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.
Mangukala, 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 today.’
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 girl.
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.
The 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.
Even 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.