When being right can be so wrong: the Professor and the Tasmanian DPP

In The Age today, this report on ex Tasmanian MP Terence Lewis Martin, who has been found guilty of having sex with a 12 year-old-girl who’d been sold into prostitution by her mother and her mother’s partner, Gary Devine.

In October 2010 when the case was sub judice the following piece appeared on Melinda Tankard Reist’s website. It was subsequently published in On Line Opinion, until editor Graham Young took it down after being contacted by Tasmanian DPP Tim Ellis, who pointed out that naming Martin in the piece was against the law and could result in charges of contempt against OLO. However, the piece remained on MTR’s website.

I wrote a piece for OLO contesting the  validity of Professor Taylor’s demands that all the other men who’d engaged in sexual relations with the child should be prosecuted. However, after communications with both Young and Tim Ellis, it became clear that my piece couldn’t be published either.

Now the case has been settled and Martin found guilty, both pieces can be published.

First, from MTR’s Website:

Today, an important guest post by Professor S. Caroline Taylor, Foundation Chair in Social Justice and Head of the Social Justice Research Centre at Edith Cowan University. Professor Taylor is also the Founder and Chair of Children of Phoenix Organisation, a charity that provides scholarships and mentoring support to children, adolescents and adults affected by childhood sexual abuse.

Last week, the Tasmanian Director of Public Prosecution, Mr Tim Ellis, released an eight page Memorandum of Advice to the Tasmania police which instructed that at least 120 men who had paid to have sex with a 12-year-old ward of the state will not be charged with breaking the law.

On October 1, on Stateline Tasmania, Mr Ellis dismissed broad community and expert concern about the case as nothing more than a symptom of “wicked” media sensationalism. He added the gratuitous comment that the law rests with a “reasonable jury, not a lynch mob”.

In effect Mr Ellis framed the numerous and profound media and expert critiques of the social justice issues that this case clearly raises as nothing more than an hysterical media driven moral panic about child sexual abuse.

It’s a puerile argument, as stupid as it is offensive to public sensibilities. This tactic reduces the complex reasons behind the critique of his decision with an underhanded accusation that such critiques are not “reasonable”. This is echoed in the Attorney-General Lara Giddings comment: “I understand their anger”. Reducing the profound ethical critiques of this case to a single reactionary emotion – anger – infantilises public concern in order to dismiss such concerns.

Our legal system is premised on the notion that police lay charges where there is evidence that a crime has been committed according to the rules of the law. Yet in this case the DPP has determined that not one, not two, not three, not four, but a series of men charged with paying to have sex with a child all really believed that a 12-year-old ward of the state was an adult. To be clear, the Director of Public Prosecution has used his discretion to void all charges on the grounds that he found every one of their arguments “convincing”. I wonder how many “arguments” they actually had? Or did they amount to the one generic excuse: they could not tell the difference between a primary school age child and a female aged 18.

A Tasmanian MP, Terry Martin, was, however, charged earlier in relation to the 12-year-old. He allegedly filmed the child giving him oral sex. Of course he should be pursued. But why him and not the other 120 men?

While the DPP may exercise discretion not to proceed with a case they do not believe is in the public interest or where the evidence is wholly insufficient, a case as serious as this should not have been remedied with his private deliberations. It appears the DPP determined himself as both judge and jury. In a case as serious as this, involving a child – one of society’s most vulnerable members – prostituted to numerous adult men, we are told that the DPP alone determined the authenticity of the excuses of a group of men who would normally be charged with the sexual abuse of a child. (And their computers probably searched for child pornography). It is important to recognise that in a case involving the relentless sexual, emotional, and psychological abuse of a child, Mr Ellis has accepted the various excuses of the men involved and effectively protected these men from further scrutiny.

The DPP has the right to use discretion to veto cases for prosecution. But I am staggered that charges against a string of men, for the same offences, were dropped on the subjective assessment of one man. This decision, I believe, denied our society the opportunity to determine the authenticity of the excuses relied on by the accused men. It could well have been an opportunity for society to determine the setting of our collective moral compass. Questions of law are not matters that should be adjudicated and determined singularly and behind closed doors. What happened to the concept of open, transparent and public justice?

This case is more than questions of law. It is also to do with questions of decency, of morality, and the ethical treatment of vulnerable girls. The sexual abuse of children is all too rampant in our society. Adults prostituting a child – their own child in this case – is not rare, I am sad to say.

Justice was not served, either in practice, or in principle. The excuses relied on by a group of men charged with a crime against a child should have been held up to scrutiny in a courtroom. Not the elite office of the DPP.

So if we follow this unusual logic, can we expect that the DPP would instruct the Tasmanian police not to charge numerous traffic offenders if those offenders claimed they “truly thought it was 100 km and not 60km”? And would they not truly prosecute a gang of burglars who “convincingly” persuaded the DPP that they either thought the items they stole were actually there for the taking, or that the men had a forgivable inability to comprehend the concept of ownership? Their claims to a criminal offence would be tested within the courtroom, not pardoned by one man’s subjective assessment.

This child was denied justice and a voice. She was also denied any sense of her humanity, her vulnerability, her suffering. Society was denied the opportunity to demonstrate that we have evolved our social and moral landscape and will not tolerate the sexual abuse, misuse and trafficking of children. The outcry from the public and members of the judiciary and legal field are, I think, testament to this claim – that we are capable of recognising and addressing revolting crimes against children.

The failure of the DPP to present the case at court represents, to my mind, an abject failure to both challenge the law to listen to the plight of children, and to challenge those who sexually prey upon them.

Even with the gaps about the prosecution having to prove the men knew the girl was underage, as a society we deserve a courageous lawyer, a brave leader to say, regardless of these limitations and challenges, we will take the case forward and prosecute with all our might.

Legal, societal and moral reform has always been preceded by challenges for change and development. The failure to bring the charges to light and to call the men to account for the crime they were charged with, and have it determined in a legal forum demonstrates a deeply imbedded flaw in the moral character of Tasmanian law.

The DPP’s remarkable counter claim that the area of law that should be reformed lies in the regulation of prostitution misses the entire basis of the argument raised by myself and others. It is a crime to work as a prostitute if one is under the legal age of consent. So even if prostitution were more tightly regulated it would never be legal for a 12-year-old to be prostituted to men.

Also, the “pimps” in this case were not seeking to set up a shingle and an office. Tighter regulation of prostitution would not have led to detection of the crime. It’s a stupid focus and takes us nowhere other than to shift focus from the facts of the case – the sexual abuse, exploitation and prostituting of a child and the abject failure of the law to seek any semblance of justice for the child or society for that matter.

It’s easy to attack and criticise my comments on the Stateline show (September 30) as DPP Ellis did. For my part, I do not retract my comments. The fact I was not privy to the “evidence” as he suggests, does not in my view negate my comments. Indeed, it is odd for Mr Ellis to suggest that if we (myself, presumably, and the public) had seen the evidence we would agree with him – the collective ‘we’ were all denied the opportunity to understand the logic behind Mr Ellis’ singular opinion because the evidence was never tested in a legal forum and his reasoning not open to scrutiny. My critique was not about the vocabulary of excuses – it was about the failure to test these excuses within a legal forum designed to hear and determine criminal charges.

I am concerned about the capacity of one man’s support for the chorus of claims by a large group of accused men that by right should have been delivered in a legal forum viva voce and adjudicated on by the court. I am concerned that the veracity of their claims about being unable to tell the difference between a primary school age child and a female over 18 has not been tested in a court of law.

This is about simply demanding that the line up of men who subjected a little girl to relentless penetrations and sexual violations have claims that they are unable to distinguish between a primary school age child and someone older, in a legal forum.

By not taking the matter to court, we abrogated a little girl’s most basic human right to at least have the law step in on some level to protect her and thousands like her. As a society we should not stand by silently and allow our public office of prosecution to indulge in secretive and un-democratic decision-making. To do so denies us our capacity as a democracy, and as a people, to reform both justice and our moral compass about the most vulnerable members of our society.

∫

My unpublished response to Professor Taylor’s piece:

When being right can be so wrong

In Online Opinion on October 11, Professor Caroline Taylor, Head of the Social Justice Research Centre at Edith Cowan University, published an article titled “An (un) convincing argument.”

The article is a scathing commentary on the decision of the Tasmanian Director of Public Prosecutions, Mr Tim Ellis, not to pursue any of the estimated 120 men who allegedly paid to have sex with a twelve-year-old girl. The men had responded to a newspaper advertisement claiming that the girl, “Angela”, was eighteen. “Angela” was put out to prostitution by her mother and her mother’s boyfriend, both of whom are now serving custodial sentences.

Below is the link to extracts from the DPP’s Memorandum in which Mr Ellis takes the unusual step of providing a public explanation of why the decision not to proceed with prosecutions against some other men was taken:

http://www.themercury.com.au/article/2010/10/02/176611_opinion.html

It is unfortunate that some important aspects of the DPP’s decision were left out of Professor Taylor’s article, such as the fact that the child has refused to identify her abusers, and the fact that the accused men would be tried separately. This would subject the child to participation in seven or eight trials, all with, according to the evidence revealed in the above link, little chance of a successful outcome. This information is highly relevant to the DPP’s decision not to proceed, and in all fairness, should have been noted in any public critique of his decision.

It is regrettable that the article is based largely on an assumption that the Tasmanian DPP sought to protect the alleged abusers with his decision, and the outrage that naturally accompanies such an assumption.

It is difficult to accept that these men could have been unaware that the child was underage. However, difficult as it is to accept, it is equally if not more difficult to prove in a court of law that the men were ignorant of her age. They answered an advertisement for sex with an eighteen-year-old, they had not sought sex with a child. They were, according to the DPP, shown into a darkened room, where many of them stayed for little more than the minutes it took for them to climax. There appears to be agreement between those who have seen the child that she does look a good deal older than twelve. The girl was forced to service up to 200 men over a short time period. Her ability to identify them may well be impaired by their number, and the trauma of the horrific and unrelenting assault on her body and her mind. All of this speaks to reasonable doubt.

Of course there is widespread distress and concern about this child. Of course there is widespread disbelief that the men involved couldn’t have known her age, or at least that she was under-age. Of course the community would like nothing more than to hold these men accountable for their sexual abuse of this child. Of course we are outraged that they will escape accountability.

However. In the DPP’s Memorandum it is stated that the child has refused to identify her abusers, and to give evidence against them. This presents the DPP with a dilemma. To proceed the child would have to somehow be forced to engage in a series of prosecutions, all against her will. There would be not one but at least seven or eight separate cases, as those offenders who have made statements to the police would have to be tried independently of one another.

There is a very good chance, an enormous chance in fact, that the accused would in every case be acquitted. No one can force the child to identify anybody, even if she is somehow forced into court. And no one in their right mind would expect her to be capable of remembering particular faces, from circumstances that amount to torture.

And what would it do to this child, to be forced,cajoled, manipulated against her expressed will, to participate in not one but several prosecutions stretching over years and years of her life?

It is extremely unfortunate when outrage against the perpetrators blinds us to the ongoing suffering of the child. Bringing these men to justice would cost the child dearly, and she doesn’t want to do it. The desire for retribution expressed in Professor Taylor’s article, while understandable, does not take into consideration what this child would have to bear in order for the professor’s demands for “justice” to be sated.

There are grown women who will not pursue their attackers in the courts. There are grown men who will not even admit they’ve been sexually abused, let alone name their abusers. Why then should anyone expect a child to do this, not once, but over and over and over again?

Yes, our legal system gives us the means to pursue these offenders. Yes, they deserve the full weight of the law’s approbation. Yes, Terry Martin, ex Tasmanian MP is being pursued for engaging in oral sex with this child. And what is the difference? The difference is Terry Martin filmed himself doing it. The child isn’t needed to identify him. But the child’s identification of the others is essential if the DPP is to get up a case.

In her article, Professor Taylor claims that: “This child was denied justice and a voice. She was also denied any sense of her humanity, her vulnerability, her suffering. Society was denied the opportunity to demonstrate that we have evolved our social and moral landscape and will not tolerate the sexual abuse, misuse and trafficking of children.”

Superficially, there is little to argue against in these observations. But on a deeper level, the fact is that the child has refused to participate in any prosecutions, therefore to attempt to force her to do so is to deny her the human right to refuse. She has already been stripped of her human rights, by the perpetrators who sold her and by the men who abused her.

There is no guarantee that putting her through a series of trials will result in justice for her. It is more likely that the result would be quite the opposite, and she will have suffered further for a series of negative outcomes. Her damaged sense of her humanity, her sense of vulnerability, and her suffering would all be exacerbated by trials that do not end in convictions. This is not a risk that anyone with any empathy and knowledge of the traumatic aftermath of child sexual abuse would advise her to take.

Professor Taylor remarks that this could be an opportunity for societal challenge and change, if the right lawyer would up his or her hand to courageously take it on. No doubt there is truth in this, however, on what grounds can Taylor justify turning this young victim into society’s guinea pig?

Respecting the child’s decision not to participate in the legal process is a more urgent moral imperative than society’s right to pursue the offenders. Society must not exploit this child’s misery in order to demonstrate some kind of moral evolution. This child cannot be forced into satisfying society’s need to have these men punished.

A real moral evolution will be evidenced when we are not blinded by our outrage against these men, but when we are able to see past that outrage and consider what it will do to the victim to insist that she be further victimized in our pursuit of justice.

Having read the Memorandum, I am convinced that given the realities of the case, it is extremely unlikely that the girl would agree to identify the abusers. It is very unlikely that anyone could prove that these men realized she was underage when they arrived for their appointments, and went on regardless to intentionally engage in a sexual act with a minor. And this is the heart of it. These things must be proved, beyond reasonable doubt. Every defendant is entitled to that consideration, no matter how much we might despise their alleged actions.

It is the job of the DPP to assess the merits of a case, and whether or not it has legs. Perhaps his judgments are “subjective,” as Professor Taylor alleges, nevertheless it is his job to make these assessments, and in this case, I find it hard to see how he could have reasonably arrived at any other conclusion. Far from denying the child her human rights, Mr. Ellis has acted with compassion and common sense. It may be that there was political self-interest involved in his decision as well, nevertheless his judgment seems, sadly, the only one possible given the circumstances.

Just because the legal means are available to address sexual crimes does not guarantee that they are always the best choice for the victim. Many rape victims know this. Many choose to relinquish their desire to see the accused punished because of what it will cost them. As frustrating and disappointing as this is for others, only the victim has the right to decide if she or he wants to, or can, go through the legal process. Victims of sexual crimes have already been forced to endure against their will. It is not society’s job to repeat this trauma, however well-intentioned that society may perceive itself to be.

Every decent impulse in us urges that offenders such as these must be punished. But at some point we must stop and assess what it will cost the child if we demand the moral satisfaction of achieving that goal. “Angela” has been forced too much, too far and too often.  We cannot, in all conscience, force her to do anything more. This works to the offenders’ advantage, and that’s a bitter pill to swallow. Sometimes, perhaps far too often, the offender gets away with it.

But there is nothing more important to a victim of a sexual crime than to have her or his wishes respected and supported. It is one thing to stridently demand what we perceive as right and just, when it isn’t us who’ll have to pay the price.  It is another thing altogether to look into the face of a terribly abused and suffering child who tells you:  “I don’t want to,” and decide she’s going to have to do it anyway because society demands justice and retribution.

∫

Today I heard a sound bite from an interview with Professor Taylor, post Terry Martin’s conviction. Taylor is still accusing the Tasmanian DPP of failing to offer the child justice. She is still insisting that as a society we must bring these men to justice. And I would still ask her, as I did in several emails, what about the right of the child to refuse a future such as Taylor and Melinda Tankard Reist would have her endure?

The decision to say no to any further court proceedings (the child has already endured the prosecution of her mother and stepfather)  is likely the first decision the child has ever been allowed to make, and it must be respected. In my view, society, Caroline Taylor, and Melinda Tankard Reist can just suck that up, and have the decency to leave the child in peace to recover from horrors most of us don’t even want to imagine.

Tags: Caroline Taylor, Terence Martin