Extract from the leading case of R v G, heard on appeal by the House of Lords, in which a 15 year old boy was charged with rape of a child under 13, found guilty, and sentenced to a 12 month detention and training order. All avenues of appeal were pursued, and lost. (Decisions of the House of Lords are not binding precedent in Australia, but are certainly persuasive).
‘Every male has a choice about where he puts his penis. It may be difficult for him to restrain himself when aroused but he has a choice. There is nothing unjust or irrational about a law which says that if he chooses to put his penis inside a child who turns out to be under 13 he has committed an offence (although the state of his mind may again be relevant to sentence). In principle sex with a child under 16 is not allowed. When the child is under 13, three years younger than that, he takes the risk that she may be younger than he thinks she is. The object is to make him take responsibility for what he chooses to do with what is capable of being, not only an instrument of great pleasure, but also a weapon of great danger.’ (R v G  UKHL 37;  1 A.C. 92, per Baroness Hale
Since Mr Ellis (HERE)saw fit to raise issue with ‘Sex and the Reasonable Man’, surely he will not object to a return of the favour.
Firstly, after a couple of gratuitous insults about my intelligence and qualifications, he asserts that I have appropriated the construct of the ‘reasonable man’ from tort law – that the construct is not applied in criminal law. In fact, the concept of ‘reasonableness’ is often referred to in the criminal law. In the case of the seven men who were not prosecuted for underage sex, it was the DPP’s own advice that they would escape conviction because they would be able to raise the statutory defence of ‘reasonable’ belief that the child victim was over the age of 17 years. How else is that defence adjudicated except by reference to the construct of a ‘reasonable person’?
Secondly, Mr Ellis takes issue with the suggestion that a ‘normative’ standard of reasonableness may be more appropriate in child sex cases than the ‘reasonable in the circumstances’ standard. He says that, ‘Apparently I should proceed on what Ms Williams mistakenly thinks is, or should be, the law rather than what it actually is’. I am well aware that a ‘normative’ standard is not the law in Australia – I make no mistake about what ‘is’ the law. I do, however, consider cases such as the one in question to be an ideal opportunity for a prosecuting attorney to argue the merits of a stricter standard of behaviour. The law is a flexible instrument, and one that should respond to the expectations of the community.
From a statutory perspective, and by way of comparison, the laws of England, and New York State in the USA – both leading western jurisdictions – have enacted a far stricter standard in child sex cases than Tasmania. In New York State, a ‘person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person…who is less than 13 years old, and the actor is 18 years old or more’ (New York Penal Code – Article 130.35). Further, ‘a person is guilty of predatory sexual assault against a child when, being 18 years old or more, he or she commits the crime of rape in the first degree…as defined in this article, and the victim is less than 13 years old’ (New York Penal Code – Article 130.96).
Both of these offences are felonies, with applicable prison sentences of 5-25 years, and 10-25 years respectively.
In England, the Sexual Offences Act 2003 provides as follows –
‘Rape of a child under 13
(1) A person commits an offence if –
(a) he intentionally penetrates the vagina, anus or mouth of another person with his penis, and
(b) the other person is under 13.
(2) A person guilty of an offence under this section is liable, on conviction, to imprisonment for life.’
There is no defence of ‘reasonable belief’ against a charge of underage sex in England if the victim is under the age of 13 years – the charge is ‘rape of a child’, with no excuses available to the perpetrator.
Mr. Ellis, I know the seven men are subject to Tasmanian law, however, if they were residents of either New York or England they would be looking at certain prosecution, and long stretches in prison if convicted. How is it that the office charged with prosecuting crime in Tasmania is satisfied with taking the path of least resistance, and declining to enforce the law, such as it is? How is it that the DPP is not agitating most strongly for reform of the child sex laws in this state?
Thirdly, Mr Ellis disputes that much has been made of the role of ambient lighting in distinguishing the Martin case from the other seven men. All eight men, including Martin, answered the same advertisement for a 18 year-old prostitute, all were told the child was 18 years or older, and all engaged with her ‘for a brief time in a darkened room’. Martin was prosecuted because he had extended contact with the girl, in the daytime, in his well-lit home. Along with the length of time spent, the ambient lighting conditions appear to be a significant factor distinguishing Martin’s situation from that of the other seven men.
Fourthly, Mr Ellis comments that ‘Ms Williams might care to tell us her authority for suggesting on what basis evidence of what others have thought on another occasion would be admissible in a prosecution case, absent some concession or similar attempt by the defence.’ Mr Martin was charged on the basis of events that took place at his home on 13 September – not on the basis of his contact with the girl at the Glenorchy unit. Justice Porter, however, ruled the evidence of five men who only saw the girl at the Glenorchy unit to be admissible insofar as it related to their ‘ observations and experiences with the complainant and their estimates of her age’ (Tasmania v Martin (No 2)  TASSC 36. If was, therefore, open to the prosecution to call evidence from persons whose observations indicated the girl was underage, and this was noted by the DPP. Why was that not done?
In any event, I made no comment as to the admissibility or otherwise of such evidence. I did question, however, if the DPP gave any consideration to the fact that some of the girl’s potential clients declined to proceed because she appeared to be too young, when he was determining the reasonableness of the belief of those who did proceed.
Fifthly, Mr Ellis asks, ‘unless I’m supposed to be unaware that a conviction is not required for compensation, how does the possibility of multiple compensation claims mean that I am not prosecuting certain people in order to “protect” the public purse?’ As DPP, I would expect Mr Ellis to be aware of the availability of claims under the Victims of Crime Assistance Act. The more relevant question is whether the child victim, and the general public for that matter, are aware that a conviction is not a necessary precondition to a claim.
Sixthly, Mr Ellis is ‘at loss to understand how Ms Williams thinks a negligence claim (that is a common law claim in tort) might be “chucked in” with a claim or claims under the Victims of Crime Assistance Act.’ I am aware, Mr Ellis that a negligence claim cannot be made under the Victims of Crime Assistance Act, but must be made via civil action against the offending party – that’s very basic legal stuff.
Section 9 (1) of the Act provides, however, that ‘the making in respect of any criminal conduct, of an award to a person does not affect the enforcement of any right or remedy that that person may have as a consequence of the criminal conduct.’ Adjustments are made to the quantum of compensation available under the Act, if civil compensation is also awarded, but the claims are not mutually exclusive.
Finally, Mr Ellis offers this parting shot – ‘Don’t forget that you all know better, you all know what the “true story ” is.’ The problem, Mr Ellis, is that we don’t know the truth, because your office chose to unilaterally decide that the seven men would not face prosecution. The DPP decided that their belief in the child being over the age of 17 was reasonable, and they were not to be judged by a jury of their peers. Aren’t they lucky they live in Tasmania?