Night Games

by Anna Krien

  The court was going to provide an answer at the end of Justin’s trial – but not the answer to the question playing on my mind. How did it come to this?

  *

  ‘I was sitting in court listening to people’s stories, having come from young people and adult [sex] offenders telling me in great detail what it was they did and how they did it and how they manipulated people,’ said Patrick Tidmarsh to Nicole Brady of the Age. ‘That was not being represented in court in a way that I understood, there was a bit missing.’

  Tidmarsh had spent much of his career rehabilitating juven-ile sex offenders and was now working with Victoria Police, training detectives in how to better understand and interview sex offenders about their crimes. ‘The missing bit as Tidmarsh saw it,’ wrote Brady, ‘was not the specific details of the crime but all the events that led up to it.’ The ‘how’ was vital, he explained, because often how victims react in a sexual assault can seem very strange to an outsider.

  By omitting the events in the bedroom at Dorcas Street to avoid insinuations of promiscuity by the defence, what did the Crown have to work with? Ryan could not point to distress as a possible explanation for Sarah’s behaviour with Justin. Nor could he refer to any forensic evidence – although, as Tidmarsh explained, more often than not forensic examinations after an alleged sexual assault show only that a sexual act had occurred.

  Tidmarsh continued:

  You’d think that if something happened to someone against their will, surely there would be evidence of that. But the explanation is … also because the person at that point co-operated, almost inevitably co-operated. To understand how and why they co-operated – submitted, complied, whatever word you use – you just can’t understand that unless you have found out about the entire relationship up until that point, whether it was two minutes or two years.

  Glenn Davies, the former head of Victoria’s sexual crimes squad, agreed. ‘It’s important that a court hears how this attack took place, the details of how the relationship was cultivated,’ he told me. But that, he believed, was not how most defence counsels wanted a rape trial to proceed – the less detail there was, the more likely this was to trigger a finding of reasonable doubt. ‘The defence want the jury to be viewing it from afar, somewhere where they can just make out the movements and not hear what was said.’

  According to Davies, ‘Many judges will say that this detail is too prejudicial to the accused.’ He threw up his hands. ‘Too prejudicial? The entire prosecution is prejudicial!’ That was the point, he implied. To expose the truth, all the details of an alleged assault must be aired. ‘What about being prejudicial to the victim’s prospects of justice – I mean, surely she deserves to have the truth come out?’

  Part of the problem, Davies believed, was how an allegation of assault was received in the first place; and while he conceded investigations were changing for the better with Tidmarsh’s ‘whole story’ approach, he thought many police officers still had a long way to go.

  ‘Cops want to catch crooks, they don’t want to be social workers,’ he said. ‘I’m not saying they don’t care about the victims – it’s just that a lot of police aren’t equipped with the skills to deal with the complicated issues that sexual assaults offer up. A break-in rape – now that’s a good job, a “feather in your cap” job.’

  ‘Because there is an obvious villain?’ I asked.

  ‘Exactly. A crap job, however, is a fourteen-year-old goes to a party, says she was raped, the guys say she was with everyone. That’s too hard.’

  Davies spent twenty-nine years with the Victorian police force, the top cop at the sex crimes squad in his final years. It was here that he felt he could do his best work.

  Intent on changing police and public perceptions of rape – perceptions that in his mind often damaged victims because their experiences didn’t suit the stereotypical scenario – Davies wrote letters to newspapers to clarify stories, met with journalists and tried to raise the profile of the squad so that the public understood its work. A fellow detective, Ken Ashworth, said Davies brought about a cultural change. ‘When a prostitute would make a complaint, police used to say it was just a civil debt,’ Davies told me later. ‘They don’t anymore.’ But then, only two years into the job, Davies found himself suspended.

  It was the rape allegations on the night of Collingwood’s premiership win that partly triggered it. During a separate police integrity investigation, Davies was recorded confirming to journalists that Dayne Beams and John McCarthy were the footballers being questioned about the allegations. When the charge of unauthorised disclosure of information was laid against him, Davies was forced to resign.

  Although he would never be a policeman again, Davies’ desire to change police culture had not diminished. As he loaded me up with names of authors, papers and textbooks about police and media attitudes towards rape, I asked him about the process following an allegation of rape.

  A neat explanation goes a little like this, explained Davies. If the complainant comes to the police immediately, hours or days after the incident, they undergo a medical examination. Then their statement is recorded and the ‘what, where, when and who’ are established. Once all or most of these boxes are ticked, police have a potential case to prosecute and the complainant will get their ‘options’ talk. ‘This will involve talking them through the prosecution and court process.’

  The process of the investigation, however, is rarely neat. The complainant’s statement is invariably picked over for inconsistencies and credibility. ‘They know that any weakness in credibility of the complainant will be seized on by the defence.’ Davies added that this can often be done with a fair degree of scepticism. ‘There’s the, “C’mon, tell us what really happened” or “If I ring your boyfriend, what will he say? Do you have a boyfriend?”’

  The complainant’s initial reaction to the alleged assault is almost always interrogated, the general belief being that there are only two options available to a victim: fight or flight.

  ‘But there’s a third reaction,’ he said, ‘and it’s the most common one. It’s “freeze.”’ Like a rabbit caught in headlights, the vulnerable person simply seizes up, unable to flee or to fight. ‘But that doesn’t suit police, the media or the courts – you’ll always have a defendant’s lawyer saying, “Why didn’t you scream?”’

  Then there is the tricky scenario in which the complainant actually knows the offender. ‘You’ll have police asking, “If you were raped by this guy, then why did you go back and see him?”’ But again, Davies said, the complainant’s reactions are far from practised in such a situation, and in some instances they’re second-guessing themselves. ‘Especially when the guy they think may have raped them comes back to them the next day and says they “had a great night.” She’ll be like, “What? It was hell. Is this the same night we’re talking about?” Often men will “retell” the situation and dress it up as something it wasn’t.’

  The options talk is a necessity, no matter how cold and pragmatic it may seem to the complainant. Carolyn Worth at the South Eastern Centre Against Sexual Assault told me about a situation in which a woman, after being told what she could expect during a trial, decided she would not be able to handle the cross-examination. The woman had Tourette’s syndrome, explained Worth, sighing. ‘She knew she wouldn’t be able to withstand the questioning. The thing is, what made her not testify is likely to be the same reason her neighbour raped her. She was vulnerable, a perfect target.’

  A friend of mine who was raped at a wedding reception when she was in her late teens was told quite pragmatically by a police officer and a sexual assualt counsellor that she would have to accept that she’d no doubt be ruining the wedding couple’s memories of their special day if she decided to take the offender to trial.

  ‘I was told that most of the wedding party would have to testify,’ she said, adding that the options
talk had been so discouraging that she had even started to question if the assault had happened, despite the physical evidence. ‘I should have been encouraged to go through with it. I had a toxicology result proving that I had Rohypnol in my system from that night. Who knows how many others the same guy has done it to since?’

  The options talk is also about police explaining what the complainant’s chances are of getting a conviction – and if the prospects are low, then police will most likely be advising against pursuing the case, or will already have made the decision to suspend their investigations.

  Davies believed police needed to be less focused on getting a win in court. ‘The law is very specific about what is rape and what is not, but it’s not being applied. We’re not brave enough in our own prosecuting,’ he said. ‘I’ve heard numerous sergeants say, “Oh, it will never get up” and “The Office of Public Prosecutions, they just want a win.” But we need to not focus so much on conviction, but keep putting these cases in front of juries and maybe one day they’ll be more sophisticated in their understanding of rape.’

  I wondered if this was why Justin was charged and the others who came under investigation on the same evening were not (Sarah’s statement revealed she’d made multiple complaints against multiple protagonists) – because police assumed a jury would not be sophisticated enough to understand the nuances of the bedroom allegations, while the charges against Justin involved a classic rape stereotype. The setting was, after all, a dark alleyway.

  ‘I had a sergeant come up to me recently,’ Davies continued, ‘and he’s a good policeman, but even he said to me he was confused about what to do in a rape case he was investigating, that it just came down to “he said, she said.” And I said, “How can you be confused? You charge him. Why not? You do the same with a robbery. If a complainant was robbed in the street and identified the assailant, the police would not hesitate in charging the offender.”’

  I was uneasy. ‘But a rape charge is different, surely? I mean, you can’t rub that off. It’s a permanent stain.’

  I wanted to agree entirely with Davies, to share completely in his horror at the treatment of rape complainants, but something kept snagging in my thoughts and it was Justin. His quiet and gentle manner threw me. When I looked at him in the dock, snared in a stereotypical rape scenario from the alleyway to the aftermath, he didn’t seem to fit the stereotype that went with the story. A stereotype that seems to rely on a typology popularised in 1979 by Dr Nicholas Groth in his book Men Who Rape: the ‘sadistic,’ ‘anger’ or ‘power’ rapist, men varying in their motives but all premeditated in their hunt for vulnerable prey. Justin seemed like a boy in comparison.

  But this was naïve. ‘There is no type,’ Dr Angela Williams, a forensic physician with much experience of rape cases, later said to me. ‘I meet a lot of offenders, and not one is a guy hiding behind a tree. You can’t pick them in a crowd, but they can pick out their victim – it is someone in a vulnerable position, be it a family member, an ex-partner or someone who is very drunk.’

  Williams said in spite of commonly held beliefs about rape and rapists, only about one in a hundred offenders was the ‘tree’ man, the rape occurring in the alley, by the train tracks or in the bushes. Among her colleagues, these stereotypical scenarios were often referred to as ‘rape myths.’ ‘You never hear about the husband who rapes his wife and brings her flowers the next day. Or the guy who’s a top bloke, plays cricket at the local club and so on. And as a result, the victim looks at these myths and thinks no one is ever going to believe them.’

  The same thing applied to the victims of rape: ‘I meet all sorts of girls and women, they can be covered head to toe, in work attire, dressed for a nightclub, in gym gear, there is no pattern.’

  And then there was the question of how to define rape itself.

  *

  Was it ‘rape-rape,’ ‘rapish’ or just ‘rapesque’? That was the question the American comedian Kristen Schaal asked on The Daily Show with Jon Stewart in 2011 in mock support of a proposed change to abortion legislation. Under the Republican bill, all funding for abortion stemming from rape would be cut unless it was a result of ‘forcible’ rape.

  ‘You’d be surprised how many drugged, underage or mentally handicapped women have been gaming the system,’ said Schaal tongue-in-cheek, wagging her finger. ‘Sorry, ladies, the free abortion ride is over.’ Acting bewildered, Jon Stewart asked, but isn’t all rape forcible? Wide-eyed, Schaal shook her head. ‘I’m not comfortable with that word, “all” rape. In truth,’ she explained, ‘there is a whole rainbow of rape, covering a wide spectrum of grey areas … There’s rape, and there’s rape-rape.’

  In recent years there has been ample opportunity for left-wing commentators to take the piss out of so-called rape apologists. Schaal was alluding to Whoopi Goldberg’s confused stance towards the film director Roman Polanski, who by his own admission had given a thirteen-year-old girl drugs and champagne before having sex with her, after her mother had let him borrow her for the day for a Vogue magazine shoot in 1977.

  In a televised chat following a recent attempt to extradite Polanski to the United States, Goldberg passionately defended him. ‘I know it wasn’t rape-rape. It was something else, but I don’t believe it was rape-rape.’

  In Britain, the controversial politician and writer George Galloway came under fire when he said that sexual assault allegations against Julian Assange amounted to no more than bad ‘sexual etiquette.’ ‘Even taken at its worst, if the allegations made by these two women were true, 100 per cent true, and even if a camera in the room captured them, they don’t constitute rape,’ he said. ‘At least not rape as anyone with any sense can possibly recognise it. And somebody has to say this. Woman A met Julian Assange, invited him back to her flat, gave him dinner, went to bed with him, had consensual sex with him, claims that she woke up to him having sex with her again. This is something which can happen, you know. I mean, not everybody needs to be asked prior to each insertion.’

  When Galloway refused to apologise for his remarks, he was fired as columnist on a Scottish political magazine. Several British barristers took the time to point out that Galloway’s views were not reflected in English law. ‘Waking up being penetrated is not an embarrassing event to be put down to experience but a frightening example of “sleep rape,”’ wrote the barrister Felicity Gerry.

  But the reality is – despite all of the commentary opining that rape is not a difficult concept to get one’s head around, that it boils down to a simple ‘no means no’ and all discussion outside of that single-minded certainty is for rape apologists – rape is not always easy to establish or identify, let alone to confirm beyond reasonable doubt.

  Proof of this is in the statistics. Fewer than 12 per cent of sexual assaults reported to police in Australia result in convictions. And this is through little fault of modern law, where reforms have continually tried to make up for centuries of ill treatment of rape complainants, and where the need for explicit consent is now clearly defined.

  In part the confusion rests with us. And it’s not necessarily because we’re all misogynists. Unlike with most crimes, to apply the label of rape in some instances can be subjective. ‘I know it was rape,’ a friend once confided in me after a male acquaintance had helped her walk home, only to take advantage of her extreme drunkenness. ‘At least, it was in the legal sense,’ she said. ‘But I don’t want to call it rape.’ It was not an act of denial, she believed – after all, she had taken great pains the next day to find out what exactly had occurred between them. But she just couldn’t close the gap between her idea of rape and what had happened to her.

  In most parts of Australia, a rape conviction is not based solely on the victim’s lack of consent. In New South Wales, Victoria, South Australia, the Northern Territory and the ACT, proving this is only half of the job. To obtain a conviction, the prosecution must also prove the ac
cused was aware that the victim was not or might not be consenting, or was indifferent to whether there was consent. Rape is as much a state of mind as it is an act.

  Interestingly, Victoria – once considered the most progressive state in Australia for its sexual assault laws – is now said to have fallen foul of its own forward-thinking legislation. By claiming an honest belief in consent, no matter how outlandish, defendants have a new ace up their sleeves. ‘Clever defence lawyers are using it to get their clients off,’ Carolyn Worth told me. ‘That way, even if the jury finds she wasn’t consenting, he still believed she was, and he can avoid conviction.’

  As a result, added Worth, numerous rape convictions have been overturned or appealed since 2007. In one case, the Victorian Court of Appeal ruled in favour of a man accused of raping an unconscious woman: he told the court he believed she had consented because she groaned as he undressed her. Another convicted man won a retrial because the judge presiding over his trial had not directed the jury to consider his state of mind. Court transcripts revealed the woman he’d been accused of raping had been so drunk she could barely walk out of a nightclub and had vomited twice – first in a pub and second in the backseat of a car where the defendant claimed to be having consensual sex with her. She then fell out of the car, injuring her chin and knee.