White Man\u27s Law, Traditional Law, Bullshit Law: Customary marriage revisited

Contemporary portrayals of Indigenous family and kinship relationships in mainstream Western culture continue to locate and assign stereotypes about Indigenous male and female roles as promulgated by early anthropologists. Many of these stereotypes were formulated in the earliest days of British settlement of Australia. Indeed, one of the first challenges that confronted Aboriginal people concerned European beliefs not only in their own superiority as a ‘race’, but in the superiority of men over women and children. These beliefs reflected values in the period of first contact and had a lasting impact on the position and functioning of the role of Aboriginal men and women, with particularly devastating consequences on the ways in which Indigenous women and children were treated. Many writers of the day documented observing clear distinctions in how Aboriginal men and women behaved and related to each other. They interpreted these distinctions as Aboriginal men treating their women as slaves and extrapolated that this kind of treatment was what women accepted and expected in their relationships with men. Sufficient evidence now exists that contradicts such assertions, describing them as “ethnocentric judgements” and “a confusion of half-truths and distortions based upon ignorance”. The Australian anthropologist Catherine Berndt, has further argued that early reports by Calvert and Curr for example, were guilty of myth making and obscured accurate perceptions of the ‘real’ status of Aboriginal women to such a degree that their past roles in Indigenous communities are now barely recognisable. The role of this paper is not to prove or disprove how Indigenous men and women related to each other in classical times. We are more concerned with the complexities involved in the contemporary experience of family violence in Indigenous communities and indeed the sexual assault of Aboriginal girls under the guise of “customary marriage”. This paper sheds light on some of these complexities particularly where customary law and the western legal system interface