Child sexual abuse, the law, and ‘culture’
News Limited sources recently ran a story about a new case involving Judge Sarah Bradley, a Queensland judge who became the centre of a furore after not imposing gaol terms on nine indigenous youths who gang raped a 10-year-old girl in their community in Cape York. In this new case, she has allowed a teacher accused of sexually abusing a child time to gather evidence that he was enacting local cultural norms. The story is interesting in a number of ways, not the least in terms of how ‘culture’ can be deployed in legal settings, and where judges may appear to be more ‘culturally sensitive’ and culturally relativist than members of the communities in question.
In this case, an anthropologist from James Cook University has apparently been called in to write a report on the authenticity of the claim about the cultural legitimacy of the act. It would be interesting to know what s/he has to say. I would particularly like to know what the response to the question of whether the practice of oral sex between men and boys is a ‘part of’ the culture in question. From my reading of the article, there are a number of problematic issues arising from the way the issue is being constructed, particularly about the sorts of assumptions being made about the nature of culture.
For example, in a fascinating detail, although the accused was not raised in a ‘traditional’ manner, his lawyer argues that he was ‘imbued’ with the culture, presumably simply by living and working in the area. Culture as contagion, I suppose. It also seems to ignore the holistic premises of an anthropological understanding of culture, which require that we consider an act not in isolation, but within the context of wider institutions, beliefs and practices. To simply ask whether the performance of oral sex between men and boys in a particular community is a ‘part of the culture’ decontextualises the act. It assumes that if an act can be found ‘in a culture’ then the act is therefore ‘cultural’, regardless of the context in which it occurs. This would appear to be a particularly erroneous position to take with regard to ‘mens’ business’ rite of passage type acts. If they are occurring in secret, isolated from the political institution they participate in — the production of initiated men — then it would be very problematic to my mind to ascribe them with cultural authenticity. Making use of the fundamental anthropological notion that culture is both shared and practised, I would also be putting more emphasis on the opinions of members of the community about the legitimacy of the act, than on an anthropologist’s opinion about an abstracted and therefore reified culture. Sorry, anthropologists!
Ironic, really, that an anthropological insight serves to delegitimise anthropological knowledge. However, this legal prediliction to treat anthropologists as experts on a particular ‘culture’, understood to be a sort of archive — a relatively stable, bounded and possessing a traditional and authentic form that can be catalogued — actually puts anthropologists at odds with their own understandings about culture and how it works. If anthropologists are to be experts on cases such as these, I think it should be as much to consider and critique the manner in which culture is being deployed in the courts as to act as curators of a cultural archive.
The full text of the article follows.
Gang-rape judge in child sex furore
By Padraic Murphy, Natasha Robinson and Tony Koch
February 15, 2008
Article from: The Australian
THE north Queensland judge who last year allowed nine child rapists to go free has given a teacher, who has admitted forcing an indigenous 11-year-old boy to perform oral sex on him, time to gather evidence that he was educating his victim in “men’s business”.
James Last, a Sydney-educated teacher who recently worked in Northern Territory communities, last week pleaded guilty in Cairns before District Court judge Sarah Bradley to seven counts of indecently dealing with an 11-year-old boy over a four-month period in 1983.
But Judge Bradley has granted a three-month adjournment to allow Last, who claims he received no sexual gratification from the assaults, to allow his lawyers to find an anthropologist to support his claim that he had been trying to introduce the Torres Strait boy to “traditional” islander sexual practices.
Judge Bradley granted the adjournment despite the prosecution pointing out that it had two witnesses – “respected elders” from the boy’s home island – ready to debunk the claim that such practices were part of “men’s business”.
The adjournment has outraged indigenous leaders, who have already called for Judge Bradley’s sacking after she failed last year to jail nine males for the gang rape of a 10-year-old girl in the Cape York community of Aurukun.
Last, now 61 and living in Darwin, took the 11-year-old boy from his family on Saibai Island in the Torres Strait in 1983, promising to educate him in Cairns.
But Last, who was 37 at the time of the offences, repeatedly sexually abused the boy, at one point saying: “I’ve sucked you, now it’s your turn.”
Last said yesterday he had taken the “self-sacrificial” step of pleading guilty to the charges to spare the boy, who he loved, a trial. He said Aboriginal elders in the Torres Strait had “entrusted” the boy to him, and he was tutored by the elders in “men’s business”.
“I’m saying that certain things are not abuse and they never were in the traditional culture,” he said. “A lot of it is men’s business and that’s why, I think very wisely, Aboriginal islander people have said men’s business is men’s business. They say, ‘You don’t tell the white fella what he can’t understand’.”
Prosecutor Skye Growden told the court Last had told the victim the abuse was a part of traditional culture. “The defendant told the victim that this was traditional and that older men did this to young men when they loved them and he believed him,” she said. “The complainant says in his statement that the arresting officer in this matter was the first person that he told because he was ashamed about the offences and worried what people would say if they found out.”
Ms Growden told the court that although Last had a part-Aboriginal father, he was not raised in a traditional manner and that he should receive a custodial sentence to send a clear message to the community.
“It is stated in the defence material that he was born in Sydney where he was educated to grade 12. He then went on to receive a scholarship and teach in Wollongong and undertake postgraduate studies,” she said.
“He has gone on to have an illustrious and distinguished career. He is an educated man, using what he claims to be part of Papua New Guinea and Torres Strait Islander culture, that is, men’s business, to explain away his offending behaviour. I have been instructed that this is not part of the culture.”
But Judge Bradley rejected calls for an immediate custodial sentence, allowing Last’s lawyers to gather evidence that he had been abusing the boy as some kind of rite of passage.
“What we’ve got here is a plea in mitigation on the basis that the defendant genuinely believed that what he was doing was culturally appropriate and that he had that excuse for it,” Judge Bradley said on February 6. “I appreciate he’s pleaded guilty but the prosecution is not accepting that, so we’ll need some evidence. Clearly, it’s got a significant impact on penalty.”
The following day, Judge Bradley adjourned the case until May 15 to allow lawyers to ask an anthropologist from James Cook University, which is based in Townsville, to write a report on whether child sexual abuse was an accepted part of Saibai islander culture. “It’s clearly a live issue, and it’s clearly an issue that’s relevant to penalty, so I need to give the defence that opportunity,” she said.
Judge Bradley’s decision to consider the anthropology report was made after Ms Growden said it was “the Crown’s submission that an adjournment is not necessary unless you’re rejecting the submissions that I made yesterday, which were based on decisions of the High Court and the Court of Appeal. I do have two people – two elders from Saibai Island – that are on standby this morning, but can give evidence that it’s not part of men’s business at Saibai Island.”
In earlier submissions, Last’s counsel Kevin McCreanor said his client had become “imbued” with indigenous culture.
He said Last told police when interviewed about the allegations that an elder on Saibai Island had told him cultural secrets.
Mr McCreanor said the interviewing police officer told Last that in his investigations in the Torres Strait he, too, had heard that boys’ first sexual experiences were “with an older male of their tribe to teach them about his body and things like that”.
But Ms Growden, a former associate to Judge Bradley, later said that statement was “a tactic” of the interviewing police.
Mr McCreanor said Last told police: “Those things were told to me as well, but I was encouraged because of the incapacity of most people to understand, and the derision that flowed back on to so-called primitive people, not to talk about these things.”
Judge Bradley said it was up to Last to supply evidence to support his contention that his actions were “culturally appropriate”.
Late last year, Judge Bradley had refused to impose jail terms on nine youths and men who gang-raped a 10-year-old intellectually impaired girl on Aurukun community, on western Cape York.
The Court of Appeal in Brisbane on Wednesday ruled that the Crown would be given an extended time to appeal against those sentences.
Many thanks to Kirsten Bell, former lecturer at Macquarie, for alerting me to this article.