Reform Of Discriminatory Sexual Offences Laws In The Commonwealth And Other Jurisdictions – Case Study Of The Republic Of Palau

This case study provides an in depth analysis of the significant leap forward taken by Palau in protecting the rights of its citizens, through the updating of its sexual offences laws and Criminal Code.

Discriminatory sexual offence laws continue to impact the lives of many Commonwealth citizens, particularly affecting women, children, and LGBT people. These laws are at odds with international and regional human rights norms and domestic constitutional law. They undermine human rights and perpetuate violence, hate crimes and discrimination, and threaten the health and prosperity of entire societies. Several countries have however, made real progress in reforming their laws through either wholesale updating of criminal codes, allowing multiple issues to be tackled together, or through targeted reforms. This series of case studies from the Human Dignity Trust highlights these recent examples. This case study focuses on the situation in the Republic of Palau. This case study is split into seven parts: background information about the country; the situation of sexual offences prior to reform; the drivers of reform; the reform process; key changes to sexual offences laws; the post-reform environment in the country; and, lessons learnt from the reform process.

Prior to the reforms, the sexual offences provisions in Palau were based on a mixture of colonial laws from Spanish, German, Japanese and American regimes that had been amended on an ad hoc basis over the years. This created outdated and archaic legal provisions and inadequate protections for individual human rights. Although Palau is not a Commonwealth member state, its colonial history, its geography and its status as a small island state, means that its experience of reform holds many lessons for Commonwealth countries, both in the Pacific region and beyond.

Between 2011 and 2014, Palau took a significant leap forward in protecting the rights of its citizens, through the Presidential signing of eight international human rights treaties and the updating of its sexual offences laws and Criminal Code.

Significant changes to the country’s sexual offences laws and domestic violence framework were achieved by the enactment of the Family Protection Act (‘FPA’) in 2012. The sexual offence provisions in the FPA were later consolidated into a single piece of legislation in 2014, alongside other changes to Palau’s criminal laws, through the enactment of a new Title 17 of the Palau National Code, Public Law No. 9-21 (‘New Penal Code’).

The modernisation of Palau’s sexual offences laws has gone some way towards conforming the country’s sexual offences framework to international good practice. Unlike the prior criminal law, the new sexual offences laws use mostly gender-neutral language, some discriminatory provisions have been repealed (such as the provision criminalising consensual same-sex sexual relations and the marital rape exemption in part), and the scope of offences, such as the offence of rape, have been expanded. There is now a more comprehensive framework of graded offences with clearer statutory definitions for the various constitutive elements. However, some important limitations and deficiencies remain. Most notably, the spousal exemption for certain child sexual offences (a hangover from the previous law that has resulted in conflicting provisions) and the continued link between incest and clan custom endure.

The case study identifies six lessons learnt in the sexual offences reform process in Palau:

  • Progressive legislative reform is possible in a reasonably short timeframe with a combination of political will and technical support;
  • Early engagement with the public and key stakeholders is important especially where controversial aspects of the legislation will inevitably lead to some societal resistance and/or opposition;
  • International cooperation can also be highly beneficial.
  • A comprehensive implementation plan is as important as the legislation itself.
  • Procedural rules should be reviewed to ensure that they do not create obstacles to the implementation of the new substantive provisions and enable victims to obtain redress;
  • Post-reform impact, particularly in criminal legislative reform, should be measured and monitored over time to ensure it is achieving its intended objectives.

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