Indigenous Law Bulletin
by Josephine Cashman
Tragically, child sexual assault (‘CSA’) is prevalent in Australian society; whether more so in Indigenous communities is hard to ascertain. What seems clear, however, is that CSA is chronically under-reported in these communities and that prosecution levels are low. This article will examine the prevalence of CSA in Indigenous communities and the effects of such abuse on the victims. It will discuss the possible reasons for the low rates of reporting of this issue as well as the actions taken by the Federal Government in response.
CSA is defined as any act that exposes a child to sexual processes beyond his or her understanding or contrary to accepted community standards. Legislation in New South Wales (‘NSW’) permits authorities to remove children from situations which place them at risk of CSA.
The under-reporting of CSA in Indigenous communities is supported by a recent Queensland study, where 55 per cent of the 400 women surveyed had had an unwanted sexual experience before they were 16-years-old. Only 33 per cent of the victims in this study had complained to police.
A Coronial Inquest in Western Australia (‘WA’) described sexual abuse as having a 'devastating' effect on young people and established the ‘Gordon Inquiry’ to examine CSA and family violence. It was revealed that child sexual abuse is generally under-reported and the rate for Aboriginal children was significantly higher than for non-Aboriginal children.
CSA is currently being reported at high levels in Indigenous communities across Australia. The recent report From Shame to Pride provided a detailed account of CSA amongst Indigenous communities. The problem was found to be widespread and endemic.
Even these statistics, however, are believed to be drastically underestimated. A submission to the Gordon Inquiry from the WA Police Service (‘WAPS’) suggests a level of reluctance within the Aboriginal communities studied to report cases of CSA. WAPS reported that only 10 to 15 per cent of sexual assaults are reported to the police and that this rate is far lower in Indigenous communities.
Evidence from a number of witnesses indicated that sexual abuse of young Aboriginal women is taking place throughout Western Australia on a very regular basis and is very rarely reported.
Further, few victims report the issue to police or seek assistance, and childhood sexual abuse is still very much a hidden problem.
Research indicates that a history of CSA is associated with an increased risk of development of a psychiatric disorder by a factor of 2-4 times. Victims of CSA also have higher rates of subsequent suicidal and para-suicidal behaviour. For children in particular, the long-term emotional trauma and mental health implications of CSA are detailed by the Telethon Institute for Child Health Research (‘TICHR’). These impacts include sexualised behaviour, age-inappropriate sexual knowledge, anxiety and depression, suicidal thoughts, lowered academic performance, behavioural problems and low self-esteem.
Figures since 1990 that relate to child abuse show that Indigenous children are overrepresented in government care and protection services. Indigenous children in all areas of the protection and care system in Australia are overrepresented. Of course, these statistics only deal with cases of child abuse reported to authorities.
Two recent research studies draw a significant statistical link between a breakdown in the fundamental welfare of a child and subsequent offending behaviour of that child. The higher proportion of Indigenous children represented in the criminal justice system may be seen to correlate with childhood sexual abuse suffered.
The overrepresentation of Indigenous males in prisons reported in the Royal Commission into Aboriginal Deaths in Custody is also argued to be related to childhood trauma including CSA. Norman Newlin of the New South Wales Aboriginal Legal Service believes that most Koori prison inmates have experienced CSA and that their offending behaviour is directly linked to their abuse as children. Newlin believes that the high level of substance abuse by such individuals is a manifestation of unresolved grief suffered due to CSA and that substance abuse in this case is a form of self-medication.
When I worked at Tranby in 1990 there was young girl there ...she told me she had been abused from the time she was five till she was 12. She was 19 when I met her first and [she] had a son who was about five. Every afternoon she used to unwind (so-called) with a double cigarette paper of yarndi and she would smoke it to wipe herself out every night.
The issue of self-determination has been discussed in terms of the community’s ability to solve or implement solutions to family and other violence and in addressing the incidences of CSA. Part of the problem with addressing CSA in Indigenous communities is addressing the concerns that many researchers have about separating black-people’s and white-people’s ‘business’. In such cases, the self-determination philosophy is becoming confused with the fundamental human rights of the child.
Most non-Indigenous academics and researchers working in the area of CSA in Indigenous communities acknowledge that their work involves discussions of an Indigenous problem from a 'white' perspective. While Sutton has argued that making public statements about, and/or dealing with, Indigenous family violence should be the exclusive right of Indigenous peoples, others are of the opinion that, black, white or otherwise, CSA is everyone’s business. Professor Mick Dodson has said:
[I am] unable to give comfort to the view that a non-Indigenous person should leave public statements on these questions to Indigenous people alone ... The tragic circumstances I refer to are not alone the business of those who suffer them.
Indigenous children are bearing the brunt of the complex issues associated with the clash of two cultures. There is controversy between the competing interests of protecting Aboriginal children from abuse and allowing the Indigenous community cultural independence and self-determination. There is a divergence between ‘the best interests of the community’ and ‘the best interests of the child’.
Sexual violence is not only an Aboriginal problem, but unless it is more effectively dealt with, Aboriginal women and children will continue to be victims of sexual violence and communities will suffer. The silence has been broken and tentative, but encouraging steps forward have been taken. This process must continue as the future of Aboriginal people depends on the success we achieve in putting a stop to the violence.
Many believe that a return to ‘traditional law’ structures will lead to a solution in response to the law and order issues in these communities; but unless the states vest their powers of policing or criminal justice in any traditional Indigenous legal structures, the community is virtually powerless to enforce this type of law. Warren Mundine recognises this:
I haven’t been in any Aboriginal communities where sexual violence is not common. Now that’s not to point the finger and blame people. But it is unrealistic for people to say to Aboriginal people, now let the Elders police the community. You can’t deal with these issues if you don’t have power: if you don’t have power to enforce the law then you can’t do anything about it.
It is unrealistic to expect a community to enforce the law without the power of a just and committed police service. The whole inspiration behind the concept of Indigenous self-determination in the realms of the criminal justice arena is a philosophy that does not work for the victims of crime. It is often no more than a mechanism to provide government agencies a way of avoiding their statutory responsibilities, that is, enforcing law.
NSW Government Departments have recently been more proactive in the area of CSA in an attempt to deal with the problem. The NSW Police and the Department of Education and Department of Community Services (‘DoCS’) have set up joint strategies for the reporting and investigation of CSA. The Joint Investigative Response Teams (‘JIRTs’), made up of DoCS, NSW Police and NSW Health professionals, jointly investigate child protection matters.
Such initiatives may produce improvements in reporting rates, but there remains much that needs to be done to encourage reporting rates in these communities. Within the NSW Police, for example, there is a Child Protection Unit, however, there are no Indigenous people employed as policy advisors or to investigate CSA.
The Federal Government has appointed an advisory body, the National Indigenous Council (‘NIC’), to provide advice to the Federal Government on Indigenous affairs. CSA has been identified as a focus of the NICs work. As well, the Federal Government allocated $6 million for initiatives to address family violence under the National Indigenous Family Violence Grants Program over four years (1999-2003) in an attempt to address Indigenous family violence.
Many have spoken up about the alarming statistics of CSA and family violence in Indigenous communities in Australia. In answer to this, the Commonwealth, State and Territory Governments have produced reports, inquiries, anti-violence campaigns and policies; all of which have concluded that the incidence of family violence is at a disturbing level. Every state and territory in Australia has a statutory responsibility for the provision of child welfare services and many Indigenous groups have been lobbying for a national legislative framework to provide child welfare services to Indigenous communities.
Governments have a responsibility to address this issue not just socially but also in terms of the financial cost to the community. A South Australian study has concluded that CSA cost the state more than $354.92 million in one year. Some believe that the figures are even higher as they should include the cost to the criminal justice system for responding to cases of child abuse as well as costs of injury and disability.
The WA State Government's response to the Gordon Inquiry has resulted in only a minimum amount of funding directed towards sexual assault services. Seventy-five million dollars over a five-year period has been directed towards the Gordon Implementation Secretariat to manage the Government's overall response to the Inquiry. Of the $75 million, only $160,000 has been allocated over four years to expand the Sexual Assault Resource Centres (‘SARCs’).
An Indigenous Communities Inquiry has also been established to explore CSA in NSW Indigenous communities. The Inquiry itself has extremely limited funding and took some time to establish. There is also insufficient follow-up support provided to victims, emotionally or physically, or to protect them once they make a submission about offenders in their communities.
Clearly, there are serious problems with the issue of CSA in Indigenous communities in Australia. The physical, psychological and economic effects that CSA is having on the victims, their communities and the broader society need to be addressed. Despite numerous studies, community consultations and government policy initiatives which have highlighted or tried to address CSA, it appears that the issue has not been dealt with sufficiently to have a real impact on the reporting rate or the prosecution of offenders in these communities. This article looked at various government reports and inquiries. These would be a useful starting point in launching an investigation into the factors behind the failure of such initiatives to address this issue in an effective manner. In particular, the reasons for the reluctance in Indigenous communities to report incidents of CSA to police must be dealt with as an important contributing factor to the failure of government policy to recognise and address this issue.
Josephine Cashman is from the Worimi nation in the mid-north coast of NSW. Josephine is an Indigenous cadet in the NSW Office of the Public Prosecutor and is undertaking a degree in Journalism and Law.
 A Tomison, Overcoming Structural Barriers to the Prevention of Child Abuse and Neglect – A Discussion Paper: Preventing Child Abuse and Neglect New South Wales Child Protection Council (1997).
 Children and Young Persons (Care and Protection) Act 1998 (NSW).
 A Ferrante and J Fernandez, Sex Offences Against Children: An Overview of Statistics from the Western Australian Criminal Justice System (2002) 5; S. Gordon and H. Hallahan, Putting the Picture Book Together: Inquiry into Response by Government Agencies to Complaints of Family Violence and Child Abuse in Aboriginal Communities Department of Premier and Cabinet, Western Australia (2002) 42.
 N Hope, Inquest into the Death of Susan Ann Taylor, Coroner’s Report Reference No. 30/31 (2001) Perth, Western Australia.
 Ibid; Gordon and Hallahan, above n 3, 25.
 Gordon and Hallahan, above n 3, 46.
 L Thorpe, R Solomon and M Dimopoulos, From Shame to Pride: Access to Sexual Services for Indigenous People (2004).
 Gordon and Hallahan, above n 3, 424.
 Hope, above n 4, 29.
 Ibid 22.
 P Mullen, N King and B Tonge, ‘Child Sexual Abuse: An Overview’ (2000) 17 Behaviour Change 1, 2-14.
 Gordon and Hallahan, above n 3, 25-7.
 Australian Institute of Health and Welfare, Child Protection Australia 2000-1, Cat. No. CWS 16, AIHW, Canberra (2002).
 L Harris, ‘Child Welfare and Crime in Australia’ (2003) September International Family Law 153-154.
 Australian Government Institute of Criminology, Australian Crime: Facts and Figures 2004, (2004) <http://www.aic.gov.au/publications/facts/2004/fig104.html> at 16 July 2005.
 J Atkinson, ‘Stinking Thinking: Alcohol, Violence and Government Responses’ (1991) 2 Aboriginal Law Bulletin 51, 4-6.
 Interview with Norman Newlin (18 December 2004).
 A Tomison and S Wise, Community-Based Approaches in Preventing Child Maltreatment, Issues in Child Abuse Prevention, No. 11 (1999).
 P Sutton, ‘Inaugural Berndt Foundation Biennial Lecture: Indigenous Disadvantage, Culture, and Reconciliation in Australia’ (Paper presented at the Annual Conference of the Australian Anthropological Society University of Western Australia, Crawley, 23 September 2000); J Stanley, A Tomison and J Pocock, ‘Child Abuse and Neglect in Indigenous Australian Communities’ (2003) 19 Child Abuse Prevention Issues.
 M Dodson, ‘Violence and Dysfunction Aboriginality’ (Paper presented at the National Press Club, Canberra, 11 June 2003).
 P Lynch, ‘Keeping Them Home: The Best Interests of Indigenous Children and Communities in Canada and Australia’ (2001) 23 Sydney Law Review 4, 506.
 P Greer and J Breckenridge, ‘They Throw the Rule Book Away: Sexual Assault in Aboriginal Communities’ (1992) in J Breckenridge and M Carmody (eds) Crimes of Violence: Australia’s Responses to Rape and Child Sexual Assault 194.
 Interview with Warren Mundine (12 December 2004).
 Senator Amanda Vanstone Minister for Immigration, Multicultural and Indigenous Affairs, National Indigenous Council Appointed (2004) <http://www.atsia.gov.au/media/media04/v04064.htm> at 6 November 2004.
 Interview with unnamed Policy Advisor (Child Protection Unit New South Wales Police Service, 2004).
 Senator Amanda Vanstone, Department of Immigration, Multicultural and Indigenous Affairs, ‘National Indigenous Press Council Appointed’ (Press Release, 6 November 2004).
 M Keel, Family Violence and Sexual Assault in Indigenous Communities: Walking the Talk (2004) Australian Centre for the Study of Sexual Assault <http://www.aifs.gov.au/acssa/pubs/briefing/b4.html> at 12 December 2004, 12.
 Ibid 10.
 H McGurk and V Hazel, The Economic Cost of Child Abuse and Neglect in South Australia: A Report Prepared Jointly by the Office for Families and Children and the Australian Institute of Family Studies
 Above n 26.
 Lawlink New South Wales, Aboriginal Child Sexual Assault Taskforce (ACSAT) <http://www.lawlink.nsw.gov.au/acsat_index> at 29 April 2005.