Why Judges Should Not Head Abuse Enquiries (or: I Judge, Therefore I Am)

By Lewis Blayse
lewisblayse.net
May 31, 2013

http://lewisblayse.net/2013/05/31/why-judges-should-not-head-abuse-enquiries-or-i-judge-therefore-i-am/

A little bit of heresy today.

If the government had appointed a quiz-show compere to head the Royal Commission, it would seem silly. We would see lots of flashing lights, loud buzzers, and over-acting.

The head sets the tone and style. Judges automatically establish a court environment. That is not necessarily the best environment to tackle the tasks at hand. For victims, it is an intimidating environment. Lawyers, not victims, get to quiz people like Pell. Sometimes it is just a lawyer speaking on behalf of people like Pell. Sometimes it is just two lawyers facing off in front of the judge. The advantage is with the side which can afford the most lawyers. The victims can be forgotten in the quasi-judicial process.

Of the above reasons for not having a mock-up of a court, the most important one is that the abusers and their protective organisations are not confronted with the reality of their crimes. Does anyone really expect Justice McClellan to let a victim, or victims’ rights activist, to directly question Pell? Would Pell be able to keep his cool if questioned directly by victims, rather than through someone’s lawyer?

One of the realities that the court environment strives to suppress is the depth of the emotion associated with child sexual abuse cases. The public needs to see the reality of the effects on victims, not merely some sanitized, legalistic version. If any raw emotions were to surface, the “defence” lawyers would object, and be supported by the judge.

Another aspect of having a judicial head of the Royal Commission is that such commissions are necessary because the legal system has failed in some way or other. Recommendations will undoubtedly arise for reform of the existing judicial systems, from abolition of statutes of limitations and abolition of the “Ellis defence” to light sentencing. So, a judge will report on his own inadequacies? Complaining to Caesar about Caesar’s wife?

Another valid question concerns the assumption that only judges can conduct a serious enquiry. A professor or administrator could do this. Indeed, the whole process could be turned on its head. Instead of a Counsel Assisting, a victims’ advocate could determine some of the proceedings. Where was the community consultation on who were to be appointed Commissioners?

Of course, all of these arguments seem, to some, as silly as appointing the quiz-show compere. This attitude comes from one basic assumption that should be challenged, if victims are ever to achieve peace and justice: that is, that members of the Establishment are much more credible than common victims.