IT IS very galling to have statements taken out of context. The South Australian judge who made the comments out a man being allowed to use “”rougher than usual handling” in obtaining the consent of his wife to sexual intercourse suffered from this. After a long and difficult rape case, the judge made a summing up in which he said: “”There is, of course, nothing wrong with a husband, faced with his wife’s initial refusal to engage in intercourse, in attempting, in an acceptable way, to persuade her to change her mind, and that may involve a measure of rougher than usual handling.”
This was taken out of the context of the trial and seized upon by many, including the Prime Minister, to make comments. The statement, by Justice Derek Bollen, came to light in January upon the hearing of a Crown appeal on questions of law. They sparked calls for the judge to apologise and for him to be sacked and for wide re-education of all judges.
Having taken that one statement out of context, a Democrat candidate for the South Australian Parliament started a petition calling for his sacking for his “”apparent support of violence in marriage”.
Now, several months later, the statement has been put in full context with all the facts surrounding the case, and the conclusions are much more satisfactory and convincing: the judge was wrong in law, gave the jury the wrong directions and should never have been made the statement.
That was the conclusion of the South Australian Court of Appeal.
Justice Perry ruled that a direction in those terms “”was apt to convey the impression that consent might be induced by force, against the will of the victim. That has never been the law”.
The acquittal in this case stands, but judges in future will have a clearer guideline about what sort of summing up is acceptable.
The context was that the wife had been sexually assaulted between the ages of four and 12 and had flashbacks to those incidents from time to time so she was unable to countenance sexual relations. And she also had a lesbian relationship and progressively withdrew from sexual contact with the accused. Still the judge was wrong.
This case had a second issue, however, which is perhaps of equal importance because it applies to all alleged rapes, not just rape in marriage. Justice Bollen was held to be in error for another of his directions. He told the jury about an anecdote (without specifically saying it was fictional) about a respectable married businessman on a train being approached by a woman who tore her own clothing, scratched herself to produce bruising and bleeding and then pulled the communication cord and alleged rape. The police were called. The man got bail and committed suicide before it came to light that the woman repeated her performance on another man and found to be mad.
Seriously, a judge told that to a jury, in 1992. He said these charges were easy to make and hard to refute.
The Court of Appeal cited a High Court case which should put this palpable nonsense away.
These charges are not “”easy to make”. It is extremely difficult for a woman to go through the humiliating experience of giving evidence in a sexual assault case. (The more so if judges make asinine comparisons to deranged women on fictional trains.) Further, they are not necessarily hard to refute. The onus of proof is on the Crown.
There are cases where women make up allegations of sexual assault for ulterior motives. However, that does not justify a generalised suspicion to be cast on all women making these allegations. Rather it justifies a warning to be given to the jury only in cases where there is some evidence of ulterior motive: a child custody dispute, for example, or some motive for revenge. The cases should be treated like any other case where judges warn juries about accepting the evidence of some people when they have grounds to do so, not on some pre-conceived notion that all women who give evidence in sexual assault cases are somehow suspect.
This is now the law in all Australian jurisdictions and affirmed by the High Court in 1989. It ruled, “”Judges should no longer warn juries that allegations of sexual offences are more likely to be fabricated that other classes of allegation.”
So it was not merely a question of Justice Bollen being out of step with community thinking. He was out of step with the law and the thinking of his judicial colleagues.
What this illustrates is that the knee-jerk condemnation of Justice Bollen’s statement was right. However, the calls for a general re-education of judges to bring them up to community thinking is unwarranted. Justice Bollen’s comment was an atypical one. Before and after that case, scores of judges have given sensible, sensitive summings-up and appeal judges have given sensible, sensitive guidelines to trial judges. Justice Bollen does not need re-eduction in community standards, but education in the law.