Justice, Legality and the Rule of Law: Lessons from the Pitcairn Prosecutions

Pitcairn is a tiny and extremely remote island in the Pacific Ocean with a population of about 50. It was settled in 1790 by nine of the HMS Bounty mutineers and 19 kidnapped Tahitians. At some (contested) point, it became a British colonial possession. The inhabitants were generally governed remotely by Britain, with British laws extended to Pitcairn by ordinance. A local court was also established with jurisdiction over minor criminal and civil matters.

During a visit to the island to provide policing support in 1999-2000, an English police officer, Gail Cox, uncovered a pattern of systematic and sustained sexual abuse of girls and young women, extending over the past 30 years: "Most were assaults by older men on girls from the age of five, and even three years old. Many offences involved violence." Almost all of the men on the island had engaged in this behaviour, and almost all of the girls and women on the island had been its victims - a number of whom had subsequently left. A total of 30 offenders and 31 victims were identified, although ultimately, only seven men were prosecuted and six convicted.

The prosecutions were brought under the British Sexual Offences Act 1956, which was in force on Pitcairn by virtue of the Judicature Ordinance 1970. The defendants advanced various technical legal arguments as to why the prosecutions were invalid: that Pitcairn was not a British colony subject to British law; that if it was, it was not the type of colony that attracted the automatic application of British law; and that even if British law did apply, the prosecutions were an abuse of process because the Sexual Offences Act 1956 had never been promulgated on the island and the defendants were unaware of its terms. These arguments were taken ultimately to the Privy Council, whose decision is reproduced here as an appendix. The book is based on the premise that the Privy Council dismissed the arguments too readily, and they deserve to be given more careful consideration.

This, then, is very much a lawyers' book, and a book for the kind of lawyer who is interested in abstract, jurisprudential questions of jurisdiction and legality. The one contribution from a non-lawyer, a short afterword by Marilyn Strathern, does not, regrettably, prove particularly illuminating. Personally, I am not the kind of lawyer for whom this book is designed; moreover, I tend to the view that the abstract technical arguments with which the book is concerned are the kinds of things that give law a bad name.

Indeed, the book made me angry. With the honourable exceptions of the first chapter by Dawn Oliver and the chapter on human rights by Colm O'Cinneide, the authors' focus on the jurisdictional arguments advanced by the defendants results in a denial of the subjectivity of the girls and women who were raped and sexually assaulted - a disturbing repetition of the effects of the original offences.

Several of the arguments raised in the book have wider implications. There is much liberal hand-wringing about the unfairness of prosecuting the men for activities that were allegedly considered normal within Pitcairn "culture", in line with the invocation of the so-called cultural defence in a variety of multicultural contexts. However, the idea that sexual abuse of girls and women was widely "tolerated" ignores the fact that it clearly was not tolerated by the women concerned, especially those who left, and who testified in the criminal trials.

The argument suggests that "culture" is what (powerful) men do, and that it is static and uncontested. Women do not make "culture"; they are merely its objects. What results is something like a Nuremberg defence for men, who are seen to be only following "cultural" orders. Obviously such an argument is unsustainable, not least because the Pitcairn defendants clearly knew that what they were doing was morally and legally wrong.

Even O'Cinneide, who champions the women's fundamental human rights to dignity and bodily integrity, tends to figure them as passive victim-subjects of human rights law. Are not the women of Pitcairn also entitled to justice, legality and the rule of law? And didn't the British Government intervene precisely for that reason? Moreover, even if one accepts the arguments that the prosecutions should not have occurred, shouldn't attention then turn to the other means by which justice for the women could have been achieved?

Yet apart from some passing mentions of a compensation scheme or a truth and reconciliation-type process, the alternatives to prosecution are given no detailed consideration. There is a very interesting feminist literature available on transitional justice mechanisms, and on alternative processes such as the Grandview agreement, which was established to provide redress for girls subjected to physical, sexual and psychological abuse at a Canadian residential school.

Greater attention to these issues would have been a useful addition to the book and would have gone some way to balancing its concerns for justice, legality and the rule of law for all protagonists.