Aurukun rape, gaol and customary law

It saddens me greatly to see the chorus of Aboriginal people calling for the Aurukun rape perpetrators to be sent to gaol.  Some of those same spokespeople were calling for Aboriginal people to stay out of gaol in the 90s.  The dominant colonial paradigm has only offered gaol or total neglect as the options to deal with such things as child rape or anything else in Aboriginal communities, despite the recommendations of the Royal Commission into Aboriginal Deaths in Custody such as the strengthening of customary law,  non custodial corrections options and Aboriginal corrections facilities.

Sending perpetrators to gaol will not heal them but make them worse through their gaol experience, which is a key source of the consciousness of rape and predatory sexuality.  The prison sex ethic is reinforced and then sent back to the community upon release, eventually.  This is not a new phenomenon, prison sexuality has been a big factor in Aboriginal communities for a long time, it is taking its toll today.  Sending perpetrators to gaol is just perpetuating the cycle of violence.  Increased sentences such as Rudd, Bligh and the Aboriginal leadership are calling for is no solution at all.

  The youths involved in the Aurukun rape should be subjected to customary law men’s business and resolution, not gaol.  Current law makes elders liable to charges of kidnap   and child abuse if this were to occur.

All the focus is on the perpetrators and the poor little victim is offered little except counselling and detachment from family, community and culture.  She needs to go through customary law womens business for her healing too, as a much greater priority than punishing or healing the perpetrators.

But in our continued denial of the history of the country we have outlawed customary law.  We continue to insist that more police, prisons and the army- the colonial mode –  intervening into Aboriginal lives will somehow deliver justice.  But it makes things worse, it will just perpetuate the cycles of violence.



Filed under Aboriginal, australia, justice

5 responses to “Aurukun rape, gaol and customary law

  1. Su

    Hi John T. Could you speak a little more about this issue? While I can see that what you say about jail is absolutely true, it would seem that in this case, the offending behaviour escalated even though none of the offenders had been imprisoned before?

    Could traditional law be enacted in Aurukun in the short term or would it need some time before that form of justice would be recognized again by the people and acquire its former import?

    If customary law cannot be revivified in the short term what should be done in the meantime in cases such as this?

  2. Hi Su,

    Before I pontificate further please be aware that I am not an Aboriginal person and have no connection to Aurukun.

    Gaol and predatory sexual behaviour are contagious. It is not just the ex prisoners who pick it up, it can become part of a social world view – peer group pressure. It is the consciousness of alientaion and despair. Also the matters you raised at LP in terms of victims becoming perpetrators.

    90% of Aboriginal men spend some time in gaol in their lives. Gaol does not just affect a small minority, it is an ever present reality in Aboriginal life.

    Customary law allready exists on Aurukun and it was only a couple of decades ago that it was very strong. The basics of the structure are still in place, as it is with Murries in the inner city of Brisbane, and that is 1/The extended family and lateral connections, 2/ Elders. 3/Men and mens business and 4/ women and womens business.

    The process is to allow and resource the elders, mens and womens circles to do what they decide is appropriate. Customary law as applicable to serious problems, is essentially illegal. I know of some elders at Mt. Isa., some years ago, who responded to a serious and growing problem of petrol sniffing by gathering the yong men petrol sniffers and taking them out bush, a long way from town, grog, drugs, petrol and all other distractions. If the young men didn’t want to go they were taken against their will. They kept the young men in the bush, teaching them culture, for long enough for the men to be healed, resocialised and ready to return to their families. However, the Elders were charged with kidnap and had to stop this practice.

    In some remote communities the local police turn a blind eye to customary law or do not intervene until customary law business has been finished. They recognise that, though illegal, it maintains community discipline and law and order.

    This is where sovereignty comes into it. In Australian law nobody is allowed to decide what needs to be done except the parliament and legislation. If a course of action requires an assault, such as a spear in the leg, than that is illegal.

    Customary law is instantanious, it happens as soon as the violation is known about.
    If someone is arrested and imprisoned they are removed from the possibility of engaging in customary law, and because they are a central figure in the process the process does not occur including healing and resolution for the victim.

    So to answer the question how to enact customary law, it is a simple question of letting it happen (legislative reform or police and bureacracy turning a blind eye to breaches of white law in the process) and providing resources for it to happen.

    The loss of respect and discipline cannot be remedied until elders and leaders are allowed power and control to establish authority, respect and discipline. I am not talking about tyrannical and vilent control but about having the capacity to take responsibility and the consciousness that goes with it.

    Customary law systems – mens womens and elders circles – should be just as well resourced as the police in terms of vehicles, properties, wages, administration etc. Investment in customary law would be most cost effective compared to police, court and prison funding.

    When could all this happen? Within 2 weeks of funding the mens, womens and elders circle I reckon.

    Traditional Aboriginal culture allready has protocols and wisdom in this process which many elders know. However the basic principle of this is the same as restorative justice and circle sentencing that mainstream law authorities have been experimenting with – with great success.

    I have doubts that customary law can be revived in the short term to deal with things like the Aurukun rape, not because of any lack of capacity of Aboriginal people but because of the governments stupid loyalty to its own agenda – they wont let it happen.

    However, there is great possibilites for non custodial sentencing options to be developed based around cultural education. This was spelled out in great detail in the Royal Commission into Aboriginal Deaths in Custody. The RCIADIC also raised the idea of Aboriginal correctional facilities such as work farms and halfway houses. It is basically a matter of funding.

    In Queensland “Murri Courts” have been developed but they only have mainstream sentencing options, not because they arent allowed to give non-custodial sentences ordering involvement in cultural healing programs – there just arent any because there is no funding for them.

    To return to the Mt. Isa example, a hypothetical solution there is for the court, once a petrol sniffer has been arrested, to order that they be put into the custody of elders who can take them bush legally. If they dont go with the elders they go to gaol, not as strong a motivation as the physical force of the elders but still a motivation.

    These kind of sentencing options are not a customary law response to crime, but they would instil and develop customary law discipline and consciousness in participants and their communities – prevention of rescidivism.

    I dare not speculate about an appropriate and immediate course of action at Aurukun.

  3. Grant

    Hi John. I fear that allowing Aboriginals to be subject solely to customary law sets a dangerous precedent for further abuse of the native population from the ethnic majority. Current laws when *properly* enacted guarantee protection of the minority from mistreatment and discrimination. Setting up unequal standards of punishment puts the law on a slippery slope towards “seperate but equal” and Jim Crow. I think that your concerns would be better addressed through Aboriginal correctional facilities in which elders would have an input into the rehabilitation process.

  4. paul loeven

    saw this old page today.i have worked in community stores all over australia for 20 years (still am),and after five stints relieving at aurukun.
    this is the ONLY community had to refuse to work in ever again…for fear of my life.

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