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Aborigine insists tribal law gives right to underage sex

By Kathy Marks in Sydney

22 February 2003 - The place of tribal law in Australia’s legal system will be reviewed after a 50-year-old Aboriginal man argued that tradition gave him the right to have sex with a 15-year-old girl.

Jackie Pascoe Jamilmira, who lives in an isolated community in the Northern Territory, was given a 13-month jail sentence for having unlawful sexual intercourse with the girl, but had the sentence reduced to one day after an appeal. The girl, who had been “promised” to him in marriage by her family, initially alleged that he beat her and raped her. He was convicted of the lesser offence after she subsequently declined to co-operate with prosecutors.

At an appeal, Pascoe persuaded the Supreme Court to cut the sentence to 24 hours, claiming he had been exercising his conjugal rights under an arrangement that had been part of Aboriginal custom for centuries. The judge, John Gallop, agreed, saying the girl “knew what was expected of her” and did not need the protection of white law.

In traditional Aboriginal societies, girls are often “promised” to older men in exchange for dowry payments. Pascoe, once jailed for three years for the manslaughter of a former wife, had been paying the girl’s parents fortnightly since she was a baby. The system is condemned by critics, including some indigenous leaders, as exploitative.

The Director of Public Prosecutions plans to appeal against Pascoe’s reduced sentence, while the Northern Territory government has ordered a review of the role of tribal law, which permits sex with minors and rape within marriage.

One local politician, Loraine Braham, an Independent MP, has drafted a private member’s bill that would prevent courts from accepting tribal law as a mitigating factor. “Who has the greater rights, the child or the male?” she said. “Whose rights should we be protecting? Obviously we are signatories to the [UN] Convention on the Rights of the Child, so that should take precedence.”

Pascoe’s wife-to-be claimed that she was repeatedly punched and slapped by him after he “took delivery” of her last August. She told police that he threw her on to a mattress and raped her. When her family arrived the next day to inquire about her welfare, the frightened girl tried to leave with them. Pascoe fired a shotgun in the air and forced her to stay. The girl is now in hiding.

Gerard Bryant, Pascoe’s lawyer, said: “The behaviour complained of by the white community is not recognised in this [Aboriginal] community as unlawful conduct. Rather it is viewed as appropriate and morally correct.”

While most Aboriginal leaders respect traditional law, many recognise that it is used as an excuse by men who inflict violence on women and children. John Ah Kit, the Northern Territory’s Minister for Aboriginal Affairs, told parliament that the legal system had “failed in its humanitarian responsibility for the protection of children” in the Pascoe case.

Source: The Independent

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