Law: Rape Is Always Rape… So Long As You’re White


It is April, 1975. A
young girl, just 10 years of age, sits nervously on a bench in the
Northern Territory Supreme Court. The girl has been the victim of rape.
We know neither her name nor her story. She occupies a spectral
existence in the legal record conjured solely by the Judge’s
imagination. Her flesh vaporises into his dusty words.

the man charged with her rape, sits opposite. The girl knows Mangukala
well. They’re from the same remote Aboriginal township of Oenpelli.
Justice Forster clears his throat, ready to deliver his judgment:
‘Sexual precocity in young Aboriginal girls is sufficiently common for
me to have no difficulty in believing that she had previous
experience.’ With a wry nod towards Mangukala he adds ‘you may not have
been the only one to enjoy her favours.’

Forster continues: ‘I
do not regard this offence as seriously as I would if both parties were
White. This is of course not to say that the virtue of Aboriginal girls
is of any less value than that of White girls, but simply that social
customs appear to be different.’ Mangukala walked jauntily away from
Court that day with a two-year good behaviour bond. The girl,
presumably, travelled back to Oenpelli to spend the rest of her life
living alongside her rapist.

More than 30 years on, another
10-year-old rape victim sits nervously in court while legal authorities
declare her to be a willing participant in her own brutal violation.
Steve Carter, her solicitor, channels a dead Justice Forster as he
reassures the court that ‘children, females, deserve the same
protection under the law in an Aboriginal community as they do in any
other community.’ Sexual ‘virtue’ may now be arcane, but the law’s
beneficence, according to Carter, is timeless. ‘But’ says Carter (using
the word ‘but’ in the ‘I’m not racist, but’ sense of the term)
‘sometimes things happen in a small community when children get
together… and these sorts of things are what we’re dealing with

Steve Carter would not be so vulgar as to suggest, like
Forster, that we should take the offence less seriously because the
parties are not White. Instead, he invokes the term ‘small community’
as a euphemism for Aboriginal community. And in these ‘small
[Aboriginal] communities,’ Carter argued, gang rape is really just
‘naughtiness’ or ‘childish experimentation.’

In Carter’s
feverish imaginings these ‘small communities’ float outside the orbit
of the Queensland criminal code. Laws stating that a child under 12
cannot consent to sex are forgotten. Legal precedents like R v Jones (2003)
stating that child rapists must expect to undergo imprisonment unless
there are exceptional circumstances are divinely irrelevant. Small
communities, for Carter, are inhabited by sexually precocious nymphets
who organise liaisons with nine older men, freely and consensually.
Judge Bradley agreed.

When Carter addressed the issue of
consent he conceded that it was absent in a ‘legal sense’ but
nonetheless there in a ‘general’ sense. ‘General’ is a vague and
ambiguous term. Was he invoking general community standards to which he
had access but with which the law was out of touch? Would he have
thought that social norms in White communities generally condoned nine
men having sex with a 10-year-old girl?

Unlikely. His recourse
to the ‘things that happen’ in ‘small communities’ gives us a clue to
his definition of ‘general.’ In effect, Carter was arguing that sexual
violence and child molestation were part of the social customs of
Aurukun and that the law must have regard to these norms. Carter was
projecting his skewed perceptions of Aboriginal culture, as one
coercively structured by male violence and saturated with infantile
sexuality, into the court room and on to the brutalised body of a young

Carter was certainly not the first to do this. In an article published this year in the Indigenous Law Bulletin,
legal academic Judy Atkinson cited an instance where a White male
lawyer told the court that ‘roughing up’ was part of Aboriginal love
making. He said this in the context of a gang rape where a woman had
suffered a broken nose with extensive cuts and bruising. She also cited
another Cape York case where the Judge heard that rape was not
considered as serious by Aboriginal women as it was by White women. In
another interview she was told by an Aboriginal male public servant
that violence against women and child sexual assault were based on
customary practice.

There is evidently a need to take into
account cultural differences and Aboriginal customary law in cases
involving Indigenous people. But all too often what constitutes
Aboriginal custom is being defined by essentialist ideas of Aboriginal
culture as peculiarly Hobbesian: their life is nasty, brutal and short.
Definitions are all too often garnered by White male legal officers
through consultation with Aboriginal men or White anthropologists.
Aboriginal women are marginalised. Aboriginal children are invisible.

suggestion that sexual abuse and violence are inherent to Aboriginal
culture is offensive. Recognising that sexual abuse and violence have
reached epidemic proportions in remote Aboriginal communities is a
necessary step towards ending them.

The figures speak for
themselves. In a recent Queensland study 55 per cent of the 400 women
surveyed had had an unwanted sexual experience before they were 16
years old. Of these, only 33 per cent had complained to police. A 1989
study by Barber, Punt and Abers found that in one town no Aboriginal
girl over the age of 10 had not been raped. In Queensland, according to
Atkinson, more women died in one community from violent assault than
all the deaths in custody in the State.

District Court Judge
Pat O’Shane argues that the small and isolated nature of Aboriginal
communities is part of the problem. Lacking the legal resources and
support available to women and children in urban areas, Aboriginal
women are left living alongside their assailants with virtually no
access to justice. Unsympathetic police officers just compound the
problem. As one Cape York woman told Atkinson: ‘If a White woman gets
bashed or raped here, the police do something. When it’s us, they
laugh. The fellow keeps walking around and everybody knows but nothing
is done.’

The decision of Queensland Attorney General Kerry
Shine to order a review of the 64 sentences given to sexual offenders
in Cape York over the last two years is commendable. However, this
strategy only targets the very small number of cases that are reported.
The main problem with child sexual assault and domestic violence is
that the assaults go unreported. The 2002 West Australian ‘Gordon
Report’ which examined child sexual assault and family violence found
that the under-reporting rate for Aboriginal children was significantly
higher than for non-Aboriginal children. Even fewer of these victims
then seek help from police.

There is no easy solution to the
violence endemic to remote Aboriginal communities — a violence
attributable on a broad level to centuries of dispossession, the
attempted destruction of traditional law, poverty and disempowerment.
To merely incorporate aspects of traditional law into Western law is
insufficient when traditional law is so disastrously misconstrued.

if there was a return to a consensually agreed model of traditional
law, the fact that the powers of policing are still vested in White
authorities will only perpetuate patterns of underreporting. Ultimately
we need to do more than just review how victims of sexual assault are
treated by the courts. We need to inquire into how these victims got
there in the first place and how many others are suffering in silence.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.