There has been significant backlash against Hollywood figures Ashton Kutcher and Mila Kunis’ defence of their friend, convicted rapist Danny Masterson, bringing the use of character references into focus.
*CONTENT WARNING: This article discusses sexual abuse
The couple have since released an apology, but the public response has been damning.
In 2018, Cardinal George Pell was convicted on charges of child sexual assault which were later overturned. During sentencing, two former prime ministers Tony Abbott and John Howard gave glowing references to his good character, throwing all the gravity of their status against the justice system in order to influence the sentencing. Regardless of the outcome, many feel that this should never have been allowed.
Harrison James and Jarad Grice are survivors of child sexual assault who are fighting to change the law that they say gives perpetrators of horrendous crimes an unfair advantage and further traumatises victims. The 'Your Reference Ain’t Relevant' campaign culminated in a petition which was presented to the NSW Parliament by Greens MP Abigail Boyd on 22 August.
The petition seeks to amend section 21A(5A) of the Sentencing Procedure Act 1999 (NSW) so that character references will no longer be considered in sentencing for charges of child sexual assault.
The campaign has been publicly supported by high-profile campaigners such as Grace Tame, who offered a letter of support, and whose own advocacy journey shares parallels in its transformation of trauma into a driving force for action. Harrison and Jarad say that lived experience is irreplaceable in bringing about change, and encourage other survivors to speak out.
They said:
“Our efforts exemplify how individuals with direct experience are best positioned to drive meaningful change. While we can’t predict the exact impact of this legal change, we believe it contributes to a more equitable and trauma-informed justice system.”
One of the hallmarks of child sexual abuse is that perpetrators hide behind the perception of good character, cultivating the image of a trusted and virtuous person, and allowing them to gain access to their victims. It is also how they can often get away with prolonged offending.
There are other crimes in which the perpetrator uses the perception of good character in this way. Hannah Clarke’s husband was known to his community as a dedicated family man and an inquest into her murder found that he had repeatedly lied in order to portray himself as the victim in their relationship. The manipulation is deliberate, calculated, and it is a common tactic of abusers, yet there is nothing currently stopping character references from being used to mitigate sentences, except for the judge’s own discretion.
Associate Professor Anna Copeland is a legal specialist from Murdoch University who believes that while we must protect the right of the accused to establish prior character, it would be helpful to develop more specific guidelines around their use. She says that references describing perpetrators as being “good guys” should work against them in some cases.
“In some circumstances, getting those references from people that are saying this person is so outstanding is more damning of that person because it shows that absolute dichotomy between the public and the private action."
If the 'Your Reference Ain’t Relevant' campaign is successful, she agrees that quantitative research into the benefits of the change could spark a discussion into the use of character references in sentencing for other crimes such as domestic violence and sexual assault.
NSW is just the first step toward Harrison and Jarad’s vision of rolling out their campaign Australia-wide. On the 26 July, they met with NSW Attorney General Michael Daley and the Minister for the Prevention of Domestic Violence and Sexual Assault Jodie Harrison.
As a result, the Attorney General has instructed the Department of Justice and Communities to commence a review into the proposed change to legislation, which will include consultation with victim-survivors and advocacy groups.
Harrison and Jarad encourage their supporters to engage with the campaign by contacting their local representatives, by familiarising themselves of the implications within their local jurisdictions, and by speaking out in support of survivors who they say inspire them every day.
They said:
Beyond our immediate campaign, we remain steadfast in our dedication to creating a safer environment for survivors. The road ahead may involve collaborating with diverse stakeholders, fostering open dialogue, and amplifying the voices of those who have been silenced for far too long.
We invite everyone to join us in this collective endeavour to redefine justice, to end the cycles of silence and suffering, and to construct a future where survivors are heard, believed, and empowered. It’s with that support and engagement that we as a community can genuinely be the catalyst for change that our society urgently requires.
Emma Jayne Willson is a writer and poet from Perth.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
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