The Culture of Consent and Traditional Punishments Under Customary Law

Shelley Bielefeld, 'The Culture of Consent and Traditional Punishments under Customary Law' (2003) 7 Southern Cross University Law Review 142-153

12 Pages Posted: 6 Jan 2014

See all articles by Shelley Bielefeld

Shelley Bielefeld

School of Regulation and Global Governance (RegNet); Griffith University - Griffith Law School

Date Written: January 5, 2014

Abstract

Traditional punishments are still common amongst some traditional Indigenous communities in Australia. Administration of traditional punishment raises the issue of whether those involved in the process should be charged with assault under Anglo-Australian law. Currently traditional punishments can be prosecuted as assaults. Under the Crimes Act 1900 (NSW) Aboriginal people carrying out traditional punishments may be charged with malicious wounding or infliction of grievous bodily harm, causing grievous bodily harm, and assault occasioning actual bodily harm. This article argues that the appropriate legal response to this issue is to recognize a cultural defense of consent for those carrying out traditional punishments.

Keywords: Indigenous peoples, Traditional punishments, Customary Law, Cultural defence, Right to Culture

Suggested Citation

Bielefeld, Shelley and Bielefeld, Shelley, The Culture of Consent and Traditional Punishments Under Customary Law (January 5, 2014). Shelley Bielefeld, 'The Culture of Consent and Traditional Punishments under Customary Law' (2003) 7 Southern Cross University Law Review 142-153, Available at SSRN: https://ssrn.com/abstract=2375000

Shelley Bielefeld (Contact Author)

Griffith University - Griffith Law School ( email )

Nathan Campus, GU
Nathan 4111
Australia

School of Regulation and Global Governance (RegNet) ( email )

Canberra, Australian Capital Territory 2601
Australia

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