Ten year old girl suffers human rights violations

11 December 2007, 09:51AM

This case highlights a need to ensure all legal personnel, including prosecutors and judges, are properly trained to treat violence against women and girls as grave human rights violations . Amnesty International Australia has been campaigning for a National Plan of Action. The new federal government have committed to a National Plan - let's hope we see a national strategy for training of all legal personnel and a commitment to ensure the human rights of girls in Indigenous communities are protected. The commitment to review all such cases in this jurisdiction is an important step.

Following is one of the best opinion pieces written on this case. Hannah McGlade and Kylie Cripps approach the case from a human rights perspective and provide analysis and recommendations.

THE decision by Queensland District Court judge Sarah Bradley not to jail six juveniles and three men who had pleaded guilty to the horrific gang rape of a 10-year-old girl at the Aurukun indigenous community on Cape York raises fundamental questions about the judicial process, the treatment of Aboriginal children, and human rights issues, write Kyllie Cripps and Hannah McGlade.

It is a clear signal that, once again, Aboriginal women and girls are denied formal equality and protection through the criminal justice system.

Marcia Langton, the University of Melbourne's chairwoman of Australian indigenous studies, is right that it's time for women and children to be heard and that governments should quit playing politics with the lives of Aboriginal children, the most vulnerable members of our community.

The response by the Queensland Government to appeal against the decision, stand down the crown prosecutor and initiate a review of other sexual assault cases on Cape York indicates that it is now considering the safety of Aboriginal children who are being victimised.

Aboriginal children, like all other children, are protected by the UN Convention on the Rights of the Child.

Under the convention, states are required to protect children from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse.

In this case, the state failed to protect this child, instead returning her to the community where she was raped at age seven and again violated at 10.

For more than a decade, child-focused services across the country have been highlighted as being in desperate need. How will governments address that need for this girl and others in similar predicaments during the long term?

All the defendants pleaded guilty to rape and the defence counsels pleas of mitigation resulted in the voice of the victim and her family being relegated to the periphery. The judge's extremely offensive comments on the issue of consent are contrary to the Queenslands Criminal Code that defines consent as including cognitive capacity and that it must be given freely and voluntarily without force, threat, intimidation or fear of bodily harm. Most important, the code provides that a child under 12 cannot give consent under any circumstances.

Queensland Attorney-General Kerry Shine has acknowledged that a child under 12 does not have the cognitive capacity to give any consent. Thus the focus on consent is centrally flawed and the appeal is warranted. The Criminal Code also provides any person who engages in "unlawful carnal knowledge of girl under 12" may be liable to a term of life imprisonment.

The decision by the judge to sentence the three men to six months' imprisonment, with the sentence suspended for 12 months, and to place the six teenage juveniles on a 12-month probation order, without a conviction recorded, minimised completely the gravity of the offence and the long-term effects of the offence on the victim and her family.

By failing to send a clear message that this was not acceptable conduct, the judge also jeopardised the safety of other children in the community. The issue of rehabilitation and community safety were completely ignored.

Without intervention, the likelihood of nine males reoffending is high.

What has become apparent is the systemic failures and neglect this child has experienced at the hands of the Queensland child protection system. This system jeopardised her safety through decisions based on ignorance, distorted perceptions and political correctness gone mad.

Many children of the stolen generations experienced sexual abuse at the hands of non-indigenous carers. According to the non-indigenous child protection staff involved in the Aurukun case, that history somehow means that now Aboriginal children must be kept in Aboriginal communities at any costs. The reality of child sexual assault is irrelevant and subverted to a mindset that fails to recognise that the best interests of the child must mean their immediate safety comes first.

Langtons comments are timely. She argues that there has been "a metaphorical dagger sunk into the heart of the powerful, wrong-headed Aboriginal male ideology that had prevailed in indigenous affairs, policies and practices". We believe this ideology has protected Aboriginal perpetrators, who must be held accountable for the grave harm and human rights abuses they are inflicting on successive generations of Aboriginal children. Prime Minister Kevin Rudd has expressed in no uncertain terms zero tolerance of sexual violence to Aboriginal children.

Other leaders must do likewise. The time for politics and political correctness is over; the silencing of Aboriginal women and children must end.

Kyllie Cripps is an indigenous postdoctoral research fellow at the Onemda VicHealth Koori health unit at the University of Melbourne. Hannah McGlade, a human rights lawyer, is an advocate for Aboriginal victims of sexual assault.

Published in The Australian on-line blog

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