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Children, Age of Consent, Traditional Law Issues

Posted by Peter Botsman 
Children, Age of Consent, Traditional Law Issues
August 18, 2005 10:18AM
Bulletin Magazine Today

Age of contempt


A child is sexually assaulted by a tribal elder, throwing into sharp relief the gulf between traditional and white law in the Northern Territory. Paul Toohey reports

There can be genuine charm to Aboriginal culture. Two weeks ago, the Garma festival in Arnhem Land attracted hundreds of white outsiders to celebrate the non-secret parts of Aboriginal culture. They loved it; they always do. But they only stayed a week and then went home.

Those outsiders who seek to immerse themselves in Aboriginal society for long periods often leave disillusioned. They fail to factor in that the laws of Aboriginal society are wrought from very tough survival conditions. In western society, laws are largely designed to protect the weak; in Aboriginal society, laws are designed to keep the strength. It can sometimes be cruel.

That white and black law does not always sit well together was again highlighted last week when the Northern Territory’s newish Supreme Court Chief Justice, Brian Martin, convened a bush court session in Yarralin, close to the NT-WA border, to sentence an Aboriginal elder who can only be known as GJ.

GJ, 55, had forcefully taken “his” 14-year-old promised child bride and had sex with her, against her will. Martin held the bush session in an attempt to show Aborigines due respect to their culture while gently explaining that white law must sometimes overrule black law.

The question is whether Martin, in handing down a very light sentence to GJ, himself succumbed to the charisma of Aboriginal culture and in doing so set aside the rights of a child who should enjoy the protection of the overriding (white) law. In paying respect to Aboriginal law and culture, Martin appeared to regard Aboriginal law as static. He failed to consider that some Aborigines – in this case, the girl – might not like or want Aboriginal law and would prefer to move on.

Martin conceded this was “an extremely difficult case”, because GJ fully believed he was entitled to take the child as his (second) wife. So much so that the child’s own grandmother insisted the child formalise the promised marriage – which meant having sex with GJ.

It was June 18, 2004, in school holidays. The girl was in Year 9 and had a boyfriend her own age. Word spread about the community that the boy and girl had stayed together that night and, perhaps, had sex. This appeared to give rise to an urgency among the involved elders to fast-track and consummate the girl’s promised marriage. The girl’s grandmother told her she had to go with a person she barely knew and considered to be “an old man”.

The girl’s grandmother and GJ went and found the girl the next morning. The grandmother took the girl outside of the house where she was staying; GJ struck the girl hard over the shoulders and back with a pair of boomerangs.

It was decreed the child would be taken to GJ’s outstation. The child did not want to go and pleaded with the grandmother that she not be sent away with GJ. “Rather than help the child,” said Martin, “the grandmother packed personal belongings for her, including her school bag, and insisted that the child go with you (GJ). The child was forced to get into your car, where she sat with your first wife and two other persons. The child was crying and shaking.”



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