Traditional Violence and Bullsh*t Law


A lot has been written about Aboriginal violence since Northern Territory Crown Prosecutor, Nanette Rogers’s report and interview on ABC TV’s Lateline in May. But, often, people’s supposedly authoritative claims are flimsy, at best and tainted, at worst.

This is not just a recent problem. In 2004, Joan Kimm published A Fatal Conjunction: Two Laws Two Cultures (Federation Press, Sydney), a book whose major theme is that, under Aboriginal customary law, Aboriginal women were brutalised through acts of violence called ‘sacred rape’ and other excessive physical forms of violence as punishment, which kept them subjugated to patriarchal power.

The problem is that Kimm presents what, in many cases, is a flawed literature or biased legal finding. But this would only be apparent to people already familiar with the cases she used.

Kimm says that Aboriginal women perceive they suffer ‘three levels of oppression implemented through a threefold operation of law — white men’s law, traditional law and bullshit law’. Bullshit law is the term of contempt used by Aborigines to describe the ‘re-creation by (some) male Aboriginal elders of traditional law’ to suit their own ends, that is, to justify the rape of women.

Repeatedly Kimm names ‘Aboriginal male elders’ as the instigators in this ‘re-creation’ of customary law.

But then Kimm argues that violence against Aboriginal women was a particular and essential part of male customary law practice. She says that the male elders’ perspective has been authenticated by male anthropologists, argued by male counsel, and that, until recently, the judiciary have taken their direction from such male elders.

But the cases Kimm uses as examples don’t support her argument. For instance, in the 1991 case, known as Mungkilli, Martin and Mintuma (in the South Australian Supreme Court), Mungkilli, Martin and Mintuma were Aboriginal community Police Aids who raped a woman they were holding in custody. At the time of the offence, they had just come from a police function where they had consumed alcohol, before they picked up a woman who was also ‘under the influence’ and, it was claimed, being a public nuisance, with the instruction to take her back to her home community.

They raped her in the back of their police vehicle. When they arrived at her community she complained loudly and bitterly (this does not sound like a subordinated woman). State police immediately removed the three Police Aids to Port Augusta ‘for their own protection,’ because of the community’s anger, and the threat of customary law punishment for what Aboriginal people (both men and women) saw as unacceptable behaviour. Kimm does not refer to these facts.

Charges were laid against the three men. A non-Aboriginal police officer gave evidence that these were ‘good’ police, and that forcing Aboriginal women to have sexual intercourse is not regarded by Aboriginal peoples with the same seriousness as it is by white people. He said Aboriginal women do not experience and are not hurt by rape in the same way as white women.

These facts provide a completely different understanding of this case and, I would suggest, many of the other cases to which Kimm refers. In this regard, the South Australian police not Aboriginal elders, nor the Aboriginal community generally collude with the judiciary in defining violence as an aspect of ‘Aboriginal Customary Law Practice’ and determine how Aboriginal women experience rape. They also define how a ‘good’ policeman behaves.

In one case with which I am familiar, the counsel employed by an Aboriginal Legal Service was asked why he used the court to discredit a number of young Aboriginal women who had been victims of sexual assault by a senior male who was, at the time, an Aboriginal community policeman. Counsel replied that it was his job to get the defendant off. He was not concerned about the very substantial damage he did to the young girls through his actions, nor to the distress of their mothers, grandmothers, and the community generally. He had ‘done his job’.

The Western legal system apportions blame and, generally, there must be a single party to blame. It is insular and looks to single causes. In the second case cited above, it was preferable to blame the young women. Their behaviour, it was claimed, ’caused’ the man to desire sexual contact. While the young women did not initiate sexual contact, the Aboriginal Legal Service counsel used western law to prove the young women’s bodies were to blame.

In A Fatal Conjunction, Kimm discusses the high levels of violence inflicted on Aboriginal women in the ‘relatively intact cultures’ of the Northern Territory and the Kimberley, compared to other areas. I have worked extensively in all these areas and I can say emphatically that some of the violence I work with in so called settled, urban, ‘assimilated’ east coast Aboriginal communities exceeds the violence Kimm finds in ‘relatively intact cultures’. The violence, however, is hidden within the secrecy and shame of traumatised communities.

We should also address the assumption that ‘relatively intact cultures’ are representative of a more ‘traditional’ Aboriginal cultural life and customary practice.

Two communities in Queensland that are considered to have ‘relatively intact cultures’ also have the highest rates of sexual violence in the State. They were also two communities where, during the 1980s, pornographic movies were made available to young men by certain whites employed by the State Government. In both instances the white males initiated sexual contact with young people.

The Western legal system has the capacity to redefine, reconstruct, and re-create culture and tradition. In cases of positive affirmative action, it is effectively doing this on behalf of white women. However, A Fatal Conjunction demonstrates the opposite for Aboriginal women.

Thanks to Bill Leak

Kimm says that Aboriginal women’s voices have been subordinated by those of Aboriginal men, white male anthropologists, legal counsel, and bureaucrats. Yet, ironically, like many others, she discounts the voices of contemporary Aboriginal women (and men) who are working to address the issue of violence.

After the Nanette Rogers report, Aboriginal women from the central Australian community of Mutitjulu, along with others, were given airspace on Lateline. The women’s stated concerns were for the wellbeing of their children. To some, Muntajara Wilson and the other women who spoke may seem powerless but they demonstrated great authority in speaking as Aboriginal women have always spoken, as law keepers of their communities (men were law enforcers) about issues of law, of right behaviour, of child concerns, of community needs, of women’s rights.

Very quickly, however, their voices were subordinated and negated by those of political and media agents generally white men in what the women later described as a ‘political football’.

The women then wrote a letter published in The Weekend Australian in August 2006. These are women who are speaking out to right wrong. They are demonstrating their power in their concern for their children.

We now have documented, clear evidence of diverse, and often incomprehensible violations of Aboriginal children in every region of Australia. The question we must ask is: What has changed for our children? One answer is that their fathers and grandfathers have been institutionalised by the State, suffering many acts of violence.

In consideration of the fiction of Aboriginal traditional violence as presented in recent months by media outlets, a knee-jerk political answer has been to focus on law and order as a short-term crisis intervention. I do not argue against such a response. I just ask that we fully understand the implications.

If we bring more police in, we must budget for better education at the community level. I presume there will be more charges laid. We must therefore plan for more courts. We need to enhance the education of court workers, whether they be magistrates, lawyers, barristers, or prosecutors. More courts will mean more sentencing, which means more prisons unless people are sentenced to programs that will influence behavioural change. Such programs are currently unavailable but, obviously, putting young people at risk of sexual assault in a prison environment is a serious human rights concern.

I agree that education is the most powerful tool available. We need education for early childhood development; education for life; education for healing. Can we not invest in education that will provide the most marginalised and dispossessed within Australian society a chance for a future within their own country?

To do anything less would be tantamount to genocide.

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