by Bri Lee
How else was I supposed to get through Christmas with Samuel sitting on the floor beside me and the tree, among my loving and generous family? How else could I have been alright inviting him to my eighteenth birthday party so that my brother had a friend there? I told myself: He mustn’t be a bad person otherwise everyone else would see him and hate him too. The thing he did wasn’t malicious, just negligent. For a long time—from childhood until the year of my associateship—it was me who needed to shift my thinking to accommodate him and his crime into my life as a young woman.
Out there in Gympie, the morning after that German boy was sentenced, jogging among the headstones, I grappled with those old fears. At some point in the past few years between twenty and twenty-three I had realised that I wouldn’t ever molest a young boy, and the thought alone seemed absurd. The thought of being sexually attracted to a prepubescent boy made me recoil, let alone acting on an associated desire without his consent. But I still felt that deposit inside me and worried that without attention it would calcify. I pushed myself up the hill and dug deeper. Why was I attracted to men but not boys, and where did I draw that line? I would have sex with someone younger than me, yes. I would have sex with someone who was eighteen or seventeen, maybe, if they seemed quite mature and were initiating contact. To go to sixteen, the legal age of consent in Queensland, was a stretch. I thought of what boys were like at that age and, now that I was older, the gap seemed insurmountable. What was I missing?
Rising over the crest of the golf course took my heart rate up to 184, and I pictured myself kissing Vincent. He was the control test—the man guaranteed to fill me with desire. Why would I leap into bed with him, but not with fifteen-year-old him? Drill down, girl. I ran harder. Why did Samuel want to touch you when you were a child? Why don’t you feel attracted to young people? What’s the difference between you? I clutched my chest, a stitch forming, and thought about when I felt the most sexy: when I was being chased, when I was pursued and receiving constant reassurances of my desirability. Maybe I would sleep with a very young man if he chased me hard enough, if I felt wholly convinced that he resolutely desired me. But even with an eighteen- or 21-year-old, I wouldn’t coerce. I don’t think I’d be attracted to a young man if he had drunk enough to compromise his decision-making capacity. The two were connected—some kind of agency was missing. A mental component that connected age and consent, and therefore attraction, for me.
I charged forward, pushing through the pain, my throat wheezing for breath, through the final few hundred metres home. I imagined myself touching a boy, imagined Samuel touching me, and I understood them to be different things. My shoes hit the gravel outside the front door of my strange, temporary home and I fell to my knees, gasping, willing myself to picture an image of me as an abuser, pushing myself to imagine that as a desire, but it did not come.
I rolled onto my back and felt the cold, sharp stones on my skin; the sky was such a bright blue it made my eyes water. I couldn’t ever do what Samuel had done. I was incapable of being gratified by someone afraid and unwilling. I didn’t want that. I felt sure I would never want that. It wasn’t even a question of putting my own pleasure above someone else’s—it was a case of mutual exclusivity. The other human being afraid and confused would immediately cancel out my arousal. If I were on a trampoline in the back of a friend’s yard, with the opportunity to gratify myself with no consequences, at the cost of betraying the sanctity of another human being’s bodily autonomy, I would not do what Samuel had done.
In this way, he and I were fundamentally different. I registered that there are three distinct elements required for a person to act the way he did: he wanted to molest me, he didn’t fear consequences for doing so, and he didn’t care about my life. I might never understand why someone finds a particularly young person attractive, but it was a mistake to think that Samuel’s dealings with me existed in a vacuum. Every act of sexual abuse is either deliberately or negligently cruel: each involves a terrified victim whose life experience an abuser completely devalues. I could never overcome that harm; I could never, not even negligently, inflict that kind of damage.
I felt myself lightened, or somehow unchained. Samuel hadn’t created any irrepressible bond between us. It was only my own fears unilaterally keeping that imagined connection alive. He had deposited an experience into my lifetime, and that experience was now a memory I couldn’t forget, but it wasn’t an unknowable, mysterious, evil thing. There was space inside me for it to live alongside all my other memories and thoughts and feelings. I would never beat the demon, I could not exorcise it, I would simply learn to live above it.
That morning I felt myself not only connected to my body, but more within it. I lay there on the gravel, my breath rising in puffs, steam coming off my body, newly comfortable.
It seemed fitting, in some sick way, after my rumination on responsibility and victimhood, that our next big sentence in Gympie would be for child exploitation material. Again with the almost-always men having the almost-always same excuses. Defence danced around what they wished they could say: that he didn’t really do it. He just looked at it.
Megan had a case once where a man—the head of a big, reputable company—had printed out pictures of children as young as three being raped, printed out pictures of his own stepchildren, and cut out the faces of his stepchildren, stuck them to the bodies of children being raped, and then printed his own face and stuck it on the man in the pictures, and masturbated to the unique collages. His defence barrister went all the way, making the submission that his client had gone to such lengths in order to relieve himself and not ‘risk’ acting on such desires with the stepchildren in real life.
Megan and I spoke for a long time about the moral and philosophical implications of this case. It was basically the most extreme example of the defence of every person charged with possessing CEM—that it was better they did it to images of kids, rather than actual kids. Each one argued they were special or unique, that their case was different, that their predilections didn’t have a big effect on the supply-and-demand chain of the production and dissemination of such content. Judge had a drafted response that he tweaked a little for every CEM sentence that came along, such was their lack of originality.
Commonwealth prosecutors had to be flown in to deal with the cases, and special task forces were set up to deal with investigations. People weren’t allowed to work in certain departments for more than a few years.
‘One of them told a friend of mine that in his three years there he watched a kid growing up through the videos,’ Megan told me once. ‘That they just couldn’t find where these particular videos were being made, and they saw these kids over and over again, getting older and older.’
I groaned and rubbed my eyes, hard.
‘Judge says we’re putting the wrong people in gaol,’ Megan added.
Another associate, Rita, was there with us. ‘I saw some CEM once where they were eating a baby,’ she said. ‘Well, I didn’t see it myself, you know, because of the envelope, but that’s what it was.’
Megan and I were speechless.
The prosecutor handed up a folder to the old bailiff that included a ‘representative mix’ of the thousands of images they’d found on the defendant’s hard drives.
The bailiff went to pass it to me but Judge interrupted. ‘Straight to me, please,’ he said, reaching out, and the court seemed to hold its breath as he took a moment to open the envelope and consider its contents. We all hung our heads.
‘Have you reviewed this sample?’ Judge asked the barrister.
‘I have not, your Honour, and I would prefer not to, unless your Honour requests I do so. I trust my learned friend’s selection of the materials as being representative and I’m prepared to make oral submissions on the nature of the content.’
How bad would it have to be, that your own barrister doesn’t want to look at what you’ve done? We all sat quietly for another moment while I heard Judge flipping through the phot
os behind me.
‘Yes,’ Judge said, and I turned and accepted the envelope he was passing down to me. It was physically heavy: an uncomfortable weight. I placed it in front of me, and put its identifying sticker on the front of it, and was overcome with curiosity, so I turned it over. Then relief flooded through me when I saw Judge had already sealed it.
Dad had once told me that when he’d been on the scene of a car accident, he’d noticed that traffic didn’t get bad because one lane was blocked, traffic quickly backed up because every driver who went past slowed to get a good look at the mangled vehicles and bodies. I was one of those pathetic, gross people, like everyone else.
Whether I looked in the envelope or not didn’t make much difference, all of us there in the courtroom still had to hear almost an hour of horrific descriptions of the images this man had downloaded. What was worse: seeing the images and having them seared on your mind, or having them described to you, one after the other, allowing time for your mind to fill in the gaps, to imagine the terror, to grapple with the whys and whos that screamed out from the gaps in the story?
The defendant’s barrister said that the defendant only liked the ‘non-violent stuff’ and the stuff where the girls looked around sixteen, and when it ‘didn’t look like there was no consent’, but I didn’t think anyone was convinced. He would masturbate two or three times a day, swapping material with other people around the world via an image-sharing database in Russia. There was an international network of 151 users and 55,185 files. He was forty-something, never married, no children. There was a feeling in the courtroom while we all listened that I can only describe as a moral mugginess: instead of moisture in the air it was a reminder of how shit humans can be, and we were all swimming around in it, trying to take showers but still stinking of it at the end of the day.
The barrister read out an email in which the defendant wrote of comparing and sharing files with someone else in his network, and of opening a folder and looking at the images. He said to the correspondent, Nah, these ones are too young for me.
I glanced across to the man in the dock and saw him flinch. I like ten and up, budding boobies, he had written. He was shaking his head, grimacing. Was he actually disgusted with himself or was this a show? Had he been disgusted while he was downloading and sharing the pictures or had our public airing of his actions given rise to his shame? The security officer to the left of the dock had the corners of his mouth turned down too, his hands clasped tight in front of him. I was glad I didn’t have to be that near the defendant.
‘This is the kind of conduct that fosters and encourages the feeding of the industry,’ Judge said in his sentencing, and the man went to gaol.
‘I think maybe I’m more upset about this stuff than I am about the actual physical offending sentences,’ I said to Judge when we were packing up for the day. ‘Why is that?’
‘I think part of it is the sheer volume of the material. This guy had thousands of those images,’ he said, ‘and they all do, and they try to say that it’s less serious, or maybe they think that it’s less serious, because it’s not “really” them.’
‘At least they seem to plead?’ I said, trying to look at the positive side.
‘Well, how could they not?’ he replied. ‘It’s all sitting there on their computer. What are they going to do, say that someone else downloaded it all and collected it all, over years, on their computers, without them knowing?’
‘I am really creeped out by how he kept his records, too,’ I said, and to that Judge just nodded—what could he say?
The defendant had listed files and folders with special names to refer to the different ages of the children. Some folders only contained photos and videos of particular children, some of these so full that there could be no doubt he actively sought out material they individually featured in. It plagued my mind—were some children more sought-after than others within these networks? Were there trends and patterns for what kind of material was most popular?
The prosecutor had read out some of a search history that the defendant hadn’t realised was being logged, and his predilections were cruel and unusual, and they were also specific. He sat in the dock and didn’t look up once until he was called upon to stand in front of Judge to receive his sentence. I searched his face. How could you have known, if you met him somewhere else, that he was this kind of man?
I thought a lot about Judge’s words while out there in Gympie: How could they not plead guilty? If only there were a way to get to that stage with person-to-person offending. If some day, somehow, we could get to a point where sentences, instead of trials, were the norm for all sex offenders.
In Queensland if something illegal is found on your computer, it’s as if someone was speeding in your car—or, more accurately, it’s as though the cops have found drugs in your house. The law presumes you have control over your house, and your car, and therefore presumes you were the one speeding, or that you had possession of the drugs, unless you present an adequate alibi or find the guilty party to front up to court. It’s odd and rather illuminating that people become so outraged when the prospect of positive consent requirements for sexual acts might be legislated. ‘You can’t shift the presumption of innocence!’ they kick and scream, but we already do, in lots of different areas of the law, all the time. We all know and agree that to drive a car is to have control over a monumentally dangerous thing, and if something goes wrong and somebody gets hurt, we ask, ‘Who had control over that thing?’ and we find the owner and say, ‘This is your responsibility, prove it wasn’t.’ Driving and sex are both privileges granted at certain ages, both can do irreparable damage when done recklessly, but only driving requires tests, checkpoints and licences.
I don’t understand why the government—at schools and through public education programs—doesn’t teach people about consent the way we teach them about drink-driving. After all, overconsumption of alcohol often leads to horrific consequences in both activities. Why can a man be charged with negligent, reckless driving after getting himself drunk, but he can argue that the same level of voluntary intoxication led him to honestly and mistakenly believe a woman consented to intercourse, and be acquitted of a rape charge accordingly?
‘Hypothetically,’ I said to Megan once, ‘a man could drink-drive with a woman in the passenger’s seat, and crash the car, and they are both on the side of the road, and he could rape her while she’s unconscious, and then go to court and use the alcohol as a defence for the rape, saying he mistakenly thought she consented, while it is used against him for the dangerous driving.’
‘Yep.’
‘And a wreck of a car is evidence, but the wrecked body of a woman isn’t, because women lie.’
‘Yep.’
Rebecca was the solicitor for one matter in our second week at Gympie. A man was charged with sexual assault and wouldn’t plead guilty, and so we had it listed for trial on the Tuesday. Things were odd, though. Everything on the court and prosecution side was ready to go, and then we found out the defendant, Mr Lang, had experienced a seizure. Things got put on hold for about an hour. Some paramedics attended and informed counsel that it wasn’t a seizure but a panic attack. I received a note through the bailiff a further thirty minutes later: Mr Lang has been given medication and conferenced again. He now understands his instructions. Ready.
Mr Lang was extremely worried he’d be going to gaol. He sat in the dock with such confusion on his face and I watched as he bit his lips furiously. I read over his report: oxygen deprived at birth, over ten siblings, abusive father. He had seizures and panic attacks regularly and couldn’t read or write. For a moment I thought to myself, Well of course he’s in court, what a start in life, but then I started wondering what Judge would do with him. If a person’s drink is spiked and they involuntarily imbibe a substance that renders them unable to control their actions or realise the incorrectness of their actions, they can’t be held culpable. But what of people born with foetal alcohol syndrome? Low
intelligence and behavioural problems are two of the most common side-effects for those born with their entire life spiked. Where did this defendant’s responsibility for his actions fall? What would be the use of or reason for punishing him too severely?
Then I heard the prosecutor repeat what the defendant had said at the time of the offending. ‘You’ve had the rest, now have the best,’ he told her, blocking her exit and groping her, forcing her to kiss him. He had waited to make his move until she was at home alone with her newborn baby. The woman said she was now having difficulty being intimate with her husband, that this man had made her feel unsafe in her home.
Defence put forward a ‘gentle giant’ plot line: the defendant just ‘didn’t know his own strength’ or just ‘didn’t understand’. This reminded me of a case I’d studied in law school, about a man who was quite far along on the autism spectrum whose counsel successfully argued that because of his condition he couldn’t read the facial expressions or noises the complainant was making to communicate to him that she didn’t consent to intercourse, and he raped her and was acquitted because he had an honest and reasonable belief that she did consent. But how did that hold up to evidence about how women on the spectrum are diagnosed significantly less frequently than men because all women are raised to have to interpret social cues a lot more than men? Women on the spectrum are held to higher standards of learned emotional intelligence than men.
Were men like this defendant in Gympie getting away with assaulting women because nobody expected any better of them? Wasn’t that just offensive to everyone?