Night Games

by Anna Krien

  Glenn Davies agreed. ‘If she alters her story to fit a rape myth, then she’s out. She’s lied. There is no attempt to peel back the dramatic storytelling to the ordinary crime, to find out what actually happened.’

  The tag ‘liar’ is so absolute – the schoolyard definition has it that a lie is always malicious, that there is no truth in the vicinity of a lie. Yet a victim, as Williams and Davies suggested, may alter her story to bring it into accord with the accepted idea of rape – especially if she doesn’t understand that the term can be applied to scenarios where there is no physical violence, where she didn’t physically resist or scream for help. A lie is here used to stand in for something that one has no language for, for which there is no accepted remedy.

  *

  Dr Lauren Rosewarne, a social and political sciences lecturer at the University of Melbourne, had written on ABC’s The Drum, ‘A woman can’t be a little bit pregnant, she can’t be a little bit dead, she can’t be a little bit equal, and she most certainly can’t be a little bit sexually assaulted. If consent is absent, rape has occurred. There is no grey.’ But when I asked her if it was possible for someone to feel raped even if they weren’t raped, she squirmed. ‘Oh, you’re opening a can of worms there.’

  She thought for a moment and then said slowly, ‘Yes. I think it’s possible. Many feminists see this as extremely dangerous to bring up because prosecuting rape is so hard. It reminds me of what people said when documenting the Jewish Holocaust – “Don’t exaggerate,” they warned, because it would devalue the rest.

  ‘Most women have had sex and not really wanted to. And it highlights the fact that women still have trouble articulating their needs and wants. And that places a high burden on men to be able to read the signs. Women smile way more than men when they’re uncomfortable.’

  I nodded, well aware of my own tendency to smile when feeling unsure of myself. We’re polite, too, I thought, especially in situations when we have more than enough reason to be rude. I recalled from The First Stone Helen Garner’s memory of sitting in an empty train compartment when a stranger entered, sat close to her and eventually asked her to ‘give him a kiss.’

  ‘I let him kiss me on the lips,’ wrote Garner, ‘out of embarrassment, or politeness, or passivity, or lack of a clear sense of what I wanted, which was for him to dematerialise at once.’

  The time it took for Garner to react seemed glacial. It took a passerby on the station platform glancing in at them for her to snap into action, see the absurdity of her situation and disentangle herself from his advances – advances, she wrote, which were neither violent, forceful or threatening; there was only a ‘steady, almost imperceptible persistence.’

  Is this the grey zone I’m trying to put my finger on, that glacial space between a man’s action and a woman’s reaction? And in that slow underwater place, is it a race? To see how far, how much he can get before she surfaces? Or is he also underwater? Must he become an interpreter of smiles? How many women and men are caught out in this grey zone?

  Once a person is in the police station reporting a rape complaint, there is a presumption the complainant is either lying or telling the truth. But, as the criminologist Jan Jordan pointed out:

  The confusion and ambiguity surrounding sexual negotiation and forceful seduction may mean that, in some situations, the complainant feels as if she has been victimised and is genuinely unsure as to whether she was raped.

  And what if, as often as women encounter disbelief and suspicion, there is also the possibility that police and even peers apply pressure, perhaps subconsciously, so that a person seeks to make their story conform, not only to accepted ideas of how rape occurs and how one reacts to it, but also to the category of rape full stop?

  Once under the questioning gaze of outsiders, is there room for a person to explore a disturbing sexual encounter without concluding that it was either rape or that they were to blame?

  In an essay in Playboy in 1973, Germaine Greer coined the term ‘petty rape,’ saying that:

  Morally, those of us who have a high opinion of sex cannot accept the idea of passive consent … we must insist that evidence of positive desire alone dignifies sexual intercourse and makes it joyful. From a proud and passionate woman’s point of view, anything less is rape.

  But anything less is not rape. And how does an ordinary person, a young female not yet a proud and passionate woman, articulate that? That they got fucked, treated like shit and yet for some reason they lay back and ‘took it’?

  *

  After the lawyers’ opening speeches, the jurors were bundled into a mini-van and taken to South Melbourne, an old suburb that had begun as a slum and since transformed into a fashionable hub of cafés, antique shops, fancy baby strollers, renovated terraces and picture-perfect parks. As if on a school excursion – some of them taking notes on pads provided – the jurors were led down Dorcas Street, starting at 303, a three-storey townhouse in a row of identical modern houses made of orange and grey concrete slabs. Next they milled around the alleyways – the bluestone lane that Kathy Hackett’s bedroom window looked onto and the laneway that Justin had identified. The jurors peered at Hackett’s rented house, a dark, squat redbrick worker’s cottage, and wandered down the laneway mottled with graffiti.

  Earlier, Judge Taft had warned the jurors that they were not investigators; the visit to South Melbourne was simply to help them get their bearings, but I imagined them looking for clues regardless, staring at the bricks, the dusty glass windows and the fat palm tree looming out of someone’s backyard, willing them to break their silence. Further down Dorcas Street, just before it opened onto Clarendon Street, a busy shopping strip, was Emerald Hill Place, the laneway backing onto the shops, a corridor of brick walls and roller doors, where Justin said he and Sarah had sex. Then, finally, the jurors stood on Clarendon Street, noting where others saw Sarah and Justin that night after the alleyway incident, waiting together for a cab.

  And so the trial began. And then it ran off its tracks. That evening, the Herald Sun website published a photograph of Justin under the headline, ‘Rapist free to go nightclubbing after court alters curfew.’ The article that followed read, ‘A brute who raped a 14-year-old has persuaded a court to change his curfew, which will free him to go nightclubbing.’ The line beneath the photo of Justin read simply, ‘Beware of this beast.’ The News Limited newspaper, Australia’s largest, had got its convicted rapists and persons facing rape charges mixed up. A stunning mistake. But had a juror seen it? Had a person that knew a juror seen it? And the witnesses, had they seen it?

  CHAPTER 9

  ‘How the Dickens did this happen?’ snapped Judge Taft. The jury had been cooped up in the back room for an hour now, after being told a legal matter had come up.

  Prosecutor Ryan, his wig askew, half-stood and gestured. ‘The man in the grey pin-striped suit behind me will tell you, Your Honour, and is it better that you hear from him first to be informed?’

  Taft glowered, looking at the man hovering behind Ryan. ‘Yes, it may be. A familiar face.’

  Mr Quill, a man in his thirties or early forties with blond hair and wearing a fashionable suit, bowed a little as he stood at the lectern.

  ‘Your Honour,’ he began, offering an ‘unreserved and absolute apology’ on behalf of the Herald & Weekly Times.

  He went on. ‘I can also inform Your Honour that my client gets articles legalled on a daily basis, an hourly basis, but ultimately human error – the best systems in the world cannot overcome human error and that is what has occurred on this occasion … I can tell Your Honour that my client will be taking action about this and taking it very, very seriously.’

  ‘This court may too, Mr Quill,’ growled Taft.

  Quill jumped a little. ‘Indeed, Your Honour, I would urge Your Honour and my client would urge Your Honour not to do so in the circumstances, it being a huma
n error –’

  Taft cut him off. ‘Let us confine your involvement now to establishing the facts.’

  *

  Justin’s phone, his mother’s phone and his brothers’ phones had all started ringing at the same time as friends told them to log on to the Herald Sun’s website. Justin felt sick. Carol started to cry. The article was one of the first items on the website and no doubt not far off from becoming a ‘most popular story.’

  The family called their lawyer. Justin’s older brother, who had just flown to Melbourne to be with them, started taking screen shots of the site. No one knew how long it had been up for. Then, not long afterwards, the story vanished. Someone in the Herald Sun office had cottoned on. But the link and photo still appeared on Google.

  Next morning, Malcolm Thomas stood up to inform the judge that the day would not be able to proceed as normal.

  Judge Taft’s face darkened. ‘This is the problem with new media,’ he said.

  Thomas announced that the defence would be applying for a discharge of the jury and adjournment of the trial. Taft was reluctant.

  ‘Why can’t the jury be told an egregious error has occurred?’ he asked Thomas, who shook his head.

  ‘That’s not sufficient.’

  Taft then outlined the issues that needed to be considered. ‘Has prejudice arisen and how is it overcome? Can it be overcome immediately?’ This is in the interests of the complainant as well as the accused, he said firmly. ‘Justice delayed is justice denied.’

  As the judge got up, we all stood. Disappearing into a room behind the court, he pulled the door hard behind him, black gown swishing furiously. If it wasn’t one of those heavy, slow-shutting ‘unable to vent one’s frustration’ doors, I’m sure it would have slammed.

  *

  Later, when Taft returned to the court, Thomas stood up to announce that the Google link and image had ‘elevated, rather than receded.’ Quill tried to reassure the court, saying that while his client didn’t yet have exact numbers, he had been told that the maximum time the story and image were online was twenty minutes, while views were in the ‘single digits.’

  ‘What about the Google link?’ asked Taft.

  Quill looked back at his assistant, who darted out of the room.

  The day avalanched onwards. There was adrenaline running through the Dyer camp – well, through everyone but Justin, who sat quietly in the foyer during the breaks watching as his family upped the ante on the drama, speaking to friends on their phones and bringing up the screen shot of the newspaper’s mix-up to show one another. I asked Justin if he wanted the trial to be adjourned – another delay would mean almost two years of his life spent waiting to hear his fate. ‘They,’ he said, gesturing at his lawyers, ‘they think it’s a good thing.’ He rubbed his face, his red-rimmed eyes. ‘I don’t know.’

  *

  It was the 3AW talkshow host Neil Mitchell who had first broadcast the names of the two Collingwood players, Dayne Beams and John McCarthy. He said he identified the pair in the name of fairness, consistency and because ‘secrecy benefited no one’: not to clarify the rumours was unfair to other Collingwood players and in similar situations other football players had been named. ‘So why should Collingwood players be any different here?’

  Football insiders, on the other hand, raged. On his Triple M radio show, the Collingwood president, Eddie McGuire, called Mitchell ‘irresponsible’ and a ‘self-appointed, self-important windbag,’ while the club put out a statement saying it is ‘grossly unfair to name anyone – and [we] will not do so – as the investigation is still in its early days.’

  The AFL and the Players Association also hit out. An AFL statement said that all parties involved were treating the investigation with the utmost importance: ‘But anyone involved in a serious matter like this – whether they play AFL or come from any other walk of life – is entitled to a presumption of innocence and is entitled to not be pre-judged or paraded publicly.’

  After Mitchell named the pair, other media outlets followed suit. The Herald Sun, whose editor had earlier cited a ‘moral issue,’ suddenly felt freed from such inhibitions and published the Collingwood duo’s names and photographs on the front page.

  Mitchell claimed that Collingwood had threatened legal action, and said it was wrong that he could be sued. ‘I believe I can name them as long as I make clear the solid possibility that they’ve done nothing wrong, even if a sexual assault occurred, and we don’t even know that. They may just be witnesses, not participants.’

  ‘He talks of fairness?’ McGuire responded. ‘This is the hypocrisy of Neil Mitchell.’ Mitchell promoted the right of all people to be equal in the eyes of the law, ‘unless they’re someone he wants to name.’

  *

  In 1977, a Columbia University law professor, Vivian Berger, cautioned against ‘sacrificing the legitimate rights of the accused person on the altar of Women’s Liberation.’ Recent decades have seen Western countries introduce much-needed ‘rape shield’ laws. In most instances, this means the complainant’s identity is protected, stemming from the idea that shame is part of a rapist’s power over their victim, a wound that lingers long after the act, and that publishing a complainant’s name would only further that violation.

  Another major protective measure for complainants is the prohibition on their sexual history being brought up in court. In some areas, although this is rare, the name of the defendant is also suppressed until charges have been laid. Queensland, South Australia and the Northern Territory all offer anonymity during committal hearings, but the defendant can be named if the case proceeds to trial. In Victoria and New South Wales, the homes of the AFL and NRL, there are no restrictions on naming the accused.

  ‘It’s a permanent stain,’ I’d said to Glenn Davies when he argued police ought to lay charges for rape just as they would for any other crime. ‘You can’t rub it off.’ Ironically, I’d used language more associated with a rape victim than a person accused of rape. Stigma and shame are hallmarks of rape, both during and in the aftermath.

  ‘I felt like everyone was looking at me and talking about me,’ Justin said of his increasing fear of going out. Good, some people may say. Serves him right. And often, in the minds of many working in the area of sexual assault – counsellors, prosecutors and police – trial by media may be the only ‘true’ justice available to victims of rape. In the Age, Marg D’Arcy, from Melbourne’s Centre Against Sexual Assault, had told the sex therapist and clinical psychologist Bettina Arndt that defendants ought to be named because the chance of prosecution in sex crimes is so low that ‘victims take solace from public naming of the accused.’

  ‘A little bit of him is being held accountable,’ said D’Arcy, adding that she was convinced most defendants deserved it. ‘What we are dealing with in relation to sexual assault is far from innocent men being wrongly charged. The huge majority of men who commit sexual assault never, ever come anywhere near the courts.’

  Others, such as Germaine Greer, are so disillusioned with the outcome of rape cases that they have suggested victims bypass the legal system altogether and use the media to ‘name and shame’ rapists online instead of reporting the crime to police. Speaking in Britain two years ago, where, at the time, the conviction rate of rapes recorded by police was 6 per cent, Greer said, ‘I wish there were an online rapists register and that it was kept up to date, because we know the courts can’t get it right.’

  In July 2012, an American teenager, Savannah Dietrich, faced jail time for tweeting the names of her attackers, who had pleaded guilty to sexually assaulting her after she passed out at a party. Months later, she learned that graphic pictures of the assault and of her semi-undressed were taken and shared with others.

  Dietrich took to her Twitter account during the trial in a Kentucky juvenile court after she learned the two boys had been offered, to her mind, a le
nient plea deal – community service and undergoing a sex offender treatment course. Their criminal records would be immediately expunged once they turned twenty. In turn, Dietrich was informed of a gag order on speaking about the case.

  ‘They said I can’t talk about it or I’ll be locked up,’ one of her tweets read. ‘So I’m waiting for them to read this and lock me up. Fuck justice.’

  ‘If reporting a rape only got me to the point that I’m not allowed to talk about it, then I regret it,’ she wrote on her Facebook wall. ‘I regret reporting it.’

  Her tweets produced a groundswell of support. The media swamped her and, unusually, were able to report her name after she told journalists that she wanted her case to be public, that she had no faith in the court system.

  What, though, if the accused is innocent? Is it okay to sacrifice a few good men for the greater good? And if someone misuses the power of such an accusation, does a defendant have any protection against that?

  Adding to the difficulty, similar but clashing considerations often produce a stalemate in rape cases. That some believe rape defendants ought to be hung out to dry in a public forum because conviction is highly unlikely is also why a defendant ought not to be named. The charges, the allegations, can’t be rubbed out. As the public has become more educated about rape, it is widely understood that the low rate of rape convictions is less about whether a rape happened or not than whether it can be proven. So when a defendant walks free from a court, the cloud hanging over him walks out with him.

  *

  Quill’s assistant returned to the courtroom: the numbers were in.

  The article was up for twenty-three minutes between 10 and 11 p.m., Quill said, and although he was unable to get an exact number of homepage views, they had calculated an average. In that hour, the homepage was viewed 16,139 times, which worked out to over 6000 views in twenty-three minutes, while the link to the actual article was clicked on 1377 times. Google had acceded to the takedown request, but, Quill explained, some people might still have cached versions on their computers.