Which cultural practices should we leave alone?

A NORTHERN Territory Supreme Court judge has reluctantly sentenced a
50-year-old tribal Aboriginal man to 24 hours in prison for having
unlawful intercourse with his promised 15-year-old wife, saying the
matter should never have come to court.
Justice John Gallop said Jackie Pascoe Jamilmira was exercising his
conjugal rights in traditional society and the girl "knew what was
expected of her".

Since the girl's birth in 1986, Pascoe had been paying off her parents
with gifts – spears, food and more recently cash – so she would be
handed to him upon her coming of age.

As the girl's family was concerned she was playing up at nights with
local boys in her hometown of Maningrida in western Arnhem Land, they
decided it was time for the promise to be fulfilled, and for her to
learn her duties and responsibilities as a wife.

The girl was taken to Pascoe's outstation, Gamurru-Guyurra, 120km east
of Maningrida. In a perfunctory consummation of their relationship on
August 20 last year in the middle of the day, Pascoe took her into his
house and told her to take off her clothes. They then had sex.

The next day some family members from Maningrida dropped in to see how
the girl was going. She was unhappy and tried to go home with them.
Pascoe, who had been convicted in 1995 for the manslaughter of his
former wife, produced a 12-gauge shotgun and fired it once in the air.
The girl stayed with Pascoe while the friends alerted the police.

Police then visited the outstation and charged Pascoe with having
unlawful inter-course with a female under 16, and with discharging a
firearm.

When asked why he had sex with a 15-year-old, Pascoe told police: "She
is my promised wife. I have rights to touch her body." Asked if he
knew he had committed an offence, he said: "Yes, I know. It's called
carnal knowledge, but its Aboriginal custom – my culture."

In March, Pascoe appeared before magistrate Vince Luppino, who
sentenced him to 13 months' jail on the sex count and two months for
firearm offences.

During sentencing, Mr Luppino said there was an element of compulsion
for the girl to go into the relationship, that the law had a duty to
protect underage girls from older men and that he had to deter
Aboriginal communities from engaging in the promising of under-age
wives.

There was an immediate appeal and Pascoe was bailed.

North Australian Aboriginal Legal Aid principal lawyer Gerard Bryant
yesterday argued that Mr Luppino had treated the trial as a rape case
and failed to give weight to the fact that such marriages were common
and morally correct under Aboriginal law.

Justice Gallop agreed, saying Mr Luppino "went outside the agreed
facts" when sentencing Pascoe.

The judge read a submission by anthropologist Geoffrey Bagshaw, who
said age was not a factor in determining when a family sent a girl to
a promised husband – what mattered was that they'd had their first
period. Mr Bagshaw said that sexual relations between a promised wife
under the age of 16 was "not considered aberrant in (Arnhem Land)
society".

Mr Bryant said there was a clear clash of cultures and that Pascoe was
humiliated at having to explain his tribal rights to the white law.

Justice Gallop said the case would never have come to the attention of
police if Pascoe had not lost his cool and fired the shotgun.

"She didn't need protection (from white law)," said the judge. "She
knew what was expected of her. It's very surprising to me (Pascoe) was
charged at all."

Justice Gallop allowed the appeal and radically slashed Pascoe's
sentences. But because the Northern Territory still had mandatory
sentencing for sexual assault, the judge had to jail Pascoe. He set a
term of 24 hours.

For discharging the shotgun, which the judge considered more serious,
Pascoe received 14 days

It seems we need to look at the general question first. Why should
aboriginal law be subjected to australian law, if the same can not be done
in reverse. Which law is supreme?
But if we are going to uphold an "international morality" It seems
slavery would be one such act to be undone. It seems the holding by force of
one person by another with force should not be tolerated. But this is our
standard. The treatment of the earth they might as offenise to their
morality and will. The abolishment of such "ownership" if abolished might
undermine the whole society which could be based on well establlish
seperation of duties. Still I will thing that the change should be done
within the tribal laws as opposed to enforcement without, otherwise does not
their culture become a "slave" to ours. i would appreciate other chiming in
on this one.

John Starrett wrote:

>
>
>
> Your use of Yahoo! Groups is subject to http://docs.yahoo.com/info/terms/

-- -Kraig Grady
North American Embassy of Anaphoria Island
http://www.anaphoria.com
The Wandering Medicine Show
KXLU 88.9 FM 8-9PM PST

--- In metatuning@y..., Kraig Grady <kraiggrady@a...> wrote:
> It seems we need to look at the general question first. Why should
> aboriginal law be subjected to australian law, if the same can not be done
> in reverse. Which law is supreme?
> But if we are going to uphold an "international morality" It seems
> slavery would be one such act to be undone. It seems the holding by force of
> one person by another with force should not be tolerated. But this is our
> standard. The treatment of the earth they might as offenise to their
> morality and will. The abolishment of such "ownership" if abolished might
> undermine the whole society which could be based on well establlish
> seperation of duties. Still I will thing that the change should be done
> within the tribal laws as opposed to enforcement without, otherwise does not
> their culture become a "slave" to ours. i would appreciate other chiming in
> on this one.
<snip>

It is a very difficult question. Thanks for your perspective.

John Starrett
> The Wandering Medicine Show
> KXLU 88.9 FM 8-9PM PST