An Analysis of Judicial Sentencing Practices in Sexual & Gender-Based Violence Cases in the Pacific Island Region

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Executive Summary

We identified and analysed 908 sentencing records involving SGBV in seven 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 victim, 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.