How 'progressive' courts are ignoring individual responsibility

The Australian Capital Territory (ACT) is regarded as one of the most "progressive" legal jurisdictions in the country. Related to this, the public's eyebrows are regularly being raised in respect of issues related to the Territory's justice system. Some other jurisdictions almost certainly are subject to similar happenings.

Eyebrows went up again recently following a controversial (civil) damages case in respect of the alleged rape of a university student in 2015, where personal responsibility and third party duty-of-care were key issues. The facts of this thought-provoking case and the circumstances surrounding it are outlined below, based on the ACT Supreme Court judgement, and on a report in the Canberra Times.

The plaintiff alleged that she was sexually assaulted by a Mr NT outside the Mooseheads Bar and Nightclub in central Canberra on the night of 6 August 2015 (or in the early hours of the following morning). The plaintiff had no memory of the assault.

About ten days after the event, a friend advised the plaintiff that she (the friend) had heard that NT had sexual intercourse with the plaintiff in an alleyway adjacent to the nightclub. The plaintiff spoke to NT by telephone on 19 August 2015, and asked him whether or not sexual intercourse had taken place between them. He replied that it had. NT apparently recanted on his admission sometime later and now denies the event ever took place. Meanwhile, the plaintiff had recorded the mobile phone conversation, and the Court accepted the admissibility of this corroborating evidence.

The alleged rape followed an evening of "pub golf". This event was organised by an Australian National University (ANU) college residents' association, and involved student leaders taping bottles of alcohol to the hands of participants, who were required to drink a certain amount to "make par". The event began at John XXIII College, and by 9PM students were "drunk to the point of vomiting, lying in the college's hallways, and an ambulance also had been called". The college maintained that it had banned "pub golf" before the incident but the event had gone ahead anyway. The college subsequently directed "unruly" participants to leave its premises.

For whatever reason, the alleged rape seemingly was never the subject of criminal prosecution. NT himself also does not seem to have been subject to any civil action, and was not called to give evidence at the civil trial. Instead the woman sued John XXIII College and its residents' association. An undisclosed settlement was made with the residents' association on the second day of the hearing, while (following completion of the trial) the College was found in breach of its duty of care and ordered to pay damages of $420,201.57 plus costs to the plaintiff.

The college said it would seek a stay on the orders of the court, and would lodge an appeal.

There is no dispute that victims of rape can suffer years of anguish following a sexual assault. In this case Elkeim J found that the plaintiff had been a high achieving young woman, who now (despite having no memory of the event) had suffered "almost five years of distress combined with an abandonment of her hopes".

The question is who is to be held responsible for her fate?

In determining civil liability, it seems to me that, first and foremost, the alleged perpetrator ought to be first in the firing line for any damages. It seems very odd that the alleged rapist was not included as a defendant in the action or that his responsibility apparently did not mitigate the liability of the two defendants. (Maybe he had no means but there is no public information on this matter.) I would also have thought that the college residents' association, which organised the event, had greater culpability that the college itself, which seems to have attempted to break the event up. The plaintiff herself played some role in her fate but the court seemingly did not find her in any way contributory.

Key issues that affected the outcome of the case included the duty of care owed by John XXIII College and its residents' association to the plaintiff. The issue of consent in rape cases is also relevant. The newspaper reporter had asked counsel for the college whether or not the college disputed the occurrence of the assault. Counsel said that the college did dispute the assault.

According to Elkeim J, "in the very simplest terms the plaintiff says that the college's tolerance of events like Pub Golf and the associated overconsumption of alcohol led to the sexual assault upon her. Secondly, the plaintiff says that the college inappropriately dealt with her complaint about the assault". Without studying detailed evidence it is not possible for an outsider to fully assess the college's behaviour.

The admissibility of the recorded phone conversation was key to the court accepting that a sexual assault had taken place. The court also found that the college breached its duty of care to the plaintiff before and after she was raped. His honour felt that the college "made a virtue of the consumption of alcohol" instead of being a "haven of Catholic values". He further found that the college was "well aware of the appalling conduct that characterised the pub golf event and others like it, but by intended policy or feigned ignorance condoned the conduct".

Justice Elkaim found that John XXIII College also breached its duty of care when, by virtue of an order from the college head, it directed "unruly" pub golf participants to leave the college about 9PM on 6 August. The precautions to stop the students going out were not limited to a simple "don't go out" or "go to the common room". The college had disciplinary options open to it".

After the assault, the plaintiff approached the John XXIII College head, who told her words to the effect of "I'm not really sure that anything did actually happen in the alleyway" and "another concern is how you managed to get that drunk"...."It is plainly foreseeable that a person making such a complaint is vulnerable and susceptible to psychological harm should the complaint be improperly dealt with", Justice Elkaim said. "There can be little doubt that a number of comments were entirely inappropriate".

It seems to me that the judge has an exaggerated view of the extent to which the college could control a bunch of drunken young adults. Even if the college tried to stop the students from going out, would they have complied? If they had stayed within the college, would this have prevented sexual improprieties or merely facilitated them? Is it reasonable to hold the college responsible for misadventure away from its premises in places where it cannot exercise control? I also wonder whether it is lawful for a university college to restrict the free movement of its (supposedly adult) residents.

Surely the college head was only stating the obvious, when they stated that they could not be sure what exactly happened in the alleyway, and that the plaintiff had placed herself at risk by getting very drunk. Just as a drunken driver or drunken perpetrator of domestic violence made a choice in getting drunk, so did the plaintiff. Public opinion on this matter frequently seeks to avoid directly blaming the victim for being raped, but would instead blame her for getting drunk or otherwise "allowing" herself to become vulnerable.

In rape cases, most Australian states (Victoria, South Australia, Tasmania and the Northern Territory) mandate that there is no consent, where the complainant is so affected by alcohol or other drugs as "to be incapable of freely agreeing". In NSW, there may be no consent where a complainant was "substantially intoxicated by alcohol or any drug". Lack of consent in these jurisdictions therefore is determined by the degree of intoxication. Additionally, in many overseas countries a valid defence exists, when the defendant had a "reasonable belief in consent".

Under (very "progressive") ACT law, the issue of consent is more cut and dried than in the other states and territories. Section 67 of the Crimes Act (ACT) simply says that "consent is negated... if that consent is caused by the effect of intoxicating liquor". ("A common dictionary definition of negate is "to deny the existence or truth".) Thus, in an ACT criminal case , the Crown can use Section 67 to gain a conviction, even if the defendant could demonstrate actual consent. In this case, the mere fact of the plaintiff being intoxicated technically turned the sexual event that night into a rape, and the exact circumstances of the encounter could not alter the legal status of that encounter.

All this reminds me of the controversy decades ago concerning the so-called "drunk's defence". In Australian law the key decision in the High Court (regarding criminal liability and self-induced intoxication) was R v O'Connor (1980) 146 CLR. This case upheld the principle that prosecutors bear the burden of proving beyond reasonable doubt that the accused committed an offence voluntarily and intentionally. The High Court found that, where reasonable doubt of intent exists, the accused must be acquitted.

The problems with this defence became evident following the high profile Nadruku case in the ACT in 1997. Noa Nadruku, a prominent player with the Canberra Raiders, was charged with assault following a drinking binge. He had consumed 28 schooners of beer, six stubbies and half a bottle of wine, and subsequently assaulted his wife and two other women, who were total strangers. His defence was that he was so drunk he could not have formed an intent to commit the offences.

At trial, the magistrate stated that "the two young ladies were unsuspecting victims of drunken thuggery", and described the accused's behaviour "deplorable, intolerable and unacceptable". Nadruku, nevertheless was acquitted on the basis that he was so intoxicated he did not know nor intend what he did.

The decision in Nadruku's case sparked a public outcry. In March 1998, federal parliament enacted legislation to remove the "drunk's defence" from Commonwealth criminal law and similar laws were passed in many states and territories. The ACT Government, in passing the Crimes (Amendment) Bill (No. 4) 1998 ensured that the "drunk's defence" could no longer be used to show a lack of intent to commit the conduct, but can be used in relation to intent of the results of the conduct.

It seems to me that a type of drunk's defence was partly reintroduced in the ACT with the passing of Section 67 of the Crimes Act (ACT), which negates consent to sex, if it is caused by intoxicating liquor. The Section mainly benefits very intoxicated women and turns them into rape victims if they engage in sex. If their partners in a sex act are similarly intoxicated, (rather than being also excused) they are now deemed to be rapists.

Given that there must be thousands of acts of drunken sex annually, the law in places like the ACT has effectively created a double standard. When both parties are drunk and engage in impulsive ill-considered sex, blame is placed solely on the male (even where there is overt consent). He faces a likely jail term for rape (if she decides to report him), while his female partner is deemed blameless and treated entirely as a victim.

It is high time for young women (as well as young men) to be made take responsibility for irresponsible drunkenness.