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Cultural rites - human rights: drawing the line

By Stephen Hagan - posted Thursday, 6 October 2005

Russian-born US scientist, academic and writer, Isaac Asimov (1920-1992) once said: “Violence is the last refuge of the incompetent”.

As I read the farcical and offensively lenient one month sentence handed down by Northern Territory Chief Justice Brian Martin to a 55-year-old Aboriginal elder, for unlawful sexual assault of a 14-year-old girl, I knew at whom Isaac Asimov’s quote was directed.

The court heard the elder was promised the girl when she was four, and became angry when he heard she had struck up a friendship with an 18-year-old man in June last year. He beat her with a boomerang, then took her to his remote out-station - where he lived with his first wife - and forced her to have anal sex.


On sentencing the elder on August 11, 2005, Chief Justice Martin took into account the fact the girl was the man’s promised wife under Ngarinaman law. He said he was satisfied the man believed the sexual assault was acceptable because the girl had been promised to him and had reached the age of 14.

How obtuse is Chief Justice Martin’s ruling when statutory law states that it is a criminal offence to have a sex with anyone under the age of 16?

For a judicial figure to stand in judgment and excuse this abhorrent behaviour as a minor crime, because it was done under Aboriginal lore, makes a mockery of western law. The judge and offending elder should be banished immediately from the privileged positions afforded them by their respective communities and from which they reap considerable benefits.

Ironically, this public controversy has aligned me with the writings of right-wing columnist Janet Albrechtsen - a strange occurrence for a social justice advocate with a usually differing philosophical inclination. In The Australian on August 24, Albrechtsen, quoting from A Fatal Conjunction - Two Laws Two Cultures by Joan Kimm, launched a scathing attack on these men of dubious character.

In 1969, a 13-year-old girl from the Yirrkala people was belted when she refused to become the third wife of a 42-year-old man. Kimm recounts that the defendant's defence was that "unless Yirrkala Aborigines were given immunity from European law, the heart would be torn out of their society". The judge accepted that, described the assault as a "storm in a teacup" and recorded no conviction.

In a 1974 Northern Territory case, an 18-year-old Aboriginal man pleaded guilty to having sex with a 10-year-old girl - another case of promised marriage. The judge said: "I do not regard this offence as seriously as if both participants were white ... [because] social customs appear to be different."


Two years ago when a 50-year-old Aboriginal man was prosecuted for raping a 15-year-old girl, the man used the magic formula in court: "but it's Aboriginal custom - my culture". The judge said the girl "knew what was expected of her" and jailed the man for 24 hours. Though this decision was overturned on appeal, the fact is that educated people, such as judges, have long been excusing indigenous violence.

Now consider Martin's decision in Yarralin. This is not progress. It is further proof that "culture" is fast becoming one of the most pernicious words of our time. The consequences for indigenous people have been, and will continue to be, devastating until we wake up to the noble-savage myth. There is nothing too noble about polygamy and rape and violence. Cultures that embrace those practices are in dire need of a Western takeover.

It was therefore with great relief that I read in The Sunday Mail on August 28 of Justice Minister Senator Chris Ellison’s plans to crack down on the practice of young Indigenous girls being subjected to forced marriages under traditional law. The Minister said: “No matter what culture is involved, there is no excuse for breaking Australian law - particularly when it involves the abuse of a child.”

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About the Author

Stephen Hagan is Editor of the National Indigenous Times, award winning author, film maker and 2006 NAIDOC Person of the Year.

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