AIH399 MAKING HISTORY
by Ellysha Melville
- This article argues that the Australian legal system needs to operate at the forefront of social change.
- It presents equality for women under Australian law as a work-in-progress that to date has yet to be achieved.
- The article also considers how Australian law remains out of touch with both indigenous cultural and multicultural issues.
- The current system preferences lenient treatment of male perpetrators over the protection of female victims.
- The article concludes by arguing that culture- and provocation-based defences should not be permitted to reduce culpability in gender-based crime.
The law may appear distinct and exacting. Actually, however, it is malleable and modifies in accordance with social change as it attempts to maintain currency and ensure it best represents social perspectives as to what constitutes appropriate behaviour at any given time. In Australia, perhaps more so than elsewhere, alterations to the legal system lag behind rather than drive social change due to court utilisation of hierarchy and precedent coupled with the belief that ‘making law’ is the role of the legislature. This lag is driven further by the predominantly conservative nature of the Australian legislature (for examples of conservatism consider the Marriage Equality Amendment Bill 2012 or the Voluntary Euthanasia Bill 2010). Equality for women under the law has fallen from the prominent discourse it enjoyed during the periods of first and second wave feminism to something that sometimes can be viewed unpopularly in an environment where many assume that equality has been achieved (cf. the Sexual Discrimination Act 1975, and also the Equal Opportunity Act [Vic] 1995). Yet, women who come into contact with the legal system face the ongoing challenge of its patriarchal nature, which, furthermore, can be exacerbated by the fallout from colonialism and the advent of multiculturalism. Australian society currently promotes cultural multiplicity, which necessitates a legal system that is capable of reassessment and reconstruction in a timely fashion. The law can no longer lag behind social discourse that is now, more than ever before, multifaceted and multilayered. Instead, it needs to codify and enforce across the board all laws the majority deem as appropriate, so that regardless of cultural practices every Australian citizen, particularly women, are adequately and equally protected under Australian law.
Aboriginal women have been and still are exposed to some of the greatest inequities in the Australian legal system; often they are victims of duplicity of discrimination pertaining to gender and race. Furthermore, the Australian legal system was traditionally utilised as a colonialist tool to deliver injustices upon Aboriginal women in an attempt to control them, and their bodies in particular, as the vehicles of elongating what many colonists considered to be inevitable — the extinction of the Aboriginal race. Whilst some evidence suggests that traditional society afforded Aboriginal women equal or significant importance to men, ample evidence contradicts this and contends that, far from equality, pre-settlement indigenous women were subjected to violence, sexual abuse, and even murder at the hands of indigenous men. More recently, reports and studies such as Closing the Gap: Violence in Indigenous Communities suggest that many indigenous women currently are subject to extraordinarily high levels of violent and sexual crimes in their communities. In addition to being the victim of such abuses, many Aboriginal women have restricted access to the support mechanisms readily available to mainstream Australians and also may view the law as an instrument of depravation and punishment rather than protection. Categorically, Aboriginal women can be less informed about their legal rights, are not encouraged to use the law advantageously, and are not privy to information pertaining to victim of crimes compensation and the like. When indigenous women take cases to trial, furthermore, often they can be dogged by character assessments relating to their parenting skills or criminal history when these issues have no relevance to the case at hand.
British settlement of Australia encouraged the rape and vilification of indigenous women by white men as pervasive race-based assumptions considered this crime as barely comparable to the rape of white women. Aboriginal women were seen to be available as prostitutes, and as settlement progressed across the continent so, too, did rampant sexual diseases and men’s sexual appetite for younger teenagers and children to avoid it. It even has been suggested that the segregation initiatives laid out in The Aboriginal Protection and Restriction of the Sale of Opium Act 1897 were an attempt by authorities to protect white men (and subsequently white women) from venereal disease. Inequitable sexual liaisons between white men and black women led to a population of ‘half caste’ children, which resulted in one of the most shameful policies in Australia’s history: the removal of Aboriginal children from their families (Section 13A of the Aborigines Protection Amending Act [NSW] 1915). The fallout from this policy still is strongly felt today, and memory of it and other racially discriminatory government policies continue to discourage indigenous utilisation of the legal system. This disconnect is further exacerbated by the resoundingly little success had by the Stolen Generation in recovering compensation from governments (see Kartinyeri v Commonwealth 1998).
The issue of rape for white women in Australia has an equally disturbing and flourishing history that continues to this day when we consider the flawed manner in which cases, if reported, progress through the various legal channels. When Australia was originally colonised, the penalty for rape was execution; yet, due to a settler population with, at times, a ratio of men to women of six to one, sympathetic male-centric courts were reluctant to impose this sentence. Even when the penalty for rape subsequently was altered to a term of imprisonment, conviction rates did not rise. Historically, women who alleged rape were subject to a trial of intensive and severe character assessments whereby women with perceived flaws — such as being single, out at night, drunk, or promiscuous — were deemed unreliable witnesses and no conviction would result from their testimony. Rape was defined by the patriarchal legislatures and courts to consist of the carnal knowledge of a woman (or child) against their will meaning that a good deal of sexual abuse, including oral or rectal penetration, was outside the scope of what was deemed criminal. Whilst the law has progressed, albeit recently, if we consider character assassinations of the victim, the process remains flawed with a bias toward the perpetrator as courts prioritise the possibility of an innocent man over the probability of a rape. This has led to Catharine MacKinnon proffering that ‘women who charge rape say they were raped twice, the second time in court’. Public discourse continues to submit women to a particular type of subjectification reminiscent of historical cases whereby women are condemned for their manner of dress, being out alone at night, or for being drunk, yet it would be incredulous to apply this type of rhetoric to a man. The legal system has consistently failed to keep pace with social change on the issue of rape, inasmuch as rape within marriage was outlawed only in 1991 in R v L (1991) and, as recently as 1992, Justice Bollen (R v Johns ) asserted that ‘rougher handling than usual’ was an acceptable method of engaging sexual consent from a wife.
More recently, the use of child sex abuse rhetoric, particularly in relation to indigenous communities, has been utilised in public discussion and sections of the media as a tool to garner public support for the racially discriminatory legislation that is the Northern Territory Emergency National Response Act 2007 (Cth) extended this year by the Stronger Futures in the Northern Territory Act 2012 (Cth). This legislation utilised the findings of the Little Children are Sacred report to militarily roll into indigenous communities and quarantine welfare income, impose alcohol and pornography restrictions, apply large fines and jail sentences for possession of prohibited substances, and compulsorily acquire indigenous land. A major criticism of the legislation is that it needed to repeal the Racial Discrimination Act 1975 (Cth) in order to implement it. Whilst the Little Children are Sacred report drew attention to a high prevalence of sexual abuse in these areas it had not recommended this response, instead preferring community based consultation and education as the report recognises the tension between Australian law and indigenous cultural practices that, for many groups, involves child sex and marriage. This type of overarching legislation is at odds with some court treatment of Aboriginal child sex cases that, as Louis Nowra identifies in Bad Dreaming, often accept culture as a legitimate defence and as a result provide little if any punishment. If culture can be successfully utilised as a defence to this type of crime then it disenfranchises women who happen to be born into a culture with sexist traditions and provides that an indigenous girl is of less importance under the law than a ‘mainstream’ girl or an indigenous man. Child sex and child marriages are outside of Australian law and should be treated as such. Lenient penalties speak to unresolved issues between previous legislative practices and the reluctance, due to past mistakes, of the current legal system to instruct indigenous people on how to live. Similar challenges are raised by advent of multiculturalism whereby increasingly in the media reports pertain to the practice of female genital circumcision and the practice of ‘honour killings’. Whilst it is important for the law to consider diminished responsibility, to lessen sentences due to cultural reasons equates to some women being less protected by law and ensures that the concept of culture is raised above the right of all women to live free from violence. Whist there are obvious inbuilt tensions between often sexist cultural practices and Australian law, the legal system needs to ensure it places the protection of women, and not culture, as its priority.
The lenient treatment of male perpetrators at the expense of justice for female victims is an ongoing challenge for the criminal justice system. The Victorian Law Commission found that provocation has been disproportionately utilised as a defence by men in domestic relationships when they kill their wives or partners. This defence establishes diminished responsibility and provides that sentences be considered under manslaughter instead of murder provisions. New South Wales currently is considering the abolition of this defence after it was successfully utilised by Charmanjot Singh to reduce his charge from murder to manslaughter and, as a result, receive six years imprisonment for the strangling and neck stashing murder of his wife Manpreet Kaur. The defence is abolished in Western Australia, Tasmania, and Victoria already, although the Victorian abolition was not until after the death of Julie Ramage in 2003 where it was successfully applied by her husband James Ramage who, due to a lenient penalty, is already free. It should be noted that the defence also has been used in cases where men have killed homosexuals upon alleged unwanted sexual advances. It is, therefore, clearly apparent that there is a great discrepancy between the ‘provocation’ and the crime and consequently it should be abolished nationally as a diminished responsibility factor.
There are many facets of society where the law struggles to keep pace with supposed equality besides the prosecution of violence- and sex-related crimes. On 2 February 2012, the article ‘Women Rejoice Over Equal Pay’ published in the Herald Sun reported on Fair Work Australia’s finding that the community services sector was underpaid due to women’s overrepresentation in the industry. The practical implementation of equal pay for women has been particularly slow, and challenges for working women continue especially when they become pregnant or require flexible working arrangements to accommodate family responsibilities. The gender gap is further evident in upper-level and high-paid positions in the workforce, which remain dominated by men. Whilst equality in the workplace has been codified for over three decades, there is digression between the law and its enforcement. This recent finding by Fair Work Australia is yet more evidence that the system requires ongoing challenge to ensure that the goal of equality under the law is first achieved and subsequently maintained.
Australian society is complex and multi-faceted. In a multicultural society we preach tolerance and understanding of the differing cultural practices of our neighbours. Yet, there is an inbuilt tension between some cultures that have sexist practices and Australian law as well as residual inequality for women in law due to its foundations as a male-centric construction, created predominately by men for the benefit of men. Defences pertaining to culture or provocation in crimes against women cannot be accepted unless the intention is to elevate the rights of a cultural man over that of a cultural women or the deem the protection of a mainstream women to be of greater importance than the protection of a cultural one. The legal system needs to find a way to manage these tensions as society will only expand and diversify and the issues intensify. Courts needs to investigate their reluctance to punish perpetrator men for crimes such as rape and should look to a more progressive method of manoeuvring these types of crimes through legal channels so that victims do not feel as though they were ‘raped twice’. Information pertaining to Australian law needs to be accessible, and redress available to people across the whole of Australian society so that some women are not left less protected from mutilation, rape, child marriages, and draconian responses to indiscretions. The legal system needs to progress to a place where it is comfortable to actively preside over and implement penalties for transgression of the law. Violence and sexual abuse requires both education and a strong message of deterrence. Australian law pronounces equality for women and yet the rape of a mainstream woman can be treated differently to one from a sexist culture or the murder of a wife by her husband treated more leniently than the murder of a stranger. The world and the law face complex challenges that should be at the forefront of public discourse so that best practice measures can be implemented. Multiculturalism and post colonialism throw up benefits and challenges in Australian society, but it is up to the legal system to ensure cultural difference is not utilised in defence of gender-based crimes as it only exacerbates the already inequitable position held by many of the victims.
Selected further reading:
Aborigines Protection Amending Act (NSW) 1915
Bibby, Paul & Tovey, Josephine, ‘Six years for killing sparks law review’, Sydney Morning Herald, 8 June 2012.
Davies, Lisa, ‘Four women charged with genital mutilation’, Sydney Morning Herald, 19 September 2012
Gibson, Joel, ‘Honour killings coming to our courts: top judge’, The Age, 16 April 2010.
Kartinyeri v Commonwealth 1998 HCA 22
Northern Territory Emergency National Response Act 2007
Hall, Louise, ‘Honour killing abhorrent, says judge, as man convicted and son starts 18 year term’, Sydney Morning Herald, 28 June 2012.
Workers Online, Issue 17, 11 June 1999, (last accessed 17 October 2012), http://workers.labor.net.au/17/d_review_women.html
Anleu, Sharyn L. Roach, ‘Deviance, Conformity and Control’, Pearson Education Australia, (4th ed.), Frenchs Forest, 2006.
Bolger, Audrey, Aboriginal Women and Violence: A report for the Criminology Research Council and the Northern Territory Commissioner of Police’, Australian National University North Australia Research Unit, 1991.
Bongiorno, Frank, The Sex Lives of Australians A History, Black Inc, Collingwood, 2012.
Kirkby, Diane (ed.) Sex Power and Justice: historical perspectives on law in Australia, Oxford University Press, Oxford, 1995.
Nowra, Louis, Bad Dreaming: Aboriginal men’s violence against women and children, Pluto Press Australia, 2007.
© APH Network and contributors 2012. All rights reserved.
Citation: Ellysha Melville, Rape and Redress: Why Australian Women still are Unequal under the Law. Australian Policy and History. October 2012.