In Peter Baldwin’s recent articles concerning Identity Politics (IP) regarding that it is reactionary and harms the people it claims to protect, he puts forward literature and arguments from Jacinta Price that claim that IP has suppressed claims that cultural beliefs and practices inherent in indigenous culture play a role in issues of domestic violence and child abuse in indigenous communities. Before continuing any further, there some disclosures I should make. First, I have not yet read Peter Sutton’s ‘the politics of suffering’ or Roger Sandall’s ‘the culture cult’, so I am prepared that some, or many of the points that I raise may have already been addressed in that literature. Second, I am by no means an expert on Indigenous culture but reading Peter’s articles has inspired me to seek out the current literature on the topic and attempt to see what the possible answers are. So, on that note, I thank Peter for instigating a very interesting and important discussion.
In one of the videos posted by Peter, Jacinta Price mentions the rape and murder of a teenage girl by an Aboriginal man, who successfully had his sentence greatly minimised due to him appealing to his cultural laws where she was promised to him through arranged marriage. Price also give general accounts of silence in the communities due to their cultural priority of kinship, and cultural views of rights that Aboriginal men have over Aboriginal women. Such testimonies do very much seem like a significant causal relationship with culture and violence, however, I have come across some literature that has examined this in more depth. Cripps and Taylor (2009), have mentioned that this case, and others like it, do not do nearly enough to establish any kind of legitimacy of ‘cultural defence’ for sexual crimes and family abuse, where they say:
In both cases male Elders from the offender’s respective communities gave evidence attesting to the currency of traditional customary marriage. In addition to this, Jamilmira’s own relative, Mr Djordila, admitted that whilst some people chose to continue the practice of traditional marriages, others did not. It thus appears, at least on this surface examination to be a matter of choice rather than steadfast law or practice as to whether conjugal rights are forcefully imposed on a minor or not. The question then becomes whose law and whose choice - the older man/promised husband or the young girl? More importantly, one of the defendant’s supporters contradicted the defence claim that custom, and custom only, dictated the behaviour of Jamilmira. Again we pose the question: what is meant by the term traditional and how traditional was the practice of customary marriage in these cases? Further, if it is less about custom and more about choice, then why was only one perspective, that of tradition, elevated with such prominence in the courtroom? One might also ask what aspect of tradition validates the anal rape and physical beating of a child under the guise of arranged marriage. It would seem that the offender, his legal counsel and the courts have all sought refuge in what by all accounts seems a tenuous claim about customary marriage.
It is for this reason that many Aboriginal Australians have categorised such defences as ‘bullshit law’, to mean that they are deliberately distorting or exaggerating cultural customs to avoid legal punishment or get a diminished sentence. Of course, there is still much work to be done here, because although it may indeed be bullshit law, it may also be Aboriginals committing a no true Scotsman to protect their culture from criticism. However, it seems such work has been done. The Australian Institute of Criminology has investigated the legitimacy of cultural practices of Aboriginal marriage and sexual violence, where it says:
An Inquiry into child sexual abuse in the Northern Territory concluded these are misconceptions offensive to Indigenous people and can interfere with addressing the problems (Wild & Anderson 2007). The later Inquiry into sexual abuse of children on the APY Lands accepted that the sexual abuse of children is contrary to Anangu traditional culture and law and that this and other problems on the Lands, such as community dysfunction, violence and alcohol abuse, are relatively recent phenomena that have emerged since the 1970s (Mullighan 2008). The Inquiry found that some persons in health, welfare and police accepted a view that adults or teenage males may have sex with underage or very young girls because they had been ‘promised’ as wives under traditional law and culture (Mullighan 2008). The Inquiry however found no basis in traditional law or custom for sexual activity with girls outside marriage. An Anangu girl or a boy may be promised for marriage and both men and women may have several promised spouses, who may remain potential partners throughout their lives. Sexual activity may only occur after the ‘marriage’ under Anangu law, to which strict formalities apply (Mullighan 2008).
Hence, this seems to support evidence that the cases of culture as a defence for domestic and sexual violence, is indeed bullshit law.
Moving on to the other issue raised, which is the general culture of silence due to kinship duties and assumptions of Aboriginal men having rights over Aboriginal women. The Australian Institute of Family Studies agrees that community silence is a significant issue regarding violence in Indigenous communities, but has an alternative explanation:
Mow (1992) identifies community silence as a barrier to overcoming the problem itself. Mow quotes Tonkinson (1985: 299) who says that ‘discussing family matters with an outsider, even one wishing to help, might be almost impossible because of shame. Also, approaching someone of the opposite sex on matters that are thought to be the business of one’s own sex can be too shameful to contemplate . . . . Shame is compounded in Aboriginal-white relations by expectations of rejection, by unfamiliarity with procedures and personnel, and by loyalty to one’s own vis-a-vis the dominant society. Put in a nutshell, given Aboriginal experience of white institutions and authority agents, it is scarcely surprising that, ultimately, some women appear to find a violent spouse less threatening than the agencies from which they might seek relief’ (1985: 299).
So, if we take this explanation to be correct, the main driver is distrust and disconnect with Indigenous Australians and government authority figures. A serious issue which will be hard to solve but focussing on traditional culture will not solve it.
Regarding assumptions of men’s rights over women. I am willing to believe that this is almost certainly true. Why? Because culturally, this has been prevalent in virtually every society and culture. Even in Australia, it was as late as the 1980s that sexual consent was assumed in a marriage, thus a wife could not charge her husband with rape. The first wave of feminism began only in the 19th century. So, it is unsurprising that you would be able to find traditional customs and laws with similar assumptions. This is an area where I believe critical theorists do have a point. It appears non-Western cultures don’t have to be just as good as Western cultures, but they must be better than them. The reason for this was put forward by Edward Said’s concept of ‘othering’, which is when we observe other cultures with a more critical gaze than we would with our own.
Despite all these points raised, one could still ask the question ‘why then the prevalence of domestic violence is so high in Aboriginal communities, and especially when in traditional areas where the culture is its most entrenched?’ And this a fair question. To answer it, we must look at what the general determinants are for domestic violence. The Parliament of Australia’s quick guide to domestic violence lists these determinants:
· Alcohol and drug use
· Those living in rural or remote areas
· Financial stress, especially if on government support
There are many others, but I chose specifically these three because these are all the determinants that Indigenous Australians in traditional communities disproportionately share as opposed to non-Indigenous Australians. And I have also not included other determining factors raised by the institutions I have mentioned earlier, such as intergenerational trauma and breakdown of community and culture. This does provide, I think legitimate, counter explanation than of traditional culture as the driving contributor to domestic violence.
To add another piece of evidence against the link of culture and violence, I came across an interesting study concerning cultural engagement and violent offending with Indigenous Australians by Shepard et al (2017), who concluded:
For Australian Indigenous people in custody, ‘cultural engagement’ was significantly associated with non-recidivism. The observed protective impact of cultural engagement is a novel finding in a correctional context. Whereas identity alone did not buffer recidivism directly, it may have had an indirect influence given its relationship with cultural engagement. The findings of the study emphasize the importance of culture for Indigenous people in custody and a greater need for correctional institutions to accommodate Indigenous cultural considerations.
Such a finding raises a serious question that if culture is intrinsically violent in nature, then why does cultural engagement correlate with non-recidivism?
This is by no means the end of the matter, but hopefully has been useful to provide readers with counter-research and arguments to consider. For those interested, the sources used in this article are listed below.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5525355/
https://aifs.gov.au/cfca/publications/child-abuse-and-family-violence-aboriginal-communities/causal-factors-family-violence
https://aic.gov.au/publications/tandi/tandi405
https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1415/Quick_Guides/DVinAust
Cripps and Taylor. (2009). White man’s law, traditional law, bullshit law: customary marriage revisited. Balayi: Culture, law, and colonialism.