Assignment Name or Number: 'Aboriginal victims of Aboriginal violence do not perceive the criminal justice system as a place where they might seek justice and relief from the daily attacks upon their personal and physical integrity. They feel themselves condemned to suffer. ' (Pat O'Shane, 'Corroding the soul of the nation' (2002) 8 UNSW Law Journal Forum 5) Outline the laws and government policies that have shaped and continue to affect Indigenous peoples' experiences of criminal justice in Australia. Evaluate indigenous 'restorative justice' alternatives and their appropriateness for cases of sexual and family violence.
You may like to develop some guidelines for non-Indigenous lawyers working in criminal justice positions with Indigenous survivors of sexual and domestic violence. VIOLENCE, WOMEN AND THE LAW I. INTRODUCTION Australia's laws and criminal justice system do not adequately address the issue of violence against indigenous women in their own community. Law and policies developed fail to adequately address the complexity of Aboriginal communities and value systems because they have been created without appropriate consultation or involvement of indigenous people.
Further action is required to develop restorative justice alternatives, and to develop a set of guidelines to educate non-indigenous lawyers in dealing with victims. These tools must focus on the unique needs and sensitivities of women who have been victims of, or are experiencing violence in order to prevent and redress this 'corroding of the nation'. The paper focuses on the vastly under developed, yet vital role played by Australian law and policies that prevent and redress violence against aboriginal women in the indigenous community.
In contrast to frameworks protecting the rights of Indigenous in other nations, the laws in Australia do not operate sufficiently to address the unique issues faced by Aboriginal women confronted by violence from within their own communities. There is an outstanding need for a pro-active approach to reform the criminal justice system and implement legislation to preserve Aboriginal womens' rights. This paper recommends a Federal Government initiative is necessary to develop policy through extensive consultation with Aboriginal people.
As the global profile of Australia continues to expand, there will be increased scrutiny on issues of equal treatment and rights for Aboriginal women, who cannot be left to endure without adequate protection of the law. II. VIOLENCE AGAINST ABORIGINAL WOMEN Pre Colonisation Aboriginal women played a central role in the family structure and wider community structure in Australia. Women occupied specific roles within community management and spiritual and cultural ceremonies. Men and women were considered equal and enjoyed independent autonomy, and this sense of mutual respect was passed down through each generation1.
These defined roles and sense of purpose allowed Aboriginal people to function effectively as a society and ensured survival of the community. An Aboriginal woman's role was that of a life giver, care taker and gatherer. Traditionally partners were expected to honour, respect and care for one another. Following the arrival of Europeans, the Aboriginal way of life was severely disrupted and brought into compromise. Australia was deemed "terra nullius" meaning that there was no recognition of the existence of Aboriginal people, their rights to occupy land, or even exist as human beings.
Colonisation in many ways brought about diabolical social and cultural changes in the Aboriginal community, which were devastating and destructive changes. During this time the White Australia policy and Western laws resulted in Aboriginals loosing their whole way of life. The loss of land and a sense of place were profound, eventually impacting on cultural practices, communities and the family units, which had all existed in balance and harmony. 2 The sense of loss turned and identity manifested itself in outbreaks of violence amongst the Aboriginal men, which was inflicted not only on the colonising Europeans, but also of their own peoples.
Aboriginals were also introduced to the alcohol brought by the early Settlers, and began to consumer the 'fire water', which would increase tempers and result in violence. The overpowering influence of Western values also placed women as subordinate to men. The position of Aboriginal women was therefore even more significantly eroded. At this time, the delicate balance between the functions of Aboriginal men and women in their own communities were all but destroyed. Being forced to adopt Western practices in many communities, Aboriginal Women held no substantive rights in European society.
Essentially men were the masters of women, and any rights that may have been conferred on women were done so at the discretion of husbands3. The loss of culture damaged the means of preserving Aboriginal history, social structure and cultural norms and the values that prohibited certain behaviours were obscured and forgotten in favour of the 'white man's way'. The changes to Aboriginal life resulted in a distortion of traditional cultural roles and resulted in men feeling powerless and vulnerable in their place in society.
In the post-colonial era, the continuing victimization of Aboriginal women has manifested itself in rights to vote, and the portrayal of the Aboriginal women as subordinate to men. For instance, women were described as the 'black gin' as lustful, dirty, unfeeling and lacking in morals. 4 This historical legacy has led to Aboriginal people being 4. 6 more times likely to be a victim of violent crime than non-Aboriginal people. Alarmingly Aboriginal women are 4. 6 times more likely to be the victim of sexual assault than a non-Aboriginal woman.
The violence suffered by Aboriginal women is often committed by their partner's or husbands. Ferrante reports that 'violence between Indigenous people is more likely to be directed at intimates than at strangers'. 5 A report called Aboriginal Women Speak out found that out of 59 cases of rape, ten were pack rapes involving 46 rapists and 90 per cent of these victims were women. Sadly these women also reported that they suffered continuous rape over time. In the 41% of rapes which were committed by an Aboriginal man the victim usually knew the perpetrator.
The issue is widespread and has resulted in a 'normalisation of sexual violence that is now intergenerational'. 6 III. THE CRIMINAL JUSTICE SYSTEM Historically there has been a lack of understanding with respect to the experiences of Indigenous women seeking to access the criminal justice system to have cases of sexual assault heard. 7 Well documented cases involving the abuse of Aboriginal women provide examples of the inadequacies in the Western style system to accommodate the unique needs of Indigenous women.
Recent studies commissioned by the Commonwealth Attorney General's Department have confirmed fundamental gaps exist in the criminal justice system and judicial management of sexual assault cases involving Indigenous women victimised within their own communities. The first statistical data collated by the Indigenous Law Centre, has recently revealed disturbing trends in the justice system with respect to the processing of sexual assault cases involving Aboriginal women.
8 Numerous cases and inquiries also highlight flawed procedures in the criminal justice system in protecting Indigenous women victims. These flaws include poor access the justice system, judicial conceptions of Indigenous culture and inappropriate practice management. The Queen v BP and Ors is a case on point which demonstrates the serious failings of the criminal justice system and the court procedures, with respect to Aboriginal women who become victims of sexual abuse in their community.
In May 2006 a 10 year old girl attended a regional medical clinic claiming she had been raped by members of her community. Despite alerting the appropriate authorities, due to processing errors and oversight by Government protection agencies, the girl was raped at least six more times by the same men before the perpetrators were charged. 9 The denial of justice continued during the trial, when the Prosecutor alleged the girl had consented to intercourse. 10 Although the alleged offenders plead guilty, the sentences imposed varied from only 6 to 12 months.
Although the decision was subsequently overturned and sentences substantially increased on appeal, the damage was already inherent by the response from the general outcries from the Australian people. As a result of cases outcomes such as these, Indigenous victims do not perceive the justice system as being an avenue available to seek justice. 11 Issues of concern noted in a report on sexual assault issues for Aboriginal women included poor police response to calls of sexual assault, stations being unattended, male only police officers on duty and desponded attitudes towards Aboriginal women.
Overcoming these first hurdles in the criminal justice system, the battles are far from over. Even if a case is successfully brought to trial courts are located in locations that are not readily accessible to victims in rural communities. According to another report investigating problems facing aboriginal women victims of rape in Central Australia (Lloyd), there is little support in the court system for Aboriginal victims of sexual assault who are unfamiliar with the processes and procedures that are Western in their origin.
As for support services such as counselling, these services are rare in isolated communities, with visiting services providing little comfort or aid to the women requiring ongoing treatment after experience sexual violence. The Koori Court System developed in Victoria provides an example of an attempt to introduce a less formal atmosphere that allows greater participation by the Aboriginal (Koori) community in the court process.
However, in cases of sexual abuse, these matters fall outside the jurisdiction of the Koori Court. Underlying the procedural shortfalls, there even more serious cultural factors to consider in addressing failings of the criminal justice system, and the court process. O'Shane (2002) observes that '[m]ost indigenous women have not enjoyed the protection of the curial system in identifying their civil, political and human rights as a subject within a nation, or their rights as members of the Australian community'12.
The criminal justice system does not take a culturally appropriate, sensitive and a respectful approach to the position of Indigenous victims of sexual violence. Aboriginal women have also expressed fear of social marginalisation and rejection by their own communities, have often compounded the issues faced by Indigenous women seeking to resolve cases of sexual assault through the courts. Indigenous women who are victims of sexual assault often must return to the community facing family members and friends of their aggressors.