The distinct lack of tailoring in the Australian criminal justice system to cater to the needs of Aboriginal women is further emphasised by the equally inadequate body of laws and Government Policy addressing the issue of violence within communities. In particular, the requirements to establish sexual assault, use of force, threat of violence and unconscious states can be difficult for Aboriginal women to meet when they encounter the justice system.
Each jurisdiction in Australia has separate legislation addressing sexual offences, with the common features in each State and Territory being how certain offences are defined, and what must be established to prove guilt. In the case of most sexual violence, historically there has been a strict requirement that there is intent on the part of the perpetrator to commit the offence, and that there was a lack of consent. Whilst reforms have assist to remove some of the burdens of establishing intent, it is often equally difficult to provide there was no consent on the part of the victim.
Fundamentally, the laws currently in place reflect Western value systems, and do not take into account the unique indigenous demographic. Recognising the importance of indigenous laws, and revising the current definitions of sexual violence in legislation is a necessary first step to confront the current gaps in the laws that have left Aboriginal women with little recourse and access to justice. In addition to the problematic situation with respect to laws, Government policies with respect to violence against Aboriginal women within their own communities is under developed.
Since the 1970's Federal and State governments in Australia have provided various multi level strategies in an attempt to address the issue of sexual violence against Aboriginal women by holding perpetrators accountable through the judiciary system, and educating the public on what triggers can lead to sexual violence. However none of these strategies have been successful in Aboriginal communities, as evidenced by incidents such as the publicised case in Tennant Creek, involving an Aboriginal woman who was discovered to have been admitted to the local hospital for domestic violence on 50 separate occasions before her husband was prosecuted.
13 The decommissioning of Aboriginal Torres Strait Islander Commission is one poignant example of ineffectual efforts to provide support to indigenous communities. 14 The objectives of ATSIC, in the view of the Committee are central to the advancement and protection of the rights and interests of Australia's Indigenous people. Part of the remit of ATSIC was to provide an avenue of funding for Indigenous communities, which in part supported programs on family violence prevention legal services.
Following decommissioning in 2004 these services were transferred to the Attorney General's Department. . A Report published in 2005 titled "After ATSIC – Life in the Mainstream" was released by the Senate Select Committee on the Administration of Indigenous Affairs. One of the key recommendations after ATSIC was decommissioned, was that the Partnerships Against Domestic Violence Program be tasked to produce a report into Indigenous Domestic Violence. To date there have been no developments with respect to this, and many other recommendations of the Committee.
15 Even though organisations were provided with the opportunity to address issues with various Federal government departments after the disbanding of ATSIC, there was little training provided for staff to deal with Aboriginal victims of violence. Inevitably, given the scarcity of legal protection and government policy, it may be concluded that there is a significant lack of protection in the curial system for Indigenous women who are victims of violence within their own communities.
Aboriginal women consequently often feel alienated from the criminal justice system due to the history of relations between public institutions and Aboriginal people. Richard Frankland has stated that when he thinks of the legal system he thinks of it 'as an enemy. It is not there for my benefit. It has imposed gross injustices on my people and crushed my people's way of life'. 16 Aboriginal women can also feel alienated fro reasons stemming from language, cultural and communication issues which can impact from the beginning of the process such as reporting the matter to police to the examination process in court.
The Law Reform Commission of Western Australia found that 'many Aboriginal people feel that the language used in court makes no sense'. 17 An Aboriginal person from the Northern Territory felt that, 'Dealing with whitefella law is like falling into a big, black hole and you can't get out'. 18 Differences in methods of resolving disputes can also contribute to the feeling of falling into a big black hole. In Aboriginal communities disputes are resolved in the open not hidden behind closed doors and involve not just the parties themselves but the local elders as well in order to mediate and decide upon an appropriate agreement.
Though these customary dispute resolution processes may not be fast and efficient but once an outcome is reached that is the end of the matter it is not carried on and is never mentioned again. In this way the court system could also be alienating for Aboriginal women19 as a matter is carried on over a lengthy process and does not necessarily end once the perpetrator is punished as there could be an appeal or they may come into contact with them when they are applying for release, in this way a matter is never really over it is just a stop start process that can span over a number of years.
Although customary law processes are not necessarily immediate, once completed (because the purpose is the restoration of peace) the matter is at an end. Aboriginal people stated that they do not understand why the court process takes so long. Aboriginal people consulted by the Law Reform Commission of Western Australia commented that it was 'difficult to understand the effect of a prior criminal record as once a matter is resolved by tribal punishment everyone is equal afterword'20.
O'Shane believes responsibility should fall on all levels of government to address the issue. In addressing violence against Aboriginal women the process usually begins and ends with the criminal justice system. 21 Yet when Aboriginal women are required to turn to European law for protection they come up against a criminal justice system that is based on the white male norm and that trivialises or ignore the harm they have undergone.
They find that the legal system is all too complicit in the subordination of Aboriginal women and this is evident in their attitude and continual support for customary law or assuming that Aboriginal women consider sexual assault differently. Judy Atkinson has noted that 'if our women persist and get to court they have to listen to white male lawyers present arguments that suggest a rough up is part of love making or that rape is not as hurtful nor considered as serious by Aboriginal women'22.
In R v Mingkilli police aides and a police warden were drunk on duty and raped an Aboriginal women that they were holding in custody. Sergeant Berry gave evidence on their behalf that there was no crime of rape known to the community concerned. Justice Millhouse was persuaded by the evidence to conclude that 'forcing women to have sexual intercourse is not socially acceptable, but it is not regarded with the seriousness that it is by the white people'.
This type of attitude that devalues Aboriginal women to an extent to insinuate that they do not hold the same respect for their bodies as non-Aboriginal women is discriminatory and continues to ensure that the Aboriginal woman holds an inferior position to that of a European woman. Arguments based on customary law is another attitudinal barrier facing Aboriginal women once they get their case to court. Groups of Aboriginal women in the Northern Territory are found of saying that they are being subjected to three types of law 'white man's law, traditional law, and bullshit traditional law'.
Such bullshit law is a 'distortion of traditional law and is often used as justification for assault and rape of Aboriginal women who then get to justify their actions as an expression of their cultural identity. This cultural defence has often arisen in cases where Aboriginal men have been accused of sexual assault and their counsel has taken advantage of existing stereotypes of Aboriginal women and Aboriginal culture to argue that it is acceptable for them to abuse women.
Alarmingly this defence is accepted more often than not by judges who have interpreted these assertion of culture as meaning that the crime of rape is not considered as seriously under Aboriginal law and almost tolerated by Aboriginal culture than Western culture. Revisiting the case of The Queen v BP, DK, MY, PA, Koowarta, Wikmunea and Wolla, Bradley CJ stated that 'I accept that the girl involved with respect to all of these maters, was not forced and that she probably agreed to have sex with all of you'23.
Instead of forming policies or strategies to deal with violence against Aboriginal women within the criminal justice system it needs to be addressed on all levels of government both state and federal government as well as public institutions need to be consulted and work with Aboriginal communities to form polices that address all issues not just the result of them. O'Shane states that 'multi-faceted plans dealing with all aspects of Indigenous life need to be implemented'.
The victims of violence have been demanding for years that the problems that they are experiencing need solutions formed between the government and Indigenous groups. Such solutions require the input of the community and must ensure that members stay within that community to decrease the fracturing of communities and social control, in order to increase social control these programs need to be implemented on the community level which will ensure its 'continuation as a viable social construct, strengthening family and social ties and ensuring cultural growth'. 24
There is a need to focus on improving law and justice outcomes. 25 Though the Commonwealth has attempted to work with Indigenous communities through the National Indigenous Law and Justice Strategy, which aims to reduce the incidences of contact with police by the Aboriginal communities, is critical to note that the Commonwealth drives this strategy and any incorporation with Indigenous interests has been done when required. Burchfield asserts that special measures that are developed within a national and state framework are required in order to advance law and justice outcomes for Indigenous women.
26 Statistics indicate that imposed measures have done very little to decrease levels of violence against Indigenous women. 27 A policy framework that promotes engagement with Indigenous women is required to ensure that any recommendations made by policy experts can meet the needs of Indigenous communities and translate into real change. In light of the continuing inadequacies of the justice system and legislative development, restorative justice offers a more alternative to provide relief.
Restorative justice is a difficult concept to define as it contains many different varieties of programming28. This flexibility within its definition has allowed it to be used in a myriad o areas sue to these flexible qualities which can then be tailored to meet the needs of those it is intended to address. A definition of restorative justice was put forward by the Law Reform Committee states that it is 'a process whereby arties with a stake in specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future'29.
Restorative justice models are usually based on three features; crime is a violation against people; that these violations then create obligations and; that the primary aim is put right the wrong the offender has caused. In contrast to the under-developed laws and policies in Australia, the University of Arizona has strongly advocated for a "RESTORE program", which provides and 'alternative to conventional justice for both survivors of sexual assault and the responsible persons who commit such crimes'30.
The RESTORE program is offered after the offence has been committed and is selective screened to ensure the offenders meet eligibility requirements. The participants in the program must be over 18 years of age and the crime has to have been reported. The RESTORE program provides the opportunity for an open communication channel regarding what occurred and what can be done to 'assist in remorse and acceptance of responsibility'31.
The general concept is that serious of the sexual offence do not have to share intimate details of the offence to prevent re victimisations. The advantages of adopting a RESTORE approach with a few changes in order to make it more culturally appropriate is that it involves family and other third parties in the healing process, allows the survivor to control their level of participation, offers a fast resolution and offenders are required as part of the process to take full responsibility for their actions.
Another restorative approach to sexual violence has been adopted by the Centre for Sexual Assault in Copenhagen. The centre provides numerous services to victims of sexual violence as apt oft heir services they also undertook a program for victim-offender mediation. It is important to note that this program operates without law enforcement authorities and does not need to report to any of these agencies. This program is still important to note though as it offers a true place for meaningful dialogue between victim and offender.
Madsen states that 'not only are these women contradicting perceived notions about crime victims' attitudes; they are also challenging out ideas about how to relate to the people who commit the crimes'32. The centre stresses that he dialogues are voluntary and each party has the opportunity to share, ask and receive answers to questions and are able to avid the judicial process. There is currently no restorative response that can be directly translated to Australia in order to meet the justice need of Aboriginal people.
Rather each program has lessons for us on what to implement and what not to and what we need to consider in relation to safety precautions for victim, offender and third parties. If a restorative response was to be implemented it would need to be in a non judicial environment, be conducted informally, allow community members to be present and have Aboriginal people leading the mediation to ensure the process is culturally appropriate. As in the Copenhagen approach, it would need to be face to face and each party should have the opportunity to share their feelings and ask questions.