Adjudicating between rights
Conflicting rights claims are inevitable and it helps to have some fair, principled ways of sorting them out.
A professor of law belonging to the Eualeyai and Kamillaroi nations, Larissa Behrendt cites the controversial case from the Northern Territory of Australia of a 55 year-old indigenous man convicted of raping a 14 year-old indigenous girl for two days. His defence and initially lenient sentence relied upon claims he was acting within indigenous or customary law (that the girl was to be his wife). If his behaviour was not in fact sanctioned by culture or traditional law, as some have contended, then he has no rights claim. I am not in a position to judge either way, but let's assume for argument's sake that there is some basis to his 'cultural' defence. The issue highlights the enduring problem of what to do when different rights (rights to culture vs right to bodily integrity) or different rights-holders (an old man vs a teenage girl, both indigenous) make valid but competing claims.
For Behrendt, the answer is clear. She exposes the hypocrisy and sexism of asserting universal human rights "only to ignore them when that human being is a young girl exposed to great physical, mental and emotional danger . . . [I]f it is a matter of balancing the cultural rights of an old man to take a child bride against a child's right to be free from physical, sexual, mental and emotional abuse, I think the latter has to win, every time."
We find here two possible principles for adjudicating between conflicting rights claims, and both presume in favour of the less powerful. The first is to give priority to the best interests of the child and their rights. A second is to refuse to accept cultural justifications for the maltreatment of women. Where cultural defences are given for violating rights, more often than not, it is women's and girls' rights that are being violated. The 1995 Beijing World Conference on Women rejected such cultural defences unequivocally.
Writes Behrendt: "There is no reason our cultural values cannot conform to respect basic international human rights laws, and they should and must."
