The Courts As an Institution in the Royal Commission Context (or: You Poor Man)

lewisblayse.net
August 12, 2013

http://lewisblayse.net/

Image: Judge Peters

The Australian Royal Commission is specifically charged with, and limited to, institutional responses to child sexual abuse. As has been noted in a previous posting, there may be questions regarding just what constitutes an “institution” in the context of this enquiry.

One of those grey areas may well be the response of the judicial system. There are often cases where the general public feels that judges are out of touch with community expectations, especially concerning sentencing. There is also the issue of “revictimisation” resulting from how victims are treated in the court process, especially for child witnesses (see, for example, the book by S. Caroline Taylor, “Court Licensed Abuse: Patriarchal Lore and the Legal Response to Intrafamilial Sexual Abuse of Children”). Further, there have been concerns about which factors are included in variable sentencing for the same offence.

These are all valid issues for the Royal Commission to consider. Submissions on these topics will undoubtedly be sent in, and there should be no excuse for them to be ruled as being outside the Terms of Reference of the enquiry.

Although the following case originates in the U.K., parallel examples in the Australian judicial system certainly exist, and it is relevant given the similarities of the two systems. Many legal people would beg to differ with the opinions expressed in this posting, but that does not mean that the issue should not be fully debated in the enquiry setting.

A very recent case (in the U.K.) raised the ire of many people, but there was little they could do to change things, because that is how the judicial system currently operates, both here and in the U.K. No similar comment can be made for other systems, such as in the U.S. That would be for them to consider should they ever reach the point of having their own national enquiry.

Neil Wilson, 41, pleaded guilty to charges of downloading child pornography and sexual activity with a child, a 13-year old girl. He was given an eight-month suspended sentence, and walked free from the court.

Why?

Judge Nigel Peters (pictured above) said that the girl looked and behaved a “little bit older” (14 or 15 in fact). He described the girl as “predatory” and as “egging on” Wilson. In a weirdly contradictory statement, Judge Peters said that “Allowing her to visit your home is something we have to clamp down on, and in normal circumstances that would mean a significant term in prison. There is no defence when dealing with children, but I am prepared to impose a suspension.”

Wilson had met the girl when she asked him to buy cigarettes for her. Over the next two weeks, he bombarded her with phone calls and text messages. Eventually, she agreed to go to his home (where the offences took place).

It was not only the judge who was a problem. The official prosecutor, Robert Colover, added to the injustice. Eventually, the Crown Prosecution Service was forced to comment that “The language used by prosecution counsel was inappropriate.”

What Colover said was that ‘The girl is predatory in all her actions and she is sexually experienced. She appeared to look around 14 or 15 and had the mental age of a 14- or 15-year-old despite being younger than that. There was sexual activity but it was not of Mr Wilson’s doing. You might say it was forced upon him despite his being older and stronger than her.” And this was from the prosecution!

Not surprisingly, both Judge Peters and Prosecutor Colover have attracted criticism. U.K. Deputy Children’s Commissioner Sue Berelowitz said that Judge Peters’ behaviour was “of the deepest concern” and called the sentence “lenient”. The “Everyday Victim Blaming” website has set up a petition on the campaigning website Change.org demanding justice.

The support group Rape Crisis (England and Wales) said it was “appalled and bitterly disappointed” at what it called “shocking and entirely unacceptable treatment of a 13-year-old sexual violence victim in court.” A spokesman said that the group “utterly refutes the strong implication of the judge’s comments that a child’s behaviour can somehow mitigate that of an adult who perpetrates sexual violence against her. This is not only a gross misinterpretation of the law but also a sad and clear signal that we still have some way to go before rape survivors can confidently expect both social and criminal justice in this country.”

There have been several cases in Australia where prosecutions have failed simply because the victims have not been prepared to go through the harrowing process currently in vogue in the courts. The whole issue of reporting rates for offences does not only pertain to cover-ups; it also involves barriers raised by the judicial system itself.

The Royal Commission would be wise to seriously consider any submissions it receives on this critical issue of judicial abuse.