Indigenous Law Bulletin
Joan Kimm, A Fatal Conjunction: Two Laws Two Cultures
review by Judy Atkinson
In 2004 I was asked to review the book A Fatal Conjunction: Two Laws Two Cultures, by Joan Kimm (‘A Fatal Conjunction’) published by Federation Press, Sydney.
I wish now to reconsider what I had previously written in response to the profoundly distressing recent media attention on Aboriginal violence as ‘exposed’ by Northern Territory Crown Prosecutor, Nanette Rogers, in her report and interview with ABC TV’s Lateline (‘Lateline’), and in the national media.
Kimm presents arguments with what appears to be sound research complemented by comprehensive referencing. Indeed one of her reviewers says her ‘sensitive analysis’ is ‘rigorous and fair’. Another reviewer says a copy of the book should be presented to ‘state, territory and federal parliamentarians’. Her findings are therefore presented with what appears to be some authority and hence, receive endorsements that have the capacity to influence many people; people who may inform government policy and programs relative to these critical issues.
The major theme of the Kimm book appears to be that under Aboriginal customary law practice, Aboriginal women were subordinated and brutalised through acts of violence called 'sacred rape' and other excessive physical forms of violence as punishment, which kept them subjugated to patriarchal power. To a lesser degree she considers the impact of the western legal system, on a society already violated, and controlled by patriarchal power – the Australian state.
What concerns me most is, from my point of view, that Kimm demonstrates a prejudice in the way she presents and interprets what in many cases is already a flawed literature, or biased legal finding, to argue her case. This would only be apparent, however, to people who are familiar with the cases Kimm uses as examples. For instance, she discusses ‘Customary Law Justification for Rape’ and cites, among others, the comments of Millhouse J in Mungkilli, Martin and Mintuma (‘Mungkilli, Martin and Mintuma’). She says that Aboriginal women perceive that they now suffer ‘three levels of oppression of race, class and gender, implemented through a threefold operation of law, white men's law, traditional law and bullshit law’. ‘Bullshit law’ is the term of contempt used by Aboriginal women and men to describe the ‘re-creation by (some) male Aboriginal elders of traditional law’ to justify the sexual use of young girls and the rape of women. Repeatedly Kimm names ‘Aboriginal male elders’ as the instigators in this ‘re-creation’ of customary law. She goes on to argue that violence against Aboriginal women was an essential part of male customary law practice.
Kimm also argues that the male elders’ perspective has been authenticated by male anthropologists, argued by male counsel, and accepted by male judges. In other words, the judiciary have taken their direction from such customary law practice.
In the case of Mungkilli, Martin and Mintuma, Kimm does not look at the whole body of evidence, which provides a different perspective to that used in her argument. Nor does she look at what was not presented in court. Mungkilli, Martin and Mintuma were Aboriginal community police aids who raped a woman they were holding in custody in a police vehicle. When they returned the woman to her community, she complained loudly and bitterly (this does not sound like a subordinated woman). The State police immediately removed the three aids ‘for their own protection’ because of the anger the community felt towards them and the potential threat of customary law punishment for what was seen by the senior Aboriginal people, both men and women, as unacceptable behaviour. Kimm does not refer to these facts.
Charges were laid against the three men. A non-Aboriginal police officer gave evidence that these were ‘good’ police. He gave further evidence that forcing Aboriginal women to have sexual intercourse is not regarded by Aboriginal peoples with the same seriousness that it is by white people, that Aboriginal women do not experience – are not hurt by – rape, in the same way a white woman would experience and be hurt by rape.
These facts provide a completely different understanding of this case and, I would suggest, many of the other cases to which Kimm refers. In this regard, the South Australian police, not Aboriginal elders nor the Aboriginal community generally, collude with the judiciary in defining violence as an aspect of ‘Aboriginal Customary Law Practice’, and determine how Aboriginal women would or would not experience rape as violence. They also define how a ‘good’ policeman would behave; yet the implications of this have never been adequately explicated.
In one case with which I am familiar, the counsel employed by an Aboriginal legal service was asked why he used the court process to discredit a number of young Aboriginal women who had been victims of sexual assault by a senior male who was also an Aboriginal community policeman. He replied that it was his job to get the defendant off.
One of the problems with the western legal system is that it is a system of blame and, generally, blame must lie with a single party. It is also insular and looks to single causes. In the case of the community policeman cited above, it was the young women who were blamed. Their pubescent behaviour, it was claimed, ‘caused’ the man to desire sexual contact, which he acted on. The counsel used the functions and privilege of western law to prove the young women were to blame.
In A Fatal Conjunction, it is Aboriginal male elders and customary law that are blamed and the writer uses academic privilege to prove her case, without the referencing required to substantiate her claims. At no time is there any acknowledgment that the function and application of western law was and is fundamentally flawed. Nor does the book adequately acknowledge that a multiplicity of factors contribute to the violence in Aboriginal communities today.
Kimm discusses the high levels of violence inflicted on Aboriginal women in the Northern Territory and Kimberley regions in the context of ‘relatively intact cultures’. Is there evidence of higher levels in these areas? Firstly, I dispute this because I have worked extensively in these areas and I can say that some of the violence I work with on a day to day basis in settled, urban, ‘assimilated’, east coast Aboriginal communities exceeds the levels in those communities referred to by Kimm as having ‘relatively intact cultures’. Secondly, are we to assume that ‘relatively intact cultures’ are representative of a more ‘traditional’ Aboriginal cultural life and customary practice, as she implies? If so, this must be addressed.
As I read other book reviews for A Fatal Conjunction, I was concerned to find statements that contribute to the myths: ‘Kimm is meticulous and unflinching in setting out the routine patterns of traditional violence.’ In fact, Kimm has not been meticulous. In the thesis from which the book was derived, she has photographic plates of rock engravings from my country in Central Queensland. She says these engravings demonstrate ‘sacred rape’, yet provides no reference for her assertion. I presume she herself attributes this to the engravings, otherwise she would have provided proper referencing, as is appropriate in a thesis. I am surprised she was not questioned on this by her thesis examiners, unless they have also bought into the myth, and accepted fiction as fact. Effectively the book demonstrates not just the inadequacy and bias of the western legal (and academic) system in a cross-cultural context, but its more lethal functions.
As I have said for some time, the western legal system, within its own white male (and in this case female) prejudice and privilege, through the way in which courts of law rely on legal precedent to make their determinations, has the capacity to redefine, reconstruct and re-create culture and tradition. This is being done effectively on behalf of white women, in a positive affirmative action. However, A Fatal Conjunction demonstrates the opposite for Aboriginal women. Kimm herself contributes to a redefinition and re-creation, in a negative manner, of what is now being constructed as ‘traditional customary practice’. Kimm does not recognise, acknowledge, understand, nor does she address this critical factor, even as she provides clear examples throughout the book.
Kimm says that previously Aboriginal women’s voices have been subordinated under those of Aboriginal men, white male anthropologists, legal counsel, and bureaucrats. Yet she, herself, discounts the contemporary voices of Aboriginal women and men who are working to address the issue of violence, without any attempt to understand what they are saying and why. Nor does she give value to the painful and difficult work they are doing to address the issues about which she now claims to be an expert.
It is interesting to me that, after the Nanette Rogers report, Aboriginal women from Mutitjulu, along with a worker who had supported the women for many years in domestic violence work and a doctor who had previously worked within the community, were given airspace on Lateline. The women’s stated concerns were for the wellbeing of their children. They had previously voiced these same concerns to me in interviews I did with them in 1990. While to some people Muntajara Wilson and other women who spoke with her may have seemed powerless, they demonstrated great power and authority in discussing what Aboriginal women have always spoken to as law keepers of their communities (men were law enforcers), issues of law, of right behaviour, of concerns relating to children, of community needs, of women’s rights. Within a very short space of time, their voices, with their explicit concerns, were subordinated and negated under the voices of political and media agents, generally white men, in what the women later described as a political football. The women then wrote to the media, with a letter published in The Weekend Australian 6th-7th August 2006. These are women who are speaking out; to right wrong. They are demonstrating their power in their concern for their children, albeit their voices were negated by the powerful media and political forces.
Walter Roth, the North Queensland Aboriginal Protector and medical doctor, wrote his series of ethnographic reports between 1901 and 1908. In spite of the clear, documented devastation of the overt violence of the frontier in Queensland history, he recorded that he could find no evidence of what he and his society would call child abuse in the populations of Aboriginal people with whom he was working. Roth was not backward in documenting what would be called ethno-pornography. Roth’s observations are clearly in conflict with the myths, assumptions and fiction of many people today.
What is a fact is that we now have documented, clear evidence of diverse, and often incomprehensible violations of Aboriginal children in every region of Australia. The question we must ask is: what has changed for our children? One answer is: their fathers and grandfathers have been institutionalised under the systems of the state, suffering many acts of covert, institutional violence.
In consideration of the fiction of Aboriginal traditional violence as presented in recent months by media outlets, a knee-jerk political answer has been to focus on law and order as a short term crisis intervention. I do not argue against such a response. I ask that we fully understand the implications. If we bring more police into communities, I would presume there will be more charges laid in response to the violations occurring within many communities. Therefore we must plan for more courts. I anticipate some people who work in those courts will come with already prejudiced points of view, as demonstrated by A Fatal Conjunction. We need to ensure the education of court workers – whether they are magistrates, lawyers, barristers, or prosecutors – provides them with the information they need to perform their duties in a lawful manner under the dictates of justice reform.
More courts, I anticipate, will mean more sentencing, resulting in the need for more prisons, unless people are sentenced to programs that will influence behaviour change. We do not have the relevant programs available at this time. Obviously, putting young people who might be at risk of sexual assault within an institutional detention centre – a prison environment – is a serious human rights concern.
One of the reviewers of Kimm’s book states. ‘Education is the most powerful tool available.’ I agree. My alarm bell is that sloppy and questionable academic research and teaching has the power to influence many people. Public education comes from reading books such as A Fatal Conjunction. Prejudice and ignorance may be reinforced. Media representations may then support such misconceptions, and hence feed into and trigger political action that has the capacity to create more problems.
We do need education for early childhood development; education for life; education for healing. But please not education from a book that is fatally flawed. Can we not invest in education that will provide the most marginalised and dispossessed within Australian society, a chance for a future within their own country?
To do nothing would be tantamount to genocide.
Professor Judy Atkinson is Head of Gnibi, the College of Indigenous Australian Peoples at Southern Cross University, and Director of CIRCLE: the Collaborative Indigenous Research Centre for Learning and Educare.
 ABC, ‘Paper Reveals Sexual Abuse, Violence in NT Indigenous Communities’, Lateline, 15 May 2006.
 B Elder, Sydney Morning Herald, 8-9 January 2005.
 Ian Mathews, Unity, 17 September 2004.
 (Unreported, South Australian Supreme Court, Millhouse J, 20 March 1991).
 This is not to say that some behaviours BC (before Cook), were not violent. In the acceptable understanding of what violence is, all societies have people who behave violently. Aboriginal customary practice – as most customary practices in all societies across the world, have cultural behaviours that are presently under change as society questions how we should behave towards each other as human beings.
 Mathews above n 3.
 Monash University, 2000.
 W E Roth, The Queensland Aborigines Vol 11 Bulletins 1-8 North Queensland Ethnology from the Home Secretary’s Department – Brisbane 1901-1908, 1984.
 Mathews above n 3.