Did unconscious sexism lead to a miscarriage of justice in the case of Karen Ellis? Recently the Court of Appeals threw out the 22-month suspended sentence handed down in November by the County Court and re-sentenced the 37-year-old school teacher to nearly 3 years, 6 months of which she must serve in jail. The ruling found the initial sentence had violated the principle of equality, including “equality of concern for male and female victims and equality in the sentencing of male and female offenders”.
“It is no longer acceptable,” said Justice Callaway, who presided over the appeal, “that an offender be given a different sentence solely because of his or her sex".
For many, the facts of the Ellis case justified leniency. Ellis had made full and frank admissions of her guilt and saved the State the expense of a trial. She was clearly remorseful, lacked self pity and has already suffered significant costs related to her trial and conviction. Her career is finished as she can no longer work with children, her placement on the sexual offenders registry - despite the court’s view that she is “very unlikely” to re-offend - ensures a future of considerable imposition and embarrassment for her and her three children and the absence of a wedding ring at her most recent hearing suggests her marriage is in trouble.
As well, the then 15-year-old student, Benjamin, has insisted that he knew at all times what he was doing and wanted to do it. He has even tendered ferociously loyal statements to the Court in support of his former teacher.
But Ellis victimised more than Benjamin. Her behaviour was an abuse of both her power, and the trust placed in her - and those of all teachers - by students, colleagues, employers, parents and society as a whole. Moreover, while sex was not forced - if it was, the charge would have been rape rather than penetration - the law holds that children under 16 simply lack the competence to consent to sexual activity with an adult, particularly an adult in a position of power and authority.
And despite Ben’s assertion of being unusually mature for his age, the Court found that his statements reflected an “insouciance about the moral issues involved” that would be “disturbing” coming from anyone who wasn’t so young. Indeed, his Honour suggests the possibility that Ellis may have stunted Ben’s moral development, given the approval her behaviour signalled to irresponsible sexual relationships and activity.
The ultimate sexism test is to read a roll call of Ellis’s crimes and to substitute male pronouns for female ones when the reference is to the teacher, and female for male when the student is discussed. Try it yourself on the summary of the facts of the case I’ve excerpted from the Court of Appeal’s ruling:
A 36-year-old married teacher begins kissing her 15-year-old year 10 student during secret meetings at school. Soon after, she collects him in her car, drives to her house and they have sex upstairs in the marital bed. One month later she collects the student and drives to her house to have sex. After she drops him off near his home in the early hours of the morning. This happens again a few days later, after which she drops him near the school. Days later she collects him at the train station and she performs oral sex on him at her house followed, the next morning, by intercourse. On her day off, she collects him at the school and again drives him to her house to have sex.
I’ll be frank, and admit my feelings did change depending on whether the pronoun-conjured offender was male or female (though interestingly the sex of the victim had little impact on my feelings of disgust and outrage). The truth is, I intuitively felt more sympathy for the female teacher.
Years ago I remember feeling dismayed by a study showing that students were more likely to rate the exact same essay highly if the name at the top was John, instead of Josephine, Doe. The truth is that our unconscious views about the capacities, culpability and characters of men and women do shape the way we understand events, and render judgments about fault.
But this is not how it ought to be, and the Appeals Court has been right to say so, and to ensure that in the Ellis case, justice was finally done.
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