A ‘ clash of laws, cultures and generations’

‘ PROMISED MARRIAGE’ Light sentence for child abuser renews debate over aboriginal custom

Can a modern industrialized nation allow a girl to be “promised” in infancy as a bride to an older man?

The debate over how much leeway to give to aboriginal custom has intensified in this country after a court case delivered a remarkably light sentence to a man who raped and beat a 14- year- old.

His defence revolved around the fact the teen was to be his “promised wife,” after an aboriginal custom in which young girls, often babies, are promised from infancy to older men.

At the end of a recent hearing convened in a special court, held in an aboriginal-friendly manner under a tree in a remote community in the Northern Territories, the judge sentenced the man to one month in jail for the assault.

The ensuing public outcry over the case is seen as a measure of the tension between the modern realities of aboriginal life versus traditional practices.

On one side is the 14-year-old victim, who was attacked apparently after rejecting the “promised bride” deal and finding a boyfriend. She fled her small bush community for the city immediately after the attack.

On the other is the 55- yearold man, who grew up at a time of aboriginal cultural renaissance in this country, which revived many of the old huntergatherer traditions, among them, the “promised bride.”

Promised or arranged marriages have a long history among some aboriginal groups.

Such arrangements, in which an infant girl is pledged to an adult male and delivered to her husband’s family sometime around puberty, are not accepted in all aboriginal communities in Australia but are viewed as an important custom in those that do practice it.

When a broad-based panel of jurists was convened in the Northern Territory two years ago to review aboriginal customary law, determining the place of promised marriages in modern Australia was one of the most problematic matters to come before them.

Austin Asche, who headed the review panel, said his committee stressed that aboriginal customs should never be used to justify illegal behaviour.

“ We cannot, in this day and age, say a 14-year-old girl must go to a man who is maybe 20 years older and act as his wife. You simply cannot grab the girl, rape her and then call it promised marriage,” said Mr. Asche, a former Northern Territory administrator and chief justice of the territory’s Supreme Court.

At the end of their deliberations, the review committee stressed that any promised marriage contracts struck within traditional aboriginal communities would not be recognized by Australian law and the welfare and protection of the child was paramount.

Last year, the Northern Territory government even passed a law that precludes traditional marriage being used as a defence against under-age sex.

In his sentencing in the most recent case, Supreme Court Chief Justice Brian Martin told the accused man, “Northern Territory law is the law which must be obeyed by everyone, including aboriginal men like you who have grown up under traditional law.”

Still, the judge admitted he had a good deal of sympathy for the defendant and said the case reflected “a clash of laws, cultures and generations.”

But Christopher Pearson, a columnist in The Australian newspaper, suggested the man may have knowingly perpetrated his attack — which included an attack with a boomerang — in a manner he knew might confound the courts in these politically correct times.

“He’d have heard about the way that traditional law covered a multitude of sins in bush courts,” he wrote. “He and his mates may well have joked about the gullibility of white magistrates. It may perhaps be part of the reason he chose to hit the girl with a boomerang rather than something more conveniently to hand but less traditional.”

Boni Robertson, a Queensland professor who specializes in aboriginal justice issues, was outspoken after the sentencing, calling it a disgrace: “ The judge has made a mockery of the work done by men and women in recent years to get justice for indigenous women and children who become victims of violence in the name of culture.”

When the review committee on aboriginal customary law wrapped up two years ago, it recommended the government set up a system of consultation and communication to make the guidelines clear to those communities that still practised the tradition of promised marriages.

Mr. Asche, the head of that committee, said this recent case shows there is obviously somewhat of a lag in getting the message across.

“ They’re doing it very tactfully. But I’m not so sure that it might not be better to just say, ‘ This is not on,’ ” he said. “ There are some customary laws that just must go.”