33

Domestic Violence inIndigenous Communities: by Alex Newton

Competing Explanations and Criticisms

The prevalence of domestic violence inIndigenous communities is an extremely complex phenomenon. This essay will

briefly examine alcohol, colonisation, tradition and race as independent causes of such violence, though it is necessary to recognise that these causes are not generally mutually exclusive.While the violence has largely remain within Indigenous communities, it is vital to understand it within the inter-cultural context, with reference to customary law and the Indigenous history of Australia.1 It must also be noted from the outset that, whilst the problem will be considered within the parameters of these four causes, these are not to be taken as conclusive or definitive and the existence of additional explanations is recognised.

Prevalence

It is important to first highlight the scope of the problem so as to situate these explanations in their proper context. In their report on Indigenous violence, the Aboriginal and Torres Strait Islander Women's Task Force found that The increasing injuries and fatalities as a result of interpersonal violence have risen to levels which not only impair life but also threaten the continued exis­tence of Australian Indigenous peoples'.2 Recent statistic show that Aboriginal women are 45 times more likely to be a victim of domestic violence than non-Aboriginal women.3 Police statistics reveal that Indigenous women were vastly over­represented, accounting for just under half of all victims of domestic violence.4 There is also evi­dence that in some areas of Queensland, one in three Aboriginal women are killed at the hands of their husbands.5 Violence has been normalised in certain communities to such an extent that Aboriginal women have commented, 'It's part of being black isn't it?'6

In a report on Aboriginal women and violence, Bolger underlined the extent of the problem by contrasting it with the number of Indigenous deaths in custody:7

'When the number of Aboriginal people dying in cus­tody was brought to public attention it caused such

consternation that the Royal Commission was set up, and rightly so. Yet the fact that Aboriginal women particularly suffer far greater violence in their own communities and are much more likely to be killed and injured in and around their own homes has caused no similar public outrage.'

Alcohol

The most frequently offered explanation for domestic violence in Indigenous communities is excessive alcohol consumption. However, this is unsatisfactory as there are examples of alcohol- free Indigenous communities where violence occurs, and Indigenous people who drink alcohol but are not violent. Further, this explanation is problematic as it mirrors certain Indigenous con­structions of 'drunkenness' which deny personal responsibility and accountability for behaviour occurring while intoxicated.8 By identifying alco­hol and violence as impositions of white society and "tools used in our own subjugation by the colonial invaders",9 responsibility for spousal assault is shifted, away from individual perpetra­tors to the inter-cultural domain. Accordingly, an approach that locates liability for Indigenous domestic violence solely within the non­Aboriginal realm, oversimplifies the dynamic and intersectional nature of the problem.

However, the assertion of the significance of indi­vidual responsibility for domestic violence pre­cipitated by alcohol abuse, in no way disputes the role of the (largely) non-Aboriginal State in exac­erbating its impact. For example, the historical association of drinking rights with equality and citizenship10 has recently been reaffirmed by the decriminalisation of public drunkenness. The like­ly effect of this is to place Aboriginal women under even greater threat of domestic violence.11 Further, the courts' preparedness to take into account alcohol abuse as a 'mitigating' circum­stance has perpetuated Aboriginal women s vic­timisation. In this vein it has been stated, "the law for drunken driving is hard - you lose your license or go to jail. Why is the law for bashing a woman easy? Alcohol isn't an excuse for drunken driving, why is it for killing a wife?"12

December 2002* 13 (1) Polemic

34 Domestic Violence in Indigenous Communities A Newton

Colonisation

As Atkinson and Wilson13 have commented, vio­lence in Indigenous communities needs to be understood within the context of colonisation, the dispossession of land, cultural assimilation and the removal of Aboriginal children from their families.14 Recent research indicates that Indigenous communities established within removal centres or missions are worst affected by violence.15 Commissioner Hal Wootten stated during the Royal Commission into Aboriginal Deaths in Custody (RCIADIC): "It would be diffi­cult to find an Aboriginal person above the age of thirty who had not had some experience of State intervention".16 Consequently, it has also been suggested thatincreased domestic violence in Indigenous communities can be directly attrib­uted to the influence from non-Aboriginal society.17 However, in accepting this explanation, two disparate approaches demand closer investi­gation.

The first presupposes that domestic violence is the result of the differential effects of colonisation on Aboriginal men and women. It is suggested that colonisation, in particular the annexation of land and subsequent cultural breakdown, impact­ed upon and undermined men's traditional roles and self-esteem to a greater extent than it affected women. It is contended that women "were better off since their mothering role was left intact, leav­ing them with a source of pride".18 Hunter fur­ther points out that "traditional and transitional male roles have been compromised, with the domestic economy privileging women who more easily conform to an ideal welfare identity".19 Spousal violence is thus conceptualised as a func­tion of the discrepancy between the suffering of Aboriginal men and women during colonisation. This theory predicates that Indigenous men resort to violence against women to redress the balance existing there.

This approach overlooks the horrendous brutali­sation and victimisation of Aboriginal women at the hands of white colonisers. The abduction, rape, sexual exploitation, murder and forced labour of Indigenous women have been well doc­umented and should not be understated.20 Further, the continued disadvantage of Aboriginal women, economically, socially, legally and politically, is in no way eclipsed by that of men. Accordingly, the theory that domestic vio­lence has resulted from the asymmetrical effects of colonisation on Indigenous men and women, as an attempt by Indigenous men to redress the power balance, lacks cogency and should be rejected.

A second, more plausible basis on which coloni­sation has been framed as a cause of domestic violence, is in terms of the broader breakdown of the social structure across the sexes. Emphasising the cyclic nature of such violence, Atkinson underlines the extent to which violence is trans­mitted through social and cultural processes so that it becomes accepted as normative.21 Thus the dysfunctional nature of the interaction of many Indigenous people with the dominant Anglo- Australian culture, commencing with colonisa­tion, has built on itself, reinforcing violent behav­iour by its repetition. Ultimately, tension remains between the recognition of Indigenous behaviour as determined by the violence of the State and acknowledgement of the offender's individual responsibility for domestic violence.

Tradition and violence

Domestic violence in Aboriginal communities has been explained in terms of tradition. However, close consideration reveals that the two explana­tions regarding Indigenous tradition are highly questionable. Firstly, it has been asserted that the extraordinary prevalence of spousal assault in Indigenous communities is explained by the sub­ordination of women in Indigenous culture which sanctions such behaviour. Kahn has argued that the battering of women in a modern Aboriginal community had its origins in tribal traditions.22 Also, it is significant to note that this conception is often shared by the police23 as a result of their extensive empirical experience of gratuitous vio­lence against women.

Several cases illustrate the degree to which the courts have endorsed and perpetuated this expla­nation of violence against women. In R v Dennis Narjic,24 a man's defence to the brutal assault of his wife, sustained over many years, was that in his community, "it is the custom...for whatever reason, that wives are assaulted by their hus­bands". While finding him guilty of the charge, the judge concluded that, "you appear to be a man of good character" and "you seem to have a good marriage" 25 In a related vein, the judge in R v Burt Lane, Ronald Hunt and Reggie Smith affirmed the view of women as inferior in Aboriginal tradition.26 His Honour stated, "There is evidence before me, which I accept, that rape is not considered as seriously in Aboriginal commu­nities as it is in the white community". In Police v Wurramurra, the community's perceived accept­ance of "violent disciplining of disobedient wives", was held to justify the award of a lighter than normal sentence.27

This view of Aboriginal women's traditional sub­ordination, as the basis upon which domestic vio-

Polemic 13 (1) • December 2002

A Newton Domestic Violence in Indigenous Communities 35

^ In R v Dennis Narjic, a man’s defence to the brutal assault of his wife, sustained over many years, was that in his community, 'it is the

custom...for whatever reason, that wives are assaulted by their hus­bands’. While finding him guilty of the charge, the judge concluded that, 'you appear to be a man of good character’ and 'you seem to

have a good marriage’.lence has been rationalised, is unconvincing. Traditionally, women supplied 80% of the com­munity's food, were consulted on matters con­cerning the clan, had responsibility for the enforcement of certain laws, possessed their own ceremonies and sacred knowledge and deter­mined numerous issues associated with marriage.28 In this way, the privileged position of women in traditional Indigenous society differs significantly from that of European women at the time of colonisation whose roles were tightly con­strained within patriarchal structures.29 A more accurate interpretation reveals that, to the extent that spousal assault today can be attributed to women's subjugation, such "sexist oppression by men started when the white invaders arrived"30 and not before.

A related but distinct approach has attempted to explain domestic violence as punishment under customary law. From the outset, it is necessary to recognise the difficulties arising from the uncer­tainty of the concept of customary law. The divid­ing line between what constitutes traditional as compared to non-traditional violence is fluid. There is a great deal of scope for abuse of custom­ary law to sanction illegitimate behaviour. In this vein, critics such as Bolger31 have attested to Indigenous men's tendency to manipulate the law and tailor it to their needs, "working the law 'two ways', invoking either traditional or white law to suit themselves and distorting traditional law in the process".

In addition to the flexibility inherent in custom­ary law itself, its applicability to contemporary Indigenous communities, as an explanation of domestic violence, is also problematic. As men­tioned above, the problem of Aboriginal domestic violence is universal across class, socio-economic status and demography. It impacts non-tradition­al, urban Aborigines, in addition to those in more traditional settings. Consequentially, this explana­tion for domestic violence as a part of customary law is fundamentally flawed. The assertion by Aboriginal women in the Northern Territory is that they are being subjected to three types of law, "white man's law, traditional law and bull­shit law",32 the latter being a distortion of cus­tomary law used to justify domestic violence.

Race and gender

A fourth explanation suggests that domestic vio­lence in Indigenous communities is a function of race, as much as gender. It is necessary to first outline the limitations of certain feminist explana­tions on this issue. Critiquing "male violence against women...within a framework of asym­metrical power relations based on gender",33 often fails to recognise that "the nature and extent of woman battering is uniquely different for White and Black women and these differences are the result of race and social class".34 Accordingly, Catherine MacKinnon's approach35 has been vehemently criticised36 for neglecting to include issues of race into her theoretical framework. Viewing women as a unitary whole with a collec­tive history of shared victimisation, "such that each woman, in her way, is all women",37 relies on the primacy of gender. Beyond this, individual differences are isolated and subordinated in importance. This directly contradicts the experi­ence of Indigenous and minority women for whom gender and race are inextricably linked as causal elements in their oppression.

Applied specifically to the situation of Indigenous women in Australia, it is unequivocal that "their oppression by gender has been compounded by their oppression by race".38 Accordingly, an explanation of domestic violence, as a function of race as well as gender, will be examined from the perspective of both the initial causes of violence, and its perpetuation.

It is clear that white men's racist attitudes towards Aboriginal women have been instrumen­tal in inculcating similar attitudes in Aboriginal men. As Atkinson has argued, "All too often white male racist and sexist attitudes are con­tained in the arguments presented, and accepted, in court. The tragedy is that some of our men are now starting to believe such garbage".39 Further, it is significant to note that the justification of spousal assault on the basis of notions of Aboriginal women's inferiority, similarly, is the result of stereotypical, patriarchal assumptions imposed on Indigenous communities after coloni­sation.

December 2002• 13 (1) Polemic

36 Domestic Violence in Indigenous Communities A Newton

In addition to being causally related to domestic violence, racism, as manifested in the police and criminal justice systems, has been integral in its continuation. In reference to police responses to Indigenous women's reports of domestic assault, it has been stated, "they either do nothing or rape you themselves".40 This kind of reaction stands in stark contrast to police treatment of similar reports by white women and constitutes a second source of victimisation for Aboriginal women. Accordingly, since "reporting an assault some­times seems to be just as traumatic as the actual assault",41 the system is complicit in the mainte­nance of such violence.

Further, the judiciary tends to award lighter sen­tences than those normally given under the crimi­nal law in cases of Aboriginal domestic violence and has taken into account the 'mitigating' circum­stances experienced by Indigenous men, such as alcohol abuse, dispossession and poverty.42 Justice Vincent has conceded that the judiciary shares the prej­udices and ignorance of the community,« such that "when dealing with violence against Aboriginal women, preconceptions about Aboriginal culture and tradi­tions may influence the course of justice".44

Solutions

Turning to consider alternative approaches to dealing with domestic violence in Indigenous communities, the extent to which various inter­vention strategies have the potential to actually compound the problem, rather than ameliorate it, becomes apparent. This issue will be examined from the competing perspectives of Aboriginal and non-Aboriginal approaches. Accordingly, the validity and efficacy of Aboriginal self-determina­tion is problematic due to the inter-cultural nature of the problem for which responsibility must be shared.

Drawing a direct link between "community and individual empowerment, self-determination, and the reduction of violence against women",45 it has been argued that the problem of domestic vio­lence in Indigenous communities needs to be addressed by Aboriginal people in a purely Aboriginal way.46 The RCIADIC emphasised self­determination as imperative. Commissioner Johnston stated, "It is clear that Aboriginal people must be permitted to find their own solutions... If

there is one lesson we can learn from history, it is that solutions imposed from outside will only cre­ate their own problems".47 Going further still, some commentators have suggested that this process should be entirely divorced from non­Aboriginal interference and aid, since "almost any 'assistance' can easily become another form of control and disempowerment" 48

To give a more concrete basis to this discussion, it is helpful to briefly mention three examples of ways in which Indigenous people may be permit­ted to apply their own strategies to dealing with the problem of domestic violence. First, the use of circle courts would enable community participa­tion in the sentencing of offenders in a way that is consistent with customary law and Aboriginal principles of restorative justice and reconciliation.

This approach empowers Aboriginals to deal with domestic violence in a way that will not perpetuate white control and oppression which, to a large degree, lie at the problem's roots.

Second, as a legislative framework at the local level through which customary law can be implemented, by­laws would seem to provide a culturally appropriate avenue through which domestic violence might be

addressed by Indigenous communities them­selves. By-laws enable individual communities to determine what constitutes acceptable behaviour, when that standard has been breached and what sanction should be applied,49 according to their own specific customs and needs. This facilitates far greater social control for Aborigines, provid­ing a forum50 in which the community can con­sider and make statements on social issues.

Thirdly, more significant legislative recognition of alternative dispute resolution processes already existing in Aboriginal communities has been pro­posed51 as a way of empowering Indigenous peo­ple to apply their own solutions to dealing with domestic violence. This would arguably enable "the most far-reaching legal recognition of Aboriginal customary law so far in Australia".52

Ultimately, while these illustrations are not exhaustive, investigation has revealed the inade­quacy of these approaches to the issue of domes­tic violence in Aboriginal communities. Moreover, it is possible that, rather than offering solutions, such strategies, have the potential to compound the problem further

^[T]he justification of spousal assault on the basis

of notions of Aboriginal women’s inferiority...is the

result of stereotypical, patriarchal assumptions imposed on Indigenous

communities after coloni­sation. yy

Polemic 13 (1) « December 2002

A Newton Domestic Violence in Indigenous Communities 37

First, despite assertions that the return of legal control to Indigenous communities is integral to redressing problems of domestic violence, it is apparent that, in as far as customary law has been operative in certain communities, it has been inef­fective to protect women from assault. As Marcia Langton's report to the RCIADIC stated, "It is clear...that the appalling level of domestic vio­lence against Aboriginal women is not being addressed by Aboriginal Law."53

The uncertainty surrounding the meaning of the concepts of customary law and self- determination54 is intensely problematic if we are to rely on them as strategies to solve the problem of spousal assault. In addition, the selectivity with which Aboriginal law is applied renders its value as a solution capricious. As has been com­mented, "Aboriginal law inevitably becomes an optional way of living for the new generations who may want to move freely between two worlds".55 Aside from its scope for manipulation by men, customary law also "provides a venue for individual power bases under the guise of self-management".56 That is, by privileging con­sultations with Aboriginal men in determining the meaning of traditional law, the State further disempowers Aboriginal women, recreating the conditions under which domestic violence occurs.

Equally, however, non-Aboriginal approaches to dealing with the issue are problematic and, to a degree, have exacerbated rather than improved the situation. This is not surprising since, "the law has been an instrument in the oppression of Aboriginal people far more than it has been a resource for them".57 By way of example, the pro­arrest and 'no-drop' policies58 followed in Australia, whereby prosecutions continue irre­spective of the victim's decision to withdraw a complaint, stand in direct contrast to Indigenous responses to domestic violence. Preferring to alter violent behaviour and rebuild relationships, rather than to punish, Aboriginal women often seek the assistance of police and women's refuges with the aim of immediate protection in mind only.

Given that the increasing trend in recent domestic violence practice is to place the perceived 'best interests' of victims before their wishes,59 it seems likely that such objectives will be ignored and negated. The probable result is that Aboriginal women will become less and less willing to use a system that does not adequately address the problem or meet their needs. As Carlie Atkinson has observed, "Aboriginal women say that when their men go to jail, they emerge more violent, and their [the women's] voices are ignored. They are given no real option apart from the criminal

justice response and because of this they are hesi­tant to use the legislation to its full intent".60

Whilst it is clear that "as solutions are found in response to one side of a multi-dimensional prob­lem, further problems are often created"61, this does not necessarily mean that the intractable sit­uation of domestic violence in Indigenous com­munities is beyond redress. However, in order to ensure the solution does not become part of the problem, it is imperative that a balance is struck between Aboriginal and non-Aboriginal approaches, since the inter-cultural nature the issue locates responsibility at a point between the two. Bolger has commented that "sharing respon­sibility is different from interfering. The failure of self-determination lies in the type of consultation with Aboriginal people which has veered between denial of responsibility and continuation of control".62

Domestic violence in Indigenous commu­nities is an endemic problem for which there are no simple explanations or panaceas. Rather than being located solely within

the Aboriginal domain, the problem's creation and perpetuation is inextricably linked to the inter-cultural context. Whilst this in no way miti­gates individual responsibility, it frames the offender's behaviour within a broader paradigm.

Endnotes

1. E Hunter, "Images of Violence in Aboriginal Australia" (1990) 2(46) Aboriginal Law Bulletin 13

2. Aboriginal and Torres Strait Islander Women's Task Force on Violence Report, (Brisbane: Queensland Govt, 1999), 45-81, cited in Astbury, Atkinson, Duke, Easteal, Kurrle, Tait and Turner, "The Impact of Domestic Violence on Individuals" (2000) 173(8) Medical Journal of Australia 42

3. J Oberin , "Domestic and Family Violence: The Latest Research" in Out of the Fire: Domestic Violence and Homelessness (Melbourne: Council to Homeless Persons (Vic), 2001) at 25

4. A Ferrante, F Morgan, D Indermaur & R Harding, Measuring the Extent of Domestic Violence (Sydney: Hawkins Press, 1996)

5. J Atkinson, "Stinkin Thinkin'- Alcohol, Violence and Government Responses" (1991) 2(57) Aboriginal Law Bulletin 4

6. Comment made to Pat O'Shane in an interview con­ducted in the preparation of the report for the NSW Task Force on Domestic Violence (1981,102). Cited in A Bolger, Aboriginal Women and Violence: A report for the Criminology Research Counil and the Northern Territory Commissioner of Police, Northern Territory University, 1991, at 4.

7. Ibid at 24.

December 2002# 13 (1) Polemic

(2001) 5(11) Indigenous Lazo Bulletin (Special Issue) 2112. Bolger, above n6 at 8213. Ibid at 44. Wilson states that we need to acknowl­

edge our collective guilt for "all those black deaths that have, directly and indirectly, flowed from our white hands".

14. Atkinson cited in above n3 at 4315. Queensland Criminal Justice Commission (1998),

cited in Memmott, et al, Violence in Indigenous: Full Report to Crime Prevention Branch of the Attorney General's Department, Canberra, Attorney General's Department, 2001, at 14

16. Aborginial Deaths in Custody: Overview of the response by Governments to the Royal Commission (Canberra: Australian Government Publication , 1992) at 64

17. Above n6 at 3.18. Ibid at 44.19. Above nl at 13.20. L Behrendt, "Aboriginal Women and the White Lies

of the Feminist Movement: Implications for Aboriginal Women in Rights Discourse" (1993) 1 Australian Feminist Law Journal 33

21. J Atkinson, 'A Nation is Not Conquered' (1996)3(80) Aboriginal Law Bulletin 5 at 7

22. Kahn (1980). Cited in Bolger, above n6 at 51.23. M Lucashenko, 'Violence Against Indigenous

Women: Public and Private Dimensions', in Cook and Bessant (eds), Women's Encounters with Violence: Australian Experiences (California: Sage Publications, 1997), at 79

24. Supreme Court of the Northern Territory, 1988 at 20-21

25. Ibid at 69.26. Supreme Court of the Northern Territory, 1980 at

99-10027. Unreported, NT Ct of Summary Jurisdiction, Groote

Eylandt, 1977, No GE 439 of 1977. Cited in Randall, 'Domestic Violence' (1995) 20(1) Alternative Law Journal 3.

28. Payne S, 'Aboriginal Women and the Criminal Justice System' (1990) 2(46) Aboriginal Law Bulletin 2 (46) 9

29. Bell D, Daughters of the Dreaming (Melbourne: McPhee, 1993).

30. Above n20 at 3331. Bolger, above n6 [page - maybe 50]32. Above n28 at 10.33. Blagg H, Crisis Intervention in Aboriginal Family

Violence: Summary Report, Perth, University of Western Australia, 2000, at 2.

34. J Joseph, "Woman Battering: A Comparative Analysis of Black and White Women", in Kaufman Kantor and Jasinski, Out of the Darkness- Contemporary Perspectives on Family Violence (California: Sage Publications, 1997) at 163.

35. C MacKinnon, "From Practice to Theory, or What is

39. Above nil at 2040. Above n20 at 3041. Above nil at 2042. Randall, above n27 at 3.43. Vincent J, Victorian Supreme Court. Cited by

Bolger, above n6 at 80.44. Bolger, above n6 at 81.45. E Luna, "Indigenous Women, Domestic Violence

and Self-Determination" (1999) 4(25) Indigenous Law Bulletin 8

46. W Anders, "Walan Jineras- Moving Forward", in Out of the Fire: Domestic Violence and Homelessness, above n3, at 48. See also Randall (n27) and S Gray, "Monsters round the Stomping Ground" (1999)24(5) Alternative Law Journal 216

47. G Airo-Farulla, 'Community policing and self-deter­mination' (1992) 2(54) Aboriginal Law Bulletin 8

48. Gray, above n46 at 219.49. Randall, above n27 at 5.50. Atkinson, above nil.51. Report to the Northern Territory Law Reform

Committee, "Alternative Dispute Resolution in Aboriginal Communities" (1997). Cited in Gray, above n46 at 216

52.Ibid.53. Cited in F Brennan, "Self-Determination: The Limits

of Allowing Aboriginal Communities to Be a Law Unto Themselves" (1993) 16(1) UNSWLJ 245 at 250

54. Ibid at 255.55. Ibid at 25256. Above nil at 2157. Astor cited in Bagshaw, above n8 at 123.58. Above n33 at 759. Ibid.60. Atkinson cited in Bagshaw, above n8 at 12361. Above nil.62. Above n6 at 93.

Polemic 13 (1) • December 2002

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