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Payne, Sharon --- "Aboriginal Women and the Criminal Justice System" [1990] AboriginalLawB 41; (1990) 1(46) Aboriginal Law Bulletin 9


Aboriginal Women and the Criminal Justice System

by Sharon Payne

A boriginal women's contact with the justice system does not only involve direct contact with police, the judiciary or prisons. Their contact is often as the wives, mothers and sisters of the prodigious numbers of Aboriginal prisoners and as the victims of homicides, assaults and rapes at levels unheard of in the rest of Australian society; and against which the criminal justice system seems helpless.

Aboriginal women's relationship to the law is born out of a colonial history. Women in traditional culture have enjoyed a status comparable with men's in many regards. Women have ceremonies and sacred knowledge, and they arc custodians of family laws and secrets. Traditionally they supplied eighty percent of the food and had substantial control over its distribution. They were the main providers of child and health care and under the kinship system, the women's or mother's line was essential in determining marriage partners and the "moiety" (or tribal division) of the children.

Anthropological views of traditional Aboriginal society have tended to reflect the patriarchal ideology of colonial Australian culture. In contrast to the situation for European women at the time, Aboriginal women had considerably higher status within their communities. Ethnocentric anthropologists have assumed that disparate gender-based power relationships existed in Aboriginal society. This has led to an unbalanced, incorrect view of women's place in traditional Aboriginal society.

Since the early 1970's, historians and other scholars have reconsidered post colonial Aboriginal history. Initially most revised histories emphasised the destructive impact of the European invasion and Aboriginal resistance. This was a necessary corrective to the earlier contrived history, which represented the colonial frontier as peaceful and neglected to mention the dispossession and decimation of the indigenous population.

These studies still however tended to be androcentric and eurocentric with Aboriginal people remaining anonymous and stereotyped. Women have been portrayed as the passive victims of white and Aboriginal men alike, and Aboriginal men as freedom fighters. This coupled with the experience of European settlement has had the effect of disempowering Aboriginal women, downgrading their role in society and silencing their cultural voice.

One of the most disempowering acts for Aboriginal women was the `assimilation' policy which saw Aboriginal babies taken from their mothers. The devastating effects of the institutionalisation and forced adoption of Aboriginal infants and children is still, and will continue to be, a major factor impacting on Aboriginal overimprisonment. Many of those whose deaths arc being investigated by the Royal Commission into Aboriginal Deaths in Custody were institutionalised as children.[1]

Aboriginal Women within the Criminal Justice System

The 1989 prison census shows that Aborigines are ten times more likely to be imprisoned than non-Aborigines.[2] This should be qualified by noting that this represents the national rate and in areas of high Aboriginal population, the figure is as high as ninety times.[3]

Whilst there are more Aboriginal men in custody than women, the National Prison Census in 1989 shows that the ratio of Aboriginal female prisoners to female prisoners generally (16.3%) was greater than that for males (14.1%).[4] The most frequent offences committed by women involve non-payment of fines and social security fraud. This is not surprising when considered in the context of Aboriginal Employment Development Studies which show that Aboriginal women represent the least employed and lowest economic group in Australia.

It is discouraging to note that the ratio of Aboriginal women going to prison compared to non-Aboriginal women is increasing. This is within an environment where authorities arc tending to favour non-custodial sanctions for low-risk offenders (the majority of women prisoners).

Aboriginal Women as Victims of Violence

"White women struggle to reach the place and gain the benefits of the power and position of white men. I do not know however, of any black women who aspires to be in the place of the black man"
(Sykes R).

Violence and cultural disintergration is affecting even the most remote and traditional of Aboriginal communities. In 1982, Paul Wilson described the situation in Aboriginal communities in Northern Australia; "Murder, self-mutilation and alcoholism are rife ... People of differing tribes and from various areas mix with each other in an atmosphere of tension and violence." The situation has not improved since then. While it is true that traditional Aboriginal society contained a degree of violence, it was a structured form of violence incorporated into the social fabric and utilised legitimately. Contemporary violence is essentially unstructured in form and becoming firmly entrenched as the norm in behavioural standards for Aboriginal communities.

A number of in depth studies in the Northern Territory, the Kimberleys and in North Queensland, have revealed a degree of violent crimes against women which is affecting the future existence of whole communities. Data from these studies expose a level of death by homicide among Aboriginal women by their spouses, sons, grandsons, uncles, and the list goes on to include all male relatives, at a rate which exceeds that of all Aboriginal deaths in custody in the same period. (See Atkinson J, pp 6-9 this issue of the AboriginalLB).

There were no deaths in custody of Aboriginal women in the NT during the Royal Commission reporting period (1980- 1989), yet according to NT police crime reports, 17 Aboriginal women died due to homicide in 1987 (Bolger A 1990). Aboriginal women in the NT are in fact 28 times more likely to die from homicide than any other Australian person (Hunter E 1990). The recent Equal Opportunity Commission (WA) Report states, "It was claimed that police were slow and unwilling to attend violent situations, often refusing to acknowledge their seriousness" (Equal Opportunity Commission (WA) 1990: 23).

Groups of Aboriginal women in the NT are now saying that they are being subjected to three types of law: "white man's law, traditional law and bullshit law", the latter being used to describe a distortion of traditional law used as a justification for assault and rape of women ('it's Aboriginal law you don't interfere'), or for spending all the family income on alcohol and sharing it with his cousins, justifying the action as an expression of cultural identity and as fulfilling familial obligations. It is suggested that these men are using "Aboriginal tradition to justify what is in essence selfish exploitation based on an individual desire for alcohol." (Gibson M 1987: 3). It is ironic too that it is the imposition of the white man law on traditional law which has given rise to the newest form.

The National Committee on Violence report, `Violence: Directions for Australia" observes that "violence permeates all life in contemporary Australian society" and notes that the hidden nature of this crime is such that best estimates of its extent may only be informed guesses. While a considerable amount of violence against women is not associated with excessive alcohol consumption, women from all social backgrounds related the level of violence to problems with alcohol. The recent commendable reforms by State/ Territory Governments to decriminalise public drunkenness has added another burden for Aboriginal women. The way in which public drunkenness has been decriminalised indicates that little has been learned from the way in which `full citizenship' was given to Aboriginal people. When the churches and missions withdrew, virtually overnight, they left no administrative structure or training and support to enable those left behind to manage their own affairs. The failure to provide sufficient alternatives to police cells, such as sobering-up centres or detoxification units, for detaining those excessively effected by alcohol, has resulted in a greater number of drunken men being taken home. It is often the wives, mothers and grandmothers who are left to deal with the violent mental and physical problems associated with alcohol abuse. Failure to address the underlying reasons why Aboriginal men (and women) are abusing alcohol, and the circumstances which lead to the self-destructive, physical and mental abuse, allows the cycle to continue into the next generation and the next.

Juveniles

In order to better understand the impact of European laws and lifestyle, violence and alcohol, and to gain some idea of how the results of these influences are becoming entrenched in Aboriginal society, it is necessary to look at the behavioural tendencies of successive generations. Trans-generational trends mapped by Dr Ernest Hunter in the Kimberleys have enabled the compilation of a comprehensive data base on contemporary Aboriginal lifestyles in this region. This information gives some idea of the impact of recent events, such as the granting of full citizenship, legal accessibility to alcohol and the concept of self-management on subsequent generations.

Patterns of violent behaviour to oneself and to others arc associated with familial backgrounds of heavy drinking. Today's parents arc the offspring of the first `legal Aboriginal drinkers', many of whom have grown up in settings dominated by violence and alcohol. The cycle of substance abuse and personal violence is now completing a fifteen year loop. The acceptance and expectation of abuse and violence in Aboriginal communities is reflected in statistics which reveal that young women who have non-drinking partners present more signs of stress than those whose partners drink to excess regularly, and by answers such as that given by a ten year old on Palm Island who said that he would like to rape women when he grew up. (O'Shane P cited in Atkinson J 90).

While over-policing or over-offending explains much of the excessive contact Aboriginal juveniles have with the justice system, there is implicit in welfare and juvenile policies the notion that community, familial and social dis-similarities are sufficient grounds for intervention. Gale, Wundersitz and Bailey-Harris in a South Australian study found that while the number of all children admitted to institutions has decreased, the ratio of Aboriginal to non-Aboriginal children has increased (1990). This disparity is particularly conspicuous in relation to young Aboriginal girls. In some states the level of over-representation for Aboriginal girls in juvenile institutions is far greater than for adults.

An overwhelming number of the charges brought against juveniles deal with public order offences (hanging around the street) and offences against the police (not co-operating with harassment). Many girls complain of sexual intimidation, ranging from snide remarks and innuendoes to name calling and physical harassment, by police. Such harassment allegedly includes strip searching as a regular feature of policing practice. The visibility of Aboriginal girls on the streets, make them obvious targets for those concerned with `law and order'.

Public Perceptions and the Role of the Police

The police force, which is often the only continuing official presence in a

large number of Aboriginal communities, reflects societies prejudices. The vast majority of initial contact with the criminal justice system begins with the police. It is problematic that some police tend to blame whole communities for problems. There is a strong case for dialogue between the police and concerned people in communities, especially women who are often seen by police as actively participating in assaults against them or at least `asking for it'.

Conclusion

The bottom line is that as a nation Australia has to dramatically change its negatively prejudiced attitudes towards Aboriginal people. To do so, it must also be recognised that these negative attitudes arc not only entrenched in mainstream society, but sadly, arc also largely embedded in the self-image of Aboriginal people.

Aboriginal women are clearly saying that they are tired of the violence, the alcohol and the apathy of the general public. Many women have come forward to talk of their experiences with violent crime. They have enlisted aid and are seeking solutions. It is now up to the wider community to support this cry for help.

Bibliography

National Prison Census June 30 1989 (1990), Institute of Criminology, Canberra.

Equal Opportunity Commission (WA) (1990), Discrimination in Government Policies and Practices, Review of Police Practices, EOC, WA.

Wilson P (1982) Black Death, White Hands, Unwin and Allen, Sydney.

Bolger A (1990) Aboriginal Women and Violence: A Report for the Criminology Research Council and the Northern Territory Commission of Police, North Australian Research Unit, Darwin.

Hunter E (1990) The Inter-Cultural and Socio-historical Context of Aboriginal Personal Violence in Remote Australia, to be published in the Australian Psychology Journal, Sydney.

Gibson M (1987) Anthropology and Tradition: A Contemporary Viewpoint, unpublished paper presented to ANZAAS Conference, Townsville.

Carrington K (1990) Aboriginal Girls and Justice; What Justice? White Justice Journal for Social Justice Studies, vol 3, Sydney.


[1] See for example Wootten J H (1989) Report of the Inquiry into the Death of Malcolm Smith, Royal Commission into Aboriginal Deaths in Custody, Sydney.

[2] Benjamin C (1990) 'Prisons, Parents & Problems' unpublished paper presented to Keeping People Out of Prisons Conference, Hobart

[3] Cunneen C and Robb T (1987) Criminal Justice in North west NSW Bureau of Crime statistics-and Research, Sydney.

[4] National Prison Census (1988) Institute of Criminology, Canberra.


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