chapter  4
Sentencing away culture and customary marriage
Pages 34

The Indigenous offender in his or her primitive and sexualized state has been the object of fascination for the colonizing world. Courts have not been immune to this captivation. They have injected this cultural construct into their legal reasoning to produce a normative universe (nomos) where Indigenous people are backward, criminal and over-sexualized (Cover 1983-4: 4; Watson 2008). This nomos reinforces the dominant position of the storyteller. The Northern Territory Supreme Court, where it recognizes Indigenous evidence, conveys alternating stock stories of the noble and ignoble savage to assure its paternalism (Bell 2010: 29). In both its moral and disciplinary guises, the court countenances an anxiety over culture in remote communities. Indigenous culture falls outside the terms prescribed by ‘white’ spatial management whether lenience or punishment is bestowed (Hage 1998: 202). In the mid twentieth century, accommodation of the Other’s culture was provided on the premise that it refl ected the backward and uncivilized nature of the offender. Lenience was also extended to offenders who committed offences in cultural contexts in the 1980s and early 1990s because they embodied a romanticized past. By accounting for the reduced culpability of an offender, the court applied the ‘same laws’ to produce different effects for Indigenous offenders (R. v. Iginiwuni 1975). Its allowance for culture was not permissiveness or a concession, but an instrument of domination.