One can't help but feel a certain sense of unreality when reading that nine men can gang-rape a ten year old girl and get away without so much as a slap on the wrist. In light of the attention given to child sexual abuse crisis in indigenous communities (which was used by the previous government as a justification for sending troops into the NT) it is extraordinary that a Crown prosecutor would not even make submissions requesting custodial sentences for the rapists (aged between 14 and 26), some with previous criminal records.
In light of the DPP's failure to pursue justice for the victim, it is hardly surprising that the court handed down what appear to be ludicrously lenient sentences, including not recording convictions (I am not familiar with the practice in criminal cases, but it would seem anomalous for a court to impose a sentence more severe than that sought by the prosecution). Even so, Judge Bradley's comments that the victim "was not forced" and "probably agreed to have sex" with the perpetrators reveals a staggeringly inappropriate approach to a child-rape case. A ten year old child is by definition unable to "agree" or consent to have sex with anyone for the very reason that makes the crime of child rape so heinous - because she is a child whose developmental stage is such as to disable her from making the choice, because she is incapable of understanding the nature of the act. That being so, talking about her "agreement" to have sex with nine men is nothing short of reprehensible.
Furthermore, how is it relevant that the victim was not "forced"? Force is not an element of the crime of rape and lack of force does not detract from the seriousness of the crime. How does the rape of someone who does not need to be physically forced because she does not understand what is being done to her merit any less condemnation than use of brute force to secure the victim's submission? Is a victim who is coerced into non-consensual sex by means other than physical force any less deserving of protection? Must she put up a physical fight or risk a judge (or a prosecutor) saying that she asked for it, that her rape was not all that serious? Must the rapists slap around a ten year old child as well as fuck her before they are considered sufficiently blameworthy to merit a conviction?
The legal system is not well adapted to dealing with the crime of rape because of the problematic notion of consent, but one would expect that gang rape of a child would not raise such problems. However when a judge makes remarks like those made by Judge Bradley and when a prosecutor does not even bother to ask for a sentence to match the crime, it is clear that even when dealing with child rape the legal system is plagued by inappropriate attitudes.
Incidentally, while I think that Judge Bradley's remarks deserve strong criticism, I believe that the calls for her sacking are inappropriate (as is the behaviour of journalists who appear to have followed her to her home seeking comment on the sentences). Independence of the judiciary is one of the most sacred aspects of our justice system (and rightly so - just consider what occurs in the systems where that independence has been lost) and that independence cannot be maintained if judges are at risk of sacking because their judgments upset the community. The correct remedy for such judicial error is the appellate process, which in our adversarial system ought to have been invoked by the prosecution. When the prosecution does not do its job, one can hardly be surprised that a miscarriage of justice occurs. In the present case the miscarriage of justice is particularly repugnant, but it is not an excuse for making inroads into the principles of judicial independence.
December 10th, 2007
Posted by
Unsilenced |
Law, Women, Indigenous people |
2 comments
A Howard government-appointed administrator of a NT indigenous community has found a solution to the abuse of children in indigenous communities - chain gangs of children picking up rubbish. Kids who skip school are to be forced into work gangs and made to pick up trash until visibly tired. This highly beneficial and creative activity will no doubt solve all problems. Just think - kids who are skipping school because they are traumatised by abuse at home can receive help from the healing power of forced labour.
It is not clear whether the Howard government intervention is geared to reducing child abuse or to reducing rubbish collection costs. I was initially prepared to give Howard the benefit of the doubt on the child abuse issue. The fact that the government did nothing to remedy the problem for 11 years and the fact that it cut funding to indigenous programs militated against believing that the belated action was a genuine attempt to address abuse, but the axiom "better late than never" would have still applied if there was evidence that the intervention was aimed at improving the lot of children (and others) in indigenous communities.
It is hard to give the benefit of the doubt to a government which engaged in a land grab under the guise of addressing child abuse, which adopted only three out of ninety seven recommendations in the Little Children are Sacred report, which held a one day "consultation" process on hastily drafted legislation. It is hard to trust a government that will rush through legislation which does not even mention the word "child", while cutting funding to women's shelters in the NT and underfunding services in indigenous communities. It is difficult to see how the government's focus on punishment rather than rehabilitation of the victims of its neglect will result in a long term improvement. Negative policies do not lead to positive changes - even if there will be less rubbish on the streets.
If forcing children to do manual labour is the best that the government can come up with, then its plan is revealed for what it is - a cynical and destructive usurpation of land and control for ulterior purposes.
August 29th, 2007
Posted by
Unsilenced |
Howard government, Indigenous people |
no comments
Mal Brough, the Indigenous Affairs minister has finally nailed the cause of the disadvantage of the indigenous people in Australia. The land rights are to blame! You see, they foster collectivism and according to Brough, that just doesn't work because it means individuals don't have anything themselves.
Thanks Mal, I for one am relieved to know that by claiming their native title rights indigenous people impoverished themselves. Here I was thinking that wholesale deprivation, disenfranchisement, destruction of communities, removal of children, discrimination and decades of government neglect, including 11 years of neglect by the Howard government, may have had something to do with the situation that indigenous people find themselves in. But blaming it on land rights is much more satisfactory - easier on the conscience, anyway.
Actually, to be fair, Brough is at least correct in saying that land rights are not the "holy grail" which alone can "free people and empower people". More is needed. We do have to "get that balance right". The problem is that during its 11 years in power the Howard government hasn't done much in terms of providing that "balance", it hasn't been working to develop economic opportunities for indigenous people that Brough refers to.
The government may boast that it is doing something now, but one may wonder whether sending armed forces into indigenous communities, pushing through legislation with only one day consideration and without consultation, legislation which doesn't implement the recommendations in the Little Children are Sacred report, but which does ride roughshod over land rights of indigenous people, is the way to achieve the sort of long term and systemic change that is needed.
Perhaps rather than pointing the finger at land rights Mal Brough should ask "what did this government do for (rather than to) indigenous people in the last 11 years?" and if the answer is "not much", he should look for the culprit of indigenous impoverishment in the nearest mirror.
August 15th, 2007
Posted by
Unsilenced |
Australian politics, Howard government, Indigenous people |
no comments
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