That our judiciary may arbitrarily declare violence perpetrated against sex workers is a lesser crime is a humanitarian injustice, writes Susan Bennett.
TWENTY YEARS AGO, the full bench of the Victorian Supreme Court upheld the ruling that it is
"…a lesser crime to rape a prostitute, as a prostitute is unlikely to feel the same sense of shame or degradation as a chaste woman."
Two decades later, Tracy Connelly, a sex-worker, was murdered in the van that was her home, across the road from the safe haven offered by her friends at the St. Kilda Gatehouse.
There isn't a lot of evidence in the accounts of Tracy's peers to suggest that sex-workers feel their wounds less than other human beings. Some speak of taking heroin to numb childhood trauma and abuse; others of their pain at servicing men to fund their addiction. Friends lost too soon to the needle are remembered in tributes to golden haired girls, thought no less beautiful for dying "spread-eagled on a public toilet seat, dried blood on your arm, cold vomit on your feet." Forsaken dreams of being a vet nurse, pharmacist or chef are recalled, as are violent parents and escapes into homelessness and addiction. In a life where death promises liberation from pain, heroin is friend and foe, battled and embraced.
The sense of shame or degradation that our courts demand of virtuous victims is very much in evidence: "everyone sneering 'no shoes on her feet'. Such a disgrace the junky, mum, whore, not the sort decent people ever let in the door."
Grief is keenly felt, as is kindness.
The marginalised friends of the St. Kilda Gatehouse attest to compassion and acceptance as instrumental in reclaiming their lives and self-respect. The hope and love offered by the Gatehouse staff for their street friends and the deep affection that answers it is sheerly beautiful. A weekly spa aims to help those doing it tough to reclaim their sense of beauty. Christians paint the nails of street sex-workers to "demonstrate God's heart and love to them" and street sex-workers talk of women who "dare to touch my feet."
This is humanity at its finest. That our judiciary may arbitrarily declare violence perpetrated against these good folk a lesser crime is a humanitarian injustice.
Any suggestion that Ohio kidnap victims Michelle Knight, Gina DeJesus and Amanda Berry, should, after a decade's captivity be accustomed to rape would rightly be denounced as barbaric. It is no less so to suggest it of sex-workers and we must examine the role of our judiciary in abetting such crimes.
In an ABC Talking Heads interview, former criminal barrister Andrew Fraser said:
"People regularly confuse morals with the law. Morals have got nothing to do with the law. They may have had a long while ago but these days the law is in my view frankly an arcane game played by essentially privileged men dressed in sixteenth century costumes. They've not only lost sight of the moral aspect of it but also the practical aspect of it. They've lost sight of society's view of it."
But the very problem here is that by the definition of sex-workers as less worthy than other victims ‒ and the lenient sentencing that is its consequence ‒ it is the judiciary that has confused morals with the law. Those "essentially privileged men" have, at their sole discretion, enacted into law a repugnant personal morality without evidential basis or relevance that should be foreign to any egalitarian, just and humane society.
The better question here is not who is worthy a victim, but who is a worthy judge.
Mandatory psychiatric evaluation of candidates seeking positions in government or judiciary has great appeal — not to exclude those with bona-fide mental illness but to weed out those with raging personality disorders. Five minutes of parliament question time tends to reveal the prejudices and, certainly, the galloping narcissism of politicians. However instinctive and informal the public’s diagnosis, we mitigate the potential damage our more demented politicians may do by way of the vote — but we don’t have that same opportunity with judges.
We have witnessed some bizarre and erratic judicial behaviour, from the judge who criticised an incest victim for not sitting next to her attacker in court; to the judge, who disliking a newspaper editorial on his case demanded that the editor be brought before “his” court.
I once personally witnessed a very senior magistrate fly into an apoplectic rage at the mere mention of police. For several teeth-gnashing minutes she ranted incomprehensibly about
"The police! If not for the police… I wouldn't be so upset… about… about… what's happening in the media!"
I doubt even she knew what she was talking about. Certainly nobody else did. "My court!" was a term she so often repeated, I came perilously close to advising her that the court was not hers but the people’s — contempt be buggered.
The Victorian Supreme Court’s finding of the rape of prostitutes to be a lesser crime was not only a cruelty visited upon rape victims – and a declaration of open sexual assault season on sex-workers – it foisted upon the wider community a sentence beyond the court’s remit, undermining the virtues of respect, tolerance and individual autonomy fundamental to any civilised society, the ramifications of which are still being felt today.
When serial rapist Adrian Ernest Bayley raped and murdered Jill Meagher, he was on parole for multiple assaults on sex workers, having served less than half of the maximum penalty for sixteen counts and five victims.
Jill Meagher’s husband, Tom, condemned the inherent message of lenient sentencing for the rape of sex workers:
“What it says to women is, you know, ‘Be careful what you do, `cause if we don't like what you do, you won't get justice.’ And then what it says to people like Bayley is not, ‘Don't rape’, but, ‘Be careful who you rape.’”
During Bayley’s trial, former police detective Charlie Bezzina expressed frustration at how frivolously the justice game is played.
"Seeing such perpetrators walk from the courts on bail or out on parole, when you know their history, is absolutely soul destroying. Some defence lawyers would tell me, 'It’s all a game Charlie', but I don’t believe that."
Of greater concern than the character of victims is the character of those in the court to whom our lives are just a game and that raises an interesting double standard.
This week, The Age reported the introduction of tougher drug tests on Victoria Police. While Victoria Police must have a zero blood alcohol reading while on duty, the same is not true of officers of the court. A police acquaintance told me of testifying at trial where a well-known criminal barrister returned from lunch obviously drunk and wasted the afternoon swaggering about making sport of her testimony because, in his inebriated state, it amused him to do so.
Into such hands falls the fate of accused and victim alike. It’s hard to entertain any notion that our courts are interested in serving justice when the same sobriety demanded of police to ensure the integrity of the force is not required of the judiciary and trial lawyers.
Former criminal barrister Andrew Fraser said of his poor decisions while addicted that
“Cocaine makes you feel like you're ten foot tall and bullet-proof.”
Victims of crime are owed a zero blood alcohol and zero illicit drug reading from every officer of the court involved in their trial. Given the judiciary's extraordinary discretionary powers, it is only reasonable that its members be subjected to drug and alcohol testing to ensure decisions are not made under the influence.
If the law must be an ass, then let it be a sober ass.
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