This report, An Analysis of Judicial Sentencing Practices in Sexual & Gender-Based Violence (SGBV) Cases in the Pacific Island Region, provides crucial evidence of the effect that gender discrimination has on sentencing decisions by courts. The report highlights the extent to which gender bias continues to prevent women from accessing justice on an equal basis with men. It argues that for women to be afforded equal access to justice, gender bias in the courts must be tackled through a combination of education, law reform and monitoring. The Executive Summary of the report is provided below; download the report here.
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Executive Summary
In this report, we identified and analysed 908 sentencing records involving SGBV in seven Pacific Island Countries (PICs): Fiji, Samoa, Solomon Islands, Tonga, PNG, Kiribati and Vanuatu. We analysed each case to determine whether gender stereotypes, customary reconciliation (e.g. apology, forgiveness) or other contentious factors (‘Contentious Factors’) were considered during sentencing.
Contentious factors are those factors which, when used in mitigation by the court, discriminate against the victim on the basis of her gender. This may be through gender stereotyping and rape myths, the consideration of customary practices which may be imbued with gender discrimination (such as forgiveness ceremonies) or other factors which unjustly privilege the interests of the perpetrator over the interests of the victim. We have separated the contentious factors into three categories: Gender Stereotypes, Customary Reconciliation Practices and Other Factors.
We then looked at whether the contentious factors had had any effect on sentence length and, if so, by how much. Comments and language by the judge or magistrate that indicated their views regarding gender stereotypes, rape myths, or customary forms of reconciliation were also captured.
Our random selection of 908 cases included 111 domestic violence (DV) cases and 787 sexual assault (SA) cases. Of these, 31 DV and 8 SA cases resulted in murder/manslaughter or attempted murder (M) along with another 11 cases of gender violence that did not have a DV or SA element. 79% (715 cases) of sentences were handed down between 2005 and 2014.
In terms of age of the victims, 58% of the victim/survivors were under the age of 18 and 40% were under the age of 15. In 55 cases the age of the victim was unknown.
The average final sentences for DV and SA cases were 0.98 years and 5.19 years respectively. The starting sentences, that is, the total sentence including aggravating factors before mitigation, for each were 2.43 and 8.71 years respectively, demonstrating a reduction in sentence of 60% and 40% for DV and SA cases. A total of 775 out of the 908 cases analysed resulted in a custodial sentence. We found that DV cases were four times more likely to result in a non-custodial sentence than SA cases, with 47% of DV cases resulting in a non-custodial sentence compared to 11% of SA cases.
In 75% of cases analysed, contentious factors were raised in court and led to an actual reduction in sentence in 52% of cases. Contentious factors were raised in 90% of DV cases and in 66% of DV cases it led to a reduction in sentence. For SA cases, contentious factors were considered in 73% of cases and led to a sentence reduction in 50% of cases. We found that average final sentences were substantially lower in cases where contentious factors were considered.
Where a judicial officer took into account a combination of contentious factors, the perpetrator was four times more likely to receive a non-custodial sentence than in cases where no contentious factors were considered.
The corollary of this is that in cases where no contentious factors were considered a perpetrator was significantly more likely to receive a custodial sentence, than in cases where a combination of factors were considered. This may be because contentious factors were not raised, or because the judicial officer refused to take them into account. It is obvious from the research that, at least in some cases, judicial officers rejected certain factors as being appropriate for mitigation: in around 21% of both SA and DV cases contentious factors were raised by the defence but were rejected, either implicitly or explicitly, by the judicial officer as a valid mitigating factor.
A range of contentious factors were taken into account by judicial officers. Common forms of gender stereotyping included considerations that the perpetrator was the bread-winner and, therefore, needed to be home to provide for his family; that the victim/survivor had provoked the perpetrator; taking into account the sexual history of the victim/survivor, for example to draw conclusions as to the level of emotional trauma experienced by her, and whether it may have appeared from her sexual history that she was consenting; the fact that the victim/survivor did not seem upset; that the victim/survivor behaved at the time in a way that led the perpetrator to believe she would be a willing participant (such as having a drink with him); and that the victim/survivor was of ‘loose’ morals.
Under specific customary practices we found various informal and formal manifestations of customary reconciliation including ceremony, compensation, forgiveness or a combination of the above. Where compensation is paid, it is often to a village chief, or to the father or brother of the victim/survivor, or in some cases to the victim/survivor herself. Cases also include retribution, such as spearing or destruction of property of the offender.
In reviewing the language of the court opinions and the factors considered by the judicial officers, it was evident that the approach to sentencing, gender stereotyping and the use of customary reconciliation is far from consistent. Judicial officers differed widely in how and under what circumstances issues such as provocation, victim’s sexual history or customary reconciliation should be taken into account in sentencing decisions.
Looking at both the quantitative and qualitative data, it is clear from our research that gender stereotypes and customary reconciliation play a significant role in determining the nature and length of sentencing in SGBV cases in the PICs. The discriminatory nature of gender stereotypes and customary reconciliation has meant that victim/survivors of SGBV are denied equal protection under the law. This Report also shows that judicial officers, when equipped with the proper tools and information, can and do identify and reject contentious factors raised by the defence. Legislative and policy reform, as well as education and training, is needed to ensure that the victim/survivors are placed at the centre of the judicial process and that discriminatory sentencing practices which breach the obligations of PICs under the Convention on the Elimination of All Forms of Discrimination (CEDAW), are eliminated.
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