“In a case involving the relentless sexual, emotional, and psychological abuse of a child, the men are protected”
A 12-year-old Tasmanian girl is forced into prostitution by her mother and her mother’s boyfriend, while in the care of community protection workers. They advertise her as “Angela, 18”. She is allegedly used by at least 120 men in an ordeal that last two months and leaves her with a sexually transmitted illness. The mother and boyfriend are jailed. What happens to the men? Nothing.
Today, an important guest post by Professor S. Caroline Taylor, Foundation Chair in Social Justice and Head of the Social Justice Research Centre at Edith Cowan University. Professor Taylor is also the Founder and Chair of Children of Phoenix Organisation, a charity that provides scholarships and mentoring support to children, adolescents and adults affected by childhood sexual abuse.
Last week, the Tasmanian Director of Public Prosecution, Mr Tim Ellis, released an eight page Memorandum of Advice to the Tasmania police which instructed that at least 120 men who had paid to ‘have sex with’ a 12-year-old ward of the state will not be charged with breaking the law.
On October 1, on Stateline Tasmania, Mr Ellis dismissed broad community and expert concern about the case as nothing more than a symptom of “wicked” media sensationalism. He added the gratuitous comment that the law rests with a “reasonable jury, not a lynch mob”.
In effect Mr Ellis framed the numerous and profound media and expert critiques of the social justice issues that this case clearly raises as nothing more than an hysterical media driven moral panic about child sexual abuse.
It’s a puerile argument, as stupid as it is offensive to public sensibilities. This tactic reduces the complex reasons behind the critique of his decision with an underhanded accusation that such critiques are not “reasonable”. This is echoed in the Attorney-General Lara Giddings comment: “I understand their anger”. Reducing the profound ethical critiques of this case to a single reactionary emotion – anger – infantilises public concern in order to dismiss such concerns.
Our legal system is premised on the notion that police lay charges where there is evidence that a crime has been committed according to the rules of the law. Yet in this case the DPP has determined that not one, not two, not three, not four, but a series of men charged with paying to sexually abuse a child all really believed that a 12-year-old ward of the state was an adult. To be clear, the Director of Public Prosecution has used his discretion to void all charges on the grounds that he found every one of their arguments “convincing”. I wonder how many “arguments” they actually had? Or did they amount to the one generic excuse: they could not tell the difference between a primary school age child and a female aged 18.
A Tasmanian MP, Terry Martin, was, however, charged earlier in relation to the 12-year-old. He allegedly filmed the child giving him oral sex. Of course he should be pursued. But why him and not the other 120 men?
While the DPP may exercise discretion not to proceed with a case they do not believe is in the public interest or where the evidence is wholly insufficient, a case as serious as this should not have been remedied with his private deliberations. It appears the DPP determined himself as both judge and jury. In a case as serious as this, involving a child – one of society’s most vulnerable members – prostituted to numerous adult men, we are told that the DPP alone determined the authenticity of the excuses of a group of men who would normally be charged with the sexual abuse of a child. (And their computers probably searched for child pornography). It is important to recognise that in a case involving the relentless sexual, emotional, and psychological abuse of a child, Mr Ellis has accepted the various excuses of the men involved and effectively protected these men from further scrutiny.
The DPP has the right to use discretion to veto cases for prosecution. But I am staggered that charges against a string of men, for the same offences, were dropped on the subjective assessment of one man. This decision, I believe, denied our society the opportunity to determine the authenticity of the excuses relied on by the accused men. It could well have been an opportunity for society to determine the setting of our collective moral compass. Questions of law are not matters that should be adjudicated and determined singularly and behind closed doors. What happened to the concept of open, transparent and public justice?
This case is more than questions of law. It is also to do with questions of decency, of morality, and the ethical treatment of vulnerable girls. The sexual abuse of children is all too rampant in our society. Adults prostituting a child – their own child in this case – is not rare, I am sad to say.
Justice was not served, either in practice, or in principle. The excuses relied on by a group of men charged with a crime against a child should have been held up to scrutiny in a courtroom. Not the elite office of the DPP.
So if we follow this unusual logic, can we expect that the DPP would instruct the Tasmanian police not to charge numerous traffic offenders if those offenders claimed they “truly thought it was 100 km and not 60km”? And would they not truly prosecute a gang of burglars who “convincingly” persuaded the DPP that they either thought the items they stole were actually there for the taking, or that the men had a forgivable inability to comprehend the concept of ownership? Their claims to a criminal offence would be tested within the courtroom, not pardoned by one man’s subjective assessment.
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. The outcry from the public and members of the judiciary and legal field are, I think, testament to this claim – that we are capable of recognising and addressing revolting crimes against children.
The failure of the DPP to present the case at court represents, to my mind, an abject failure to both challenge the law to listen to the plight of children, and to challenge those who sexually prey upon them.
Even with the gaps about the prosecution having to prove the men knew the girl was underage, as a society we deserve a courageous lawyer, a brave leader to say, regardless of these limitations and challenges, we will take the case forward and prosecute with all our might.
Legal, societal and moral reform has always been preceded by challenges for change and development. The failure to bring the charges to light and to call the men to account for the crime they were charged with, and have it determined in a legal forum demonstrates a deeply imbedded flaw in the moral character of Tasmanian law.
The DPP’s remarkable counter claim that the area of law that should be reformed lies in the regulation of prostitution misses the entire basis of the argument raised by myself and others. It is a crime to work as a prostitute if one is under the legal age of consent. So even if prostitution were more tightly regulated it would never be legal for a 12-year-old to be prostituted to men.
Also, the “pimps” in this case were not seeking to set up a shingle and an office. Tighter regulation of prostitution would not have led to detection of the crime. It’s a stupid focus and takes us nowhere other than to shift focus from the facts of the case – the sexual abuse, exploitation and prostituting of a child and the abject failure of the law to seek any semblance of justice for the child or society for that matter.
It’s easy to attack and criticise my comments on the Stateline show (September 30) as DPP Ellis did. For my part, I do not retract my comments. The fact I was not privy to the “evidence” as he suggests, does not in my view negate my comments. Indeed, it is odd for Mr Ellis to suggest that if we (myself, presumably, and the public) had seen the evidence we would agree with him – the collective ‘we’ were all denied the opportunity to understand the logic behind Mr Ellis’ singular opinion because the evidence was never tested in a legal forum and his reasoning not open to scrutiny. My critique was not about the vocabulary of excuses – it was about the failure to test these excuses within a legal forum designed to hear and determine criminal charges.
I am concerned about the capacity of one man’s support for the chorus of claims by a large group of accused men that by right should have been delivered in a legal forum viva voce and adjudicated on by the court. I am concerned that the veracity of their claims about being unable to tell the difference between a primary school age child and a female over 18 has not been tested in a court of law.
This is about simply demanding that the line up of men who subjected a little girl to relentless penetrations and sexual violations have claims that they are unable to distinguish between a primary school age child and someone older, in a legal forum.
By not taking the matter to court, we abrogated a little girl’s most basic human right to at least have the law step in on some level to protect her and thousands like her. As a society we should not stand by silently and allow our public office of prosecution to indulge in secretive and un-democratic decision-making. To do so denies us our capacity as a democracy, and as a people, to reform both justice and our moral compass about the most vulnerable members of our society.