Posted on 10/22/2002 5:05:28 PM PDT by rocknotsand
Customary Law and Sentencing Freeper summary inserted: politically correctness / cultural marxism fogs the view of society elites and gatekeepers - graduates and learned people. Here seen (below) reaping the whirlwind of social engineering, humanism, UNESCO multiculturalism and relative morality -- Australian justice is standing on sand not rock and I blame the judicial activism that infects even the highest court in the land. Also note the hypocritical blind eye to the U.D. of Human Rights -their own sacred cow- from the p.o.v. of the victim. The frog is on the boil...
Damien Carrick: Hello, and welcome. Last Friday, the Northern Territory Director of Public Prosecutions announced that he intends to appeal a recent controversial sentencing decision by Acting Supreme Court Justice John Gallop. The case involved a statutory rape charge against a 50-year-old Aboriginal man who had sex with his promised wife who was aged 15. Jackie Pascoe Jamilmirra lives in Maningrida in Arnhemland [Northern Territory, Australia]. In accordance with tribal custom, he had been promised the girl as a baby and had since been paying the mother cash instalments. In August last year, the girl was taken by her family to Pascoe’s outstation, where the relationship was consummated. The next day, when the family went to see how she was, the girl wanted to leave. At that point, Pascoe produced a shotgun and threatened the family. They left, and called the police. Pascoe was originally sentenced to 13 months jail for statutory rape, but on appeal, Justice John Gallop reduced the sentence to just 24 hours, saying that the case should never have become before a court because Pascoe was exercising his conjugal rights. Shortly after the decision, Paul Toohey, a journalist for The Australian newspaper, revealed that the young woman, in her initial complaint to police described a vicious beating before the rape. However the young woman and her family subsequently declined to co-operate with the prosecution and this evidence was not presented to the court. And, Toohey also revealed that Pascoe had spent three years in prison for the manslaughter of a previous wife. John Ahkit is the Northern Territory Minister for Community Development, and the Minister Assisting the Chief Minister on Indigenous Affairs. He was very critical of Justice Gallop’s decision to reduce the sentence. John Ahkit: As an indigenous Minister I am concerned about that decision, and that we have a criminal code in the Northern Territory and we’re bound by that as a government. We also have responsibilities to civil and political rights, the rights of the child, and we are signatories to these various conventions. So anything below the criminal code in the Northern Territory is not acceptable as far as I’m concerned, and I was critical, and I stand by that criticism. Damien Carrick: Northern Territory government Minister, John Ahkit. Prominent Darwin criminal lawyer, John Tippett QC has followed the case, right up to last Friday’s decision by the DPP to appeal the reduced sentence. John Tippett: Well the Director of Public Prosecutions has an obligation to appeal sentences he considers to be inadequate in all circumstances, and consequently there has been a miscarriage of justice. So the Director of Public Prosecutions has obviously considered the matter and thought that it’s appropriate to appeal. Damien Carrick: What information was available or before Justice Gallop when he reduced the sentence from 13 months down to 24 hours? John Tippett: Well His Honour was told that the relationship between the man and the young woman was a consensual relationship, and was that of man and wife, but that it of course was unlawful because the young woman was under the age of 16 and therefore a breach of the criminal code had taken place. But that was all His Honour was told. There were other aspects that apparently the relationship involved, including an earlier allegation of some violence. But those matters were not raised with His Honour and they were certainly not pressed by the Director of Public Prosecutions. Damien Carrick: My understanding is that in the young woman’s initial complaint, she spoke of a violent assault before the rape, but she withdrew her co-operation from the prosecution, so that evidence wasn’t before the Magistrate at first instance and then also wasn’t before Justice Gallop. John Tippett: That’s correct. And so when people look at the sentence that His Honour imposed in the situation, you’ve got to bear in mind the circumstances that he had before him, and the fact that allegations that may have been hanging about had not been tested, nor admitted, nor pressed. So it’s difficult to sit back and criticise a sentence in circumstances where the sentencing judge had material before him which would ordinarily, in my view, have justified the very sentence he imposed. Damien Carrick: What’s the status of these kinds of promised marriages under Northern Territory law? You’re saying that if you do have a sexual relationship between a woman under 16 and somebody over 16, or a middle-aged man as it was in this case, that is illegal under Northern Territory law? John Tippett: Yes, but there is a defence that the parties are married, and that defence is available under Northern Territory law in relation to Aboriginal people. Northern Territory law does recognise Aboriginal tribal marriage, and such defence may well have been considered by the man’s legal representatives at the time, it may have not been pursued for a range of reasons, but certainly such defences are open. Damien Carrick: The woman did, we understand, make an initial complaint which she subsequently withdrew. We don’t know the circumstances which led to her withdrawing that initial complaint. Certainly life in small isolated communities black or white, people are perhaps less likely to want to rock the boat by coming forward with complaints. John Tippett: Look I think that that’s been a problem in all communities, and certainly been something that we’ve examined in our own community over the years, where people have been, particularly women, reluctant to report sexual assaults for the reasons that the court process has hitherto been seen as a difficult one to go through. Look there are a range of reasons why people might not report sexual assaults, or may subsequently decline to prosecute them. But in a small community, I take your point, that there are real difficulties, and that’s why the court often recognises Aboriginal tribal law when imposing sentences upon parties because small communities that depend upon tribal law for their cohesion, people within such communities need to have recognised the fact that when they either return to the community after being punished, or alternatively they continue to live within the community, they can do so as a viable member of the community. Damien Carrick: But surely statutory rape is statutory rape, whatever other information was or wasn’t before the court, that part’s clear-cut. John Tippett: That’s correct, and the person who has been the subject of that activity, the young girl involved, is entitled to the protection of our legal system and ought to have it. But it’s not as clear-cut as that in the Northern Territory, certainly in a number of Aboriginal communities who still set great store in terms of community standards and community relationships by Aboriginal lore, where many, if not the majority of marriages take place within the promise system. So it can be easy perhaps to look from outside in with a wrinkled brow and be concerned about the fact that a young woman is being married to a much older man, and of course to judge that set of circumstances by our own morality and the construct of our own legal system. The fact is, it takes place. It takes place with the consent and agreement and encouragement in many circumstances, of the community. And many of the promised marriages that do still occur in the Northern Territory and perhaps other parts of Australia, are very successful ones. That’s not to say that young women who are not interested in being part of the system should not be afforded all the protection that our legal system is able to provide. It’s just that we have communities within our country that continue to live a way of life that has been with them over the centuries and a way of life that ultimately will die out. But the vestiges of it are there, and these communities set their cohesion, their relationships, their ability to survive by living in accordance with community lore and Aboriginal tribal custom. Damien Carrick: But can’t customary law just be code for turning a blind eye to exploiting women and allowing violence against women? John Tippett: It can be, yes, and that’s always got to be very carefully considered before a decision is made where perhaps a sentence is ameliorated because of a person’s adherence to customary law. It is no basis for allowing Aboriginal men to beat women or to impose themselves upon women without consent. But that’s one aspect of every case that comes before a court. That is, a consideration, a careful consideration, of whether or not the parties involved are acting in accordance with Aboriginal customary law, or merely one party using that as an explanation, and in some cases a very poor explanation, for unlawful behaviour. Damien Carrick: Darwin criminal John Tippett QC. Hannah McGlade is a Ngunga woman and a lecturer in law at Murdoch University in Perth. She believes the Pascoe case highlights the fundamental disadvantage that many indigenous women and children experience in our justice system. And she’s relieved by news that the DPP intends to appeal the one-day sentence. Hannah McGlade: Absolutely, I do welcome that decision. I think many Aboriginal women around Australia and people will welcome that decision. There have been cases in the past where judicial authority has made these sort of derogatory stereotypes about Aboriginal women, that crimes of violence against us are not serious crime, but to hear it now again in the year 2002 is astonishing, it’s got to stop. Damien Carrick: It has been revealed by Australian newspaper journalist, Paul Toohey, that the child’s initial complaint spoke about violent assaults before the rape, but because she subsequently refused to co-operate with the prosecution, that evidence wasn’t put to the court, so my understanding is the court was essentially looking at a statutory rape case, not necessarily the violence associated with it. Hannah McGlade: That’s because you know, this issue that Aboriginal women are not empowered and not assisted properly to have legal representation for their own protection I guess. By the stage it got to the court the picture was somewhat distorted possibly before the judge when he made that decision. The man in question was represented by an Aboriginal legal service. You know, who was she represented by? Who was supporting her? I think Aboriginal women are also saying that the mainstream dominant legal system does not meet our needs. Damien Carrick: My understanding is that in the case there was anthropological evidence presented that promised marriages are morally correct and proper under traditional law. Hannah McGlade: Well that may have been so. The question I guess is whether that violence that was inflicted on the young woman is morally correct. Aboriginal women across Australia have said violence is not the traditional way, and it should not be described as customary violence. In fact Aboriginal women in the Northern Territory for many years have rejected that violence. I can’t speak for the Northern Territory; Aboriginal women across Australia say ‘It’s not our traditional way’, and that violence has been described as bullshit law. Damien Carrick: I think the anthropologist said something along the lines of, and referring to the consummation of the relationship between the woman who was under 16 and the man who was something around 50 years of age, ‘While such behaviour may be at variance with contemporary Western sensibilities, mores and laws, it in no way diminishes the fact that it was regarded as entirely appropriate, indeed morally correct conduct.’ Hannah McGlade: Well I don’t think the young woman at all felt that that was entirely appropriate conduct. She fled from him, she was beaten and violated, I don’t think she at all felt that that was appropriate conduct, or her family, who came to rescue her. Damien Carrick: In your view, promised marriages and consummation of those relationships with somebody who’s under the age of 16, can that ever be culturally appropriate? Hannah McGlade:
Well I don’t know, that’s a tricky question. I mean I guess there’s some non-Aboriginal youth who are engaged in sexual activity at 16 or under, you know I don’t really know if that’s a question of you know culture necessarily. There is that law. Yes, I don’t think I can comment specifically on that question. I think certainly we have to be very careful because the issue of child abuse has become so serious and it’s being exposed in our State, particularly we’ve had the Sue Gordon inquiry which found overwhelming evidence of abuse of Aboriginal children, some very young, who are suffering from diseases. It’s shocking, and these children go on to commit suicide sometimes. It’s inter-generational, that trauma, and there’s been a lot of work done on the inter-generational nature of abuse by women like Judy Atkinson in New South Wales. So I think we have to be really careful when we’re talking about that sort of issue.
Damien Carrick: Do you think that Aboriginal men sometimes hide violence behind a pretext of customary law? Have you seen that, in your experience? Hannah McGlade: Absolutely. I think that certainly violence has been normalised by Aboriginal men. Aboriginal people of course have been very violently [influenced] by colonisation which is continuing to this day, and you know, it’s not surprising how our communities have become quite violent, and that violence is justified by Aboriginal men. It’s disconcerting that our own Aboriginal legal services have assisted in this by running defences where violence is said to be culturally acceptable or excused under some sort of cultural basis. Damien Carrick: Have you ever seen that happen in your experience? Hannah McGlade: Yes, I have seen that happen, where violence which I would say was not at all culturally acceptable, which took place under the influence with people under the influence of alcohol was justified by a lawyer on behalf of his client in an Aboriginal legal service as customary. I believe that case was not successful and there have been judges who are not prepared to accept these sort of arguments, and that’s to be applauded, and I hope that when this case goes on appeal that it will get firm guidance there from the Northern Territory. Damien Carrick: What do you say to the argument that indigenous communities should be allowed to keep their customary law strong, and that can include traditions like promised marriages and the customs that go along with that, and that whatever issues surrounding those practices are best left to the communities rather than having the white law system and give its two bobs’ worth on human rights and women’s rights and children’s rights? Hannah McGlade: But has this been left to the community or has it been left to the powerful members of the community, the men of the community, the people who have distorted, engaged in the distortion of traditional customary law? The people who are saying that violence is acceptable to Aboriginal women?
Damien Carrick: Hannah McGlade is a Ngungu woman and lecturer in law at Murdoch University.
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"Aboriginal people of course have been very violently [influenced] by colonisation which is continuing to this day, and you know, it’s not surprising how our communities have become quite violent, and that violence is justified by Aboriginal men."
No mention on their heritage re tribal war, fueding, etc etc. Violence? They were nomadic hunter gathers, killing and spearing animals for x thousand years! So these hunters were wimpy basket weavers and cave painters until the West spoiled their stone age utopia? [screams at wall]
But in 2000, the law is a 'living document'. A curious phrase since in reality, justice is dead. Yeah, if the law is subject to fashion and fad ('alive'), justice is dead.
If there is to be change, well, common sense is in short supply at Universities it seems. This is the result of 3 decades if not more of change. The love Hanoi hate the west crowd once again...
The Gramscian - cultural marxist orchards are coming to fruit.
And, of course, Mead's Somoan work has
been found to be pretty much worthless.
But it's too late to change, now. ;)
That's why any science with the word
social in it, isn't.
Judeo-Christian law--- wherefore are thou? Oh, out of fashion. Okay, okay..
Universal Declaration of Human (appointed) Rights--- wherefore art thou?
Live by absolutes, die by absolutes, relatively speaking.
"Minister" aka "Secretary" aka "Head of Gov't Dept"
"Dept Public Prosecutions" aka "District Attorney's Office"
I used to say that whenever I heard the word "social" I immediately checked my wallet. But there is a significant sense in which that may be overdone.In point of fact, we conservatives should use the term "society" more, and rebut the leftist use of it. For the truth is that "socialism" is a program for lobotomizing society.
It starts from the premise that the wise few can decide best for the many, and leads directly to the dimunition and virtual extinction of freedom. That suppresses the intelligence of society at large, which is far subtler and deeper than the egotistical "great thinkers" are willing to accept.
Inevitably the program of socialism is far too crude a model for an actual society, and behaves just as erratically as a naively written computer program. It is the mission of the conservative to protect society from such.
Paul Weyrich's letters (I & II) approached the idea of separation and example as well. In the days of eCommerce it could just become practical...
The best thing any tribal culture ever saw was a British colonial governor followed by a missionary.
Tom Paine's barb fits multiculturalists much better than it fit Burke, at whom he first aimed it: They pity the plumage, and forget the dying bird.
I guess it could work . . . if you could find that many truly like-minded people willing and able to make a living in South Dakota . . .
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