardianship and in such cases appoint another guardian in his place.”

  12. Public Prosecutor v Nuanikam [2010] VUSC 7 http://paclii.org.vu

  13. “96 Sexual intercourse with child under care or protection

    1. (1)

      A person must not have or attempt to have sexual intercourse with any child, not being the person’s spouse, who is under the age of 18 years and who:

      1. (a)

        being the person’s stepchild or foster child, is at the time of the intercourse or attempted intercourse living with the person as a member of the person’s family; or

      2. (b)

        not being the person’s stepchild or foster child, and not being a person living with him as the person’s spouse, is at the time of the intercourse or attempted intercourse living with the person as a member of the person’s family and is under the person’s care or protection.

      Penalty: imprisonment for 10 years.

    2. (2)

      It is no defence to a charge under this section that the child consented.”

  14. Public Prosecutor v Kuau [2010] VUSC 8 http://paclii.org.vu

  15. UNLAWFUL SEXUAL INTERCOURSE is defined as:

    97.

    1. (1)

      No person shall have sexual intercourse with any child under the age of 13 years.

      Penalty: imprisonment for 14 years.

    2. (2)

      No person shall have sexual intercourse with any child under the age of 15 years but of or over the age of 13 years. Penalty: imprisonment for 5 years.

    3. (3)

      It is no defence to a charge under this section that the child consented or that the person charged believed that the child was of or over the age in question.

    4. (4)

      The child shall not be charged as a party to an offence under this section.”

  16. Public Prosecutor v Nuarau [2010] VUSC 86 http://paclii.org.vu

  17. “Section 97A deals with Aggravated sexual assault with a child.

    1. (1)

      A person must not have sexual intercourse with a child under the age of 15 years in circumstances of aggravation.

      Penalty: imprisonment for life.

    2. (2)

      In this section, “circumstances of aggravation” means circumstances in which:

      1. (a)

        at the time of, or immediately before or after, the commission of the offence, the alleged offender maliciously inflicts actual bodily harm on the alleged victim or any other person who is present or nearby; or

      2. (b)

        at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument; or

      3. (c)

        the alleged offender is in the company of another person or persons; or

      4. (d)

        the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender; or

      5. (e)

        the alleged victim has a serious physical disability; or

      6. (f)

        the alleged victim has a serious intellectual disability.”

  18. “ACT OF INDECENCY WITHOUT CONSENT

    98. “A person must not commit an act of indecency on, or in the presence of another person:

    1. (a)

      without that person’s consent; or

    2. (b)

      with that person’s consent if the consent is obtained:

      1. (i)

        by force; or

      2. (ii)

        by means of threats of intimidation of any kind; or

      3. (iii)

        by fear of bodily harm; or

      4. (iv)

        by means of false representations as to the nature of the act; or

      5. (v)

        in the case of a married person, by impersonating that person’s husband or wife; or

      6. (vi)

        by the effects of alcohol or drugs; or

      7. (vii)

        because of the physical or mental incapacity of that person.

    Penalty: imprisonment for 7 years.”

  19. MAP was developed by Dr Dorothy Goulding and Dr. Brian Steels in 1999 for use in identifying underlying social and criminogenic lifestyles.

  20. Public Prosecutor v Benny [2009] VUSC 99 http://www.paclii.org.vu (Accessed 24/3/2012)

  21. Criminal Procedure Code, Cap 136 [Vanuatu]

  22. Walker v Public Prosecutor [2007] VUCA 12 http://www.paclii.org.vu (Accessed 24/3/2012)

  23. Public Prosecutor v. Sano Alvea [1996] VUSC 18 http://paclii.org.vu (Accessed 24/3/2012)

  24. Public Prosecutor v. Sano Alvea [1996] VUSC 18 http://paclii.org.vu (Accessed 24/3/2012)

  25. Interview conducted with Chief Gratien Alguet Uravus Luthe, The President of Malvatumauri, National Council of Chiefs, Vanuatu.

  26. Article 1, Convention on Elimination of All Forms of Discrimination Against Women

  27. Convention on the Rights of the Child

  28. Interview conducted with Chief Justice of Vanuatu—Justice Lunabek.

  29. Interview conducted with Chief Justice of Vanuatu—Justice Lunabek.

  30. Interview conducted with Chief Justice of Vanuatu—Justice Lunabek.

  31. Interview conducted with Chief Justice of Vanuatu—Justice Lunabek.

  32. Interview conducted with Chief Gratien Alguet Uravus Luthe, The President of Malvatumauri, National Council of Chiefs, Vanuatu.

  33. Interview conducted with Chief Gratien Alguet Uravus Luthe, The President of Malvatumauri, National Council of Chiefs, Vanuatu.

  34. Interview conducted with Chief Gratien Alguet Uravus Luthe, The President of Malvatumauri, National Council of Chiefs, Vanuatu.

  35. Interview conducted with Chief Gratien Alguet Uravus Luthe, The President of Malvatumauri, National Council of Chiefs, Vanuatu.

  36. Interview conducted with Chief Gratien Alguet Uravus Luthe, The President of Malvatumauri, National Council of Chiefs, Vanuatu.

  37. Interview conducted with Chief Gratien Alguet Uravus Luthe, The President of Malvatumauri, National Council of Chiefs, Vanuatu.

  38. Section 38, Penal Code Amendment Act [Vanuatu]

  39. Public Prosecutor v Walter Kota and Ten Others [1993] VUSC 8 http://www.paclii.org.vu (Accessed 23/3/2012)

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Online Document

Statutes

  • Penal Code [Cap 135] (Vanuatu)

  • Penal Code (Amendment) Act No. 25 of 2006 (Vanuatu)

  • United Nations Convention on Elimination of All Forms of Discrimination Against Women

  • United Nations Convention on the Rights of the Child

Cases

Interviews

  • Interview with Chief Justice of Vanuatu, Honourable Justice Vincent Lunabek.

  • Interview with Senior Sergeant Davis Saravanu, Family Protection Unit (FPU), Port Vila.

  • Interview with Mrs. Merilyn Tahi, Director, Vanuatu Women’s Centre.

  • Interview with Chief Gratien Alguet Uravus Luthe, The President of Malvatumauri, National Council of Chiefs.

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Correspondence to Sofia Shanaz Shah.

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Shah, S.S. Sexual Offences in Vanuatu under the Light of Custom and Law: “An Avenue for Restorative Justice”. Asian Criminology 8, 257–275 (2013). https://doi.org/10.1007/s11417-013-9159-1

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  • DOI: https://doi.org/10.1007/s11417-013-9159-1

Keywords

  • Vanuatu
  • Sexual offences
  • Custom
  • Cases
  • Restorative justice
  • Penalties