Moral superiority or simply forgetfulness?

When it comes to rape, amnesia reigns.

Sheik Taj Din al-Hilali of Lakemba Mosque compares women to lumps of uncovered meat, casts responsibility for adultery (and, it is argued, rape) upon women, and at least by implication sees men as possessed of uncontrollable sexual urges. A bevy of politicians, including the current prime minister, express outrage towards Sheik Hilali and Islam, as if they and they alone are responsible for notions of woman as temptress.

In the end, Islam is not the culprit - unless all religions in their fundamentalist mode are likewise acknowledged as implicated. Rather, Sheik Hilali has expressed views holding sway in high places until very recently and which may remain, although not publicly expressed.

No doubt Sheik Hilali’s views are replicated and applauded still in some parts of the community, whatever the ethnic or religious backgrounds of those harbouring them. Indeed, not infrequently women are heard saying that certain pubs, nightclubs or other entertainment venues are “meat markets” where women are treated as if for sale, or on display for the asking or, rather, the taking.

Opposition leader Kim Beazley and the ABC’s Peter Manning are not wrong in their assessment, provided in response to the uproar, that Sheik Hilali’s statements about women as responsible or temptresses leading men to rape them are consistent with Australian principle and practice of 30 or 50 years ago. Where they may have it wrong is not in the words, but in the timing.

1979: A judge of the WA District Court is reported as saying that the “imprudent behaviour of many young women did not excuse offences committed on them, but lessened the moral culpability of the offender”, going on to add that there were “too many young women hitching lifts and accepting rides with cars full of young men” they did not know. They “fraternised and drank with men they did not know, in bars, and did their best to bring disaster on themselves”. Further: “These foolish young women should behave with more dignity and show some elementary prudence."

1979: A judge of the NSW District Court is reported as saying that judges have “warned women ‘time and time again’ against hitchhiking or accepting lifts with strangers … such behaviour all too often [leads] to sex attacks …”

1981: Three Victorian Supreme Court judges find that a mitigating factor in sentencing men for rape is that the victim/survivor is a sex worker. Supporting this proposition, one says that the crime “when committed against prostitutes … is not as heinous as when committed, say, on a happily married woman living in a flat in the absence of her husband when the miscreant breaks in and commits rape on her”. Another says that one victim in the case, “was dressed in such a style that one would have assumed it probable that she was a prostitute waiting to be picked up …”

1990: A young woman crawls across the road and screams out she has been raped and wants to die before being hit by a car and killed. Police say whether she was sexually assaulted is inconclusive and it cannot be confirmed until test results are in at the end of the week.

1991: A Victorian County Court judge revokes an intervention order granted to a woman after suffering six months of physical abuse and severe emotional harassment from her husband. The revocation is said to be based on the ground that the husband’s behaviour could be considered a “normal” part of marriage. Besides, the woman “was articulate, determined and appeared capable of ‘looking after herself’”.

1991: A Victorian County Court judge rules that rape is likely to cause women working as prostitutes less psychological harm. Adverting to the 1981 Supreme Court ruling, he says that on his assessment, “the likely psychological effect on the victim of the forced oral intercourse and indecent assault is much less a factor in this case and lessens the gravity of the offences”. Defence counsel has argued that the rape of a prostitute is akin to “the rape of a woman wandering through a housing commission carpark wearing make-up, mascara and a seductive mini-skirt” - so lessening culpability.

1992: An SA Supreme Court judge, summing up in a rape in marriage trial, suggests that it may not be rape. Why? Because the husband may have been engaging only in “rougher than usual handling”.

1993: A Victorian County Court judge in a rape trial asserts it is well known that many women say no when they really mean yes.

1993: A Victorian Supreme Court judge, in sentencing a rapist who slit his victim/survivor’s throat as well as raping her, says that she suffered no trauma because she was comatose.

In the 1970s and 1980s, women’s groups around Australian sought to bring fairness, ethics and principled morality into rape law. The law was not fair, nor ethical, nor morally principled.

At that time, the law corralled raped women with accomplices in crime. Only in rape, offences against children and crimes where an accused was turned on by his accomplice, was the judge required to give a corroboration warning. That is, to tell juries that the word of women raped, children sexually abused and accomplices in crime was not to be trusted. Judges were obliged to tell jurors they should look for other evidence to corroborate that of the raped woman, the sexually abused child and the criminal accomplice. Otherwise, there was a mistrial.

At that time, too, it was only in rape and other sexual offences that the rule existed asserting that if a woman did not promptly complain, she was likely to be making up the whole story. Hers was a fantasy or the tale of a malicious or spurned woman. Or she was trying to excuse her behaviour from her parents, hiding her real character as a promiscuous teenager staying out late for a sexual dalliance with her boyfriend.

Contrarily, only in rape and other sexual offences did the rule exist that if the woman complained promptly, then this had little weight, for it did not mean she was telling the truth. It meant only that she said, shortly after the alleged rape, that she was a victim. And even with the prompt complaint, the corroboration rule still operated - so the jury had to look for evidence beyond the mere word of the woman.

No one should condone the statements made by Sheik Hilali. That he holds a position of authority and responsibility within his community makes it doubly serious. Just as it is doubly serious if people in positions of authority in any part of the Australian community express such views.

It has taken eons of urging, commitment, energy and arguing, to have the Australian legal system drag itself into a semblance of accepting that women are not genetically programmed to be liars. That prostitutes, sex workers, women in any neighbourhood, women who drink in bars or out of them, women who talk to strange men or familiar ones have a right not to be raped or sexually abused is of relatively recent vintage in our legal system.

It has taken ages to have rape and other sexual offences against women taken seriously. It is not so long ago that women won the right not to be treated as pariahs or false accusers because they are women, they complain of rape and those against whom they complain are men. Sheik Hilali’s problem is that he is 20 years out of date.