An apt cartoon from NT News cartoonist and Troppo blogger Colin Wicking |
As Colin Wicking acutely observes, the debate about responsibility for appalling conditions in remote indigenous communities has degenerated into a predictable federal/NT slanging match
A similar divide is evident in the discussion about causation amongst op-ed pundits. The right (e.g. Christopher Pearson in today’s Oz) emphasise the need for strong law and order policies and the malign influence of customary law. They make some good points. I don’t share the latte left belief in the sanctity of customary law as an element of “self-determination”. That especially applies to practices in relation to “promised” brides, but my objection is wider than that. Even in their original traditional guise, most forms of customary law “payback” “justice” were dreadfully barbaric and contrary to basic norms of international law. Degraded by alcohol and substance abuse as they are today, these practices are little more than licences for intimidation and indiscriminate mayhem. Alcohol-fuelled violent crime followed by equally alcohol-fuelled “payback” often gives rise to an endless cycle of retribution and counter-retribution.
Left-leaning pundit Adele Horin makes an even stronger point. She points to a recent joint Commonwealth/NT study into government spending at Wadeye/Port Keats which showed significant underspending per capita compared with the NT average. The most seemingly blatant example was education, where the NT government only spent 46 cents for every dollar spent on average elsewhere.
The problem with that figure is that the discrepancy occurs because NT school funding formulae, not only in Wadeye but throughout the Territory, are based on average school attendance rather than either enrolments or total number of school age children. Because attendances at Wadeye are even lower than the depresssing record of most other indigenous communities (it sems that less than 100 out of 650 kids attend school regularly), they don’t get much funding. It isn’t at all obvious that there would be any point in simply putting more teachers and classrooms out there without ensuring kids attended school, but there is no valid excuse for failing to implement effective policies to drastically boost attendances. The sorts of policies discussed in my previous post.
On the other hand, Territory politicians exhibit a bipartisan determination to deny that they are short-changing Aboriginal communities at all:
Treasurer Syd Stirling said yesterday the NT Government had spent the full $90 million allocated on Aboriginal housing last year. Opposition Leader Jodeen Carney said the NT Government spent 49.7 per cent of its annual budget on delivering services to Aborigines.
She said $19,069 per year was spent on every indigenous Territorian and $7873 on non-Aboriginal people.
The Commonwealth/NT report on Wadeye reached a different conclusion:
Contrary to expectations and to hype, the study found that governments had spent far less per head on an Aboriginal person in Wadeye than on the average Territorian – almost $2000 a year less.
How can both sets of figures be correct? I suspect they can’t. Horin ventures a guess:
Any visitor to Darwin can see it is well-equipped with modern amenities and pleasant housing – and that is partly because the Northern Territory under Commonwealth grants funding receives almost 5 ½ times per person what NSW or Victoria receives. As Bowden says, the generous Commonwealth funding flows untied to the territory on the basis it labours under problems of disadvantage and distance. But the funds appear to be distributed lavishly to the northern suburbs of Darwin in order to retain eight vital Legislative Assembly seats.
A Commonwealth Grants Commission working paper also shows that, compared with spending by other states, the territory underspends on “services to indigenous communities”. It should have spent $161.1 million on Aborigines in 2004-05. It spent just over half that.
In other words, successive NT governments have spent somewhat more on indigenous Territorians (hence Jodeen Carney’s figure of 49% of the NT budget spent on delivering services to Aborigines), but nowhere near as much as they should be spending having regard to how much they receive from the Commonwealth for redressing indigenous disadvantage.
Where Horin gets it wrong is in her assumption that the missing money is spent on providing lavish services to Darwin’s northern suburbs. She seems to imagine that Darwin’s streets are paved with gold. In fact, although Darwin’s services and infrastructure are very good, they’re no better than any other capital city, and Commonwealth Grants Commission formulae are designed to achieve exactly that result.
So where did the money go? It disappeared in a welter of extravagant publicly funded capital works projects over the last 20 years, the interest bill from which remains a huge drain on the NT budget. Territory net debt is currently running at $1.776 billion, where some other states have managed to almost eliminate state debt with GST revenue. The interest bill on this debt more than accounts for the annual shortfall of $80 million in spending on indigenous affairs.
The debt was run up progressively to fund a succession of ill-advised loss-making projects over the last 20 years, including the Yulara resort, Darwin and Alice Springs Sheratons, the Douglas-Daly farms project, the Trade Development Zone, Darwin-Alice Springs railway and the current convention centre/Darwin Waterfront project. All of these with the arguable exception of the railway are essentially private sector projects in which government had no business being involved. The total cost to NT taxpayers from these projects was much more than the current $1.776 billion net debt; that’s just the residue that the current Martin government hasn’t yet managed to pay back.
In some respects, therefore, it’s unfair to blame Clare Martin for failing to spend more in Aboriginal communities. She’s saddled with the legacy of 23 years of CLP fiscal mismanagement, and if she diverted much more money to services to Aboriginal communities it would be at the expense of delivering lesser standards of service to Darwin and Alice Springs than other parts of Australia enjoy. Mind you, that argument would have more force if the Martin government wasn’t currently spending $150 million or so of taxpayer’s money on the Darwin Waterfront project, which will push the budget back into deficit for the next 2 years. It’s eerily reminiscent of a CLP “big bucks” project from the bad old days of the 1980s. What Labor under Clare Martin has done is to adopt fiscal and general policies essentially indistinguishable from those employed by the CLP over 23 years!
Nevertheless, you don’t need to be a political genius to realise that for the Martin government to substantially increase NT government spending to Aboriginal communities at present would be an almost certain recipe for electoral annihilation. And the Feds are very unlikely to force them to do so, because that would equally certainly be sentencing their local CLP colleagues to permanent opposition status. That’s why the whole disgraceful fiasco has instantly degenerated into the usual pointless feds versus NT blame game charade.
So what’s the answer? Abolish self-government and appoint an Administrator to distribute federal funding equitably? Hardly an idea that anyone in the Territory, including indigenous people, would happily embrace. The NT was very badly neglected until we obtained political representation in the early 1970s and then full self-government in 1978. There must be another answer, but I have no idea what it is. Meanwhile, the situation in indigenous communities continues to deteriorate, driven by decades of government underspending and mismanagement, and exacerbated by gross irresponsibility on the part of Aboriginal people themselves.
Good article. Thanks for explaining the issues.
Great post Ken.
Thanks for a thoughtful article Ken.
The problems exist around Australia, although are more visible in the NT because of the nature of the population. I can’t claim recent direct knowledge of Cape York Peninsula Aboriginal communities but 15 years ago when I did some work up there there was evidence in the of the breakdown of many social structures – what Durkheim described as anomie. Indeed this was the view of my (then) anthropology lecturer at uni that the community he had worked with over many years and written his doctoral thesis on, was a prime example. Wadeye sounds very similar as much as one can interpret the news.
I think it’s instructive for all of us to imagine ourselves in a Wadeye and what we would do or want to happen. I’m sure there is no one answer whether it be police, housing or the end of customary law. Although I’m sure the last one is reactionary and a straw argument.
I think I now know enough about working with communities to believe that all those things have to be addressed. There’s also plenty of evidence that the way Australia has addressed infrastructure including housing in these communities is unsustainable. The work that groups like Health Habitat have done has shown the inadequacy of putting in, for example, plumbing in houses in remote communities. Putting in systems designed for use by a family of four in a suburban setting with easy access to a plumber just isn’t suitable in a house with 20 occupants and no plumber within coo-ee. Yet that’s exactly what has happened. Houses need robust and easily fixable plumbing. And that’s just a start. We have used the available dollars (and they are declining over time btw) if we had invested more in location appropriate designs and infrastructure. The evidence is there.
And we need to invest in community development – I know it sounds hackneyed and 70s but the sort of community engagemetn that builds community is what is required in communities where norms have broken down. But it’s a long haul and won’t be solved overnight. So we need a plan, it needs to be worked through with Aboriginal leaders and it needs sustainable funding. It has to address employment and meaningful activit for people. I don’t see alot of this happening, but I do see a lot of talk. Maybe I’m wrong though and this doesn’t make the news – in which case I’ll be pleased to be corrected.
Ken, I’d be interested in your comment on the government’s reported proposal to extend their prohibition of customary law to “the cultural beliefs of all ethnic minorities”…
Andrew Bartlett makes some good points on this:
http://www.andrewbartlett.com/blog/?p=232
And I totally fail to see how they could legislate to alter sentencing practices in State criminal courts.
Such federal legislation might be supportable constitutionally under the race power section 51(xxvi). Alternatively, perhaps the external affairs power section 51(xxix) if they limited themselves to legislating against taking into account customary law concerning practices that breached international human rights treaties to which Australia is a party. And for the NT a least, the Commonwealth can do just about whatever it likes under section 122.
As I said above, quite a lot of Aboriginal customary law “payback” practices do in fact breach international human rights standards. Then there’s clitorectomy and stoning adulterers to death, which accord with some versions of Sharia law. Should Islamic customary law be taken into account in mitigation if an Islamic Australian commits such acts?
I would have no problem at all with the Commonwealth prohibiting such practices (or their being taken into account in mitigation in court sentencing), but it will certainly be mere dog-whistling/diversionary tactics if they do little or nothing else to redress indigenous disadvantage (as I suspect will be the case). What is needed is a holistic approach that addresses all the issues I’ve discussed in my last couple of posts (and more as well). But most of them will be put in the too hard or too expensive basket, leaving an expedient Commonwealth measure to outlaw customary law defences or pleas in mitigation which will do little or nothing in isolation to address the problem.
How often are adulterers stoned to death in Australia though?
Surely the point of mitigation in sentencing is to get to the motivations/intentions of the criminal in committing the crime?
I think you’re right about the probable failure to address issues in a holistic way, though, Ken, and I agree that you’ve made some excellent suggestions. I’m not sure whether Brough is just playing politics (the performance in Question Time the other day suggests that he certainly is to some degree) or whether he can’t get his head around this issue in anything other than a “law and order” way.
Obviously perpetrators of these crimes should face the full weight of the law. But the impetus for the issue coming to prominence, the prosecutor’s report, suggested first that the problem has been that it’s been difficult to apply the law due to witnesses not coming forward, and secondly, that the scale of the problem is such that it goes beyond isolated acts of criminality. Clearly to ensure that it doesn’t keep recurring you need to do more than prosecute the offenders (though you should certainly do that) and get to the systemic/structural causes.
I claim no special expertise in this area, but I thought customary law had broader application than just criminal law. The debate in the NT is about criminal law issues but getting rid of all customary law undermines the native title system surely? How’s that going to work? Ownership of and access to land is pretty fundamental to any legal system. Yet the talk is over getting rid of all customary law.
I find it hard to believe that if more people get put in gaols that the problem is fixed. Mal Brough is taking decisive action and isolating the problem to a sole factor because it’s politically expedient for him. And he’s even doing to the extent that he is prepared to stop funding for housing until law and order is sorted out. It’s exactly the kind of knee-jerk reaction that will show a short term fix at the expense of a long term solution.
But I think there is a wider game afoot to completely reshape Indigenous Affairs and I’d be surprised if this was all his own work.
The reality is that customary law has only been recognised fairly recently in Australia for criminal matters. Yet violence in Aboriginal communities has been present for much longer than that. I remember working with Judy Atkinson in Qld and seeing her relentlessly working to raise the issues of domestic violence in Aboriginal communities. And that was well before customary law was recognised.
Mark
Customary law raises some really complex issues. I don’t think it helps very much to discuss it in simplistice tabloid terms as Mal Brough is doing. Here are some observations on just a few of the issues.
First, there is certainly an argument in favour of allowing courts to continue to take into account on sentencing the fact that an offender will also be subject to “payback” punishment. on one view that is just an application of normal principles of proportionality in sentencing that apply to all offenders i.e. that the total punishment should fit the crime. A non-traditional example is that courts e.g. take into account on sentencing the fact that an offender’s behaviour has led to his losing his job and being socially shamed to an extent that he will probably never again work in his chosen career.
However, several problems of both principle and practice have become manifest in relation to taking into account the fact/probability that payback punishment will occur.
First, there are documented examples (and many more cases of suspicion) where the payback punishment did not in fact occur at all so that the offender simply got off with an unduly light sentence. Defence lawyers are under no ethical obligation to be certain that payback punishment will actually occur before making a submission to that effect to the court, and prosecutors are rarely in a position to investigate and negative such suggestions.
Partly in order to address those sorts of problems, some judges began actually releasing offenders from custody so that they could travel back to their home communities to be subjected to payback punishment, and in some cases police have even escorted them back and handed them over to those who will exact payback punishment! In at least one such case I know of, the payback got out of hand and the offender was very seriously injured.
Given that even payback that doesn’t get out of hand involves serious aggravated assaults that are themselves indictable crimes under Australian law, there is a respectable argument that judges and police who involve themselves in such a process are themselves parties to a criminal conspiracy (or at least accessories). Such processes are in my view utterly improper.
In any event, by building a level of expectation/ acceptance of payback violence into our legal system and making little or no attempt to stop it (and indeed for some purposes accepting that customary law is entirely legitimate and to be fostered as an element of “self-determination” rather than discouraged), are we simply perpetuating an unjust, abusive and dysfunctional social system when we should instead be devising measures to encourage change?
Lastly, I also think we need to distinguish between sentencing submissions about customary law that involve assertions of likely infliction of violent punishment by others (for which a vaguely respectable case can be made as above, albeit with the serious reservations I’ve outlined), and claims for mitigation of sentence based on the ofender’s own behaviour and the cultural factors said to explain or mitigate it. The most obvious example of the latter is the offender who seeks mitigation for the violent rape of a 14 year old “promised bride” on the basis of “customary law” expectations. I certainly don’t believe that customary law should ever be permitted either as an excuse or a mitigating factor on sentence in such cases.
Ken, I certainly don’t support “payback” as I agree with you that what it amounts to is assault. However, I’m not sure that the reasons for an offender’s actions shouldn’t be able to be pleaded in mitigation, though I’m most reluctant to accept that they should make any difference in the kind of case you mention. It seems to me the problem lies with the judiciary here.
The judiciary.
Do you mean specifically the court system that requires witnesses to stand up and give evidence? That is where the proscecution cases fall over if they ever get to court in the first place.
How could the problem lie principally with the judiciary?
In sentencing, obviously. That’s what I’m talking about, as should be clear, not the problem in general.
Eleri
As far as I know, Brough is just talking about enacting legislation forbidding either customary law defences in criminal matters or taking it in account in fixing sentences.
As you rightly point out, it would be something far more problematic to purport to prohibit customary law from having any legal effect at all, most notably in the area of native title. In fact, the Commonwealth probably couldn’t do that constitutionally, because it would be extinguishing native title without providing compensation on just terms which section 51(xxxi) of the Constitution requires. Fortunately, AFAIK the current debate (such as it is) is only about the much narrower (but still very difficult) question of the role of customary law in the criminal justice system.
While I’m back on that topic, a point I should have made previously in summarising the complexities of the issues, was this:
The experience of police and lawyers working in criminal matters in remote indigenous communities is that sometimes the unimpeded exaction of payback punishment DOES actually put an end to community chaos in a way that nothing else could achieve. In a functioning traditional community, exaction of the prescribed punishment (whether spearing or bashing or whatever) is the end of the matter. Everyone is satisfied and life returns to normal (or as normal as it ever gets in such places).
OTO if infliction of payback is impeded (e.g. because the offender is in prison far away in Darwin) then justice remains undone in Aboriginal eyes. Moreover, Aboriginal people don’t look at human activity in general (including criminal acts) as mere matters of individual agency. In some respects evils spirits are seen as the true agents, and responsibility for those evil spirits may be seen to lie at least partly with members of the offender’s extended family. Thus punishment of other family members by proxy may take place in the offender’s absence. That then engenders resentment and retaliatory payback, and sometimes the formation of clan-based factional/gang warfare.
The trouble is that the whitefella justice system has no reliable way of knowing or understanding the community dynamics of such an alien society to our own world view, especially when in most of them the dynamics are hopelessly disrupted and corrupted by alcohol and substance abuse and just plain mendacity on the part of (mostly) blokes intent on maintaining their power and influence by calling in aid “customary law” falsely.
Like Ken, I don’t know what the answer is. Maybe we need to put away politics and focus on what common sense would suggest. The Aborigines need precisely what everybody else needs: education, literacy in English, marketable job skills. If the means of getting them those things looks paternalistic — well, that’s too bad.
The worst cases you see on the streets of Alice are beyond hope. They are the walking dead. We need to retrain the younger generations to mainstream values and expectations. That should be possible in Alice. How you get to the remote communities is another matter.
If that’s assimilation by another name, so be it. Self-determination, at least as presently implemented, has not worked.
I sometimes think — and maybe I’m wrong — that one of the tragedies of the failed polices of the last 30 years is that the Aborigines lost the class of people who really cared about them, morally and emotionally as opposed to politically: the missionaries and patrol officers. Many of them gave evidence during the Gunner-Cubillo case, and Justice O’Loughlin, in his judgement, repeatedly lauded the men and women who worked tirelessly and for virtually nothing to advance, aid and comfort those in their charge, and whose work was devalued, de-funded and dismantled under the Coombs-inspired regime.I don’t think the new generation of activists and lobbyists have filled the gap left by their departure.
Maybe they were paternalistic, and maybe we’d look askance, these days, at what often motivated them (reclaiming the heathen for Jesus). Nonetheless, it’s interesting that many of the older Aboriginals have very fond memories of the era of the mission stations.
Noel Pearson said recently that his generation’s grandparents could read and knew the Bible backwards. Now the kids can’t write their own names.
We need to remember too how much great anthropological work was done by the missionaries at Hermannsberg and Finke River, the songs they collected, the languages they catalogued.
Ken
“And for the NT a least, the Commonwealth can do just about whatever it likes under section 122.”
Mark
Peter
Constitution section 117 deals with discrimination on the basis of State of residence. Territories are not States and section 117 does not constrain the scope of section 122.
As for your more general argument, I agree that proscribing matters that can be taken into account in mitigation of sentence is potentially problematic, but I think it would be both possible and appropriate to frame legislative provisions that would provide some reasonable guidance to judges in matters involving “customary law”.
The submissions made in the MAK etc case were exactly what I had in mind, along with those made in the case of the Aboriginal man convicted of violently sexually assaulting his 14 year old “promised bride”. The MAK submissions were rightly rejected, but those in the “promised bride” case were accepted at first instance and resulted in an absurdly short sentence. While the sentence was extended on appeal, I don’t think that means we can theeby conclude that there’s no problem and we should simply trust the judges.
Neither separation of powers nor any other sensible principle dictates that Parliament must never provide legislative guidance to judges on the factors to be taken into account on sentencing or how to apply them. As long as Parliament doesn’t attempt to take over the sentencing task and leaves the court with enough leeway to tailor the sentence fairly to the crime and offender, there is no problem of principle.
As for McHugh J’s statement, even a great judge gets it wrong occasionally. I simply disagree. The fact that the values of a particular ethnic group regard crimes like murder, rape or child sexual abuse as being less serious than most Australians view them (or don’t regard them as crimes at all in some cases) provides no proper basis at all for imposing a lesser sentence. When you start treating such matters as culturally relative, the whole notion of rule of law becomes meaningless.
In any event, McHugh J’s remarks had nothing to do with “customary law” and were not made in the context of a case involving a clash of values between different cultures or ethnicities. He was talking in the context of what factors should be regarded as relevant to establishing a defence of provocation such as to reduce murder to manslaughter (by reducing the defendant’s ability to maintain self-control). It’s a notoriously difficult area, and I don’t really think referring to cases in that area assists very much when looking at the more general question of factors relevaant on mitigation of penalty.
Moreover, the facts of the Green case indicate just how problematic the whole area is. My own view is that Green got away with murder by claiming that he was “provoked” by an unwanted but totally non-violent homosexual advance by a much older and smaller man. I strongly disagree with the High Court’s decision in that case and regard it as establishing an obnoxious principle, that essentially permits open season on gay men. I agree with the two gay members of the High Court bench, who were both in noble dissent.
Jen’s point is also an important one. There arguably is not much point talking ad nauseum about sentencing principles when the vast majority of sexual and violent assaults on Aborigianl women and children never get to court in the first place.
One of the most disturbing aspects of prosecutor Nanette Rogers’ Lateline account that first triggered the current debate, was her observation of how many victims are too frightened and intimidated to proceed with their complaints, resulting in prosecutors more often than not being unable to proceed with charges. The cases that get to court are only the tip of the iceberg. This is a huge problem in small indigenous communities dominated by powerful violent males who are only too happy to hide behind the guise of “customary law” to perpetuate their “right” to rape and bash whoever they like.
An even more disturbing aspect of the discussion that followed Nanette Rogers’ revelations was the number of callers to talkback radio in the NT (people like teachers and community nurses) who reported having become aware of serious sexual abuse in Aboriginal communities but who were allegedly directed by their superiors not to report it (notwithstanding that reporting is mandatory under NT law and that of most other parts of Australia).
I found it especially remarkable that neither Clare Martin nor Attorney-General Peter Toyne reacted to any of those claims AFAIK, but instead kept asserting that everything was OK and that NT authorities were handling things in an entirely proper manner. I wonder if any of those talkback callers have been contacted by NT police to find out more details? If not, why not?
Ken
Re: “Territories are not States and section 117 does not constrain the scope of section 122.”
That’s why I said “spirit” but in any event I still believe that were the Cth to try, it could be subjected to a constitutional challenge. (As well as such interference being politically stupid)
“I think it would be both possible and appropriate to frame legislative provisions that would provide some reasonable guidance to judges in matters involving “customary law”
Peter
Sadly, I think there’s rather more distance between our two positions than you suggest. But you never know, at least we may end up understanding why we each hold our respective views, and accepting that we each have reasons for them that are at least worthy of respect.
I think there’s a world of difference between factors that might be considered as going to mitigation of sentence that can reasonably be described as matters of objective fact and those that are matters of subjective opinion. Now philosophers, especially of the post-structuralist variety, would no doubt blow holes in those classifications, but I think they’re workable on a practical everyday basis.
Factual considerations like levels of poverty, education, income and assets, prior criminal history, illnesses and disabilities etc are all useful and proper matters for consideration in mitigation or aggravation of sentence.
But it’s otherwise with an offender’s subjective opinion about whether and to what extent what he did was wrong, irrespective of whether that belief is given the label “cultural” or “ethnic”.
I assume you agree with the fundamental proposition as to criminal guilt that “ignorance of the law is no excuse”. However, if you allow offenders to say: “Oh, but in my culture that isn’t wrong. I can bash and fuck her whether she likes it or not because [she’s a slut who wears a miniskirt][she’s my promised bride]”, and our legal system says that this belief is sufficient to mitigate guilt to the extent that the offender will serve much less prison time, then you’ve effectively made the criminal law somewhat optional at the instance of any individual who can plausibly claim any cultural background other than caucasian male. If someone claims that a particular crime isn’t really a crime at all in their “culture” then they can at least partly avoid punishment.
In reality, I have no doubt whatever that the Islamic thugs who raped young girls in South-Western Sydney knew very well that they were breaking the law and that our society viewed such crimes very seriously. They just believed that the law shouldn’t apply to them and that they could do whatever they liked and get away with it.
Similarly in Aboriginal communities. Despite poor education levels, the common knowledge that all young Aboriginal males share is that lots of their mates have already been sent to prison for a wide variety of crimes including ones of sexual violence. They know very well that what they are doing is regarded by the “dominant” society as seriously criminal. Thus, when they bash or rape a woman or child, they know what they’re doing and they know that it’s a crime. But they’re more than happy to let a whitefella legal aid lawyer mount a “customary law” plea on their behalf in the hope that they might avoid punishment and be able to continue terrorising people and generally doing whatever they like.
The major thing that criminological research teaches us is that the best (and perhaps only) way to reduce crime levels is to increase (a) the certainty of being caught; and (b) the certainty of being punished.
At present, with regard to (a) young Aboriginal males know that, although everyone in the local community knows what they’re doing, they’re supported by a culture of fear and intimidation that keeps women and children from pursuing complaints and a male power structure that self-interestedly backs up their bullshit protestations of “customary law” justification.
With regard to (b), the willingness of the criminal legal system and its latte left apologists to give credence to bullshit “customary law” pleas in mitigation militates against increasing the certainty of punishment. Offenders believe with some justification that they have every chance of escaping either without prison time or with a short enough term (with their mates who are also in prison) to serve as no deterrent at all.
The bottom line is that I’m prepared to concede that it’s proper to discount a criminal sentence where an offender has already been subject to tribal punishment, because that flows from a long-accepted view about proportionality/fairness in sentencing. But I’m not prepared to concede that it is ever proper to allow an offender’s opinion about the wrongness of his crime to affect sentence, and I have severe practical reservations about allowing sentences to be discounted because an offender might (but might not) suffer tribal punishment at some indeterminate future time.
jen, sorry, but I think you’ve been misreading what I’ve had to say. For instance, on the issue about offenders getting to trial or conviction in the first place, I wrote:
My rationale for asking the question about sentencing was that this has been prominent in Costello and Brough’s rhetoric over the last week, and I was interested to know Ken’s opinion.
When I said the judiciary was the problem, what I meant was that it’s always been open, I’d have thought, to judges not to give much weight to pleas in mitigation about customary law. That was in reference to sentencing. I’m not asserting that the judicial process is at the heart of what’s going on here, or of the solutions. Quite the opposite.
I should point out that “customary law” submissions are in fact fairly rare. They’re certainly made in cases involving sexual assault of a “promised bride”, but those cases don’t happen very often.
Customary law submissions (as opposed to more general ones about the offender’s background etc) are seldom made in other sexual assault or general violence cases, because there’s simply no scope for them. Lawyers do not routinely submit to the court that their client bashed or raped because he thought customary law entitled him to do so!
The prominence that Brough has given the issue in recent debate is therefore a red herring.
Ken Re:
“I can bash and fuck her whether she likes it or not because [she’s a slut who wears a miniskirt][she’s my promised bride]”