NORTH QUEENSLAND, Australia (WOMENSENEWS)--A state judge defended an Aboriginal man's right to forcible intercourse with an underage girl as a 40,000-year-old traditional practice and has set off a national debate over the role of culture in practices that deny women autonomy.

A Northern Territory judge ruled in October that a 15-year-old Aboriginal girl "knew what was expected of her" and "didn't need protection" when a 50-year-old man, who was later revealed to have been convicted of slaughtering his former wife, allegedly raped the girl and shot a gun into the air when she complained about it. Expert testimony submitted by an anthropologist in the case called the man's arrangement with the girl "traditional" and therefore "morally correct."

The girl's parents had "promised" her as a wife to the man, Jackie Pascoe Jamilmira, at the girl's birth, in return for a portion of Pascoe's fortnightly government allowance. The girl resisted his advances, so he punched her, "put his foot onto my neck" and raped her, according to her statement to the police. When the girl's family was unable to protect the girl, police took Pascoe, brandishing a shotgun, into custody.

Later, when the girl refused to speak to prosecutors, the judge pressed rape charges against Pascoe anyway. Government-sponsored legal aid lawyers provided Pascoe's defense, netting him a nominal 24-hour-sentence on appeal. Several high-ranking government officials nodded with approval when the appeal judge upheld Pascoe's defense, explaining that while Pascoe knew he had done something wrong in the eyes of Western law, his conduct was "Aboriginal custom" and part of his culture. Women's Rights Advocates Say Tradition Has Long Been Distorted

Aboriginal feminists and anthropologists disagree. They say the real issue is how Aboriginal "tradition" has been distorted to mask the abuses of both Aboriginal men and the white-dominated legal system.

Traditionally, small bands of Aboriginal hunter-gatherers adhered to a strict kinship system that afforded protection, autonomy and respect to girls and women, says anthropologist Diane Bell, who has written several books on Aboriginal women. Young girls in arranged marriages to older men would be protected by overseeing co-wives and a semi-public life in open-air camps, which ensured that relatives would come running, spears in hand, should sounds of violence echo across the desert.

This traditional Aboriginal culture has been "bastardized and brutalized," says Aboriginal professor Judy Atkinson, who has exposed the extent of violence against Aboriginal women in books and government reports. British colonizers arrived on the continent in 1788, unleashing disease, slaughter and merciless programs of forced assimilation. Aboriginals were dispossessed and herded onto densely packed government settlements and missions in a colonization that vanquished the 1 million-strong Aboriginal population to about 60,000 by the 1920s.

To "protect" Aboriginal children from "evil Aboriginal culture," between 1910 and 1970, state authorities took as many as a third of all Aboriginal infants and children from their families, in what is now being referred to as a "stolen" generation. "Rabbit-Proof Fence," a film that opens today in New York and Los Angeles, recounts this period in Australian history.

Poverty Plagues Aboriginal Women
Today, many Aboriginals "live in environments similar to those in the poorest developing countries," according to a government-sponsored task force on violence against Aboriginal women. While non-Aboriginal Australians can expect to live to age 78, the average Aboriginal's life ends at age 53, a yawning disparity greater than that between indigenous and settler populations in North America and New Zealand. Alcoholism and petrol-sniffing are rampant.

Aboriginal women and children are 45 times more likely to be victims of domestic violence than non-Aboriginal women, and eight times more likely to be murdered. As allegations of serial and gang rape swirl around the commissioner of the nation's top Aboriginal government agency, the epidemic of violence against Aboriginal women has emerged as a national crisis.

"We will, in the end, have destroyed ourselves if we do not put a stop to family violence now," said indigenous leader Jackie Huggins at a recent conference on domestic violence.

Functioning Aboriginal communities practice a complex system of community justice, with women as law-keepers and men as law-enforcers, enjoined to protect the young, anthropologists say. But today, many Aboriginal people "feel powerless to intervene in their own communities," says Atkinson. At the same time, "there is enormous pressure on Aboriginal women and children not to go to the police, not to report to the authorities," says Dr. Harry Blagg, an expert on Aboriginals and the criminal justice system.

The government's legal-aid services to Aboriginals protect defendants, not victims, thus producing "a body of case law with a rather spurious understanding all skewed toward men's perspectives," adds Bell.

And official neglect apparently continues because of the sense, validated yet again in the Pascoe case, that Aboriginal men's rapes and beatings of Aboriginal women and girls are "traditional culture" that whites do well to ignore. Survivors' accounts of law enforcement officials laughing off reports of violent Aboriginal homes abound. In one community, police officers openly told Atkinson that they would do nothing about the rape of a 5-year-old Aboriginal girl. "They said: 'That is cultural behavior,'" she recalls.

Calling aberrant, misogynist behavior such as Pascoe's traditional "pathologize[s] our cultures," says Atkinson.

"We are living in a war zone in Aboriginal communities. Different behaviors come out of that," she says. "Yet the courts of law validate that behavior."

Sonia Shah is a freelance journalist based in North Queensland, Australia. She is editor of Dragon Ladies: Asian American Feminists Breathe Fire.

The Aboriginal and Torres Strait Islander Women's Task Force on Violence Report, State of Queensland, 1999: - http://www.indigenous.qld.gov.au/PDF/thenextstep/V_Report.pdf

Australian Domestic and Family Violence Clearinghouse: - http://www.austdvclearinghouse.unsw.edu.au

Australian Human Rights and Equal Opportunity Commission's Aboriginal and Torres Strait Islander Social Justice: - http://www.hreoc.gov.au/social_justice/index.html