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When jail looks like a lifestyle option

By Jennifer Clarke - posted Wednesday, 19 July 2006


The triggers for Aboriginal crime reflect the long-term impact of these social conditions on individuals, families and infrastructure. Rural decline and small government play as much of a role here as Aboriginal-specific policies like land rights and self-determination. Factors like intergenerational drug or substance abuse, absence of police and poor housing security create new types of perpetrators or opportunities. We should not imagine that other communities are immune from developing similar conditions.

The criminal law’s approach to “customary law” is marginal to all of this. The Northern Territory “promise marriage” defence to underage sex charges was so obscure that it was rarely used before its repeal by media release in 2004. It was never a defence to violence, or sex with pre-pubescent children. Aboriginal tradition prohibited a man having sex with his wife before she reached puberty, even if she was promised to him from birth. Anyway, much of the violence which has recently preoccupied other Australians is occurring outside “promise” marriages.

The Martin Government repealed the defence to “protect all children equally”. This assumes that non-Aboriginals know who a child is and traditional Aboriginals don’t - an idea undermined by the fact that Australian law allowed girls to marry at 14 until 1991. It also ignores the protective function which “promise” marriages traditionally served: of keeping girls away from promiscuity and the depredations of other men. Such ideas may have reached their use-by date for Aboriginal Gen Nexts, particularly where men misuse them to justify violence, but there is no need to demonise them as vehicles of unadulterated gerontocratic male opportunism.

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In the current social and economic context, it’s worth asking what release from traditional marriage frees Aboriginal girls up for. It’s not as if Australia offers most of them great employment and educational opportunities. While middle-class city children have iPods, a lot of Aboriginal teenagers have babies - something that the recent increase in the baby bonus and other “family friendly” welfare reforms seem likely to encourage. Yet we know that the children of girls who parent solo in relative poverty are more likely than others to grow up into crime.

Mal Brough’s plan to prevent courts from considering “customary law” as a factor in sentencing is also poorly conceived. The criminal justice system fails many victims, mainly by ignoring them. Courts can make bad sentencing decisions - that’s why we have appeal courts. They can be poorly informed about how “customary law” should influence a sentence - for example when the prosecution doesn’t collect proper evidence of general Aboriginal opinion and all that the judge is left with is defence advocacy.

But legislatures which lay down arbitrary rules for dealing with all defendants are yet another step removed from the crime, the offender, the victim and their social circumstances. Under the Brough plan, a court sentencing a non-Aboriginal offender will continue to be capable of setting a sentence proportionate to the crime based on the defendant’s genuine personal circumstances, but a court sentencing a traditional Aboriginal offender will not.

But a man who insists on sexual intercourse with a teenager promised to him is not your average pedophile, and sentencing him without reference to “customary law” will do very little to reduce sexual violence. This is illustrated by the 2005 Yarralin case. Like many men promised wives, “GJ” was well past criminal offending age, pushing up against male Aboriginal life expectancy. He committed a nasty assault on a frightened girl, but he was a first offender. Someone like him is unlikely to offend again, as he’s unlikely to be promised another wife, and he’d probably be mad to take an underage one. He did not prey on a series of girls. He did not stupefy his victim or video himself having sex with her. He confessed to police so she didn’t have to give evidence. The Northern Territory Court of Criminal Appeal sentenced him to at least 18 months in jail. By comparison, some career pedophiles only get 10 years.

Brough appears out of his depth in criminal justice. There may be a need to reform the processes by which courts find out about or apply “customary law”, but preventing them from considering it entirely will bring about a new kind of racial inequality.

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First published in the Canberra Times on July 3, 2006.



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About the Author

Jennifer Clarke is a Canberra lawyer

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All articles by Jennifer Clarke

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