Sex and traditional Aboriginal law

Karen Michelmore:

THE decision of a judge to jail a 55-year-old Aboriginal man for just one month for forcing his 14-year-old promised bride to have sex has reignited debate about the role of traditional law in the wider Australian legal system.

"There's no question there will be people in the community who will find it difficult to understand, and who will say the penalty is too light – that's an individual choice," Northern Territory Chief Justice Brian Martin said on ABC radio today.

"I must deal with the law as it is, and one of the criteria is to look to the individual's culpability.

"The court has said over many years that we need to take into account those matters which arise peculiarly from the ethnic or the Aboriginal background."

The man, who cannot be named, was sentenced last week to two years imprisonment, suspended after one month, after pleading guilty in the NT Supreme Court to one count of aggravated assault and one charge of sexual intercourse with a child.

The court heard he was promised the girl when she was just four, and became angry when he heard she had struck up a friendship with a young boy in June last year.

He beat her with a boomerang then took her to his remote outstation – where he lived with his first wife – and forced her to have anal sex.

Justice Martin said he had taken into account the fact the man was a respected elder who believed his actions in striking the girl and having sex with her were allowed under traditional Aboriginal law.

He said he had a "great deal of sympathy" for the man, saying he was unaware his actions were illegal under NT law.

"On the other hand, the law of the NT says that you cannot hit a child, ... (and) that you cannot have intercourse with a child," Justice Martin said.

Independent NT MP Loraine Braham said the sentence sent a mixed message to girls in Aboriginal communities.

"I welcome the sentence of two years in jail, but to suspend this to one-month trivialises the result," she said.

"How can Aboriginal women and girls have confidence to come forward about such an assault if this is the outcome."

The Office of the NT Director of Public Prosecutions (DPP) is reviewing the case, and will decide whether it will appeal against the decision over the next few days.

"I'm waiting on a recommendation," DPP Rex Wild said.

NT Attorney-General Peter Toyne declined to comment.

In 2003, Dr Toyne introduced a raft of changes following a major inquiry into the role of traditional Aboriginal law in the wider system.

One of the Government's key changes was to remove the traditional marriage defence in child sexual assault cases.

Thanks for the link to the news story, Paula!

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