Same-sex sexual activity and sex work offences in Papua New Guinea: Implications from the repeal of the death penalty

Death penalty in PNG and the morality argument

The death penalty is widely considered an archaic form of punishment. ³ It was part of the colonial criminal justice system until its repeal in 1970, five years before PNG obtained its independence from Australia. However, it was reintroduced in 1991 for willful murder associated with certain offences and further broadened in 2013 for willful murder in relation to sorcery-related violence, aggravated rape and robbery following strong public support for harsher punishments to combat increases in these crimes. Although no execution has taken place since its reintroduction in 1991, in that time the PNG National Court has used the framework to sentence 14 people to death. ⁴

Although the death penalty as a punishment was introduced into PNG since colonialism, the penalty of death had been part of the notions of justice in pre-colonial PNG societies. It was manifested through retributive methods of dispute settlements such as pay-back killings and against acts deemed offensive. ⁵

The arrival of Christianity in the mid-1800s, with its teachings on ‘sin’ and the ‘wages of sin’ being death, ⁶ consolidated within some of the pre-colonial tribal communities that encountered Christian missionaries a general acceptance of death as an appropriate punishment in certain circumstances. On the other hand, Christian teachings on virtues such as ‘mercy’, ‘love’ and ‘forgiveness’ also created resistance to the use of the death penalty. The resistance was further strengthened as Christianity deepened its reach and became more established under both German and British (later Australian) colonialism ⁷ and as various methods of capital punishment were imperiously used against the natives to advance the objects of colonialism. ⁸

As the following discussion will demonstrate, Christian morals thus became pivotal in the recent repeal of the death penalty, setting a precedent for it to be decisive in future considerations of law reform on issues of strong moral arguments, particularly, as this article argues, the criminalisation of same-sex sexual activity and sex work.

Criminalisation of same-sex sexual activity and sex work

Same-sex sexual activity, including consensual same-sex relations, and sex work are outlawed in the country. Same-sex relations are part of the offences considered to be ‘against the order of nature’ and of ‘gross indecency’ with a maximum penalty of 14 years imprisonment. ¹⁸ The language used could be argued as archaic and stigmatising and the relevant provisions, adopted from the colonial framework, are gendered in that they do not cover sexual relations between females. Sex work is prohibited under section 55 of the Summary Offences Act 1977.

In addition to the legal prohibition, the general view among PNG’s predominantly Christian population is that same-sex sexual activity and sex work are immoral. The Catholic Church, for instance, whose position is shared by the Council of Churches, addressed both issues in noting that marriage is for ‘a man … to a woman’ and that ‘[u]sing a person’s body as an object for pleasure [in the case of sex work] shows no self-respect.’ ¹⁹ The Church considered these activities to be ‘against the church and us [PNG] as a Christian nation.’ ²⁰

Despite criminalisation, persons engaging in same-sex sexual activity and sex work are present throughout the country, with some communities openly accepting and supporting these activities. ²¹ For persons engaging in same-sex sexual activity, part of their acceptance within communities, as the colonial Supreme Court in 1969 observed, is that ‘[h]omosexual behaviour …[is] not seen as a serious offence because the people do not see it as a threat to their society and its traditions’. ²² Commenting on its community acceptance, the PNG National Court noted in State v Kuengu (1993) that

it invokes a greater degree of abhorrence in some communities than it does in others [and that] there are very few communities where it is considered a totally acceptable practice but in some it is more tolerated than others and there has been in changes of attitudes over the last few decades. ²³

Despite the assumed prevalence of same-sex sexual activity and sex work in the country, crime data demonstrates a lack of reporting and prosecution. ²⁴ Potential reasons for this lack include public shaming, blackmailing and physical abuse of alleged offenders which are then considered by members of the community as sufficient punishment instead of reporting for prosecution. Hence, while the law may not be fully and formally enforced, its existence licences and indirectly condones the members of the community to adopt their own mechanisms of punishment against persons in same-sex sexual relations and sex work.

Observing the lack of reported cases and prevalence, the National Court judge in State v Sevese (2015) held that while ‘there is lack of reported cases for this kind of offence, I do accept that it is generally accepted that homosexual acts or this type of behaviour is quite prevalent in [PNG] society’. ²⁵ Similar assessment of prevalence could be made of sex workers in the sex work industry. ²⁶

However, despite these prospects for tolerance and acceptance, the Court in State v Sevese (2015) maintained that such an offence is ‘one that offends against not only the Criminal Code, but also against morals and Christian principles and norms and principles of traditional society.’ ²⁷ According to the Court’s rationale, the prevalence of same-sex sexual activity and sex work is ‘reflective of the moral decay that is creeping into our society’. ²⁸

The Court’s position firmly reflected the predominant and overarching morality argument. Fostering that argument while acknowledging the societally harmless prevalence of same-sex sexual activity and sex work leaves members of the two groups exposed and vulnerable with little legal protection. Consequently, as one commentator puts it, persons engaging in same-sex sexual activity and sex workers in PNG are ‘two groups of people [who] continue[s] to be the victims of horrific violence and [that] no one cares.’ ²⁹

Repeal of the death penalty and prospects for decriminalisation of same-sex sexual activity and sex work

As discussed, the death penalty, same-sex sexual activity and sex work have all been considered as deeply moral issues for PNG. The justifications for repealing the death penalty thus provide some important insights into how any proposed reform for the decriminalisation of same-sex sexual activity and sex work could be dealt with in the context of PNG.

First, it was Christian ideologies more than human rights concerns that provided the justifications for death penalty reform. The repeal was internationally commended as a significant achievement for a country often criticised for its human rights records. ³⁰ However, as a largely Christianity-induced human rights reform, any momentum may be limited for reform to other morally contentious and deeply secular issues such as the decriminalisation of same-sex sexual activity and sex work.

Second, the prominent role of the PNG Council of Churches in the repealing of the death penalty and its public position that ‘[o]ur laws must reflect moral and Christian values’ ³¹ indicates the potential for a significant challenge to any future proposal to decriminalise same-sex sexual activity and sex work. Conservative voices within the Council are likely to insist on any law reform proposals that raise questions of morality to be filtered through the lens of Christian beliefs. The pending constitutional declaration of Christianity is likely to further fortify opposition against future proposals on these issues.

Third, despite the potential challenges raised above, it was shown through the repeal of the death penalty that decisive leadership from the Prime Minister and key political leaders in the government can either expedite legislative reform on controversial issues or stall initiatives for reform. The government has demonstrated that in the past with swift refusal to decriminalise sex work. ³² In the repeal of the death penalty, the government gave Notice to introduce the Amendment Bill on 20 January 2022, and the Bill was passed the next day, 21 January 2022 with the First, Second and Third Readings of the Bill on the same day without adequate parliamentary or public debate on the proposed reform. ³³

In PNG’s political context, political parties do not have strong ideological platforms and party discipline, resulting in traditionally high fluidity in the positions of MPs. ³⁴ A determining factor in MPs’ behaviour is having the favour of the Prime Minister which, among other reasons, ensures ready access to development grants for their constituencies. ³⁵ Such advantages are often used by the Prime Minister to ensure support for a particular policy agenda. For instance, the former Prime Minister, Peter O’Neill capitalised on such support to maintain opposition against the repeal of the death penalty and the legalisation of sex work. ³⁶ However, there was a clear shift on the former by the same group of MPs under Prime Minister James Marape.

This means that, for a proposal to decriminalise same-sex sexual activity and sex work, having the support of a Prime Minister, or key ministers who can influence the Prime Minister, would be critical to countering potential public or political resistance. The context of political fluidity also means that, while a proposal to decriminalise same-sex sexual activity and sex work is unlikely to be considered under the government of Prime Minister Marape due to its strong Christian leaning, there may be prospects for consideration by future governments.

Fourth, the lack of adequate consultation on the repeal of the death penalty demonstrated how bypassing public scrutiny could speed up the law reform agenda on contentious issues, such as same-sex sexual activity and sex work. However, although this approach may be advantageous, a politically expedient process of legislative reform that excludes public consultation on such contested proposals may also heighten adverse public reactions against same-sex attracted persons and sex workers. Even if there is some community consultation, followed by a formal decriminalisation of same-sex sexual activity and sex work, it is unlikely that such reform would immediately curtail the level of community resentment based on religious or cultural beliefs.

Human rights claim and constitutional challenge

Considering the challenges and uncertainty of government-led reform discussed above, same-sex attracted persons and sex workers could consider a court proceeding at the Supreme Court to challenge the constitutionality of existing laws that criminalise same-sex sexual relations and sex work. Such a challenge would most likely be based on the human rights provisions under the Constitution. ³⁷ There are many examples in the country of human rights-based constitutional challenge that led to the invalidation of legislation and legislative provisions, and constitutional amendments. ³⁸

Some of the relevant human rights that may be considered in such a proceeding include the ‘right to freedom’, ‘right to life’, ‘freedom from inhuman treatment’, ‘right to protection of the law’ and ‘equality of citizens’. ³⁹ While a law may be made to qualify some of their applications, especially for qualified rights, the Constitution requires that any qualification be ‘reasonably justifiable in the democratic society having a proper regard for the rights and dignity of mankind’. ⁴⁰ To ascertain that test in a given case, the Constitution directs that the Court consider, among other things, United Nations instruments and decisions of ‘other international courts and tribunals dealing with human rights and fundamental freedoms’. ⁴¹

It could be argued that this broader framework of constitutional interpretative aids provide ample opportunity for the Court to have an informed consideration of the issue. The Court’s approach to the issue will also be assisted by its mandate to apply ‘fair and liberal meaning’ ⁴² to the task of constitutional interpretation – a directive the Court has held, on many occasions, to mean that the Constitution is to be interpreted in ways that are ‘broad, goal-oriented, purposive’ and ‘liberal’, ⁴³ and not ‘strict, technical and legalistic’. ⁴⁴

Considering that both superior courts in PNG are aware of the prevalence and issues associated with same-sex sexual relations and sex work within the community, any constitutional challenge would likely not be unexpected.

Conclusion

The death penalty (until its repeal early in 2022), together with same-sex relations and sex work, were three areas of criminal law which were contentious in PNG. The repeal of the death penalty was a significant achievement for the country’s human rights profile. For a socially controversial agenda to be expedited through the law reform processes, with little public consultation, and aided by political support, raises the prospect, on one hand, that other morally contentious law reform proposals, including the decriminalisation of same-sex sexual activity and sex work, are possible.

On the other hand, however, the socio-religious context that drove death penalty reform suggests that there will be significant barriers to any prospect for reform within the political processes. Those barriers will likely be reinforced by the pending constitutional declaration of PNG as a Christian country.

The limited prospects for reform within the existing political environment in PNG suggest the issue of decriminalisation of same-sex sexual activity and sex work would be one suitable for the Supreme Court. The Court has demonstrated awareness of the issue and its liberal approach to legal interpretation provides some confidence that it would likely be given careful consideration.

While there are prospects for reform into the future on the issue of criminalisation of same-sex sexual activity and sex work, there is no clear guarantee that existing community attitudes will change. Even if some law reforms were possible, either through legislative reform or by judicial challenge, strong religious affiliation and cultural understandings in some PNG societies mean that risks for harm and discrimination will continue for same-sex attracted persons and sex workers. Any prospective legal reform will therefore need to be accompanied by a comprehensive social and institutional awareness aimed at creating acceptance within society that all Papua New Guineans, irrespective of their sexual orientation, profession or background, need to be respected and afforded their human dignity.