Atkinson, Judy --- "A Nation is Not Conquered" [1996] AboriginalLawB 25; (1996) 3(81) Aboriginal Law Bulletin 4

A Nation Is Not Conquered

by Judy Atkinson

A nation is not conquered until the hearts of its women are on the ground. Then it is done no matter how brave its warriors or how strong its weapons. (Cheyenne proverb)

The initiative to publish a `special edition' of the Aboriginal Law Bulletin, focusing on legal and related issues of concern to Indigenous women, is important on a number of points. In opening up the dialogue and promoting discussion on issues of critical concern to Indigenous women, this special edition may hopefully become a forum where a variety of points of view, concerns and different foci can be aired for further consideration.

The October 1990 edition of the Aboriginal Law Bulletin was also a special edition, a `women's issue'. It contained a number of articles which primarily looked at Aboriginal women and the criminal justice system, in the context of violence both against Aboriginal women by Aboriginal men, and by Aboriginal men against themselves.

Since that time native title has created intense academic attention and legal debate. The Royal Commission Into Aboriginal Deaths in Custody has tabled its reports; as a consequence we are inundated with numerous government documents reporting their implementations of its 339 recommendations. The Report of the National Inquiry into Racist Violence has been released. The Australian Law Reform Commission report Equality Before the Law has been published. I could go on.

It is time to ask now, with all these reports, with all this activity, what progress has been made over the last six years? Is it easier for us to access the Australian law for our own protection, and/or are our own Indigenous social control systems being redefined and growing stronger after the multiple assaults of the last 208 years of colonial invasion and administration? Is this violence, now called in part `family violence', beginning to decrease as states implement these various reports and the domestic violence legislation across the country? Are our places of living becoming safer in this land of our birth and inheritance?

In asking these questions I am continually faced with a major concern. Have we got it right? What is this violence we are talking about? Is it really `domestic' and/or `family' violence or is it something deeper, more damaging, more devastating for our future generations?

Redefining law

Hopefully this edition will enable us to consider law as more than native title, however vital land may be to our future. At present there is a complete imbalance in the singular focus by academics and others on native title to the exclusion of other urgent needs for justice reform. This imbalance in fact reflects the worldview of white men, those who control the Australian legal system and who are most concerned about land (and women and children) as property. By our very enmeshment in their system, we are forced to jump as they turn the rope, and as we skip-rope to their demands, we are so busy we lose the knowledge of who we are and what our business should be about. Before we know it, we will have dropped dead from the exhaustion of our enforced activities and of broken hearts, in the belated understanding of our neglect of other vital Law responsibilities, the negation of the responsibility to provide an inheritance of value to our children and grandchildren.

Within the Aboriginal worldview, Law is also the context of relationships between people within families and among groups across our social systems. The practice of Law is also the practice of well-health for the individual in the family and the group. Aboriginal Law was/is the maintenance and healing of relationships and was/is a constant process of negotiation, mediation and conciliation in managing and resolving the conflicts natural to all human associations. Aboriginal women were and are the custodians of this aspect of Law. They ensure protocols are maintained, that conflicts are not allowed to fester and grow, and that incorrect behaviour is dealt with in appropriate ways. Aboriginal men were responsible for the enforcement of Law. In too many instances they are presently neglecting their duty. Aboriginal Law and Aboriginal health was/is maintained by the very fact of our day-to-day participation in ceremonies and rituals, which reinforced our knowledge of our rights and our responsibilities for each others' well-being.

Over the last 208 years of our colonisation, our family and social relationships have been fractured and almost severed by the newly-imposed English common law system called by some of us the white men's law. It is this law we are now being asked to turn to for protection from the violent assaults which are, in part, its product.

Is this violence `domestic' violence?

In this paper I want to look at the issue of violence in our families and communities today by presenting some stories or case studies. In presenting these case studies I am trying to answer the question posed above: is this really domestic violence `men bashing women in the home', or is it something deeper which, by its very nature, needs other `solutions' to those presently being proposed, pushed and implemented.

Aboriginal and Torres Strait Islander people consistently say they prefer to use the term family violence. The Aboriginal and Torres Strait Islander Commission in its 1992 report Tjunparni: Family Violence in Indigenous Australia defines this violence as:

`the beating of a wife or other family members, homicide, suicide and other self-inflicted injury, rape, child abuse, child sexual abuse, incest .. [more than] serious physical injury but also verbal harassment, psychological and emotional abuse and economic deprivation, which although as devastating are even more difficult to quantify than physical abuse' (page 10).

Domestic violence is one aspect of family violence. Using the term `family' in preference to `domestic' provides a greater contextual understanding of the interlinking and inter-generational impacts of violence as its effects flow into and out of our families.

Although some of the people whose case studies I am presenting are happy to be identified, I have made the decision to change all names and details which would identify those concerned. The case studies are: two women's stories which show their further victimisation within the Australian legal system; a child's rape trauma and the complete lack of a community/legal response to the criminal assault on her; and two men's stories, in gaol for homicide and rape respectively. In presenting the stories of these two men, I hope to not excuse, but to put some context to their behaviour while demonstrating that they also have special and specific needs which are not being meet. While we may generally acknowledge that the legal system fails to meet the needs of women at all levels, we sometimes forget that it does not serve most men either, and in fact may contribute to the complexity of behaviours we call anti-social and/or violent.

Commissions of Inquiry and progress

When I recently read the comments of Justice Geoffrey Eames at his sentencing of Kevin Graham Telford for the murder of Emily Egan, I felt angry and bitter (The Weekend Australian, 28-29 October 1995.) Justice Eames worked on the Royal Commission Into Aboriginal Deaths in Custody. For him to make the statement that the Royal Commissioners had `encouraged Aboriginal women to look to the courts to provide protection to them from violent partners' is both paternalistic and fraudulent.

Paternalistic because such a statement, in effect, chastises women like Emily Egan for not using the legal system for her own protection, at the same time placing responsibility for her safety on her. The statement ignores the fact that the legal system is clearly unable to provide protection to Indigenous women and their children from physical and sexual violations, and that many Indigenous women long ago gave up on this system in seeking restitution of their right to be able to live in safety in their own homes and communities on their own lands. The statement implies that if Indigenous women used the courts for protection, they would not be assaulted or die under circumstances similar to Emily Egan. This is clearly not true. The comment denies the reality that Telford had breached several domestic violence restraining orders taken out by Emily before his fatal assault on her.

Fraudulent because the statement implies the Royal Commissioners, in their combined reports, culminating in a National Report of 5 volumes and 339 recommendations, were concerned to address issues of violent behaviours among and between Aboriginal and Torres Strait Islander peoples. The Commissioners acknowledged `appaling levels of domestic violence against Aboriginal women and children', with `rape and even murder ... failing to attract the due attention of police and the criminal justice system', and the fact that 53% of those who died in custody were in custody for acts of violence, with 9% for homicide, 12% for serious assault, and 32% for sexual assault (Royal Commission Into Aboriginal Deaths in Custody research paper No 11, page 13). But there was not one recommendation out of the 339 which allowed for women as victims of domestic violence and/or rape, or as the wives, daughters, mothers and grandmothers of violent offenders, to access funds for services in this regard. The statement implies that the Commissioners were concerned to provide some capacity for a structural response to the healing needs of victims and their families, and indeed perpetrators of violence. This is clearly not true.

As a Canadian researcher said to me, `This is a massive denial. What does it say, not just about the functions of the Commission, but about Australian society generally?'.

There are consequences when we refuse to face reality and are unable to look at the whole picture. I define facing reality as being prepared to address the `hard issues'. `Hard issues' mean looking at things that are sometimes unpleasant, looking at ourselves and our families/communities without the rose-tinted glasses that may contribute to our denial.

It means justice workers also removing their rose-tinted glasses and taking a critical look at themselves, their attitudes and functions, while we Indigenous people do the same.

We accepted the Royal Commission documentation of the systemic violence that has been perpetrated on us over the generations of our colonisation. We need also to accept that in many cases we are now recycling this violence on ourselves. Denial within the broader Australian society is rife. We cannot afford to live in denial of our present reality. Violence rates are too high in our communities and in our families. These rates that indicate that in some places, Aborigines are 45 times more likely to be victims of defined domestic violence than non-Aborigines, that injuries sustained in domestic violence are generally more serious than for other forms of violence, and that Aboriginal victims of domestic violence are more likely to receive serious injury than non-Aboriginal victims of domestic assault (see Measuring the Extent of Domestic Violence, A Ferrante, F Morgan, D Indermaur & R Harding, Hawkins Press, Perth, 1996, pages 34-38).

One of the objectives of the recommendations of the Royal Commission was to reduce custody rates of young Indigenous men. In fact, since the findings of the Royal Commission were brought down, not only have custody rates for our men increased, but custody rates for our women and children have also increased. The Social Justice Commissioner points out that `between 1989 and 1995 ... in NSW ... the Indigenous prison population has increased 113%', and that not only have custody rates increased, but deaths in custody continue to increase (see Aboriginal and Torres Strait Islander Social Justice Commissioner's Third Report, Australian Government Publishing Service, Canberra, 1995, page 1).

To my knowledge, no research has been conducted to show what these increases mean. Anecdotal evidence and observation where I live, however, would indicate increases correspond to the police application of domestic violence legislation across Australia. In fact, the States with the greatest custodial increases are also the States where the implementation of the domestic violence legislation has been most rigorously applied.

The Harding et al report quoted above supports this observation, as well as my other concern about what appears to be increasing levels of violence, and changes to the form that violence is taking, in some of our communities. This research shows that Aborigines in Western Australia are 6 times more likely to be a victim of a violent incident than non-Aborigines, but as noted above, on the basis of offences reported to the police, are 45 times more likely to be a victim of `domestic' violence than non-Aborigines. I am told that many Aboriginal women previously called police or other outsiders to intervene in incidents of violence as a crisis intervention strategy, but chose not to pursue court action for a number of reasons. One frequently cited was because they themselves understood more fully the circumstances behind the expression of distress through violence. In other words, they also `felt sorry' for the assailant. They knew his story. There are a complexity of reasons why women previously did not want to pursue charges. Generally, most women would say to me they wanted the violence to stop, they wanted help for their partner to both stop drinking and stop the offending behaviour, but they did not want their men to go to gaol because they did not see that gaol decreases violent behaviours.

Since the domestic violence legislation came into force, police have participated in extensive educational/awareness workshops nationally and within each state. Much of this behaviour was previously labelled `cultural' by the police, the courts and by Australian society generally. Now when the police attend a `domestic', they are more likely to arrest both the man and the woman for behaviour they judge to be violent. In some cases, the woman will be arrested and the man's behaviour continue to be excused.

One woman's story

Jenny is a young woman, a mother of three children, expecting her fourth. At present she is on a probation order. If she breaches this order she will go to gaol. After repeated beatings from the man with whom she was in a relationship, and who is the father of her children, she stabbed him. She then found herself in court answering charges of criminal assault. The Aboriginal Legal Service represented her. The man already had orders out on him for his repeated attacks on her, but had never been charged for his criminal behaviour. A week after she was found guilty in court and sentenced to a year's probation, he beat her again. He has not been charged for this assault and after her experience in court, she was too frightened to go to the police. She thought she might be judged to have breached her probation order, be sent to gaol and/or lose her children.

With the help of her family, she left him. Members of his family then repeatedly came to where she was living and threatened her, telling her she and her children had to return to him because he was threatening to kill her. Jenny and her family were terrified and angry. Jenny's family understand that his family were also traumatised. They had just had another son suicide, while a third recently died in a motor vehicle accident, and they were frightened that this son would carry out his threats. This does not excuse their behaviour, but places it in context. While their verbal harassment of Jenny may have been an attempt to off-load their distress and mitigate their son's behaviour in their home by externalising the blame onto Jenny, this knowledge does not reduce the stress that Jenny and her family feel when they hear threats against her life. Nor does it prevent feelings of terror, anger and powerlessness at the inability of the legal system to provide justice to Jenny and her family.

With the support of her family Jenny has maintained her separation from the young man, but with no help whatsoever from the systems of `justice' in Queensland. However she has recently got involved in another relationship where she is again being assaulted.

In the context of my field work I have come to understand much of the behaviour of Aboriginal people, labelled as violent and as victimising, is more often and more specifically an expression of trauma. Violent behaviours can be both symptom of trauma and symptom of the beginning of recovery from trauma. Such behaviour becomes the norm in families where there have been cumulative intergenerational impacts of trauma on trauma on trauma, expressing themselves in present generations in violence on self and on others.

I am not suggesting that we should excuse the behaviour of people like Kevin Telford, Jenny's partner, or even Jenny. But I am suggesting we need to look at all the factors in such behaviours, and make decisions that will allow us to implement both short term crisis interventions while at the same time setting in place long term healing strategies.

Aboriginal women I know who largely supported the development of the domestic violence legislation are now starting to question whether it has the answers they need. I am hearing very few comments which indicate our women feel the legislation is working to their benefit, or that it has long term behavioural change potential for our men. However, I am seeing and hearing a rising anger at our men, a sense of frustration and impatience at what seems to be increasing levels of violence. On the other hand, I constantly sit with men who are also concerned about male (sometimes their own) behaviours and who voice a rising frustration and concern, asking for support to establish programs for Aboriginal men who are violent. They are beginning to see that they must also be about the business of de-colonisation.

Aboriginal women say they have asked for such programs for a considerable time but that their requests are being ignored by those people in government who are responsible for implementing a structural response to issues of violence in society. Most women I work with are feeling that even when they choose to use the programs and systems being made available, sometimes `women only' services, sometimes `generalist services', these services are not meeting their needs. The women often experience another level of victimisation.

Counselling and mediation

Corin is a mother of three who has custody of two of her children, while her ex-husband (a non-Indigenous person) has custody of the other. She has been through family court counselling in the context of a custody hearing, and a Community Justice Mediation process. She felt neither was culturally empowering for her. Both were at the instigation of her ex, who knows how to make the system work to his advantage. In each case the issue of whether she was a fit mother was raised. She felt pressured to consent to undertake courses on parenting skills because she would jeopardise her right to custody of her children if she did not. The parenting skills under question by her ex were associated with her not allowing her son to be aggressive towards her and his sibling, and expecting the boy, with his sister, to help in normal household duties. At no time did the man's violence, expressed physically, and verbally racist, witnessed by her children, become an issue in the counselling/mediation process. This in spite of the fact that during the mediation she feels she was repeatedly verbally and psychologically abused by her husband without intervention by the mediators.

Our women repeatedly ask that we find ways of helping heal children who have witnessed or experienced violence in the home. Grandmothers, in particular, are despairing for their grandchildren, who are being expelled from schools at increasing levels for violent behaviours. In fact the child's violence is an expression of traumatisation, a cry of distress at what they have seen and experienced in the context of intergenerational trauma.

A thirteen year old girl was recently raped in a small Aboriginal community. The child needed urgent medical attention because of her injuries. The State Police refused to take her to the nearest hospital which was 30 kilometres away. They would not investigate the assault, claiming it was the responsibility of the local Aboriginal Community Police. On the other hand, the Aboriginal Community Police said they did not have the power to conduct investigations of this nature and/or make arrests. Finally, an Elder woman was able to find a car and driver who was willing to drive her and the child into town to the hospital. There was a paralysis within the community to the child's urgent medical needs, as well as a paralysis in legal response to the criminal assault. This paralysis has links to the historical consequences of previous police inactivity on issues of Aboriginal interpersonal violence which they label as `cultural'; the religious attitudes of missionaries in the community, which promote shame and denial that such things happen; and the closeness of family relationships in such small communities.

More importantly however, the issues of confused power and responsibility among Aboriginal Community Police and Queensland State Police, which were raised with the Royal Commissioners during the term of the Commission, have still not been been resolved. In fact, in Queensland, the State Police have transferred the problems of the Deed Of Grant In Trust Aboriginal Community Police Service into urban situations by the employment of Aboriginal Police Liaison Officers in towns and cities such as Townsville and Rockhampton.

Analysis will show that the high levels of violence in some DOGIT communities has a direct relationship to the historical violations of the rights of the individuals living within those communities, and the police priority of arresting people for `drunk and disorderly', while labelling the violent behaviours as `cultural' and ignoring the rights of victims to a social justice response. Liaison officers, the first line of contact between the traumatised individual and the community, without an understanding where such behaviour comes from, in many cases are feeling angry and frustrated at the very people they are supposed to be helping. Some have attitudes and behaviours towards women that make their interventions abusive.

This can have other repercussions. Recently a young Aboriginal woman left the country town of her birth and all contact with her extended family, fleeing interstate. She left in terror because of the repeated physical attacks on her by a group of young Aboriginal women who come from a nearby community. In this community, five years ago, a group of young girls had to appear in court to testify against a senior man for his sexual violations on them. The Aboriginal Legal Services tore the young girls apart in court in the course of defending the senior man. The man was acquitted. The long term consequences for young women of that community are only just being counted. Today, these young women, who are attaching themselves to young women from the nearby country town, have seen and experienced violence as the norm in their community. In their early teens, they actively go looking for fights with other young women when they come to town. They have completely intimidated these young women. At the same, time they often enter relationships with the young men of their community in which they are frequently subjected to `domestic' and other forms of brutal violence.

Men's violence has many constructions

Aboriginal people often know the circumstances which are part of offending behaviours. Elders need to be included in the court/sentencing process. They are better able to decide on appropriate punishment and treatment for offenders.

An Aboriginal man is currently serving a life sentence for the killing of his brother-in-law. What was not presented in the court proceedings was the man approached his brother-in-law at the instigation of his family, because of their concern over the brother-in-law's violence on the man's sister. The State police, while knowing about the violence, had not intervened nor laid charges. In court, no one raised the cultural responsibility a brother has to `look after' or protect his sister from ill-treatment by her husband. While not condoning the killing, which happened when a knife was drawn in the argument about the brother-in-law's behaviour, the cultural circumstances in the incident have never been recognised nor addressed. Neither has the police culpability for their long term inaction in regard to the woman's rights, which was one of the triggers to the incident in the first place.

I am aware of times when young Aboriginal women have insisted on pressing charges, when they have been prepared to stand up in court and testify, only to have solicitors with Aboriginal Legal Services, representing the offender who was/is a big man politically, tear the young women to pieces in court. I am aware that in some cases such big men have boasted that the charges wouldn't stick because the young women would not survive. In too many cases that I know of, they haven't, ending up leaving their community, their family, ending up living on the streets in cities down south with a needle in their arm or a bottle in their hand.

On the other hand, I am also aware of young men with no power except that which they enforce over young women of their acquaintance, who move in and out of correctional institutions because they are not receiving the help they need.

Generations of abuse

A young man of my acquaintance was released on parole after serving part of a sentence for rape. Within less than three months of his release, he was again charged with the rape of another young woman. A non-Indigenous woman said to me at the time, `Well, serves him right. They should just put him in there and throw away the key. He knows that kind of thing is wrong'. My answer was, `How would he know? Everything in his life has told him that this form of behaviour is OK'. While not excusing this young man's behaviour, I ask that we look at his story before we pass judgment on his actions.

His story begins long before his birth to a woman who was herself a victim of abuse. She was deemed an `unfit mother'. He was removed from her care as a very small boy and placed in an institution where he was physically, emotionally and sexually abused by a number of authority figures within the institution. He left the boy's home in his juvenile years and began mixing with a group of young people. They lived in an abusive and self-abusive street culture where they focused their anger and aggression on themselves, young women of their acquaintance, and the broader community generally. He then began entering juvenile detention centres and later prisons, where again he experienced sexual and physical violations in the dominant pecking order of the prison system.

At no time did this young man in his interactions with this society ever receive a clear message that such behaviour was not the accepted social norm. At no time in the young man's previous incarceration had he received any form of help for the attitudes and behaviours that contributed to his imprisonment; attitudes and behaviours that were formed by his participation within a dominant anglo-australian culture. That participation has damaged him and his family for generations past, and will continue to damage them for generations to come unless we can find healing interventions for victims and perpetrators of such violence.

I can provide a series of case studies which show the changes in people who have been courageous enough to look at themselves and work to transform their attitudes and behaviours. These include men who have a history of domestic violence and sexually abusive attitudes, women who had been frozen in their childhood victimising experiences and who had been continuing to experience violence in their adult lives, Elders who have been working constructively to de-colonise themselves from the attitudes and behaviours they inherited from the colonisers. These changes have not occurred as a consequence of systemic legal processes however, but rather through an integration of Indigenous cultural processes for conflict management and group healing with therapeutic skills for trauma recovery in experiential learning workshops. This is the work of healing however, not legal institutions, which tend to continue to cause more problems than they solve.

As Indigenous people, we need to be about the business of healing. We have strong cultural tools which can help the healing process. and we need to be creative and innovative in our approaches. At this time we have an urgent need for our violent offenders to be helped to change their behaviours.

Barnett J of a Circle Court in British Columbia provides a good example of a potential sentencing in domestic violence which could provide positive behaviour-change experiences:

• The offender was placed on 12 months probation.
• The offender had to report to designated supervisors for the period of his probation--in this case senior members of his community.
• The offender had to perform specified community service--in this case organise and manage a youth rediscovery camp.
• The offender was barred from drink.
• The offender had to attend an alcohol treatment program for the term of his probation.
• The offender had to assist in organising, and then participate in, a support group for men who are violent.
• The offender had to appear for review on a specified date
  (Barnett J, Prov Court, Judgment/Sentencing Report: Raymond Charleyboy in British Columbia Provincial Court, Anahim Lake, British Columbia, 1993).

In the promoting of such concepts, I am aware that the courts can say that there are not the programs available they can use as sentencing options. It may mean that we push for one so that we get the other.

Conclusion

As I reviewed the questions I posed at the beginning of this paper, I found the answers depressing and disempowering. There has been very little progress for Aboriginal women and their children despite all the myriad reports, Commissions of Inquiry and bureaucratic activity. In fact for many Indigenous women, men, youth and children, there has been created another layer of traumatisation. Our increasing interaction with the Australian legal system is not to our advantage. Our own social control processes, indeed our own power as women to resolve our own issues and meet our own needs, are being further eroded (if that is possible). Violence in our families and communities is increasing and taking on a new, uglier dimension. Our places of living are becoming less and less safe.

We have to start somewhere to address these critical issues. It is essential for both the male and female offenders I know, and for the ongoing victims of violence at the many different levels of victimisation, to begin to feel that there is a way beyond the pain of our present experiences.

I am yet to be convinced, however, that the legal profession and the government have the will and commitment for real justice reform that will restore to Indigenous individuals, our families and communities the ability to rebuild our lives from the multiple intergenerational traumatisations that comprise the colonising impacts.

I do, however, have implicit faith in my own people to do the work of healing and rebuilding, of regenerating and restoring. All I ask of government and the legal institutions is that they support us in these endeavours.

Ed's note: Judy Atkinson is in the final year of a PhD which explores Aboriginal community perceptions and experiences of family violence, and which provides a placement to work within and with the local community, in order to help develop a healing response to interrelated needs as they arise in field studies.

One of the results of this is that the Central Queensland University will be working in partnership with We Al-Li, the program established in the field work, to run a certificate course in Indigenous Therapies and Trauma Recovery in 1997.