The Culture of Consent and Traditional Punishments under Customary Law

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.