Justice: Asking For Trouble


It’s hard to believe that anyone could
suggest that a 10-year-old intellectually disabled girl who has been
repeatedly assaulted and infected with syphilis and gonorrhoea may have
contributed to her own rape. Yet here we are.

The facts are
straightforward. In 2006, nine young men raped a little girl who had
recently returned to the Aurukun community on Cape York after having
been in foster care since an earlier rape when she was seven. Authorities learnt of the second attack when the girl went to a clinic to request condoms and a pregnancy test.

this week the news broke that six of the offenders — all juveniles —
did not have their convictions recorded, while the other three — aged
17, 18 and 26 — were given suspended sentences. In response to the
revelations, the Queensland Government has appealed the sentences and
ordered a review of all Cape York sexual assault cases of the last two
years. The prosecutor in this case has also been stood down, pending an inquiry.

In yesterday’s Crikey, Greg Barns came out in support
of the judge’s decision not to send the men to jail, pointing to the
overrepresentation of Aboriginal men in prisons and the evidence
against custodial sentences as a means to rehabilitate offenders. His
argument is a compelling one and should be considered seriously by
those who insist that jail time is the only acceptable sentence.

Thanks to Bill Leak

Barns also points out that the much quoted comment by District Court judge Sarah Bradley that the girl ‘probably agreed’ to have sex with the men does not
mean that the judge believes the girl consented to sex. It is legally
impossible for a person under 12 to consent to sex. Besides which, the
judge convicted the men of rape — a crime defined by lack of consent.

using the contentious phrase Judge Bradley was, in Barns’s words,
‘stating the facts of the matter — that this was not a case where the
accused physically struggled.’ This sounds reasonable: a judge must
state what she has found to have occurred, however dreadful it sounds.
The problem with this defence comes when we look at the context in
which the phrase was used.

First, consider the submission of
prosecutor Steve Carter, who did not think custodial sentences were
warranted for what was mere ‘childish experimentation.’
Sounding like he was working for the defence, he claimed that the sex
was consensual ‘in the general’ rather than legal sense, described the
rapists as ‘very naughty,’ and asked the judge to accept that
‘sometimes things happen in small communities when children get
together.’ ‘Children’ apparently being an appropriate descriptor of
both the 10-year-old victim and her 26-year-old rapist.

Judge Bradley, then, in her sentencing remarks,
affirms not only the facts of the case (the girl agreed to meet with
the men) but the prosecutor’s characterisation of the crime as not
terribly serious. She calls what the offenders did ‘having sex’ (a
consensual activity) rather than rape (the crime for which they’re
being sentenced) and tells them that if they again ‘have sex with’ an
underage girl they ‘could end up in jail.’

No, she didn’t say that the girl consented, but she did
reinforce the prosecutor’s message that rape is just a technical term
for sex that might get you into trouble. So, no more sex with children
— even agreeable ones.

Let’s think for a moment about the child who has been repeatedly described as having agreed to ‘have sex with’ nine men. What kind of child
would do such a thing and then take herself off to a clinic for a
pregnancy test afterwards? The answer — as will be obvious to anyone
familiar with the aftermath of child sexual assault — is that these are
the behaviours of an abused child. The relationship between abuse and
inappropriately sexual behaviour in children is well documented. To
hear a prosecutor characterise the continued abuse of a girl who was
first raped at the age of seven as ‘childish experimentation’ is
genuinely shocking.

What else do we know about the child who had sex with those ‘naughty’ boys? She has an intellectual disability as a result of foetal alcohol syndrome. Even if the prosecutor and judge were not aware of the disproportionate rate
of assault suffered by women and girls with disabilities, the increased
vulnerability of a child with her condition should be obvious.

Oh, and this sexually abused, intellectually impaired 10-year-old child does not, unlike her attackers, ‘come from [one]of the most prominent and powerful Aboriginal families on Cape York’.

idea that this child could agree or not to anything proposed by a gang
of teenage boys and men is ludicrous. So is the idea that there is any
such thing as a mitigating factor in the rape of a child.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.