Equality of the sexes

Today I read an article about a case which raises questions about equality of treatment between men and women. Ms Bennett, who was 28 years old at the time, had sexual intercourse with a 15 year old boy with whom she had been friends for 6 months previously. Ms Bennett had a serious drinking problem and was inebriated at the time she committed the offence.

Judge Pilgrim of the Victorian County Court sentenced Ms Bennett to 12 months in gaol, fully suspended for 18 months. This means she will not spend any time in gaol. This has created controversy, and the Court has been accused of having double standards for men and women.

Would it be different if the perpetrator had been male and the victim had been female? My head says it shouldn’t be any different, but my gut feeling says that it is totally different.

A similar case involved a female adult school teacher, Karen Ellis, who seduced a male student. Rather than being traumatised by the experience, the boy boasted of it and did not want her to be gaoled. The mother of the boy insisted that she be prosecuted. Ms Ellis was initially given a suspended sentence, but later gaoled for 6 months after an appeal to the Victorian Court of Appeal.

I love the daily cartoon series, For Better or For Worse, by Lynn Johnston, which is published in The Age. In a recent strip, April, the 16 year old daughter of the Patterson family, had an argument with her boyfriend Gerald when he told friends about staying over at her house when she was babysitting. April is cross with Gerald, and says, “To us [girls] it’s a secret, to you [boys] it’s a score!”

April’s words sum up the reason for my gut feeling. Girls and boys may often perceive such things differently (although not always). Is it relevant to consider whether a victim was traumatised or not by the experience? In the Ellis case, the “victim” did not regard himself as such. In the present case, the victim seems to have been wholly disinterested in the prosecution of Ms Bennett, and did not present a victim impact statement. I suspect that a female victim would be more likely to say that she had been traumatised by the experience. But then if the level of trauma becomes a consideration, some judges or juries may be tempted to write off female distress as “hysteria” or “emotional manipulation”.

Perhaps it makes a difference what position a person holds. If a person is employed in a position which requires them to have responsibility towards teenagers in their charge, the argument towards gaoling them is strengthened. Obviously, society wants to deter teachers and others in a position of authority to abuse their power over young teenagers are in a vulnerable position. I do not understand how any teacher could be foolish enough to do such a thing.

It is not an easy question. I do not know what the answer is. At the end of this post, my heart and my gut are still in disagreement (which is quite uncomfortable, I can tell you).

Update

In the context of criminal sentencing, I also read that a father was gaoled for shaking his one month old son, which resulted in the child’s death. Justice Harper found that Tomas Klamo should be gaoled for five years, with an unusually short parole period of two years (judgment here). Klamo’s partner and family supported him during the trial and afterwards.

Again, a very difficult case. It reminds me yet again of why I avoid criminal law with a 10 foot barge pole.

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11 Comments

Filed under courts, criminal law, feminism, law, morality, sexual offences

11 responses to “Equality of the sexes

  1. I tend to think the damage to the victim is the primary issue in that sort of charge, and consequently it’s not sexism if female offenders are punished less harshly than male ones; it’s simply that their offending tends to be less damaging to the victim than the equivalent male offending.

    I think the Ellis result was right the first time, and jailing her was an entirely negative result.

  2. pete m

    wrong again lefty

    The primary concerns should always be:

    1. protection of the public
    2. a deterrent sentencing

    Actual victim impact statements are a new part of the sentencing procedure, and bear less weight than these first 2 principles.

    Why?

    Because the same crime should have the same punishment no matter how the victim “feels” about it. If it were not, you would have prosecutors writing the VIS and presenting psych reports on the devastating impact etc etc.

    It is also why the Crown brings the criminal prosecution, and not the victim.

    This sentence is wrong – alcohol and stress context should have been given far less weight than the actual crime committed. This boy was legally raped. He cannot consent to a sexual assault.

    Lock her up – sends a clear message to ALL other teachers (and others in a position of power over children) to keep their pants on.

  3. Legal Eagle

    Jeremy, yes, that’s my gut feeling too. But I worry about getting too subjective and just looking at the impact on the victim. What if you have a situation where a 13 year old girl has intercourse with a 40 year old man (Lolita-type situation). She is “in love” with him, and isn’t traumatised by the experience.

    Somehow, my gut feeling there is that he should be punished. It just seems very unpleasant. I think I’d feel the same if the genders were reversed too. Perhaps my disquiet lies in the young age of the victim. Or perhaps it’s the age gap, I don’t know. Perhaps it depends on context – do I think the victim has been “brainwashed”?

  4. Legal Eagle

    Peter, I don’t think Jeremy can be said to be wrong. In law there’s always at least two sides to the story. As I tell my students, I don’t mind which side they take, as long as they justify their position well.

    I think your point about deterrence is a good one, and also, you bring out concerns about focusing on the harm to victims. There could be a risk if we focus on the harm to victims that defence barristers start cross-examining victims and suggesting that they were not harmed or traumatised by the experience. I gather this sometimes happens already in rape trials, but I think it’s something that should be limited.

    It is a question of how you balance the competing concerns – deterrence, protecting young people, punishing those who misuse a position of influence, vindicating the hurt of victims etc.

    I still don’t think it’s cut and dried – in each case, it will involve a balancing of all the factors mentioned by yourself and Jeremy.

  5. While I can appreciate the point about harm to the victim there are equality before the law issues here as well. Since the laws pertaining to this sort of offence are framed to be gender neutral one should expect that offenders should be treated the same no matter what their gender is.
    I find it rather strange that the woman in question has been able to fly the kite that it was the drink that made her do it because I doubt that a man would get the same millage out of that excuse.
    The problem is exacerbated to some extent by that fact that we pick an arbitrary age of consent (that I actually support by the way) when there are some precocious children out there these days who both appear and act much more mature than their actual age would suggest that they are.

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  7. I think also it’s important not to forget the statutory side of things, i.e. the minor is not in the position to make an informed, rational decision about their actions, therefore it is the perp’s responsibility.

    Whether or not the minor made a decision, conscious or not, is in some respects by-the-by, as are their feelings. Who knows how they will feel about it in ten years time?

    I think it’s important to remember that, from this line of reasoning, there is no such thing as consensuality – any consensus is rendered void because the minor doesn’t have the ability to make an informed choice. Hence, why it’s called statutory rape.

    Now, you could make a reasonable argument that this definition takes it too far, however I think it’s a safe, albeit conservative viewpoint.

    I know as a fifteen year old I certainly wouldn’t have had the emotional and psychological maturity to take the baggage that boffing a thirty year old of either sex could potentially bring.

  8. Legal Eagle

    Iain,

    I know from my own school days that there was a massive spectrum of sexual maturity and other maturity. You are right, we have to pick a cut off point somewhere.

    Patrick,

    I think your point is a very good one. Certainly at 14 or 15, I would also have been totally psychologically unready for adult sexual interactions. I guess the legislature has made the choice to criminalise sexual penetration at that point because it believes that the majority of teenagers are like you and I.

    It’s important to remember that Ms Bennett was still convicted (therefore showing community opprobrium towards the crime), but her sentence was suspended. Still, I think the outrage would have been enormous if Ms Bennett had been a man and a similar sentence had been passed.

    I guess part of the issue is that we expect someone who is a legal adult and in a position of responsibility to have better judgment.

    LE

  9. pete m

    “Sentencing guidelines

    (1) The only purposes for which sentences may be imposed are-

    (a) to punish the offender to an extent and in a manner which is just in
    all of the circumstances; or

    (b) to deter the offender or other persons from committing offences of the
    same or a similar character; or

    (c) to establish conditions within which it is considered by the court
    that the rehabilitation of the offender may be facilitated; or

    (d) to manifest the denunciation by the court of the type of conduct in
    which the offender engaged; or

    (e) to protect the community from the offender; or

    (f) a combination of two or more of those purposes.”

    From:

    http://www.austlii.edu.au/au/legis/vic/consol_act/sa1991121/s5.html

    You could argue “damage to the victim” under part (a), but this is dangerous as it overshadows the crime itself.

    The point I guess is that the sentencing judge is human and allows the harm caused by the offender and the offender’s personal circumstances to colour the rest of the considerations.

    There is no (d) in that sentence btw.

  10. Legal Eagle

    Hi Peter,

    I agree that if the sentencing judge did take into effect whether the victim had been harmed or not, it would arguably fit into (a) as a matter for deciding what was “just in all the circumstances”. I haven’t read the sentence, so I don’t know if His Honour did take that into account or not.

    Perhaps part of the reason for the sentence was the belief of the sentencing judge that the defendant was unlikely to reoffend, and she had expressed sincere remorse and undertaken steps to treat her problems with alcohol (taking into account factors (b) and (c) and (e)).

    As I’ve said in the comment above, I think the sentencing judge would have intended to satisfy (d) merely by ensuring that Ms Bennett was convicted of the offence, and defence counsel would argue that conviction without custodial sentence would satisfy the purposes of denunciation.

    Whether you think that a mere conviction was sufficient denunciation is the key to whether you think the sentence was just.

    The more I think about it, the more I think some kind of custodial sentence should have been imposed, not so much to punish Ms Bennett personally as to give a message to others in the community that conduct such as this is not acceptable (taking into account factor (b) above).

    I suppose it just shows that even if you set out guidelines which a Judge must take into account and suggest maximum sentence lengths, it’s very much a weighing up process, and depends on individual judgment and beliefs.

  11. With regard to your Update LE
    Shaking infants is some thing that I am sure is often done in ignorance and frustration. Ignorance to just how harmful it is to the child and frustration at a child who may cry more that a parent expects them to . But don’t take this as being an example of me offering excuses for anyone’s ignorance here. I actually that the educative and deterrent value of this sentence should not be underestimated. And the case deserves to be publicised on that basis alone. Another factor to consider here is that the offender is not going to have an easy time while he does his porridge; baby killers are at the very bottom of prison hierarchy so a two year stretch will be two years of hard time.
    Frankly as much as I am willing to suggest hash punish for the worst of the worst it is when you come to tragic crimes like this one that finding the right balance between the punitive and the merciful becomes so problematic

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