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of a person; and prevent someone being taken abroad. Orders can be made ex parte in emergency situations; orders for arrest where violence is threatened or used can be issued, and failure to obey them is a criminal offence.

In Australia, the Marriage Act 1961 imposes civil penalties for persons marrying without a partner’s consent or when the partner is underage. It is not a criminal offence to obtain consent through duress or other force, although other provisions of the criminal law could well be applicable in such situations. It is an offence to traffic an underage person overseas for the purposes of a forced marriage.

Such matters have come before Australian courts. In one case, a young Sicilian girl was abducted and kept by force in Italy. The dishonour to her family was such that her father would, by custom, have been obliged to kill her if she did not marry her kidnapper. The Australian judge annulled the Italian marriage on the ground of duress.

There is a fundamental conflict between a human rights approach to these matters and the tolerance of cultural traditions, based on an assumption of equality between cultures. The human rights approach is founded on an assertion that, in certain defined respects, the values of one culture – because they are internationally recognised – are superior to those of another culture, and entitled to overriding effect. There is no way of avoiding the dilemma arising from this conflict of values. We see it most acutely in Indigenous issues.

The recognition that certain rights are fundamental plays an important role in establishing the basis for resolving the issues when they arise before the courts. This occurs in the migration context, particularly protection visas and family law decision-making processes, ranging from issues of consent through to questions of custody; and in the criminal justice context, including provocation, based on cultural or religious factors, to downgrade a charge of murder to manslaughter and the weight given to such considerations in sentencing discretion.

The defence of provocation has been used in cases of honour killings in Britain. Some years ago, in Australia, a trial judge left provocation to the jury in a case where the accused, a Turkish Muslim, killed his daughter in a confrontation over an alleged sexual relationship with her boyfriend. The jury appeared to accept the defence.

The New South Wales law of provocation distinguishes between the gravity and effect of the conduct, and the response of the accused by a loss of self-control. It has been held that the cultural background is relevant to the first but not to the second. In any event, in most honour killings there is evidence of deliberation and planning that is inconsistent with the loss of self-control.

Some have argued that failure to accept the internalised cultural response, which leads to a loss of self-control, is contrary to the principle of equality before the law. In the past this issue has arisen in the context of Aboriginal defendants. Such considerations have not been accepted as satisfying the loss of self-control aspect of the test of provocation. There is tension between gender bias and considerations of cultural respect in determining what the overriding value of equality before the law requires in a particular case. It is a very real challenge to balance the objective of cultural equality and diversity with the protection of women from gender-based violence.

The difficulties involved have been highlighted in the continuing debate about violence in Aboriginal communities and the extraordinary measures taken in response to it in recent years. One author who reviewed the range of reports on this matter concluded: ‘Typical Western responses to family violence like women’s refuges, criminal justice responses and programmes of the therapeutic nature have mostly been culturally inappropriate and ineffective. These approaches are largely based on Western models of intervention that have sought to separate the victim from the perpetrator, which in the process has led to the division of Indigenous families. Whilst this option may grant some reprieve from the immediate danger of assault, Indigenous family groups do not see separation as a viable long-term option given that we have almost universally been subjected to forced removal since colonisation. Nor do we see the solution solely in terms of criminalising violence and institutionalising the offender to protect the victim...Many women fear that they could face increasing levels of violence from their partner when they are released from custody.’

Similar issues could arise with a number of ethnic and religious groups. Human rights norms are, to a substantial degree, based on assumptions about individual autonomy – the full implications of which are not universally accepted, including by women of these social groups. The demands of filial piety and the need for social inclusion are not simply imposed; they are often internalised and accepted. Many women will find it hard to resolve the conflict between their desire for personal freedom and the fulfilment of their deeply felt social and family obligations.

There can be no compromise with acts of violence. Yet the enforcement of laws designed to minimise violence raises a range of complex issues, about which the debate will continue – especially when addressing the tension between individual rights and social pressures.  ♦

 

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Publication Date: 08-03-2013

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