The Criminal Law

317. Bigamy. Issues of the recognition of traditional marriage in relation to the criminal law arise in a number of ways. The first is the question of bigamy. Sub-section 94(1) of the Marriage Act 1961 (Cth) prohibits persons from going through a ‘form or ceremony of marriage’ being already married. Sub-section 91(4) prohibits persons from going through a ‘form or ceremony of marriage’ to a person who is already married. The ‘form or ceremony of marriage’ to which s 94 refers is a form or ceremony of marriage under the Act, so that a traditional Aboriginal marriage would not infringe the prohibition. In any event the term ‘married’ in the Act refers to marriage under Australian law: either marriage under the Act itself, or a foreign marriage recognised in Australia as a valid marriage. The Commission is not proposing recognition of traditional marriage in this way. There is no attempt in Australian legislation to outlaw plural relationships which are not ‘marriage’ in either of these senses.[138] It has not been suggested to the Commission that the offence of bigamy be extended to polygynous Aboriginal marriages, and there is no case for doing so. The retention of polygyny in Aboriginal communities may be an issue, but it is not one to be resolved by the imposition of criminal sanctions (particularly as such sanctions do not apply to informal plural relationships in the general community).

318. Rape. At common law a husband could not be convicted of raping his wife. Marriage was taken to be a perpetual consent to sexual intercourse. Excessive force could (though it rarely did) lead to a charge of assault, but rape itself was excluded. The rule is an anachronism which is out of line with modern views of marriage. It has been modified by case-law, and modified or abolished by statute in some jurisdictions.[139] It would not be right to extend the rule to Aboriginal traditional marriages. It does not, it seems, reflect any similar rule of Aboriginal customary laws. In Aboriginal communities, violence by a husband against his wife could lead to the intervention of the wife’s family to protect her, and to recrimination and conflict with the husband. However, there is evidence of the break-down of some of these traditional restraints in Aboriginal communities, with the consequence that violence against family members is now relatively common.[140] The degree of legal protection to Aboriginal women against personal violence should not be diminished, whatever the difficulties of policing in isolated communities, or indeed in the context of domestic disputes generally.[141] The rule that a husband cannot be convicted of raping his wife should not apply to traditional Aboriginal marriages.

319. Unlawful Carnal Knowledge. In each State and Territory it is an offence to have sexual intercourse (‘unlawful carnal knowledge’) with a girl who is ‘underage’ (in most jurisdictions, 16 years of age), even with her consent. With certain minor exceptions, it does not matter that the defendant did not know that the girl was underage.[142] At present, therefore, what Aborigines would regard as marital intercourse between a traditional husband and wife is, in the case of girls less than the age of consent, a criminal offence. In practice, prosecutions for the offence are rare even outside situations of socially recognised ‘marriage’. In Aboriginal communities, prosecutions are even rarer. The Commission is not aware of any recorded cases in which a traditional husband has been convicted for the offence in respect of consensual intercourse with his underage traditional wife.[143] An exception to the unlawful carnal knowledge rule is the case of intercourse within a marriage that the law recognises. Generally a girl cannot marry under the Marriage Act 1961 (Cth) unless she is 16 years old, but a 14 year old girl can marry if she obtains judicial consent to do so.[144] Intercourse with a 14 year old wife would not be ‘unlawful’ for the purposes of the offence.[145] In Aljahi Mohamed v Knott,[146] a Nigerian Muslim aged 26 married a girl aged 13 in Nigeria. The couple came to England and cohabited there until the girl was taken into custody on the grounds that she was ‘exposed to moral danger’ under the Children and Young Persons Act 1963 (UK). The Divisional Court ordered that she be released. Since the marriage, valid by Nigerian law, was recognised in England. it could not be said that the girl was exposed to moral danger merely because she lived with her husband. Similarly, marital intercourse could not, between persons recognised in England as husband and wife, be ‘unlawful sexual intercourse’ under s 6(1) or 19(1) of the Sexual Offences Act 1956 (UK).[147] However the question arises whether some minimum age should be set to the recognition of foreign marriages for this purpose.[148] Recent amendments to the Marriage Act 1961 (Cth) designed to implement a Hague Convention on recognition of foreign marriages do not extend recognition under the Convention rules to a foreign marriage while the husband and wife are, respectively, under the ages of 16 and 14.[149] As a result a situation arising in Australia such as that in Aljahi Mohamed v Knott would now result in the husband’s conviction.

320. The Commission’s View. The question of marriageable age for the purposes of recognition of Aboriginal traditional marriages was discussed in chapter 13.[150] The approach taken by a majority of the Commission is that functional recognition does not justify or require imposing a minimum age, since the effect is to deprive the parties to the marriage of the protection which is the point of recognition. The context here is slightly different, since the point of unlawful carnal knowledge laws is to protect young girls from exploitation. There is a movement to defer marriage among those groups where marriage traditionally occurred at an early age.[151] With one qualification, a majority of the Commission agrees with the position taken in the Criminal Code (NT), which recognises traditional marriages for this purpose without specifying an age limit.[152] However recognition should only be extended to traditional marriage for the purpose of the defence in the case of sexual intercourse which takes place with the consent of both parties: the defendant should accordingly be required to prove, on the balance of probabilities, that the relationship with the girl in question was a traditional marriage and that he honestly believed that she consented to the act.[153]

321. Domestic Violence. Reference has already been made to the problems of domestic violence in Aboriginal communities.[154] These problems are not confined to persons who are ‘married’ either under the Marriage Act 1961 (Cth) or under Aboriginal customary laws. Indeed some of the traditional restraints on violence against a spouse are likely to be absent in a de facto or casual relationship compared with a traditional marriage. Providing protection to spouses, or de facto spouses, against domestic violence requires measures of various kinds, including but not limited to more effective legal remedies. Questions of policing in such cases, and of access to telephones in order to call police, are of great importance.[155] In some communities[156] women’s resource centres have been established to provide communal support for women who are faced with domestic violence and other problems. Proposals have also been made for shelters to be set aside as agreed areas where victims or potential victims of domestic violence can go. So far as legal remedies are concerned, the tendency in more recent legislation, especially legislation providing for injunctions or orders against apprehended domestic violence or harassment. has been to apply it to all relationships irrespective of their legal status.[157] Greater reliance is thus placed on State and Territory legislation to deal with domestic violence than the more limited Commonwealth legislation. For constitutional reasons the Family Court’s injunctive jurisdiction, which is at present also exercised by State and Territory magistrates, under the Family Law Act 1975 (Cth) s 114(1) and 114AA, only applies to Marriage Act marriages. But the Act makes it clear that equivalent State and Territory remedies are not excluded, and it prevents persons who have made applications under such legislation from making subsequent applications to the Family Court in respect of the same matter.[158] There are weaknesses in the Family Law Act in this area, the principal ones being the procedures required to be followed to get relief and the difficulties of enforcing any orders made.[159] It is unusual for a person to seek to use the injunctive powers under the Family Law Act unless principal relief (ie a divorce) is also sought. The fact that domestic violence has occurred does not necessarily mean that a relationship has come to an end. A further difficulty that has become apparent is the reluctance of State police officers to become involved in matters which are regarded as within the domain of the Family Court.[160] The question is whether traditional marriages should be recognised as marriage for the purposes of the Family Court’s injunctive jurisdiction under s 114 and 114AA of the Act. A significant practical problem is that those persons who would be eligible to seek relief if traditional marriages were so recognised, live in remote areas where access to the Family Court or a magistrate exercising jurisdiction under the Family Law Act would be difficult. Orders may be needed at short notice, and the practical consequence might be that no applications are made. More fundamentally, however for the reasons given in para 323, the Commission does not recommend extending Family Court concurrent jurisdiction to traditional marriages. These reasons apply equally here.[161] Difficulties may arise if an Aboriginal spouse has to first prove traditional marriage in order to establish the court’s jurisdiction to order relief, particularly since the application is likely to be made ex parte in circumstances of urgency. Given the trend for greater reliance to be placed on State and Territory legislation to cover domestic violence, and the weaknesses in the Family Law Act, it is preferable not to extend the Family Court’s jurisdiction to cover traditional Aboriginal marriages. For these reasons no specific recommendation for the recognition of traditional marriages for the purposes of domestic violence legislation is made. In reaching this conclusion, the Commission acknowledges and supports the need for reform of domestic violence legislation, particularly in Queensland and the Northern Territory, along the lines recommended for the Australian Capital Territory in its Report on Domestic Violence.[162]

[138]cf R v Bear’s Shin Bone (1899) 3 Terr 329, where the bigamy offence apparently extended to all forms of plural cohabitation.

[139]Vic: Crimes Act 1958, s 45, s 62(2) (and see Crimes (Amendment) Bill 1985 s 10 which would abolish the rule); SA: Criminal Law Consolidation Act 1935, s 48; NSW: Crimes Act 1900, s 61A. The Criminal Code (NT) s 5 removes the operation of the common law so that a husband may be charged with sexual offences within the Criminal Code. For discussion of the general issue see SA, Criminal Law and Penal Methods Reform Committee, Special Report: Rape and Other Sexual Offences, Adelaide, 1976, 13-15; JA Scutt, ‘Consent in Rape: The Problem of the Marriage Contract’ (1979) 3 Monash UL Rev 255; D O'Connor, ‘Rape Law Reform — The Australian Experience’ (1977) 1 Crim L Rev 305; P Matthews, ‘Marital Rape’ (1980) 10 Family L 221; IG Cunliffe, ‘Consent and Sexual Offences Law Reform in New South Wales’ (1984) 8 Crim LJ 271. cf R v McMinn (1981) 38 ALR 565, 567 (Starke ACJ), 571 (Crockett J).

[140]A study by criminologist Dr Paul Wilson presented in evidence in R v Alwyn Peter, unreported, Qld Supreme Court, Sept 1981 showed that, of 82 cases of violent crime on Queensland Aboriginal reserves in recent years, only 2 involved a stranger or outsider. In 55% of cases the offender and victims were married or cohabiting. See P Wilson, Black Death White Hands, George Allen & Unwin, Sydney, 1982, 10-21. See also para 394, 398-400, 497-8.

[141]cf para 249-53, 321.

[142]Crimes Act 1900 (as it applies in the ACT) s 67-75; Crimes Act 1900 (NSW) s 67-75; Criminal Code (Qld) s 212-6; Criminal Law Consolidation Act 1935 (SA) s 49, 50-55 (17 years); Criminal Code (Tas) s 124, 128, 129 (18 years); Crimes Act 1958.(Vic) s 46-50; Criminal Code (WA) s 183-7; Criminal Code (NT) s 129.

[143]However H Parker comments that police and missionaries did use the threat of prosecution against traditional husbands in earlier years: Transcript Strelley (23 March 1981) 315; and see D Bell, Submission 491 (16 September 1985). A case pending in the NT Supreme Court involves charges against a Lajamamu man of abduction and unlawful carnal knowledge of a girl said to be a promised wife: P Ditton, Submission 465 (1 January 1985) 2.

[144]Marriage Act 1961 (Cth) s 11, 12(1).

[145]cf Criminal Law Consolidation Act 1935 (SA) s 49(8); Criminal Code (NT) s 126.

[146][1969] 1 QB 1 (Div Ct).

[147]id, 16-17 citing R v Chapman [1959] 1 QB 100. cf also NM Advocate v Watson (1885) 13 SC(J)6. See IGF Karsten, ‘Child Marriages’ (1969) 32 Mod L Rev 212; FO Shyllon, ‘Immigration and the Criminal Courts’ (1971) 34 Mod L Rev 135, 136-8; A Samuels, ‘Legal Recognition and Protection of Minority Customs in a Plural Society in England’ (1981) 10 Anglo-Am L Rev 241, 251.

[148]eg Karsten (age of puberty); Shyllon (13 years old).

[149]Marriage Act 1961 (Cth) s 88C(3), inserted by Marriage Amendment Act 1985 (Cth).

[150]See para 261.

[151]See para 226-8, 261. There is some doubt about the age at which marital cohabitation begins in traditional communities. It has been suggested that the age has dropped recently with a drop in the age of puberty: D Bell, Daughters of the Dreaming, McPhee Gribble, Melbourne, 1983) 151; and see Bell and Ditton (1984) 93.

[152]Criminal Code (NT) s 1 (definition of ‘husband’ and ‘wife’) 126 (definition of ‘unlawful’) 129.

[153]For the reasons stated in para 261, Professor Crawford dissents on this point. A minimum age for recognition equivalent to the lowest age at which persons of the particular sex may marry with consent (currently 16 for boys, 14 for girls) should apply here as elsewhere.

[154]See para 318 n 140.

[155]See para 252-3, 844-8.

[156]eg at Yirrkala.Family Law Act 1975 (Cth) s 114AB.

[157]eg Crimes (Domestic Violence) Amendment Act 1983 (NSW); De Facto Relationships Act 1984 (NSW) s 53-5. See NSWLRC 36, ch 14; ALRC 30, Domestic Violence, AGPS, Canberra, 1986. There is, however, no domestic violence legislation in the Northern Territory.

[158]Family Law Act 1975 (Cth) s 114AB.

[159]For discussion of these difficulties see ALRC DP 24, Contempt and Family Law, Sydney, 1985, esp para 74-85.

[160]id, para 74.

[161]See also para 382.

[162]ALRC 30, Domestic Violence, AGPS, Canberra, 1986.