Social and legal demands of victims of abuse

In October 2010 Professor Caroline Taylor, Head of the Social Justice Research Centre at Edith Cowan University, published an article on the website of activist Melinda Tankard Reist 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. One of these men was Terence Martin, an ex Tasmanian MP. All 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. Professor Taylor re-iterated her position on ABC Radio when Martin was found guilty on 29 November 2011.

The matter was sub judice at the time, and the piece I wrote in rebuttal of Professor Taylor’s opinion could not be published by OLO, though Taylor’s piece was not withdrawn from Tankard Reist’s website.

In the last few days, ex Tasmanian MP Terry Martin has been found guilty of what is described in the media as “having sex with a 12-year-old girl,” and given a suspended sentence of 10 months. Justice David Porter’s sentencing comments can be read here.

The sentence has provoked outrage amongst child protection advocates, many of who are planning demonstrations across the country this weekend.

In October 2010 Mr Ellis took the unusual step of publishing a Memorandum setting out his reasons for not proceeding with the prosecution of seven of the men known to have had sexual relations with “Angela” in the Hobart Mercury.

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 “Angela” refused to identify her abusers, and the fact that the accused men would be tried separately. This would subject “Angela” to participation in seven or eight trials, all with, according to the evidence revealed in the DPP’s Memorandum, 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. Rather, many made the assumption that Ellis’s decision was taken solely to protect the alleged abusers. I have yet to find any motive for Ellis’s alleged desire to protect them.

It is difficult to accept that these men could have been unaware that “Angela” was underage. However, difficult as it is to accept, it is equally if not more difficult to prove that the men were ignorant of her age. They answered an advertisement for sex with an eighteen-year-old. None of them were seeking 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 them to climax. There appears to be agreement between those who have seen “Angela” that she does look a good deal older than twelve. The prosecution would be required to prove beyond reasonable doubt that these men, having anticipated an 18-year-old woman, realised when they entered the room that “Angela” was much younger, and proceeded to have sexual relations with her regardless. While this may well have been the case, proving it is another story.

“Angela” 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 and her spirit. It is hardly likely that “Angela” was in any fit state to closely observe and remember their faces, in circumstances that amount to torture.

In the DPP’s Memorandum he states that “Angela” refused to identify her abusers, and refused to give evidence against them. Martin obligingly photographed himself with Angela, but no such evidence is available in any of the other circumstances. To proceed with prosecution “Angela” must be persuaded or forced to engage in up to seven more court cases, all against her will. She has already given evidence against her mother, Gary Devine, and Terence Martin. If the DPP were to proceed with further trials, “Angela” would be embroiled in legal action for many more years of her young life, as each defendant must be tried separately.

As DPP Ellis puts it:“Repeated trials would undoubtedly increase the trauma the complainant has already suffered. Given the unlikelihood of convictions and even if there are convictions, the likely [minor] sentences the accused men would face, in my view, it is not in the public interest to repeatedly subject the complainant to giving evidence and the resulting trauma that she would as a result suffer. ”

The outcome of Martin’s trial vindicates the DPP’s reluctance to subject “Angela” to further legal proceedings with a likely unsatisfactory outcome.

It is extremely unfortunate when outrage against the perpetrators blinds us to “Angela’s” ongoing suffering. Attempting to bring these men to justice would cost her dearly, and she doesn’t want to do it. The community’s desire for retribution, while understandable, must take into account what “Angela” would have to bear in order for the community’s demands for justice to be sated. It is very easy to call for “justice” when you are not the one who is faced with enduring the process required to attain it, or the terrible uncertainty that at the end of the ordeal, “justice” may well be the last thing you’ll achieve.

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 thirteen-year-old girl to do this, not once, but over and over again?

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 as “Angela” has refused to participate in any prosecutions, to attempt to persuade her to do so is to deny her the fundamental human right to refuse action in which she does not wish to engage.  She has already been stripped of her rights as a human being, by the perpetrators who pimped her and by the men who abused her. She has already been denied the right to refuse in ways many of us cannot bear to even imagine. How can “society” even contemplate disregarding her right to say no to further legal action?

If seven trials result in no positive outcomes, “Angela’s” damaged sense of her humanity, her sense of vulnerability and her suffering will all be highly exacerbated. This is not a risk that anyone with empathy and knowledge of the traumatic aftermath of sexual abuse would persuade her to take.

Some of those who object to the DPP’s decision argue that this is an opportunity for societal change if only 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 anyone justify turning “Angela” into society’s guinea pig?

Respecting “Angela’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.

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.

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.

 “Angela” is the only person who has the right to decide how she wants to proceed in this situation. This may well be the first time in her young life she’s been allowed to decide anything. Society must accept her decision. Society’s obligation is to ensure she is receiving everything she needs to help her heal as best she can from unthinkable trauma. Nobody has the right to expect anything further of “Angela,” least of all that she offer herself up to change our world.

I can only hope that those who want to demonstrate their disapproval and rage against the Tasmanian decision fully inform themselves of the circumstances before taking action. “Angela’s” family has asked to be left alone now to deal with the tragedy without outside interference. The very least a civilised and moral society can do is respect their wishes.