August 2004
Why do Aboriginal women in Australia experience such high levels of violence in their own communities? And why has the Australian legal system failed to punish their attackers? Monash PhD student Joan Kimm argues that laws, policy and practice in Australia place too much emphasis on Indigenous culture and too little on the rights of battered Aboriginal women.
A conversation with two young Aboriginal women was the starting point for my book that investigates Aboriginal family violence.
Both women told me they would not tolerate violence from an Aboriginal man in an urban setting, but that they would do so if they were living a traditional lifestyle - that this was expected and it would be part of their life under customary law. If they could not agree to be subject to this violence, then they could not live in that community.
These two women were strong, intelligent women, but they did not accept that they could live without violence within an Aboriginal community.
Of course, non-Indigenous women experience violence too, and the law does not always protect them as well as we would like. But why would Aboriginal women - especially educated women - accept violence and abuse as their lot?
I think part of the answer is that traditionally there has been quite a lot of inherent violence towards Aboriginal women within Aboriginal culture. A lot of that contemporary violence is now attributed to the impact of European culture on Aboriginal culture. That has been a significant factor, but it is not the only explanation.
Traditional Aboriginal culture is very legalistic, very strict, with very strong laws. If people do the wrong thing within an Aboriginal community, they can be exiled. Women can be beaten for a transgression, or even subjected to what is called "sacred rape" as a punishment.
But Aboriginal women have never had reciprocal rights under this system - the violence, it seems, is all one way.
Our European judicial system, particularly in the past, has supported this very strict paternalistic Aboriginal culture and its rules.
I think that until the late 1970's, the judiciary was very sympathetic to, and respectful of, Aboriginal culture. Some juries were reluctant to convict Aborigines because they felt they should not interfere in their ways.
You could have male judges, male lawyers and male Aboriginal defendants all lined up against Aboriginal women. The result, in court, could be one patriarchal system talking to another.
Traditional Aboriginal culture, in which women are still precluded from speaking about sexual matters in mixed company, means they feel extremely uncomfortable giving evidence in court in cases of alleged sexual assault.
As well, in recent times Aboriginal culture has received more recognition in relation to land rights, particularly through the Mabo case in which the High Court, in its 1992 judgment, rejected the legal notion of Terra Nullius and upheld native land title.
This has made society and the courts more conscious of Indigenous land rights and cultural rights. But there is a paradox here, in that the legal system might put the rights of traditional Aboriginal culture (with its inherent violence towards Aboriginal women) above the universal human right of those very women to live free from violence.
A fundamental problem is that many Aborigines and non-Aborigines have competing views about which set of rights should prevail.
I believe the basic human right to live free of violence overrides Indigenous rights.
Ms Lowitja O'Donoghue, Aboriginal and Torres Strait Islander Commission chair from 1990 to 1996, was one of the first people to publicise endemic violence towards Indigenous women. She has commented that Aboriginal men cannot avoid responsibility by claiming they are victims themselves of white rule.
In the Hyllus Maris lecture at La Trobe University in 2001, she said that violence had now become an issue beyond the confines of the Aboriginal community and that whatever the wounds of a devastated past, "simply excusing violence on the grounds that the perpetrator is a victim too is not on".
Professor Larissa Behrendt, an Indigenous academic lawyer, said: "There is a pyramid structure in our society with white men above white women who are then above black men, but at the bottom of the heap are Aboriginal women and children".
We need refuges for Aboriginal women who have suffered violence so they can break the cycle. This requires financial support from government. Aboriginal women's organisations should be given money and be in charge of spending that money, separate from the men. I think heavier penalties for Aboriginal men who are violent toward women will also have an effect.
Aboriginal women are heroines; they carry their communities. They are strong - they have to be. They have an important and separate role in traditional culture, but ultimately it is one that is secondary to men's power. Now they need to be seen as equal.
Joan Kimm is a PhD student in the Faculty of Law. Her book, A Fatal Conjunction, Two Laws and Two Cultures, published by Federation Press, is out now.
Contact: Joan Kimm, email jgkim1@student.monash.edu.au. | 
