Category Archives: sexual offences

What to do? The indigenous crisis

I’d like to unravel the Howard Government’s new plan with respect to indigenous welfare. There are a couple of different issues there.

First, I’m not happy with the use of the word “crisis”, because that suggests something that suddenly crops up. It’s not sudden – it’s more like a chronic problem that has now snowballed to the extent that it can’t be ignored any longer. It has been known for a long time that there are massive problems in some indigenous communities. I’ve written about these issues before.

I’ve been inspired to write this post after reading two posts, one by my lovely friend RG and another by Miss Politics. They were food for thought, because it made me realise that I had a different point of view, but each had good points to make. I was commenting on their blogs, but I then realised I’d be better off writing my own post, as the comments were turning into mini-posts.

1. Political opportunism

The indigenous welfare plan was described in The Age headline yesterday as a “black children overboard” stunt, designed to increase the Howard government’s popularity before a Federal election where they are facing some serious competition. Obviously, this headline produced some controversy.

Yes, I think there is definitely a giant dollop of political opportunism. The Howard government has been in power for 10+ years, and they finally decide to act now, just before an election? Forgive a girl for being a little cynical.

But the next question is: if it saves women and children from abuse, does it matter what the government’s motives are? I say that it does not. Anyone who reads my blog regularly will know that I am not a fan of the Howard government. But if they manage to do something good, I’m not going to gainsay them just because I dislike many of the things they do. I wonder if there’d be nearly so much outcry from the Left if Prime Minister Rudd had instituted this plan? Forgive me yet again for my nasty cynicism. I can only echo the words of Noel Pearson:

Quite frankly, I couldn’t care less whether John Howard or Kevin Rudd ruled this world. My priority is to take advantage for immediate intervention for the protection of children…

I’m not going to reject this initiative without having a closer look at it. On the other hand, I’m not just going to swallow it whole either.

2. A change is needed

Welfare payments have been poured into indigenous communities for the last 30 years in an effort to alleviate poverty, but if anything, paradoxically, conditions have become worse. Perhaps the money isn’t getting down to the grass-roots – but surely if the system was working, we’d be seeing some sort of improvement by now?

Some of the responses to Howard’s plan infer that the problems of the indigenous community will be cleared up if we address the underlying social issues. I presume that this refers in part to the need to recognise native title, the need for reconciliation and for saying “sorry”. Yes, I agree, it is important to acknowledge that some terrible things have been done to indigenous people in the past.

I am a very strong supporter of native title, although unfortunately, as presently conceived of by the Courts and the Native Title Act, it is such a weak property right so as to be non-existent.

However, I think that these issues should be part of a long term strategy, not something that can be used to fix problems here and now.

Terrible things are happening to indigenous people now. It is important to tackle them head on, decisively. I’m all for the long term plan mentioned above, but it is not the priority. Let me quote from a newspaper article in The Age from last year:

In the western desert community of Papunya the cultural notion of “secret men’s business” has taken on a particularly sinister interpretation for at least four under-age girls, the youngest being just seven.

Seven months ago the girls were found to have serious sexually transmitted infections — some of the worst in the medical books — but health workers claim child welfare authorities are yet to send anybody to the community to investigate.

In the meantime it is believed that at least one of the girls was reinfected by her abuser.

Not only is it claimed that officials from the Territory’s Family and Child Services Department (FACS) have not travelled the 280 kilometres to Papunya, health care workers at the community have told colleagues in Alice Springs that they have been reprimanded for not first consulting with parents and community elders about the spate of infections.

A health care worker who regularly visits Papunya told The Age by way of background: “The situation is astonishing. What the medical staff were being told to do was consult the potential perpetrators of abuse. Where else in Australia would this happen?”

Because the infections include resilient strains of gonorrhoea and syphilis, there are suspicions that the abusers are more likely to have been men, rather than teenage boys.

“FACS should have sent out a team of experts as soon as the infections were detected who could talk to the children and parents in their own language while the issue was immediate and before anybody could put pressure on the girls to remain silent,” the health care worker said.

We have to deal with the practicalities of this now. As the mother of a young girl, the above extract makes me feel sick to the core.

I believe that just focusing on reconciliation as a solution is problematic. Yes, I have marched on reconciliation marches and the like. Of course I want indigenous and non-indigenous Australians to live together in mutual respect. However, the “sorry” campaign can carry an inference that the problem is the fault of non-indigenous Australians, and once we apologise, the problem will go away. I don’t think it will. It’s a bit like those child abusers who say, “I couldn’t help it, my family was poor, my father abused me, my mother was a drunkard.” It may be an explanation, but it is not an excuse. The perpetrator of the abuse has a choice.

One of the examples
raised by Nanette Rogers, Crown Prosecutor for the Northern Territory, when she blew the whistle on this issue last year, was that of a 6-year-old girl who drowned while being raped by an 18-year-old man, while other children watched on helplessly. I don’t think colonisation provides an excuse for that kind of behaviour. And it is not the fault of the non-indigenous community that he did this terrible deed. Yes, the young man might be poor and disadvantaged, but that doesn’t mean he is excused from raping and killing small children. It was his choice, and his responsibility.

I believe that one of the important pieces of the puzzle to true self-determination is taking responsibility for your own actions, and being aware that you can change the way in which you behave. To this end, I agree with Noel Pearson that there has to be an end to the “victim” mentality – that of blaming others for your troubles. I believe in empowerment of indigenous people; that they can control their own destinies. It should all be about teaching people to stand on their own two feet.

One of the main things which stops indigenous people from taking control of their own destiny is the endemic drinking, drug use and petrol sniffing which afflicts communities. It is very hard to control your own actions if you are totally trashed. Your brain and body are literally destroyed. Further child abuse is far more likely to happen when parents are “out of it”, and don’t notice what is going on with their kids. Even if adequate educational facilities are provided, if your parents don’t care whether you go to school or not, you are unlikely to attend.

3. The proposed plan of action

Pros of the plan

I think that indigenous communities do need drastic action at least in the short term to break the cycle of despair (including banning alcohol on reserves, and making support payments dependent upon children attending school). I would be much more worried about the banning of alcohol if it were not for the fact that many indigenous leaders are asking for it to be done. I must take this into account.

I also think that the fact that someone is actually doing something about this issue is good, whatever the motives behind it. I note that some indigenous leaders have given support to the plan. If some think it is a good idea for their communities, or are prepared to give support to a modified version of the plan, who am I to gainsay them, as a white city gal? On the other hand, I think it’s also really important to listen to those leaders who criticise the plans, as they may have good points.

Cons of the plan

The downside of Howard’s plan is the very hasty, aggressive nature of it. As much as I say that I’d like something to be done now, I would have preferred a little more thought and consultation to go into it. Personally, I like to take a deep breath and think through the implications before I do something. Paradoxically, this is because I am a very emotional person, and so I need to think in case I shoot from the hip and end up hurting someone without intending to do so.

If a thing is worth doing, it’s worth doing well. In this sense, I tend to agree with Lowitja O’Donohue:

Ms O’Donoghue, a former ATSIC chairwoman, said her opposition was based on a fear the intervention was too draconian.

“The people who are speaking out now welcome the intervention but we do not support the draconian intervention,” she said.

“Army trucks rolling in is pretty frightening for a community that’s been demonised. Governments should listen to a proper strategic plan in how they go about tackling this emergency. Of course it’s a national crisis.”

I note also that Rex Wild QC, the joint author of the report Little Children are Sacred has also criticised the plan, saying that the Federal Government should have been trying to build up a relationship of trust with indigenous people. Wild said on Lateline Business

“Well, the first problem is that people’s backs are immediately up. We didn’t have that problem when we arrived. …[W]hen we did our work, we were well-received because we spent some time preparing the people for what was coming. The troops didn’t arrive. We didn’t arrive with a battle ship. We arrived gently…”

Scaring people is not a helpful way to try to get them on board. But then, on the other hand, if it stops little kids from being raped or women from being beaten, it’s a lesser evil to prevent a greater evil. Perhaps it’s a start to a greater focus on these issues. I hope so.

4. Conclusion

One of the problems with indigenous welfare is the lack of coordination between Federal, State and Local governments. For this reason, I agree with the proposal last year by Noel Pearson, Patrick Dodson and Marcia Langton that a body such as the Productivity Commission be set up to coordinate indigenous welfare reforms.

I do hope that some positive things come out of the plan. I also hope that it will be ensured that communities have adequate services, such as fresh water, health care, educational facilities, mental health facilities, housing and the like. Proper services are vital to improving living conditions and living a healthy life.
I do not think that the plan will work without getting a majority of indigenous people on board. It is crucial that any process which is to have long-lasting beneficial effects on indigenous people be seen to have indigenous input and support. I know from my own experience that unless you have an internal desire to change yourself, there’s no hope of anyone else forcing you to change. Change must come from within. And realising that you have the capacity for positive change and growth will lead to real self-determination.

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Filed under Australia, federalism, human rights, indigenous issues, politics, sexual offences, society, tolerance, Uncategorized

What’s in a name?

A judge in Nebraska has banned the prosecution from using the words “rape”, “sexual assault”, “victim” and “assailant” in a rape and sexual assault trial. Or should it be a [BLANK] and [BLANK BLANK] trial? The [BLANK] (otherwise known as the victim) is also not allowed to use these words when giving evidence. Apparently Nebraskan law gives judges a broad discretion to ban language that leads to “unfair prejudice, confusion of the issues or misleading the jury.”

This is the second trial of the matter. In November 2006, the jury in the first trial failed to come to a verdict, deadlocked 7 – 5. Similar orders were made in that trial.

The defendant’s attorney claimed that, “[Trials] should not turn on politicized hyperbole. They should turn on the facts. …Using words like “rape” creates unfair prejudices for defendants and invades the [duties] of the jury.”

By contrast, the victim said, “[The jurors will] think I’m choosing to use the word ‘sex’. I had to pause [at the first trial] and think, re-navigate… Jurors won’t find me credible because I’m pausing to find the words.”

Of course, prior to the the second trial, the prosecution naturally applied to have the words “sex” and “intercourse” barred from the courtroom as well, on the basis that these words inferred that the sex was consensual. The judge denied that motion. Presumably he did so on the basis that there would be no words left to describe what happened.

I was trying to write up this story using words other than “rape” and “sexual offence”. It’s very difficult, if not impossible. The synonyms of “rape” have connotations of crime, or are so archaic (eg “deflower”) that a jury might not understand the meaning. To say, “I woke up and the man sitting in the box over there was despoiling me,” sounds silly.

How far do you take it? Do you ban the use of all adjectives in the court? In fact, even the sight of an accused sitting there between two prison guards and wearing orange overalls carries an implication that he has been accused of a crime, and might possibly be guilty.

It’s all part of a broader tendency in the criminal law. Why is there a double standard with respect to rape versus other crimes? Let’s say I’m walking down the street with a handbag loosely over my shoulder. A thief snatches it. It’s true that I could have held onto the bag more tightly, or wound the strap around my upper arm to secure it to my body or been more observant, but I just wasn’t expecting it to be snatched. A defence barrister is hardly likely to say that I’m “asking for it” to be stolen. Even if I pass out on the street drunkenly so that I’m unable to stop someone from snatching my bag, I’m still not regarded as “asking for it”. But if I’m walking down the street in a shoestring strap top and skirt, and I’m sexually assaulted, how come a defence barrister will say I’m “asking for it”?

As the Slate article which was the source for this post points out, defence barristers are not arguing that murder or theft be described by other names. It’s only in rape trials. Just another example of the double standard.

It’s political correctness gone crazy.  To me, the solution is that the judge should allow the prosecution to say “rape” and the defence to say “sex” or “consensual sex”. Then the jury can make up its own mind. Legal argument invariably involves colouring the language which you use. Just a fact of life. But both sides should be able to colour their language equally. And if they go over the top, the judge can warn them to tone it down and explain to the jury that they should not infer anything from those words.

(Via Slate)

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Filed under courts, feminism, judges, juries, law, sexual offences, USA

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

No excuses

One of the reasons I never practiced criminal law is that I can’t remain objective where rape and sexual assault are concerned. I read a story about an alleged “gang-rape video” and my blood starts to boil. I cannot see that there are any excuses for conduct like that. Now that I am a parent of a young girl, my reaction is even stronger. I am reminded of comments by Armagnac’d a few months back in relation to a similar incident:

Just hand them over to her father, together with a crown-sealed immunity from the A-G. What would be suitable punishment for this? Death? Crippling with an iron bar? Why do these animals disgrace us by sharing our DNA?

There is a broader question, raised in a post by Melbourne high school teacher -k at The Blonde Canadian. While patrolling the schoolyard, she saw two schoolgirls pinning another to the wall, while a third girl was filming it with the intention of distributing it on YouTube. She says it is an increasingly popular phenomenon, and asks:

So why is this becoming so popular? Is it just another rite of passage now that technology has become so familiar, yet another medium in which bullies can humiliate their prey?

Or is it a chance to be part of an increasingly voyeuristic world? Shows such as Big Brother, Survivor and Australian Idol continue to be incredibly popular, all of which use (in part) humiliation to add intrigue and bolster ratings.

I think it’s a bit of both. There will always be bullies and there will always be rapists, unfortunately. But if we have programs like Big Brother, where male contestants “turkey slap” a female contestant or a male contestant exposes himself while massaging a female contestant, this promulgates a notion that this kind of behaviour is somehow okay, and indeed amusing. Why not go that extra step further?

I think companies like YouTube have an obligation to remove any material which shows bullying. As Armagnac’d argues, such things can be policed if companies like YouTube are willing to put the resources into it. It is easy enough to find material on YouTube which potentially shows bullying – just plug in the search terms “school fight”.

I can’t stand reality television because of the element of bullying and humiliation involved. I don’t find it amusing at all, even if the victim is a pain in the neck and allegedly “asking for it”. (NB: This is why I didn’t approve of people laughing at a certain blogger’s dating profile, even though the blogger in question is his own worst enemy in many regards.) Admittedly, I am very sensitive. I even have a phobia of stand-up comedians. I am afraid that the comedian might be unfunny and will humiliate themselves on stage. I never go to anything at the Comedy Festival unless my sister has seen it beforehand and assured me that I won’t feel ill (one show in the last 10 years). I’ve made up all kinds of excuses in the past, but this year I finally confessed about my phobia to some friends. Perhaps it’s related to my fear of clowns? My friends bought a t-shirt for my daughter which says “Can’t sleep, clown will eat me!” and features a clown on the front – very funny, but I can’t actually look at it for more than about 5 seconds. What happens if my daughter wears it? I suspect her beautiful face would erase most of the negative influence of the clown.

Returning to the serious question at hand, I am afraid for my daughter when I read stories like the one above. What kind of a world will she grow up in? I think we have to stand up and say that such conduct is totally unacceptable. I would also like to see more responsibility exercised by the media in relation to bullying (YouTube, television and the like). There is never any situation where rape is “amusing” or “excusable”, and watching a video of it for “amusement” is almost as bad as committing the act itself.

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Filed under criminal law, media, motherhood, sexual offences

Throwing away the key…

The Victorian Sentencing Advisory Council has released discussion papers suggesting that laws be introduced which enable a Court to order that a sex offender with a high risk of recidivism remains in custody or is closely supervised. This proposal raises interesting questions about the balance between the right of the broader community to live in safety versus the right of a convicted criminal to live in peace after he or she has served their time.

There are some situations where an offender has a deep-seated problem and will not be able to be rehabilitated (or cured, where the problem is as a result of a mental illness or brain disorder). How prevalent are such situations in relation to sexual offenders?

The research paper by Dr Karen Gelb, senior criminologist of the Sentencing Advisory Council, accompanies the report, and is particularly interesting. The research paper challenges some popularly held myths about sexual offences and recidivism. Empirical research suggests:

  • sexual offenders have a lower rate of recidivism than many other offenders;
  • in most cases, sexual offenders are known to the victim (rather than a random predator off the street);
  • most sexual offenders do not merely commit sexual offences, but often have committed a raft of other crimes as well;
  • most sexual offenders are not mentally ill and are responsible for their actions.

There is not a discrete group of “sexual offenders” about whom blanket generalisations can be drawn. The profiles of rapists were more similar to offenders who had committed non-sexual crimes than the profiles of child molesters, for example.

However, trends can be drawn about the kind of offender who is likely to reoffend. Repeat sexual offences are more likely to be committed where the offender started offending at an early age, has a stable deviant sexual preference, has multiple convictions for sexual offences, has committed diverse sexual offences and targets young boys.

Sex offender treatment programs seem to have a small effect on reducing recidivism, although it is difficult to gather conclusive data. It is important to introduce such programs in prison.

Obviously, there are a minority of offenders who fit the stereotype. You may think I am a nerd for admitting this, but my mind went immediately to a duo of High Court cases: Veen v The Queen (1979) 143 CLR 458 and Veen v The Queen (No. 2) (1988) 164 CLR 465. The circumstances of these cases are unfortunate, but they illustrate a situation where an offender with a high risk of recidivism should remain in custody.

Veen was a homosexual prostitute. In 1975, Veen was invited back to his victim’s home where they had sexual intercourse. After this, Veen asked the deceased to pay him, but the deceased refused to do so, allegedly making some racial slurs about Veen, whereupon Veen stabbed him repeatedly. At trial, it was found that Veen had suffered a brain injury, and as a result, he had uncontrollable impulses, particularly when he consumed alcohol. He was convicted of manslaughter by reason of diminished responsibility. The trial judge sentenced Veen to life imprisonment, saying:

“The jury’s finding, having regard to my directions to them, indicates that they considered that this abnormality arose from some brain damage, the cause of which is not known.

There can be little doubt that the prisoner, if and when released, will, whilst he suffers from this brain damage, be likely sooner or later to kill or seriously injure one or more other human beings. There is no suggestion that his condition is curable, or in any way responsible to treatment.”

Veen appealed against his sentence to the High Court. The High Court overturned the sentence. The majority of the Court found that the sentence should be reduced to 12 years. Veen was released in early 1983.

In late 1983, Veen was invited back to another man’s home, where they had sexual intercourse. Veen then stabbed the second deceased repeatedly. The circumstances of the crime were almost identical to the first killing. Veen again appealed against his sentence. (I can’t quite believe he had the cheek to appeal a second time.) This time, the High Court refused his appeal.

Yesterday’s newspaper report also mentions William Forde, a serial violent rapist who has reoffended every time he has been released from prison, and who was given an indefinite prison sentence last year in relation to his later offence.

It is worth keeping the matter in perspective: such people represent a tiny proportion of sexual offenders. Bobby Veen represents the exception rather than the rule. However, it seems prudent to have laws to cover the Fordes and Veens of the world. I don’t want such people loose in society – in such cases, the right of society to remain safe is more important than the right of the individual. I think that the Courts will be able to perform the requisite balancing act.

Postscript

There were a couple of other interesting points in the research paper. One thing I found particularly interesting was the observation that sexual offenders had often committed a whole raft of crimes (theft, assault etc). So their sexual crime should be seen in the context of a broader tendency towards anti-social behaviour.

I think that this shows we have to take anti-social behaviour seriously. A 1999 Huddersfield University study showed that able-bodied people who parked in spots reserved for disabled people were much more likely to have a criminal record than an average sample of society. A third of people who parked in disabled spots had a criminal record, and a fifth were suspected of being convicted of an unsolved crime. So if you are the kind of person who doesn’t care about taking a disabled person’s car parking spot, you may lack empathy generally.

All this also brings to mind a book I recently read, Girls Like You by Paul Sheehan. The book details the activities of the “K” brothers, six Sydney brothers who were involved in the gang rape of four teenage girls, as well as theft, sexual assault, violent assault and road rage. The book focuses on the horrific rapes. Unfortunately, the brothers showed a particular contempt for “scantily clad” women, leading a defence barrister for one of the brothers to claim that they were “cultural timebombs”. Apparently the K family originated from Pashtun in Pakistan, which has a particularly harsh mix of tribal and Islamic law (pashtunwali) severely limiting the freedom of women in that society. However, to my mind, attributing the brothers’ behaviour to “culture” is not good enough.

I would suggest that there is a more subtle mixture of influences: a basic lack of empathy for fellow human beings, ingrained cultural and religious excuses for such behaviour in their homeland and family, and an adoption of “gangsta” culture (fast cars, women, bling, general anti-social behaviour). The cause of the offences is the brothers’ total lack of empathy for humanity, not their race or religion. However, the mix of Eastern and Western cultures adopted by the brothers exacerbated this problem. Their adoption of “gangsta” culture made their actions seem heroic and their Pashtun background offered excuses and religious justifications for their behaviour. [This is why I think the comments of Sheikh Hilaly are so irresponsible, divisive and utterly repulsive – he offers excuses for monsters like the “K” brothers, and there are no excuses for such behaviour.]

The research paper also notes that there is a very low report rate for sexual crimes, and some have suggested that there should be a shift within the criminal justice system from discrediting the victim to enhanced evidence-building and fact gathering. When you read Sheehan’s account of the trial of the “K” brothers, you can understand why no one wants to report rape. The trials brought the legal system into disrepute. The brothers were able to manipulate the system for their own benefit (feigning madness, alleging religious and racial prejudice, dumping scores of Legal Aid representatives, intimidating witnesses) and managed to delay the trials for years. The victims of the rapes were exceedingly brave and stood up to some terrible cross examination.

As I have argued in a previous post, I think that a different approach should be taken towards sexual crimes: a shift from the adversarial notion of discrediting the victim to a more inquisitorial trial.

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Filed under criminal law, law, law reform, sexual offences